Abstract
The African Union Assembly of Head of States and Governments, in June 2014, adopted the Malabo Protocol empowering the African Court of Justice and Human Rights with international criminal jurisdiction. While this is a welcome development in the pursuit of criminal justice for human rights violations in Africa, it has however been overshadowed by academic indifference, mostly with regards to discrepancies that may arise in the jurisdictional relationship between the already existing International Criminal Court and the Proposed African Criminal Court. As such, while the coming into force of the African Criminal Court still awaits fruition, its possibility has garnered scholarly debates supporting and opposing the African Criminal Court having the mandate to prosecute international crimes. This chapter explores relevant provisions of the Malabo protocol, and the ideal of regionalizing the enforcement of international criminal law. Extrapolating from these, the chapter addresses from a neutral perspective whether the proposed African Regional Court is a feasible option within the existing framework of international criminal justice.
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Notes
- 1.
African Union Assembly 2014.
- 2.
African Union Assembly 2013c.
- 3.
Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, 27 June 2014 (Malabo Protocol).
- 4.
Murungu 2011, pp. 1067–1088.
- 5.
- 6.
- 7.
Du Plessis 2012.
- 8.
- 9.
Ibid.
- 10.
- 11.
- 12.
Bassiouni 2020, p. 253.
- 13.
Ibid., pp. 254, 262.
- 14.
Ibid., p. 262.
- 15.
Ibid., p. 265.
- 16.
Treaty of Peace between the Allied and Associated Powers and Germany, 28 June 1919, Articles 227–228.
- 17.
Bassiouni 2020, p. 280.
- 18.
Treaty of Peace between the Allied and Associated Powers and Turkey, 10 August 1920, Articles 226–230.
- 19.
- 20.
European international jurists and lawyers tried establishing an international criminal court during the 1920s. This was motivated by the rejection of an international criminal court by the Council of Four, the discouraging results of domestic prosecution for war crimes and the desire to complete the League system with an international criminal jurisdiction. See Lewis 2014, p. 78.
- 21.
Ibid., pp. 95–97.
- 22.
Ibid., p. 97.
- 23.
Ibid., p. 96.
- 24.
Ibid., p. 79.
- 25.
Ibid., p. 108.
- 26.
Ibid., p. 110.
- 27.
- 28.
Ibid.
- 29.
Rosen 2017.
- 30.
Schabas 2014, p. 173.
- 31.
Von Lingen 2014, p. 60.
- 32.
Ibid., pp. 18–19.
- 33.
The St. James Declaration of 1942 established the United Nations War Crimes Commission, while the scope of its mandate was determined by the Moscow Declaration of 1943. See Ellis 2014, p. 192.
- 34.
This was made possible due to the continuity of its members, the forum of discussion for the establishment of an international court to try war criminals shifted to the UNWCC. See Von Lingen 2014, pp. 66–67.
- 35.
The UNWCC was tasked with the mandate to: (i) collect, investigate and record evidence of war crimes, identifying where possible the individuals responsible; (ii) report to the Government concerned cases where the material available appeared to disclose a prima facie case; (iii) act as a Committee of Legal Experts charged with advising the Governments concerned upon matters of a technical nature, such as the sort of tribunals to be employed in the trial of war criminals, the law to be applied, the procedure to be adopted and the rules of evidence to be followed. See Ellis 2014, p. 94.
- 36.
United Nations General Assembly 1949, p. 20.
- 37.
Ibid.
- 38.
The Enforcement Committee was set up for “the detection, apprehension, trial and punishment of suspected war criminals”. Ellis 2014, p. 194.
- 39.
Schabas 2014, p. 183.
- 40.
Agreement for the prosecution and punishment of the major war criminals of the European Axis, United Nations, 8 August 1945 (London Agreement).
- 41.
Ibid., Article 1.
- 42.
The International Military Tribunal for the Far East; Special proclamation by the Supreme Commander tor the Allied Powers at Tokyo, 19 January 1946 (Tokyo Charter).
- 43.
London Agreement, Article 6.
- 44.
Pedrazzi 2014.
- 45.
- 46.
Boot 2002, p. 312.
- 47.
- 48.
- 49.
Schabas 2017, p. 9.
- 50.
United Nations Security Council 1992, para 2.
- 51.
Bassiouni 1994, p. 280.
- 52.
United Nations Security Council 1993, para 10.
- 53.
- 54.
Schabas 2017, p. 12.
- 55.
Cassese et al. 2002, p. 16.
- 56.
Ibid., p. 36.
- 57.
Ibid., p. 37.
- 58.
Ibid., pp. 37, 45–46.
