Abstract
The Malabo Protocol adopted by the African Union in 2014 envisages the empowerment of the African Court of Justice and Human and People’s Rights, inter alia, with international criminal jurisdiction. The chapter reflects on three specific crimes which will be subject to the jurisdiction of the Court—piracy, terrorism, and mercenarism. It explores their origins in international treaties, analyses their elements and argues that these crimes (“transnational crimes”) must be distinguished from other crimes within the jurisdiction of the Court, such as genocide and war crimes (“crimes under international law”). The chapter shows that the Court will be the first international tribunal ever provided with jurisdiction over transnational crimes and concludes with the recommendation not to rashly repudiate the (perhaps: over-) ambitious project of regionalizing the enforcement of international and transnational criminal law.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
See the chapter by Fernandez in this book.
- 2.
See the chapter by Mninde-Silungwe in this book.
- 3.
See the chapter by Heger in this book.
- 4.
The crime of unconstitutional change of government, Article 28A(1) no. 4 is a pure state protection crime, i.e. it protects the interests only of the affected state, not of a group of states and not of the international community as a whole, and must therefore be distinguished from the other crimes under the jurisdiction of the Court. For a thorough analysis, see Kemp and Kinyunyu’s chapter in this book.
- 5.
- 6.
See Werle and Jeßberger 2014, marg. number 89 et seq.
- 7.
Boister 2012, p. 13. Often transnational crime will be trans-border crime. It would, however, be misleading to conceptually equate “transnational crime” and “trans-border crime”. The term “transnational” refers to the type of the regulation (international treaty) and the trigger for regulation (transnational concern) rather than to the nature of the actual conduct regulated. For instance, trafficking in human beings and corruption are transnational crimes within the meaning used here although they certainly do not require, as a matter of law, that the specific act is transboundary.
- 8.
Because transnational criminal law “consists of horizontal treaty obligations between states” (Boister), transnational crimes have also been referred to as “treaty-based (international) crimes”; see Ambos 2013, p. 222 (“Treaty Crimes”); Currie and Rikhof 2014; Jeßberger in: Calliess 2014 , pp. 527, 528; Werle and Jeßberger 2014, marg. number 126.
- 9.
As regards the crime of (international) terrorism this classification is a matter of controversy. According to a minority view, which in the view of this author is not convincing, international terrorism is in fact a crime under international law; for both views see Werle and Jeßberger 2014, marg. number 129 et seq.
- 10.
For these concerns and their merit see, inter alia, Werle and Jeßberger 2014, marg. number 71.
- 11.
Article 4(o) of the Constitutive Act of the African Union; see also Malabo Protocol, Preamble.
- 12.
On this topic, see also Tladi’s chapter in this book.
- 13.
Under general international law, immunity ratione personae for genocide, crimes against humanity, war crimes, and aggression is exclusively granted to heads of state or government and foreign ministers. The Statute, however, uses the rather vague term “senior state officials”, which could be understood in a much broader way. More importantly, under customary international law, immunity ratione personae for “core” crimes is only granted before national courts, not international criminal courts. Thus, although not a violation of international law (because international law grants permission to prosecute, but does not establish an obligation), the immunity exception for “senior state officials” for core crimes under international law under Article 46Abis is regarded as one of the major flaws in the Malabo Protocol (Annex) and has been widely criticized.
- 14.
For instance, the UN Convention on the Law of the Sea defines piracy in Article 101 in particular with a view to: the obligation of states to “cooperate to the fullest extent in the repression of piracy” (Article 100), the right of states to “seize a pirate ship”, “arrest the persons on board”, and the authority of “the courts of the State which carried out the seizure” to “decide upon the penalties to be imposed” (Article 105).
- 15.
The Convention was adopted in 1982 and entered into force in 1994. Today, 166 states, including the majority of African states (with only a few exceptions, such as Libya, Rwanda, and the Central African Republic) and the EU have joined the treaty.
- 16.
But see n. 16 infra.
- 17.
See, e.g., O’Brien 2014, p. 81.
- 18.
Whether the element refers to subjective motivation (and excludes politically motivated acts from piracy) or, as is suggested here, to the fact whether, objectively, a state is involved, is a matter of controversy; see Guilfoyle 2015, p. 372.
