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Preconditions to the Exercise of Jurisdiction (Article 46Ebis), Exercise of Jurisdiction (Article 46F) and the Prosecutor (Article 46G)

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Part of the book series: International Criminal Justice Series ((ICJS,volume 10))

Abstract

Articles 46Ebis to 46G define the conditions under which the African Court of Justice and Human and Peoples’ Rights may exercise its jurisdiction over the crimes set out in Articles 28A to 28M of the Malabo Protocol (Annex). As such, the provisions are of key importance to the jurisdictional reach of the African Court of Justice and Human and Peoples’ Rights. Articles 46Ebis to 46G are largely modeled upon the respective provisions of the ICC Statute, including the provision on the opening of proprio motu investigations by the Office of the Prosecutor. Nevertheless, compared to the International Criminal Court, the jurisdictional reach of the African Court of Justice and Human and Peoples’ Rights is significantly broadened by the inclusion of jurisdiction based on the passive personality and protective principles. Some of the provisions, however, are in important aspects incomplete and become functional only if interpreted with reference to the corresponding provision of the ICC Statute. Generally, additional procedural rules are likely to be needed to make the African Court of Justice and Human and Peoples’ Rights’ jurisdictional regime fully operational in practice.

The views expressed are those of the author and cannot be attributed to the United Nations or to the International Criminal Court.

All internet sources in this chapter were last visited on 30 June 2016.

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Notes

  1. 1.

    See, for instance, Sections 3–7 of the German Criminal Code, which determines the applicability of that Code to conduct occurring inside and outside Germany. These provisions are complemented by procedural rules governing the exercise of jurisdiction over crimes committed outside Germany by the German prosecutorial authorities; see Sections 153c et seq. of the German Code of Criminal Procedure. See also Ambos 2014, p. 3 et seq.

  2. 2.

    See Ambos 2014, p. 3.

  3. 3.

    See generally Brownlie 2008, p. 291; Ambos 2014, p. 24 et seq.; Cassese 2005, p. 49 et seq.

  4. 4.

    Note, however, that issues of municipal law (in particular, constitutional law) may arise, including in relation to a potential jus de non evocando. Furthermore, it is also perceivable that issues of international human rights law may arise if the international criminal jurisdiction in question does not comply fully with fair trial standards as set out, for example, Article 14 of the ICCPR. In such a situation, exposing a state’s nationals to that international criminal jurisdiction may amount to an (indirect) breach of the human rights obligations of the state in question.

  5. 5.

    See International Court of Justice, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo vs. Belgium), Judgment, 14 February 2002, I.C.J. Reports 2002, 3, at para 61, where the International Court of Justice held that, while incumbent foreign ministers enjoy immunity from prosecution by third states, “an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain International Criminal Courts, where they have jurisdiction.” This finding does not, however, imply that immunities or other restrictions to the exercise of criminal jurisdiction are generally inapplicable as concerns any International Criminal Court. In this regard see further Gaeta 2009, pp. 320–321: “International Criminal Courts are not organs of a particular state; they act on behalf of the international community as a whole to protect collective or universal values, and thus to repress very serious international crimes. Therefore, their jurisdiction cannot be conceived as an expression of the sovereign authority of a state upon that of another state, nor can their judicial activity be considered as a form of ‘unduly’ interfering with the sovereign prerogatives of another state.” It is, however, questionable, whether a court that is an organ of a regional organisation and that is per se not accessible to all states may rely on the same argument in rejecting immunities from prosecution or other limitations of the exercise of criminal jurisdiction under customary international law. For a general critique of this line of argument see Wardle 2011, p. 185 et seq.

  6. 6.

    This distinguishes the African Court of Justice and Human and Peoples’ Rights from the International Criminal Court, which, in terms of Article 125(3) of the ICC Statute, is open to accession by all states, which includes states not members of the United Nations Organization. Accordingly, the International Criminal Court is potentially a universal institution. Indeed, achieving the universality of the ICC Statute is one of the declared objectives of the Assembly of States Parties to the ICC Statute: see, for example, Assembly of States Parties, “Strengthening the International Criminal Court and the Assembly of States Parties”, 17 December 2014, Resolution ICC/ASP/13/Res.5, op. paras 1 et seq.

  7. 7.

    See Article 9(1) of the Malabo Protocol.

  8. 8.

    See Articles 27 and 29 of the Constitutive Act of the African Union, adopted 11 July 2000, entered into force 26 May 2001, UNTS 2158, I-37733.