- 59.
Cassese et al. 2002, p. 46.
- 60.
United Nations Treaty Collection, opened for signature (17 July 1998), entered into force (1 July 2002). Rome Statute of the International Criminal Court. See preamble to the Statute.
- 61.
Ibid., Article 12.
- 62.
Ibid., Articles 12(3), 13.
- 63.
Burchill 2010, p. 209.
- 64.
Nye 1968.
- 65.
Burchill 2010, p. 209.
- 66.
- 67.
Méndez 2009.
- 68.
Cordini 2018, pp. 261–276.
- 69.
Méndez 2009.
- 70.
Emphasis added.
- 71.
Burke-White 2003, p. 733.
- 72.
Ibid., pp. 733–743.
- 73.
Ibid., pp. 748–755.
- 74.
Ibid., p. 749.
- 75.
Ibid.
- 76.
Alter 2014.
- 77.
Burke-White 2003, p. 749.
- 78.
Ibid., p. 750.
- 79.
This provision can be read in conjunction with the Rome Statute, Article 62.
- 80.
See Burke-White 2003, p. 751.
- 81.
Rules of Procedure and Evidence of the International Criminal Court 2000, rule 100(1), (RPE).
- 82.
Rome Statute, Article 38(3). See also Burke-White 2003, p. 751.
- 83.
RPE, rule 100(3).
- 84.
ICC, Prosecutor v. Lubanga, Decision on disclosure issues, responsibilities for protective measures and other procedural matters, 24 April 2008, ICC-01/04-01/06-1311-Anx2, para 105.
- 85.
Burke-White 2003, p. 751.
- 86.
Princeton Principles on Universal Jurisdiction 2001, p. 28, prin. 1(1). http://hrlibrary.umn.edu/instree/princeton.html. Accessed 21 November 2021.
- 87.
Ibid.
- 88.
Burke-White 2003, p. 752.
- 89.
Murungu 2011, p. 1069–1072.
- 90.
Council of European Union 2009, para 37.
- 91.
Ibid., R2.
- 92.
Burke-White 2003, p. 752.
- 93.
Ibid., p. 753.
- 94.
Nouwen 2006, pp. 190–192.
- 95.
Ibid.
- 96.
Burke-White 2003, p. 752.
- 97.
Agreement for and Statute of the Special Court for Sierra Leone, 16 January 2002, Article 2.
- 98.
- 99.
- 100.
Inter-American Commission on Human Rights Resolution No 1/03 on Trial for International Crimes. http://www.cidh.oas.org/resolutions/1.03.int.crimes.resolution.htm. Accessed 21 November 2021.
- 101.
Committee of Eminent African Jurists 2006.
- 102.
ICC-Assembly of State Parties 2014.
- 103.
Withdrawal Strategy Document 2017, para 8. https://www.hrw.org/sites/default/files/supporting_resources/icc_withdrawal_strategy_jan._2017.pdf. Accessed 21 November 2021.
- 104.
Malabo Protocol, Article 1.
- 105.
See Malabo Protocol, Articles 28B, 28C, 28D vis-à-vis Rome Statute, Articles 6–8.
- 106.
See London Agreement, Articles 5 and 8; Tokyo Charter, Articles 5 and 6; Statute of the International Criminal Tribunal for the Former Yugoslavia, 25 May 1993, Articles 4, 5 and 7 (ICTY Statute) and Statute of the International Criminal Tribunal for Rwanda, 8 November 1994, Articles 2, 3 and 6 (ICTR Statute).
- 107.
See Malabo Protocol, Article 31 vis-à-vis Statute of the International Court of Justice, 18 April 1946, Article 38.
- 108.
Amnesty International 2016, p. 15.
- 109.
African Union Commission 2010.
- 110.
Ibid.
- 111.
Ibid.
- 112.
Jalloh 2017, pp. 799–826.
- 113.
Ibid.
- 114.
Ibid.
- 115.
Ibid.
- 116.
- 117.
- 118.
Compare the provisions of the Malabo Protocol, Articles 28(B)(C)(D)(M) and the Rome Statute, Articles 6–8 and 8Bis.
- 119.
Malabo Protocol, Article 28B (f).
- 120.
ICTR, Prosecutor v. Jean-Paul Akayesu, Judgement, 2 September 1998, ICTR 96-4-T, para 731.
- 121.
Ibid., para 698–734.
- 122.
Ibid.
- 123.
See Malabo Protocol, Articles 28C (1)(2); Rome Statute, Article 7 (1)(2).
- 124.
Malabo Protocol, Article 28C (2)(a).
- 125.
