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The International Criminal Court in Turbulent Times pp 43–59Cite as

African Regional Developments – Challenge or Chance for the International Criminal Court? Three Courts in One: The African Criminal Court

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Part of the book series: International Criminal Justice Series ((ICJS,volume 23))

Abstract

The Malabo Protocol expands the jurisdiction of the proposed African Court of Justice and Human and Peoples’ Rights by adding a criminal division to the planned general affairs and human rights sections. Consequently, the Court will have three sections, namely the General Affairs Section, the Human and Peoples’ Rights Section and the International Criminal Law Section. It remains to be seen whether such a unique amalgamation of three courts into one continental court is going to be an effective approach in dealing with the three general matters under the subject matter jurisdiction.

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Notes

  1. 1.

    Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights , opened for signature 10 June 1998 (entered into force 25 January 2004) (1998 Protocol to the Banjul Charter). It entered into force in January 2004. The Court became functional in 2008. The status list of the Protocol is available at https://au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-establishment-african-court-human-and. Accessed 7 January 2019. The Court is situated in Arusha, Tanzania. It has given several decisions. For more, visit http://www.african-court.org/en/. Accessed 7 January 2019.

  2. 2.

    Organization of African Unity, Constitutive Act of the African Union, opened for signature 1 July 2000 (entered into force 26 May 2001), Article 5; African Union, Protocol of the Court of Justice of the African Union, opened for signature 11 July 2003 (entered into force 11 February 2009) (Statute of the African Court of Justice ). The Court was established by the 2003 Protocol. The Protocol as the applicable law of the Court entered into force in 2009, after the adoption of the 2008 Merger Protocol. https://au.int/en/treaties/protocol-court-justice-african-union. Accessed 7 January 2019. Although the Protocol has been ratified by the required 15 African States, the African Court of Justice has not been operationalised by the AU. The plausible reason being, the merger project of the two judicial institutions began before the 2003 Protocol of the Court of Justice entered into force.

  3. 3.

    1998 Protocol to the Banjul Charter, above n 1, Articles 2 and 3. See also African Union, Protocol on the Statute of the African Court of Justice and Human and Peoples’ Rights, Annex to the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights , opened for signature 27 June 2014 (Statute of the African Court), Articles 17(2) and 28.

  4. 4.

    Statute of the African Court of Justice , above n 2, Article 19; Statute of the African Court, above n 3, Articles 17(1) and 28.

  5. 5.

    African Union, Protocol on the Statute of the African Court of Justice and Human Rights , opened for signature 1 July 2008. The AU adopted this Protocol in Sharm El Sheikh, Egypt.

  6. 6.

    Article 9 requires 15 ratifications for it to enter into force. Over nine years since its adoption, only six countries have ratified the 2008 Merger Protocol, namely Benin, Burkina Faso, Liberia, Libya , Mali and Congo. https://au.int/en/treaties/protocol-statute-african-court-justice-and-human-rights. Accessed 7 January 2019.

  7. 7.

    African Union, Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights , opened for signature 27 June 2014 (Malabo Protocol ).

  8. 8.

    Ibid.

  9. 9.

    At the time of writing 11 countries have signed the Malabo Protocol , namely Benin, Chad, Congo, Ghana, Guinea-Bissau, Kenya , Mauritania, Sierra Leone , Sao Tome and Principe, Uganda and Comoros. https://au.int/en/treaties/protocol-amendments-protocol-statute-african-court-justice-and-human-rights. Accessed 7 January 2019. The fact that there has not been a single ratification, let alone the required 15 ratifications, indicates lack of political will to set up and operationalise the African Court.

  10. 10.

    In the Malabo Protocol , the name of the Court with the expanded sections is changed to African Court of Justice and Human and Peoples’ Rights. See Malabo Protocol , above n 7, Articles 1 and 8; Statute of the African Court, above n 3, Article 2. Although adding the word ‘peoples’, which was omitted in the 2008 Merger Protocol from the nomenclature of the Court, is apt due to the (unique) third generation rights in the African Charter on Humans and Peoples’ Rights, it is doubtful if this name of the new court could fully capture the nature of the African Court. The name omits the newly added criminal section of the Court. Admittedly, it would be too long to use ‘African Court of Justice and Human and Peoples’ Rights and International Crimes’ as a name for the Court. However, it would have been less problematic and misleading had the name of the Court been limited to ‘African Court’, instead of using the current nomenclature which does not fully describe the nature of the new court (with three sections).

