Abstract
The jurisdictional relationship between African states and the African Court of Justice and Human and Peoples’ Rights and between the latter Court and the International Criminal Court is not entirely clear. While the Malabo Protocol (Annex) has borrowed the complementarity principle from the Rome Statute, the Protocol does not indicate that states’ investigations or prosecutions should be genuine, in order to render a case inadmissible. Moreover, the Malabo Protocol (Annex) is completely silent on the African Court’s relationship to the International Criminal Court. This chapter first discusses whether the leaving out of the term “genuinely” bears any consequences on the assessment of the quality of the performance of states in respect of investigation and prosecution of international crimes. Next, it considers two alternative scenario’s—one in which the International Criminal Court is hierarchically superior to the African Court of Justice and Human and Peoples’ Rights and one in which both courts cooperate as equal partners. The author concludes that the latter model would be feasible if the International Criminal Court and the African Court of Justice and Human and Peoples’ Rights move towards a “division of labor”.
All internet sources in this chapter were last visited on 30 June 2016.
The author is obliged to his Master-student, Mr. Timothy Kanyogonya, who wrote an interesting thesis on the proposed Criminal Chamber of the African Court, with an emphasis on complementarity issues.
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- 1.
International Criminal Court, Situation in Darfur, Sudan, Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009.
- 2.
- 3.
Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC) Doc. Assembly/AU/13(XIII), 3 July 2009.
- 4.
Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction, Doc. Assembly/AU/14 (XI), Assembly/AU/Dec. 199 (XI), Eleventh Ordinary Session 30 June–1 July 2008, Sharm El-Sheikh, Egypt, §§ 3–5.
- 5.
Assembly/AU/Dec. 199(XI), no. 5, § 5(iv).
- 6.
In a similar vein, Ssenyonyo 2013, pp. 415–416, who identifies the objections against universal jurisdiction and the displeasure with the International Criminal Court’s prosecutorial strategy as two of the four factors giving impetus to the African Union’s decision. See also Du Plessis 2012, p. 1, observing that “the process [of amending the Statute of the African Court] occurs against the backdrop of the AU’s open hostility to the ICC.”
- 7.
African Union, First Meeting of the Specialized Technical Committee on Justice and Legal Affairs, Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (hereafter: Malabo Protocol), STC/Legal/Min/7(I) Rev. 1, Addis Ababa, Ethiopia, 15–16 May 2014, § 13.
- 8.
Kenya’s threat to withdraw from the International Criminal Court on 5 September 2013 has—at least temporarily—been averted by the dropping of criminal proceedings against Kenya’s incumbent President, Kenyatta.
- 9.
Paragraph 15 of the Preamble of the Malabo Protocol: “Convinced that the present Protocol will complement national, regional and continental bodies and institutions in preventing serious and massive violations of human and peoples’ rights in keeping with Article 58 of the Charter and ensuring accountability for them whenever they occur [emphasis added].” Complementarity is corroborated in Article 46H of the Malabo Protocol (Annex).
- 10.
Du Plessis 2012, p. 12.
- 11.
For the text of Article 46H see above.
- 12.
Situation in the Democratic Republic of the Congo, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui; Judgement on the Appeal of Mr. Germain Katanga against the Oral Decision of trial Chamber II of 12 June 2009 on the Admissibility of the Case, No. ICC-01/04-01/07 OA8, 25 September 2009, § 78: “It follows that in case of inaction, the question of unwillingness or inability does not arise; inaction on the part of the State having jurisdiction […] renders a case admissible before the Court, subject to Article 17(1)(d) of the Statute.” The Pre-Trial Chamber in the case of the Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi (Decision on the admissibility of the case against Abdullah Al-Senussi, No.: ICC-01/11-01/11, 11 October 2013, § 26) confirmed the finding of the Appeals Chamber, adding that Article 17(1)(a) of the Statute involved a two-step test “according to which the Chamber, in considering whether a case is admissible before the Court, shall address in turn two questions: (i) whether, at the time of the proceedings in respect of the admissibility of a case, there is an ongoing investigation or prosecution of the case at the national level (first limb); and, in case the answer to the first question is in the affirmative, (ii) whether the State is unwilling or unable genuinely to carry out such investigation or prosecution (second limb).”