Van den Herik et al. 2017, p. 5.
- 126.
Malabo Protocol, Article 28D
- 127.
Ibid., Article 28D (a) and (c).
- 128.
(i) Unjustifiably delaying the repatriation of prisoners of war or civilians, (ii) wilfully committing practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination, (iii) making non-defended localities and demilitarized zones the object of attack, (iv) slavery and deportation to slave labour, (v) collective punishments (vi) despoliation of the wounded, sick, shipwrecked or dead and (vii) intentionally launching an attack against works of installation containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects which will be excessive in relation to the concrete and direct overall military advantage anticipated.
- 129.
(i) intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies, (ii) utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations, (iii) launching an indiscriminate attack resulting in death or injury to civilians, or an attack in the knowledge that it will cause excessive incidental civilian loss, injury or damage, (iv) making non-defended localities and demilitarised zones the object of attack, (v) slavery, (vi) collective punishments, (vii) despoliation of the wounded, sick, shipwrecked or dead.
- 130.
Ibid.
- 131.
Sayapin 2019.
- 132.
Ibid.
- 133.
Asaala 2017.
- 134.
Malabo Protocol, Article 46C
- 135.
See Malabo Protocol, Article 28C.
- 136.
Ibid.
- 137.
Malabo Protocol, Article 28M (B) (h).
- 138.
ICJ, Nicaragua v. United States of America, Judgement, 27 June 1986, paras 75–125, 187–209, 227–245.
- 139.
Ibid.
- 140.
Malabo Protocol, Article 28M.
- 141.
Van den Herik et al. 2017, p. 7.
- 142.
Grand Bay (Mauritius) Declaration and Plan of Action 1999.
- 143.
Van den Herik et al. 2017, p. 7.
- 144.
Werle and Vormbaum 2017.
- 145.
Malabo Protocol, Article 28N (i).
- 146.
Nuremberg Tribunal Judgment and Sentence 1947, p. 221. See also ICTY Statute, Article 7; ICTR Statute, Article 6; Rome Statute, Article 25. Although during the negotiation of the Rome Statute before its adoption, there was a proposal put forward by the French delegate to extend the personal jurisdiction of the ICC to include legal persons, this proposal was withdrawn on two main grounds: (i) the lack of uniformity in domestic legislation recognising corporate criminal liability; (ii) the issue of complementarity, as domestic jurisdiction did not want a situation where it will be deemed that because they were unable or unwilling to prosecute the corporation, the ICC would have jurisdiction to do so by reason of Article 17. See Haigh 2008, p. 202; Clapham 2000.
- 147.
Malabo Protocol, Article 46C.
- 148.
Constitutive Act of the African Union, opened for signature (1 July 2000), entered into force (26 May 2001) (Constitutive Act), Article 4(h) and (o).
- 149.
African Union Assembly 2013a.
- 150.
Ibid.
- 151.
- 152.
African Union Assembly 2013a, para 5.
- 153.
Ibid., para 4. See also African Union 2013b, para 4.
- 154.
- 155.
International Commission of Jurists 1961.
- 156.
Organization of African Unity 1981, para 117.
- 157.
Organization of African Unity 1979.
- 158.
The Protocol was adopted on 9 June 1998, entered into force 25 January 2004 after ratification by 15 states. By 2014 the Protocol had been adopted by 27 out of 54 AU Member States.
- 159.
The Jurisdiction of the African Court on Human and Peoples Rights is to adjudicate on all cases and disputes submitted to it concerning the interpretation and application of the African Charter, the enabling protocol and any other relevant human rights instruments ratified by the States concerned and equally providing advisory opinions on any legal matter relating to the African Charter or any other relevant human rights instruments. See Protocol on the African Court on Human and Peoples’ Right. Opened for signature (9 June 1998), entered into force 25 January 2004.
- 160.
This court was to preside over matters of interpretation arising from the application or implementation of the AU Constitutive Act. This includes adjudication of matters related to economic integration and matters of a political nature, such as border disputes. See Protocol of the Court of Justice of the African Union, opened for signature (1 July 2003), entered into force (11 February 2009).
- 161.
- 162.
Ibid., Amnesty International 2016.
- 163.
Committee of Eminent African Jurists 2006.
- 164.
Murungu 2011, p. 1069–1072.
- 165.
Amnesty International 2016, p. 9.
- 166.
Council of European Union 2009, para 37.
- 167.
- 168.
African Union Assembly 2008, para 9.
- 169.
Amnesty International 2016, p. 9.
- 170.
Ibid.
- 171.
African Union Assembly 2012d, para 2.
- 172.