  11. 11.

    Malabo Protocol , above n 7, Article 3; Statute of the African Court, above n 3, Article 16.

  12. 12.

    Some scholars have raised concerns on the merger of the three African judicial institutions into a single court. Abass argued that ‘the combination of civil and criminal jurisdictions through the General Affairs Section, the Human and Peoples’ Rights Section, and the International Criminal Law Section, in a single court is not only almost unprecedented in international judicial practice, but is also fraught with myriad substantive and procedural problems that the Court, under the current proposal, will be unable to handle’. Abass 2017, p. 14. Viljoen also argued that such amalgamation is unprecedented and it has negative impacts on the ratification of the Protocol as it gives an ‘all-or-nothing option or choice to African states’. Viljoen 2012.

  13. 13.

    See Abass 2013, p. 28.

  14. 14.

    Deya 2012, pp. 22 et seq.

  15. 15.

    Abass 2017, pp. 15–18.

  16. 16.

    Ibid., pp. 15–16.

  17. 17.

    Ibid., p. 15.

  18. 18.

    African Union Committee of Eminent African Jurists 2006, paras 34 and 35.

  19. 19.

    African Union Assembly, Decision on the Report of the Commission on the Meeting of African States Parties to the Rome Statute of the International Criminal Tribunal (ICC), Assembly/AU/Dec.245(XIII) Rev.1, 1–3 July 2009, para 5. See also Abass 2017, p. 12.

  20. 20.

    See Deya 2012, pp. 22 et seq.; du Plessis 2012. See also African Union-European Union Expert Group 2009; Murungu 2011, pp. 1067–1088.

  21. 21.

    African Union, African Charter on Democracy, Elections and Governance, opened for signature 30 January 2007 (entered into force 15 February 2012) (African Charter). See also Abass 2017, pp. 18–20.

  22. 22.

    Abass considers the Malabo Protocol a protest treaty. ‘Protest treaties are mostly statement making and grandstanding. They are treaties fuelled by momentary passion rather than a thorough appreciation and genuine desire for legislation. The Draft (Malabo) Protocol is one such treaty.’ Abass 2013, p. 42. Since the process of drafting and adopting the Statute was rushed and far from being opaque and participatory, instead cobbled together at great speed, it is hardly possible to speak with certainty about the actual votes by which the Statute was adopted, the deliberations, positions of each AU member State during the deliberations, and the sources that the drafters employed for the crimes (and other principles) inculcated in the Statute. The travaux préparatoires or documents of deliberations of the Protocol and its annex have not been made public yet. For more on the simmering tension between the AU, some African States and the ICC see the chapters in the edited book Werle et al. 2014 and Tessema and Vesper-Gräske 2016.

  23. 23.

    Statute of the African Court, above n 3, Article 16(1). Article 1 of the Statute defines Section as ‘the General Affairs or Human and Peoples’ Rights or International Criminal Law Section of the Court’.

  24. 24.

    Ibid., Articles 17(1) and 21(1).

  25. 25.

    Ibid., Articles 17(2) and 21(2).

  26. 26.

    Ibid., Articles 17(3) and 21(3), (4) and (5).

  27. 27.

    Malabo Protocol , above n 7, preambular para 17 and Article 3; Statute of the African Court, Articles 18, 28(d), 34B and 46H(1).

  28. 28.

    Malabo Protocol , above n 7, Article 2. The Assembly of Heads of State and Government of the AU is given the power to establish a trust fund . Statute of the African Court, above n 3, Articles 45 & 46M.

  29. 29.

    Malabo Protocol , above n 7, Article 2(1); Statute of the African Court, above n 3, Article 22.

  30. 30.

    Malabo Protocol , above n 7, Article 2(2); Statute of the African Court, above n 3, Article 22A.

  31. 31.

    Malabo Protocol , above n 7, Article 2(3); Statute of the African Court, above n 3, Article 22B.

  32. 32.

    Malabo Protocol , above n 7, Article 2(4); Statute of the African Court, above n 3, Article 22C.

  33. 33.

    Statute of the African Court, above n 3, Articles 16(2) and 19. Article 19bis provides for the mandates of the chambers.

  34. 34.

    Ibid., Articles 19bis and 21.

  35. 35.

    Malabo Protocol , above n 7, Article 3; Statute of the African Court, above n 3, Articles 17(3) and 28A.

  36. 36.

    See Statute of the African Court, above n 3, Article 28A.

  37. 37.