- 19.
The Convention was adopted in 1999 in Algiers and entered into force in 2003. 40 out of 54 AU Member States are parties to the Convention.
- 20.
The corresponding provision in the OAU Convention reads: “Nothing in this Convention shall be interpreted as derogating from the general principles of international law, in particular the principles of international humanitarian law, as well as the African Charter on Human and Peoples’ Rights.”
- 21.
See Saul in: Boister and Currie 2015, p. 400. Article 2 of the UN Draft Convention reads:
-
1.
“Any person commits an offence within the meaning of the present Convention if that person, by any means, unlawfully and intentionally, causes:
-
(a)
Death or serious bodily injury to any person; or
-
(b)
Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or to the environment; or
-
(c)
Damage to property, places, facilities or systems referred to in para 1(b) of the present article resulting or likely to result in major economic loss;
when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.
-
(a)
-
2.
Any person also commits an offence if that person makes a credible and serious threat to commit an offence as set forth in para 1 of the present article.”
-
3.
Any person also commits an offence if that person attempts to commit an offence as set forth in para 1 of the present article.”
-
1.
- 22.
This element, however, can also be found in Article 1(3) of the OAU Convention. The UN Draft Convention includes “serious damage to the environment”.
- 23.
The difficulties in getting consensus in this matter are apparently one reason why the UN Draft Convention has not yet been adopted.
- 24.
Compare Article 22(1) of the OAU Convention.
- 25.
See, e.g., Galic, ICTY (TC), judgment of 5 December 2006, para 86 et seq, and Werle and Jeßberger 2014, marg. number 1301 et seq.
- 26.
UN Treaty Series Vol. 2163, 75. The Convention entered into force in 2001. 34 states have ratified the Convention, including seven African states and excluding, among others, Germany, France, the UK and the US.
- 27.
Organization of African Unity, CM/817 (XXIX), Annex II Rev. 1. The Convention entered into force in 1985. It has 30 State Parties, excluding, among others, Kenya, Sierra Leone, South Africa, and Uganda. The definition in the OAU Convention is designed differently. Article 1(2) reads:
“The crime of mercenarism is committed by the individual, group or association, representative of a State or the State itself who with the aim of opposing by armed violence a process of self-determination stability or the territorial integrity of another State, practises any of the following acts:
-
(a)
Shelters, organises, finances, assists, equips, trains, promotes, supports or in any manner employs bands of mercenaries;
-
(b)
Enlists, enrols or tries to enrol in the said bands;
-
(c)
Allows the activities mentioned in para (a) to be carried out in any territory under its jurisdiction or in any place under its control or affords facilities for transit, transport or other operations of the above mentioned forces.”
-
(a)
- 28.
See, e.g., GA Res. 2265 and 3103. See for details Dickinson in: Bassiouni 2008, p 355 et seq.
- 29.
Article 47 of the Additional Protocol I to the Geneva Conventions (for completely different reasons) defines who is a mercenary, not for the purpose of prohibition or criminalization, but simply to state that “a mercenary shall not have the right to be a combatant or a prisoner of war”. (Article 47(1) of the Additional Protocol I.).
- 30.
For instance, under German criminal law, the mere recruitment for a foreign service is a crime. Section 109 h of the German Penal Code reads: “Whosoever on behalf of a foreign power recruits a German for military service in a military or paramilitary organisation or introduces him to their recruiters or to the military service of such an organisation, shall be liable to imprisonment from three months to five years.”
- 31.
See Article 1(3) of the OAU Convention.
- 32.
See UN Convention, Preamble.
- 33.
See UN Convention, Preamble.
- 34.
OAU Convention, Preamble.
- 35.
See Article 2(1) of the UN Convention; see also Article 47(2)(c) of the Additional Protocol I to the Geneva Conventions.
- 36.
Under the OAU Convention it is unclear whether also the mercenary himself or herself commits a crime. According to Article 1(3) of the OAU Convention “any person who commits the crime of mercenarism as defined in para 1 of this Article commits an Offence”. Article 1(1), however, does not contain a “crime of mercenarism” but merely defines who is a mercenary.