African Union Assembly 2012a.
- 173.
African Union Assembly 2012b, para 12.
- 174.
Amnesty International 2016, p. 10.
- 175.
African Union Assembly 2012c, para 2.
- 176.
Ibid., para 3.
- 177.
African Union Assembly 2019, para 7.
- 178.
Ibid., para 13.
- 179.
African Union Assembly 2012a, p. 5, para X, No. 16.
- 180.
Ibid., No. 22.
- 181.
Malabo Protocol, Article 46E.
- 182.
Ibid., Article 46F (1).
- 183.
Ibid.
- 184.
Rome Statute, Article 14 (1).
- 185.
Ibid., Article 14(2).
- 186.
Malabo Protocol, Article 46F (2).
- 187.
Constitutive Act, Article 6; Nerlich 2017, p. 179.
- 188.
Constitutive Act, Article 7(1); Nerlich 2017, p. 179.
- 189.
Protocol relating to the establishing of the Peace and Security Council of the African Union, opened for signature (9 July 2002), entered into force (26 December 2003), Article 2(1).
- 190.
Ibid., Article 6(a) and (d).
- 191.
Ibid., Article 7(e).
- 192.
Akande 2003.
- 193.
Malabo Protocol, Article 46G (1).
- 194.
Ibid., Article 46G (2).
- 195.
Ibid.
- 196.
Ibid., Article 46G (3).
- 197.
Nerlich 2017, p. 182.
- 198.
Malabo Protocol, Article 46G (6).
- 199.
Ibid., Article 46E bis.
- 200.
ICC, Prosecutor v. Ruto, Kosgey and Arap Sang, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, 30 August 2011, ICC-01/09-01/11 O A, para 37–340; ICC, Prosecutor v. Muthaura, Kenyatta and Ali, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, 30 August 2011, ICC-01/09-02/11 O A, para 36–39. See also Rastan 2017, pp. 9–10. Where the Chamber stated that concrete cases “are defined by the warrant of arrest or summons to appear used under Article 58 or charges brought by the prosecutor and confirmed by the Pre-Trial Chamber under Article 61…thus, the defining elements of a concrete case before the Court are the individual and the alleged conduct. It follows that for such a case to be inadmissible under Article 17 (1) (a) of the Statute, the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court. However, the Chamber did not define a potential case. It might be assumed that this silence was due to the fact that the Pre-Trial Chamber and in a rather vague manner examined the admissibility of potential case. The Pre-Trial Chamber in its decision authorising an investigation in Kenya opined that “admissibility at the situation phase should be assessed against certain criteria defining a "potential case" such as: (i) the groups of persons involved that are likely to be the focus of an investigation for the purpose of shaping the future case(s); and (ii) the crimes within the jurisdiction of the Court allegedly committed during the incidents that are likely to be the focus of an investigation for the purpose of shaping the future case(s) …..this means that the Prosecutor's selection on the basis of these elements for the purposes of defining a potential "case" for this particular phase may change at a later stage, depending on the development of the investigation”. See ICC, Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, ICC-01/09, para 50. See also Jon Heller’s opinion on substantially same conduct requirement with respect to situations in Jon Heller 2016, p. 644.
- 201.
- 202.
Abass 2017, p. 21.
- 203.
Committee of Eminent African Jurists 2006, para 35.
- 204.
Abass 2017, p. 22.
- 205.
Ibid., p. 21.
- 206.
- 207.
African Union Transitional Justice Framework, para F.3.1.1. https://www.legal-tools.org/doc/bcdc97/pdf/. Accessed 25 January 2021. See also Naidoo and Murithi 2016, p. 4.
- 208.
The non-inclusion of such crimes in the jurisdiction of the Court could be attributable either to a perception among a vast majority of ICC States Parties that such acts do not constitute international crimes at all, or to a perception that these international crimes are not “serious” enough for the purposes of the International Criminal Court.
- 209.
Constitutive Act, Article 4(p). See also the African Charter on Democracy, Elections and Governance, opened for signature (30 January 2007), entered into force (15 February 2012), Article 25(5).
- 210.
Van der Wilt 2017, p. 1.
- 211.
Bertram-Nothnagel 2016, p. 372.
- 212.
Burke-White 2003, pp. 733–743.
- 213.
Ibid.
- 214.
Schabas 2007, pp. 20–21.
- 215.
- 216.