    Ibid., Article 28B defines genocide. The definition is similar to the definitions of the crime in Article II of the Genocide Convention and Article 6 of the Rome Statute (Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (Rome Statute)). The Statute of the African Court explicitly lists: ‘Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’ as objective elements of the crime. Statute of the African Court, above n 3, Article 28B(f). This is not a novel creation of the Statute but a progressive clarification. It is not novel because in the jurisprudence of the International Criminal Tribunal for Rwanda it had already been established that acts of ‘serious bodily and mental injuries’ can be interpreted to cover rape and other acts of sexual violence under the crime of genocide. It is stated that ‘rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole … . Sexual violence was a step in the process of destruction of the Tutsi group – destruction of the spirit, of the will to live, and of life itself.’ International Criminal Tribunal for Rwanda, Prosecutor v. Akayesu, Trial Judgement, 2 September 1998, ICTR-96-4-T, paras 731–732. See also International Criminal Tribunal for Rwanda, Prosecutor v. Clément Kayishema and Obed Ruzindana, Trial Judgement, 21 May 1999, ICTR-95-1-T, para 95; International Criminal Tribunal for Rwanda, Prosecutor v. Emmanuel Rukundo, Trial Judgement, 27 February 2009, ICTR-2001-70-T, paras 574–575; International Criminal Tribunal for Rwanda, Prosecutor v. Alfred Musema, Trial Judgement, 27 January 2000, ICTR-96-13-T, para 933. See also Ambos 2017, p. 39. The Statute has one serious flaw in relation to the crime of genocide. Incitement to commit genocide is not criminalised as a crime. See Statute of the African Court, above n 3, Articles 28B and 28N.

  38. 38.

    Statute of the African Court, above n 3, Article 28D of the Statute. This provision of the Statute is a slight modification of the Geneva Conventions and Rome Statute, above n 36, Article 8. In this regard, the Statute failed to remedy the deficiency of the Rome Statute in respect of the classification or structure of war crime offences. Be this as it may, the Statute of the African Court under Article 28D(g) criminalises the use of nuclear weapons and other weapons of mass destruction. Besides, the Statute laudably increased the age of child soldiers, from 15 to 18 years of age. For more, see Ambos 2017, pp. 42–49.

  39. 39.

    Statute of the African Court, above n 3, Article 28C. Modelled upon Rome Statute, above n 36, Article 7. The Statute of the African Court broadened the chapeau of the Rome Statute by adding ‘a wide spread or systematic attack or enterprise … .’ See Ambos 2017, pp. 40–42.

  40. 40.

    Statute of the African Court, above n 3, Article 28E. Cf. African Charter, above n 20, Article 23. See also Kemp and Kinyunyu 2017, pp. 60–68.

  41. 41.

    Statute of the African Court, above n 3, Article 28F. Cf. Article 101 of the 1982 United Nations Convention on the Law of the Sea.

  42. 42.

    Ibid., Article 28G. Compare Article 1(3) with Article 2 of the 1999 Organisation of African Unity Convention on the Prevention and Combating of Terrorism .

  43. 43.

    Ibid., Article 28H. Cf. Article 1 of the 1977 Organisation of African Unity Convention for the Elimination of Mercenarism in Africa.

  44. 44.

    Ibid., Article 28I. Cf. Article 4 of the 2003 African Union Convention on Preventing and Combating Corruption.

  45. 45.

    Ibid., Article 28I bis. Cf. Article 6 of the 2003 African Union Convention on Preventing and Combating Corruption.

  46. 46.

    Ibid., Article 28J.

  47. 47.

    Ibid., Article 28K.

  48. 48.

    Ibid., Article 28L.

  49. 49.

    Ibid., Article 28L bis.

  50. 50.

    Ibid., Article 28M.

  51. 51.

    For instance, the definitions of corruption and money laundering are borrowed from the 2003 African Union Convention on Preventing and Combating Corruption. Compare Article 4 of that convention with Statute of the African Court, above n 3, Articles 28I and 28I bis.

  52. 52.

    Ibid., Article 28I bis. The reason for this problem is that the definition of money laundering is copied from the African Union Convention against Corruption. The drafters did not modify the definition so as to widen the scope of the predicate offence of the crime. This is simply a result of poor draftsmanship.

  53. 53.

    The two courts have overlapping jurisdiction in the following scenarios: (a) over core crimes perpetrated by nationals of an African State which is party to the ICC; (b) over core crimes perpetrated in the territory of an African State that is party to the ICC; or in the case of a referral by the Security Council over core crimes perpetrated in an African State (non-party to the Rome Statute).