  9. 9.

    On the drafting of Article 12 of the ICC Statute, see Kaul 2002, p. 593 et seq.; Williams and Schabas 2008a, marg. numbers 1–12.

  10. 10.

    See Du Plessis 2012, pp. 3–4; Murithi 2014, p. 188 et seq.; see also Materu 2014, p. 211 et seq.

  11. 11.

    See also, in relation to Article 12(1) of the ICC Statute, Kaul 2002, pp. 605–606.

  12. 12.

    The text version of Article 46Ebis upon the present analysis is based is the one posted on the official website of the African Union. It is noteworthy that the French version of Article 46Ebis contains the same language, lending further support to the assumption that the gaps in the English version of Article 46Ebis are not merely the result of an editorial mistake, but reflect the authentic version of the Malabo Protocol (Annex).

  13. 13.

    See also Kemp 2014, p. 18, who notes that “the legislative history of the Draft Protocol is rather thin and did not benefit from the input of a diversity of academics, civil society and other interested individuals and groups”, and Du Plessis 2012, p. 11, who notes that “the draft protocol appears to have been rushed into existence, and the result is a legal instrument that raises more questions than it provides answers to Africa’s vast human rights needs.”

  14. 14.

    Emphasis added.

  15. 15.

    The reference to the Article 28A is required because, unlike the situation at the International Criminal Court, states may accept the jurisdiction of the African Court of Justice and Human and Peoples’ Rights with regard to human rights and other matters, but not its criminal jurisdiction.

  16. 16.

    Adopted on 23 May 1969 and entered into force on 27 January 1980, UNTS 1155, I-18232. In particular, it could be said that Article 12(2) of the ICC Statute may serve as a supplementary means of interpretation in terms of Article 32 of the Vienna Convention, to which recourse may be had in the circumstances, given that without such recourse, the meaning of Article 46Ebis(2) remains obscure and leads to a result that would be manifestly absurd.

  17. 17.

    See for instance, Cassese 2005, p. 451; Dugard 2005, p. 151 et seq.

  18. 18.

    Williams and Schabas 2008a, marg. number 15. Similarly, Kaul 2002, p. 608: “the argument that giving the Court jurisdiction over a crime committed in the territory of a State Party by a suspected national of a non-State Party would conflict irreconcilably with the fundamental principle of treaty law that only States that are parties to a treaty are bound by its terms, has been examined intensively and generally been rejected.”

  19. 19.

    The Case of the S.S. “Lotus” (France vs. Turkey), Judgment of 7 September 1927, Collection of Judgments, Series A No. 10.

  20. 20.

    Article 28F(a)(i) and (ii) of the Malabo Protocol (Annex).

  21. 21.

    See Kaul 2002, pp 609–610.

  22. 22.

    See Williams and Schabas 2008a, marg. number 16.

  23. 23.

    See, for instance, Dugard 2005, p. 304: “This is the least justifiable, as a general principle, of the various bases of jurisdiction […].” See also Ambos 2014, pp. 57 et seq., with further references.

  24. 24.

    See Brownlie 2008, pp. 304–305; Dugard 2005, p. 154.

  25. 25.

    See Brownlie 2008, p. 305: “the interpretation of the concept of protection may vary widely.”

  26. 26.

    See, for instance, Sections 153c and 153d of the German Code of Criminal Procedure, which provides the prosecution service with discretion not to institute prosecutions regarding crimes committed outside Germany, as well as generally regarding crimes that affect the security of the state (“Staatsschutzdelikte”).

  27. 27.

    See also Kemp 2014, p. 18, who speaks, in relation to the African Court’s subject-matter jurisdiction, of a “jurisdictional overreach”, which raises, in addition to legal problems, financial and logistical problems.

  28. 28.

    On the immunity clause see Tladi’s chapter in this book.

  29. 29.

    The exact extent of universal jurisdiction regarding these crimes and whether it also extends to the crime of aggression is subject to scholarly debate. See, for instance, Geneuss 2009; Jeßberger 2014, 2015; Lafontaine 2012; Langer 2015; O’Keefe 2004; van der Wilt 2011.

  30. 30.

    See Sections 4(a) read with 12, 13 and 14 of the African Union Model National Law on Universal Jurisdiction over International Crimes, 12 July 2012, EX.CL/731(XXI)c (available at: www.peaceau.org/uploads/ex-cl-731-xxi-e.pdf).

  31. 31.