- 13.
Kleffner 2008, p. 114.
- 14.
Sadat and Carden 2000, pp. 381, 418.
- 15.
Article 17(2)(b) of the ICC Statute and Article 46H(3)(b) of the Malabo Protocol (Annex).
- 16.
Kleffner 2008, p. 114.
- 17.
Compare Holmes 2002, pp. 673–674: “[…] the delegations [to the Rome Conference] were mindful that the ICC was not envisaged as an appellate body to review decisions of domestic courts. To avoid this result, it was said that the criteria permitting ICC intervention should be as objective as possible. […] The negotiations finally settled on the term ‘genuinely’, even though there was no precedent quoted for the utilization of this word. The term captured the concerns of some delegations by being the least subjective concept considered [emphasis added].”
- 18.
El Zeidy 2008, p. 165.
- 19.
Holmes 2002, p. 674.
- 20.
Paniagua Morales et al. (“Panel Blanca”, Judgment of 8 March 1998, Inter-American Court of Human Rights (series C) No. 37 (1998), para 94.
- 21.
A fairly good example of the standards that the International Criminal Court is applying is the Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo (Situation in the Republic of Côte d’Ivoire in the case of the Prosecutor v. Simone Gbagbo), Case No.: ICC-02/11-01/12, 11 December 2014. The Pre-Trial Chamber explained that “for the Admissibility Challenge to succeed, it must be established that tangible and progressive investigative steps are being undertaken in order to ascertain whether Simone Gbagbo is criminally responsible for the conduct alleged in the proceedings before the Court”, adding that “from the documentation provided by Côte d’Ivoire, it appears that the investigative activities undertaken by the domestic authorities are not tangible, concrete and progressive, but, on the contrary, sparse and disparate.”(§ 65). Later on, the Pre-Trial Chamber specified that “The investigative steps into Simone Gbagbo’s criminal responsibility are not only scarce in quantity and lacking in progression. They also appear disparate in nature and purpose to the extent that the overall factual contours of the alleged domestic investigations (as part of which these individual investigative steps were undertaken) remain indiscernible. In this sense, the Chamber is unable to establish whether these limited steps undertaken at the national level are together directed at ascertaining Simone Gbagbo’s criminal responsibility for the same conduct as that alleged in the proceedings before the Court.”(§ 70). Although the Pre-Trial Chamber concluded that the national proceedings did not even reveal sufficient “action” to ascertain whether Ivory Coast was “willing and able”, it gives a pretty good impression of the quality that the Court requires. The Pre-Trial Chamber’s findings were confirmed by the Appeals Chamber in its judgment on the appeal of Côte d’Ivoire against the decision of Pre-Trial Chamber I of 11 December 2014 entitled “Decision on “Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo” No. ICC-02/11-01/12 OA, 27 May 2015.
- 22.
Kleffner 2008, p. 114.
- 23.
For similar apprehensions, see Abass 2013, pp. 27, 44: “The omission of the word ‘genuinely’ in the Draft Protocol’s version has the disastrous implication of lowering the evidential standard of ‘inability to prosecute’ required before African states can refer a case to the Court. African states could easily exploit this lacuna to turn the Court into a clearinghouse for crimes otherwise prosecutable by their courts. Insofar as only evidence of an ‘inability to prosecute’ and not evidence of an ‘inability to genuinely prosecute’ is required under Article 46(2)(b), the Court should expect the floodgates to be opened by opportunistic states which will effectively turn the Court into a court of ‘first recourse’, not of ‘last resort.’” [emphasis original].
- 24.
On this contested provision, see the chapter by Tladi in this book.
- 25.