  54. 54.

    Statute of the African Court, above n 3, Articles 1(3) 28N, 46B and 46C. Pursuant to Article 46D of the Statute, the ACC does not have jurisdiction over individuals who were under the age of 18 years at the time of commission of the crimes under the jurisdiction of the Court.

  55. 55.

    Ibid., Article 46C.

  56. 56.

    Ibid., Article 46C(2) and (3). For more on corporate criminal liability, see Kyriakakis 2016, pp. 19–23.

  57. 57.

    Kyriakakis 2016, p. 22.

  58. 58.

    Statute of the African Court, above n 3, Article 46E, Malabo Protocol , above n 7, Article 6bis and 11.

  59. 59.

    Admissibility tests are enshrined in Statute of the African Court, above n 3, Article 46H(2), (3) and (4).

  60. 60.

    Ibid., Article 46E bis(2)(a).

  61. 61.

    Ibid., Article 46E bis(2)(b).

  62. 62.

    Ibid., Article 46E bis(2)(c).

  63. 63.

    Ibid., Article 46E bis(2)(d). In addition, States that are not parties to the Statute can also accept the ACC’s jurisdiction on an ad hoc basis. See ibid., Article 46E bis(3).

  64. 64.

    Ibid., Article 46F(1).

  65. 65.

    Ibid., Article 46F(2).

  66. 66.

    Ibid.

  67. 67.

    Ibid., Article 46F(3) and 46G.

  68. 68.

    Rome Statute, above n 36, Article 13(b).

  69. 69.

    UNGA 1946. See also Inter-American Court of Human Rights , Almonacid-Arellano et al. v. Chile, Preliminary Objections, Merits, Reparations and Costs, 26 September 2006, IACHR Series C No. 154, para 98.

  70. 70.

    Statute of the African Court, above n 3, Article 46A.

  71. 71.

    Ibid., Article 46I.

  72. 72.

    Ibid., Articles 28B, 46B and 46C. Compared to Article 25 of the Rome Statute, the modes of participation in the Statute of the African Court are not well-structured. Article 46B of the Statute of the African Court is a mishmash of different concepts. First, the title of the provision which reads ‘Individual Criminal Responsibility’ is a repetition, if not confusing, in light of Article 28B which reads ‘Modes of Liability’. Second, Article 46B(1) should have been part of Article 28B. Third, Article 46B(2) should have been made a second paragraph of Article 46A bis since it is about the (ir)relevance of official capacity. Fourth, Article 46B(3) should have been made an independent provision which deals with the responsibility of military commanders and other superiors. Article 46B(3) does not make a distinction between military and civilian superiors, which it should have done. Fifth, Article 46B(4) deals with a distinct concept – a ground which does not exclude criminal liability. The defect of this subparagraph is that it does not mention certain instances that relieve criminal liability of a person who has committed a crime pursuant to an order of a superior. Given that several conducts of transnational crimes which are not manifestly unlawful are included in the Statute, the grounds that exclude liability in case of crimes committed pursuant to superior orders should have been mentioned. Put differently, adopting an ‘absolute liability’ approach is not a viable approach given the wide range of crimes under the subject matter jurisdiction of the ACC. Cf. Rome Statute, above n 36, Article 33. Ordering as a distinct mode of participation is not provided under Article 28B of the Statute of the African Court. Interestingly, conspiracy to commit the crimes referred in Article 28A of the Statute is clearly criminalised. See Statute of the African Court, above n 3, Article 28N(iii); see also Okoth 2014 for a general discussion on conspiracy. For a detailed discussion on individual criminal responsibility and the principles of international criminal law in general, see Werle and Jessberger 2014, pp. 192–224; Cassese 2013, pp. 161–198; Ambos 2016; Ambos 2013, pp. 102–264; Ratner et al. 2009, pp. 6–26; Schabas 2011, pp. 224–231; Bassiouni 2013, pp. 59–61.

  73. 73.

    Statute of the African Court, above n. 3, Article 46B(2).

  74. 74.

    Ibid., Article 46A bis.

  75. 75.

    Kenyans for Peace with Truth and Justice 2016; Naidoo and Murithi 2016, p. 5.

  76. 76.

    Human Rights Watch 2014; Report of the Conference on ‘Understanding the Malabo Protocol : The Potential, The Pitfalls, and Way Forward for International Justice in Africa’ (2016) http://www.hrforumzim.org/wp-content/uploads/2016/11/Malabo-Protocol-Communique.pdf. Accessed 7 January 2019; Amnesty International 2016, pp. 6 and 11.