    See Asaala 2014, p. 43 et seq., Murungu 2011, p. 1069 et seq.

  32. 32.

    1–3 February 2009, Doc. Assembly/AU/Dec.213(XII) (available at: http://www.au.int/en/sites/default/files/decisions/9559-assembly_en_1_3_february_2009_auc_twelfth_ordinary_session_decisions_declarations_message_congratulations_motion.pdf).

  33. 33.

    See Geneuss 2009; Jeßberger 2015; van der Wilt 2011.

  34. 34.

    See Republic of Côte d’Ivoire, Déclaration de reconnaissance de la Compétence de la Cour Pénal Internationale, 18 April 2003 (available at: http://www.icc-cpi.int/NR/rdonlyres/FF9939C2-8E97-4463-934C-BC8F351BA013/279779/ICDE1.pdf).

  35. 35.

    See Ukraine, Declaration on the recognition of jurisdiction, 9 April 2014 (available at: https://www.icc-cpi.int/itemsDocuments/997/declarationRecognitionJuristiction09-04-2014.pdf&ln=en); Ukraine, Declaration of recognition of jurisdiction, 8 September 2015 (available at: http://www.icc-cpi.int/iccdocs/other/Ukraine_Art_12-3_declaration_08092015.pdf); Government of the State of Palestine, Declaration Accepting the Jurisdiction of the International Criminal Court, 31 December 2014 (available at: http://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf).

  36. 36.

    See ICC, Pre-Trial Chamber III, Situation in the Republic of Côte d’Ivoire, “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire”, 3 October 2011, ICC-01/11-14, para 15; Williams and Schabas 2008a, marg. number 17.

  37. 37.

    Notably, genocide, crimes against humanity and war crimes, as well as the crime of aggression.

  38. 38.

    Note also that Article 15(1) of the ICCPR refers to criminal offences under either “national or international law”, raising the question of whether the “exception” in Article 15(2) of the ICCPR is actually required; see Joseph et al. 2004, 469.

  39. 39.

    See in this regard Article 6bis of the Malabo Protocol, according to which upon entry into force of the Malabo Protocol and the Statute as amended by it, the African Court shall exercise the functions of the African Court on Human and Peoples’ Rights or the African Court of Justice and Human Rights (the court to be created by the Protocol on the Statute of the African Court of Justice and Human Rights, 1 July 2008, the so-called “Merger Protocol”, see in the Annex to this book) in relation to Member States of the African Union that have not ratified the Malabo Protocol.

  40. 40.

    An exception applies to the Canary Islands and the territories of Ceuta and Mellila, which are geographically in Africa but held by Spain, which is not a member of the African Union.

  41. 41.

    In this regard, it is recalled that attempts to extend the International Criminal Court’s jurisdiction to crimes such as terrorism and drug trafficking have so far failed.

  42. 42.

    On the interpretation of Article 19 of the ICC Statute see, for example, Hall 2008.

  43. 43.

    Note that the terminology of the Statute is inconsistent: Articles 16(2), 18(4) and 21(5) speak of the “Appellate Chamber”, while Article 19bis(6) refers to the “Appeals Chamber”.

  44. 44.

    See Article 19bis(6) of the Malabo Protocol (Annex).

  45. 45.

    It is noteworthy that the ICTY has assumed jurisdiction also over crimes committed after its establishment: Article 1 of the ICTY Statute, which was adopted in 1993, provides for jurisdiction over crimes committed on the territory of the former Yugoslavia “after 1991”. Both the ICTY Prosecutor and the UN Security Council found that this included jurisdiction over crimes committed in Kosovo, which commenced in 1998; see Krieger 2001, p. 501. In contrast, the jurisdiction of the ICTR, which was established on 8 November 1994, is limited to crimes committed between 1 January 1994 and 31 December 1994 (Article 1 ICTR-Statute).

  46. 46.

    On the triggering procedure before the International Criminal Court see generally Olásolo 2005.

  47. 47.

    Olásolo 2005, 74. See also, ICC, Pre-Trial Chamber I, Situation in the Democratic Republic of the Congo, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, 22 March 2006, ICC-01/04-101-tEN-Corr, para 65; Rastan 2012.

  48. 48.

    See Rastan (2012) for further details.

  49. 49.

    On the discussion surrounding “self-referrals” see, for example, Akhavan 2010, Gaeta 2004, Kleffner 2009, Müller and Stegmiller 2010.

  50. 50.

    See Article 6 of the Constitutive Act of the African Union.