Situation in Darfur, Sudan, Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Case No. ICC-902/05-01/09-3, 4 March 2009.
- 26.
The Vienna Convention on the Law of Treaties (Vienna 23 May 1969, UN Treaties Series 1980, No. 18231) offers no solution. Article 30 suggests that the younger treaty (Annex to the Malabo Protocol) should prevail, but only in the relations between states that are party to both treaties. Moreover, Article 27 of the ICC Statute and Article 46Abis of the Malabo Protocol (Annex) only regulate the scope of the jurisdiction of both courts. They do not urge States Parties to comply with conflicting obligations.
- 27.
Compare for this approach, ICC, Situation in Darfur, Sudan, Prosecutor v. Omar Ahmad Al Bashir, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bahir, No.: ICC-02/05—011/09, 12 December 2011.
- 28.
See, respectively, Resolution 1593 (2005); Adopted by the Security Council at its 5158th meeting, on 31 March 2005, S/RES/1593 (2005) (Darfur) and Resolution 1970 (2011); Adopted by the Security Council at its 6401st meeting, on 26 February 2011, S/RES/ 1970 (2011).
- 29.
See the chapter by Meloni in this book.
- 30.
International Criminal Court, Office of the Prosecutor, Prosecutorial Strategy 2009–2012, The Hague, 1 February 2010, § 17, available at: http://www.icc-cpi.int/NR/rdonlyres/66A8DCDC-3650-4514-AA62-D229D1128F65/281506/OTPProsecutorialStrategy20092013.pdf.
- 31.
On positive complementarity cf. Burke-White 2008, p. 73: “The most immediate implication of a policy of proactive complementarity is to increase the number of available judicial fora through which to prosecute international crimes.”
- 32.
- 33.
Burke-White ibid., no. 32, p. 101: “[…] a division of labor may also arise where the OTP seeks to prosecute those crimes meeting the gravity threshold articulated in Article 17 and a state seeks accountability (whether criminal or non-criminal) for lower level offenders who are not likely to be the subjects of an ICC investigation.”
- 34.
ICC, Situation in Libya, Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddaffi, Case No. ICC-01/11-01/11 OA 4, 21 May 2014, § 62.
- 35.
ICC, Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled: Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58”, Case No. ICC-01/04, 13 July 2006, §§ 68–82. The three-pronged test of the Pre-Trial Chamber included the social alarm caused to the community, the fact that the suspect was one of the most senior leaders in the situation under investigation and the role played by the state in the overall commission of crimes.
- 36.
Cf. Abass 2013, pp. 27, 49: “the fact that the Rome Statute does not cover such crimes as corruption, unconstitutional changes of governments, mercenarism and so on, which affect the majority of African states, is perhaps the strongest case in favour of the prosecution of international crimes by the African Court.”; Murungu 2011, p. 1085: “[…] perhaps it would be good for the Criminal Chamber to show its distinctive features by dealing with the crime of aggression and certain common crimes in Africa (that do not all amount to international crimes) such as election-rigging, unconstitutional change of governments, human trafficking, acts of terrorism, piracy, drug trafficking, slave practices and slavery.”
- 37.
Cf. Fernandez’s chapter in this book.
- 38.
Article 46C(1) of the Malabo Protocol (Annex): “For the purpose of this Statute, the Court shall have jurisdiction over legal corporations, with the exception of States.” See also Meloni’s chapter in this book.
- 39.
Article 46L of the Malabo Protocol (Annex) provides that “The Court shall be entitled to seek the cooperation or assistance of regional or international courts, non-State Parties or cooperating partners of the African Union and may conclude Agreements for that purpose.” In other words, it envisages the reception but not the rendering of assistance. Article 93(10) ICC Statute allows the Court to co-operate with and provide assistance to a State Party, but does not contemplate the cooperation with regional courts or institutions.
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van der Wilt, H. (2017). Complementary Jurisdiction (Article 46H). 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_11
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