- 37.
For more detail, see the chapter by Meloni in this book.
- 38.
In the “Report of the Secretary-General on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia” (S/2010/394, 26 July 2010), the establishment of “a regional tribunal on the basis of a multilateral agreement among regional States, with United Nations participation” is considered as one of seven options.
- 39.
On the, arguably, threefold mandate of the ICC (criminal court, watchdog court, world security court) see Jeßberger and Geneuss, JICJ 10 (2012), 1081.
References
Ambos K (2013) Treatise on international criminal law, vol. II: the crimes and sentencing. Oxford University Press, Oxford
Bassiouni CM (2008) Perspectives on international terrorism. In: Bassiouni MC (ed) International criminal law, vol. I: sources, subjects and contents, 3rd edn. Martinus Nijhoff, The Hague, pp 697–750
Boister N (2009) Treaty crimes, international criminal court? New Crim Law Rev 12:341–365
Boister N (2012) An introduction to transnational criminal law. Oxford University Press, Oxford
Chehtman A (2016) Terrorism and the conceptual divide between international and transnational criminal law. In: van der Wilt H (ed) Legal responses to transnational and international crimes: towards an integrative approach?, Edward Elgar Publishers, Cheltenham (forthcoming)
Currie R, Rikhof J (2014) International and Transnational Criminal Law, 2nd edn. Irwin Law, Toronto
Dickinson LA (2008) Mercenarism and private military contractors. In: Bassiouni MC (ed) International Criminal Law, vol. I: sources, subjects and contents, 3rd edn. Martinus Nijhoff, The Hague, pp 355–375
Guilfoyle D (2015) Piracy and the suppression of unlawful acts against the safety of maritime navigation. In: Boister N, Currie R (eds) Routledge handbook of transnational criminal law. Routledge, London, pp 364–378
Jeßberger F (2014) ‘On behalf of Africa’: towards the regionalization of universal jurisdiction? In: Werle G, Fernandez L, Vormbaum M (eds) Africa and the International Criminal Court. T.M.C. Asser Press, The Hague, pp 155–175
Jeßberger F, Geneuss J (2012) The many faces of the International Criminal Court. J Int Crim Justice 10:1081–1094
McIntyre A, Weiss T (2007) Weak governments in search of strength: Africa’s experience of mercenaries and private military companies. In: Chesterman S, Lehnhardt C (eds) From mercenaries to market: the rise and regulation of private military companies. Oxford University Press, Oxford, pp 67–81
Mitsilegas V (2015) Regional organisations and the suppression of transnational crime. In: Boister N, Currie R (eds) Routledge handbook of transnational criminal law. Routledge, London, pp 73–88
Murungu CB (2011) Towards a criminal chamber in the African Court of Justice and Human Rights. J Int Crim Justice 9:1067–1088
Nmehielle VO (2014) ‘Saddling’ the new African regional human rights court with international criminal jurisdiction: innovative, obstructive, expedient? Afr J Legal Stud 7:7–42
O’Brien M (2014) Where security meets justice: prosecuting maritime piracy in the International Criminal Court. Asian J Int Law 4:81–102
Saul B (2015) Terrorism as a transnational crime. In: Boister N, Currie R (eds) Routledge handbook of transnational criminal law. Routledge, London, pp 394–408
Sundberg JWF (2008) The crime of piracy. In: Bassiouni, MC (ed) International Criminal Law, vol. I: sources, subjects and contents, 3rd edn. Martinus Nijhoff, The Hague, pp 799–813
Werle G, Jeßberger F (2014) Principles of international criminal law, 3rd edn. Oxford University Press, Oxford
Acknowledgments
The author gratefully acknowledges comments by Julia Geneuss on a previous version of this chapter.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2017 T.M.C. Asser press and the authors
About this chapter
Cite this chapter
Jeßberger, F. (2017). Piracy (Article 28F), Terrorism (Article 28G) and Mercenarism (Article 28H). 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_5
Download citation
DOI: https://doi.org/10.1007/978-94-6265-150-0_5
Published:
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-149-4
Online ISBN: 978-94-6265-150-0
eBook Packages: Law and CriminologyLaw and Criminology (R0)