The African Regional Court is to have jurisdiction over all cases and legal disputes relating to the “interpretation and application of the Constitutive Act; (b) the interpretation, application or validity of other Union Treaties and all subsidiary legal instruments adopted within the framework of the Union or the Organization of African Unity; (c) the interpretation and the application of the African Charter, the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, or any other legal instrument relating to human rights, ratified by the States Parties concerned; (d) any question of international law; (e) all acts, decisions, regulations and directives of the organs of the Union; (f) all matters specifically provided for in any other agreements that States Parties may conclude among themselves, or with the Union and which confer jurisdiction on the Court; (g) the existence of any fact which, if established, would constitute a breach of an obligation owed to a State Party or to the Union; (h) the nature or extent of the reparation to be made for the breach of an international obligation. See the Protocol on the Statute of the African Court of Justice and Human Rights, 1 July 2008.
- 217.
Malabo Protocol, Article 28A (2).
- 218.
London Agreement, Article 7; Tokyo Charter, Article 6; ICTY Statute, Article 7 (2), ICTR Statute, Article 6 (2); Rome Statute, Article 27.
- 219.
Malabo Protocol, Article 46A Bis.
- 220.
ICJ, Democratic Republic of the Congo v. Belgium, Judgement, 14 February 2002.
- 221.
While these immunities have over time been considered by the international community as an essential and legitimate characteristic of international law. The advent of international criminal law on the international stage has brought about a competing good—to prosecute those most responsible for international crimes—with the principle of immunity. Where it was opined that “Crimes against international law are committed by men, not by abstract entities,—and only by punishing individuals who commit such crimes can the provisions of international law be enforced…The principle of international law, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. Article 7 of the Charter expressly declares: "The official position of Defendants, whether as heads of State, or responsible officials in Government departments, shall not be considered as freeing them from responsibility, or mitigating- punishment." On the other hand the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law. See IMT Nuremberg, Judgment, 1 October 1946, para 447.
- 222.
Malabo Protocol, Articles 28E (1)(d)(e) and (f); 28I (1)(h); 28Ibis (1)(i)(ii) and (iii) and 28M (a).
- 223.
Kenyans for Peace with Truth and Justice (2016), p. 20; http://kptj.africog.org/wp-content/uploads/2016/11/Malabo-Report.pdf Accessed 20 January 2021.
- 224.
Ibid.
- 225.
Jackson 2016, p. 1068.
- 226.
Ibid., p. 1069.
- 227.
Ibid., p. 1067.
- 228.
Akande 2003, pp. 625–634.
- 229.
Ibid.
- 230.
Jackson 2016, p. 1071.
- 231.
Murungu 2011, p. 1081.
- 232.
Ibid.
- 233.
Ibid.
- 234.
African Union Transitional Justice Framework, para F.3.1.1. https://www.legal-tools.org/doc/bcdc97/pdf/. Accessed 24 August 2021.
- 235.
ICC-ASP 2014, p. 17.
- 236.
ICC-OTP 2003.
- 237.
This is akin to the provision of the Completion Strategy. The Resolution 1534 of the UN Security Council requires that the ICTY and ICTR prosecutors in the reviewing and the confirmation of any new indictments, ensure that such indictments are with respect to the ‘most senior leaders suspected of being most responsible for crimes’ committed within the jurisdictions of either the ICTY or ICTR. Therefore, this means that before an indictment is being made by any of the ad-hoc tribunals it has to ascertain those indictments which concern intermediate and lower ranked accused be transferred to the respective national jurisdictions for criminal proceedings. Recalling and reaffirming in the strongest terms the statement of 23 July 2002 made by the President of the Security Council (S/PRST/2002/21), which endorsed the ICTY’s strategy for completing investigations by the end of 2004, all trial activities at first instance by the end of 2008, and all of its work in 2010 (ICTY Completion Strategy) (S/2002/678), by concentrating on the prosecution and trial of the most senior leaders suspected of being most responsible for crimes within the ICTY’s jurisdiction and transferring cases involving those who may not bear this level of responsibility to competent national jurisdictions, as appropriate, Urging the ICTR to formalize a detailed strategy, modelled on the ICTY Completion Strategy, to transfer cases involving intermediate- and lower-rank accused to competent national jurisdictions, as appropriate, including Rwanda, in order to allow the ICTR to achieve its objective of completing investigations by the end of 2004, all trial activities at first instance by the end of 2008, and all of its work in 2010 (ICTR Completion Strategy), ICC-OTP 2003, p. 2.1.
- 238.
Ibid.
- 239.
Megret 2005, p. 725.
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Ikpat, E.J. (2023). Is an African Regional Court a Viable Alternative to the International Criminal Court? A Neutral View. In: Sendze, T.B.K., Adeboyejo, A., Morrison, H., Ugwu, S. (eds) Contemporary International Criminal Law Issues. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-555-3_3
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