  51. 51.

    Article 7(1) of the Constitutive Act of the African Union.

  52. 52.

    On the Peace and Security Council see Cilliers and Sturman 2004.

  53. 53.

    See Williams and Schabas 2008b, marg. number 16.

  54. 54.

    In this regard, it appears that the amendments to Article 29 of the Statute by Article 15 of the Malabo Protocol (Annex), including the references to the Peace and Security Council and to the Office of the Prosecutor, were meant to make Article 29 of the Statute consistent with the powers that those entities were given in respect of the African Court’s criminal jurisdiction; however, the Peace and Security Council and the Office of the Prosecutor arguably have no power to bring cases before the African Court that concern its jurisdiction over human rights or general matters.

  55. 55.

    See Bergsmo and Kruger 2008, marg. number 6.

  56. 56.

    See Bergsmo and Kruger 2008, marg. numbers 32 et seq.

  57. 57.

    Article 46G of the Malabo Protocol (Annex) refers throughout to the “Office of the Prosecutor” and not to the “Prosecutor” though in the second sentences of paras (2) and (6), the pronouns “he or she”/“him or her” instead of “it” are used. The change in terminology does not appear to be of any significance. Further, while Article 15(2), second sentence, of the ICC Statute provides that the Prosecutor may receive written or oral testimony “at the seat of the Court”, this last phrase is missing in Article 46G(2) of the Malabo Protocol (Annex). It is unclear whether this omission has any practical importance. Finally, Article 46G(2) of the Malabo Protocol (Annex) includes a reference to organs of the African Union as one of the sources of additional information; given that the Prosecutor in any event has the power to seek additional information from “intergovernmental organizations”, this appears to be merely a clarification that does not add any powers.

  58. 58.

    See Bergsmo and Pejić 2008, marg. numbers 1 et seq.

  59. 59.

    Note that as far as the crime of aggression is concerned, Article 15bis of the ICC Statute provides for a special procedure in case of referrals by a State Party or proprio motu investigations: unless the UN Security Council has made a determination that an act of aggression has occurred, the investigation may only proceed if authorized by the judges of the Pre-Trial Division sitting en banc.

  60. 60.

    See Nerlich 2009, 349.

  61. 61.

    See Asaala 2014, 49.

  62. 62.

    Article 46G(2) of the Malabo Protocol (Annex).

  63. 63.

    See in respect of Article 15 of the ICC Statute Kreß and Prost (2008), marg. number 11.

  64. 64.

    Article 46G(3) of the Malabo Protocol (Annex).

  65. 65.

    See also Bergsmo and Pejić 2008, marg. numbers 19–20.

  66. 66.

    See Bergsmo and Pejić 2008, marg. number 22.

  67. 67.

    See Bergsmo and Pejić 2008, marg. number 30.

  68. 68.

    Article 46G(4) of the Malabo Protocol (Annex).

  69. 69.

    See also Pre-Trial Chamber II, 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-01/09-19-Corr, paras 66 et seq.

  70. 70.

    Pre-Trial Chamber II, 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-01/09-19-Corr, para 35; Pre-Trial Chamber III, Situation in the Republic of Côte d’Ivoire, “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire”, 3 October 2011, ICC-01/11-14, para 24. Note that these decisions refer to the “reasonable basis to believe” standard of Article 53(1) of the ICC Statute, which they consider to be incorporated in the “reasonable basis to proceed” standard of Article 15 of the ICC Statute.

  71. 71.

    See Bergsmo and Pejić 2008, marg. number 27: “the reasonable basis standard in para 4 is purely evidentiary and not one of appropriateness.”

  72. 72.

    Article 46G(5) of the Malabo Protocol (Annex).

  73. 73.

    Article 46G(3), second sentence, of the Malabo Protocol (Annex).

  74. 74.

    See Pre-Trial Chamber II, 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-01/09-19-Corr, paras 40 et seq.; Pre-Trial Chamber III, Situation in the Republic of Côte d’Ivoire, “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire”, 3 October 2011, ICC-01/11-14, para 18.

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    Volker Nerlich (Legal Adviser)

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    Volker Nerlich (Legal Adviser)

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Nerlich, V. (2017). Preconditions to the Exercise of Jurisdiction (Article 46Ebis), Exercise of Jurisdiction (Article 46F) and the Prosecutor (Article 46G). In: Werle, G., Vormbaum, M. (eds) The African Criminal Court. International Criminal Justice Series, vol 10. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-150-0_10

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