  77. 77.

    Tladi 2017, pp. 204–213.

  78. 78.

    ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 14 February 2002, ICJ Reports 2002:3, paras 21–22; ICJ, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, 4 June 2008, ICJ Reports 2008:177; House of Lords, R v. Bow Street Magistrate (ex parte Pinochet) 20 November 1998, (2000) 1 AC 147, pp. 407–433; Cassese 2013, pp. 318–322; Werle and Jessberger 2014.

  79. 79.

    As regards the perpetrators of core crimes, if the jurisdictional requirements are met, the ICC can still investigate and prosecute those officials who enjoy immunity before the ACC. The immunity clause in the Statute of the African Court cannot insulate the leaders from accountability before the ICC.

  80. 80.

    As noted by Sirleaf: ‘The knee-jerk dismissiveness toward the regional criminal court because of the immunity provision has blinded commentators. This has led to the failure to consider how the regionalization of international criminal law could uniquely position regional mechanisms between the system established by the Rome Statute of the ICC and national judicial systems – not to be merely complementary or reinforcing, but as essential parts of a robust system of global justice.’ Sirleaf 2016, p. 703. See also Jackson 2016, pp. 1062–1070.

  81. 81.

    Malabo Protocol , above n 7, preambular para 17; Statute of the African Court, above n 3, Article 46H. Unlike the ACC, the International Criminal Tribunals for Rwanda and the former Yugoslavia operated on the basis of primacy jurisdiction. See Article 9(2) of the Statute of the International Criminal Tribunal for the former Yugoslavia and Article 8(2) of the Statute of the International Criminal Tribunal for Rwanda. Akin to the ACC, the ICC operates as a complementary court to domestic courts of States parties. See Rome Statute, above n 36, Article 17. See also Philippe 2006, pp. 380–438.

  82. 82.

    Statute of the African Court, above n 3, Article 46H(1).

  83. 83.

    Ibid.

  84. 84.

    Van der Wilt 2011, pp. 1047–1048.

  85. 85.

    Compare Statute of the African Court, above n 3, Article 46H(2) with Rome Statute, above n 36, Article 17.

  86. 86.

    Statute of the African Court, above n 3, Article 46H.

  87. 87.

    Ibid., Article 46H(3) and (4); Constitutional Court of South Africa , National Commissioner of South African Policy Service v. Southern African Human Rights Litigation Centre and Another, Judgment, 30 October 2014, [2014] ZACC 30, paras 29, 31 and 34; Supreme Court of Appeal of South Africa , The Minister of Justice and Constitutional Development v. The Southern African Litigation Centre (867/15), Judgment, 15 March 2016, [2016] ZASCA 17, paras 1, 35, 54, 91 and 199.

  88. 88.

    Statute of the African Court, above n 3, Article 46H(3).

  89. 89.

    Ibid., Article 46H(4).

  90. 90.

    Ibid., Article 46H(3)(a), (b) and (c).

  91. 91.

    Ibid., Article 46H(4).

  92. 92.

    Ibid., Article 46H(4).

  93. 93.

    Abass 2017, p. 26; Trendafilova 2014, pp. 22–26; Jessberger and Geneuss 2012, pp. 1087–1088; van der Wilt 2017, pp. 193–194. Pertaining to the ICC rules and rulings on admissibility criteria, see Schabas and El Zeidy 2016.

  94. 94.

    See generally Abass 2013, pp. 48–49.

  95. 95.

    Murungu 2011, p. 1081

  96. 96.

    Jackson 2016, p. 1062.

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  1. Hawassa University, Awasa, Ethiopia

    Marshet Tadesse Tessema

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  1. Marshet Tadesse Tessema
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Correspondence to Marshet Tadesse Tessema .

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  1. Faculty of Law, Humboldt University of Berlin, Berlin, Germany

    Gerhard Werle

  2. Faculty of Law, University of Potsdam, Potsdam, Germany

    Andreas Zimmermann

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Tessema, M.T. (2019). African Regional Developments – Challenge or Chance for the International Criminal Court? Three Courts in One: The African Criminal Court. In: Werle, G., Zimmermann, A. (eds) The International Criminal Court in Turbulent Times. International Criminal Justice Series, vol 23. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-303-0_4

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  • DOI: https://doi.org/10.1007/978-94-6265-303-0_4

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