Today, when it comes to penal matters, legal scholars and practitioners of international law tend to draw a distinction between ‘international crimes’ and ‘transnational crimes’. But it would be misleading to suggest that there is consensus on the precise meaning of these terms. Authors have assigned them a wide variety of definitions in the literature. For our purposes, the phrase ‘international crimes’ should be taken to mean ‘breaches of international rules entailing the personal criminal liability of the individuals concerned’.1 This conception is similar to, but broader than, that preferred by a group of scholars who have described ‘international crimes’ as ‘those offences over which international courts or tribunals have been given jurisdiction under general international law’.2
In contrast, the notion of ‘transnational crimes’, apparently conceived by a United Nations body, is said to describe ‘certain criminal phenomena transcending international borders, transgressing the laws of several states or having an impact on another country’.3 Or, put more succinctly, ‘transnational crimes’ is a reference to ‘crimes with actual or potential trans-border effects’.4 That is to say, those offenses ‘which are the subject of international suppression conventions but for which there is as yet no international criminal jurisdiction’.5
The simplicity of this two-part categorization of crimes understates the surprising uncertainty, and masks serious philosophical and other disagreements among scholars, as to what features make some crimes ‘international’ and others ‘transnational’ in nature.6 It also elides the confusion about the legal consequences, if any, that may flow from the commission of the crimes that fall into these apparently separate categories for individuals as well as for States. The bare distinction further implies that there is greater clarity than actually exists regarding what specific offenses fall into these seemingly impermeable categories, their origins or sources, and the criteria for their inclusion in one basket or the other, and in some cases, not at all.
As Bassiouni has argued, part of the reason for the current uncertainty stems from the lack of a widely accepted definition of what an international crime is and the absence of universally accepted criteria regarding what qualifies certain penal prohibitions as crimes under international law.7 The result is that entire legal regimes (‘International Criminal Law’ or ‘ICL’ and ‘Transnational Criminal Law’ or ‘TCL’) centred around what Cryer calls ‘fuzzy sets’8 have developed in a rather ‘haphazard’9 manner, with the distinction between the various groups of offenses and the categories of which they form a part varying – sometimes dramatically – based on the nature of the social, State or community interest that is being protected as well as the harm that is being sought to prevent through criminalization.
This chapter is an early exploration into the regional (African) approach to international and transnational crimes. In the absence of a unified theory of what makes each of the above crimes groupings what they are, under international or transnational law, Section 2 will start with an examination of the five-part criteria that a prominent international law scholar has offered as a possible way to distinguish between various offenses. Though perhaps imperfect, as they were deduced based on empirical observations of what States seem to do rather than rooted in a grand penal theory, Section 3 will then use that suggested classification to assess the material jurisdiction of the African Court of Justice and Human and Peoples’ Rights (‘African Criminal Court’10 – the first regional criminal court to be established anywhere in the world). The legal framework for the latter tribunal has already attracted serious criticism. Part of the reason for the controversy stems from its inclusion of an explicit immunity clause for incumbent senior government officials and its perceived status as a result of African government backlash against the fledgling permanent International Criminal Court.
A less strident criticism, which is nevertheless theoretically interesting and therefore worthy of consideration, arises from the Malabo Protocol’s fusion of ‘international’ and ‘transnational’ crimes in a single treaty. I argue in this chapter that, rather than focus on which particular offenses are placed into one or the other of this presently largely binary scheme, the emerging practice of African States suggests that it is probably more helpful for legal scholars to start examining the source of the relevant prohibitions and the reasons for their criminalization as well as the legal consequences and implications of their commission. This would better enable us to appreciate the similarities, and differences, between these crimes. It also permits us to explore synergies and best practices that may exist to strengthen each of their underlying legal frameworks.
The last part of the chapter, Section 4, draws some preliminary conclusions. It thereby sets the stage for the analysis that follows in the rest of this part of the book.
This chapter stars from the premise that, in the ordinary course, states in Africa – or for that matter any other region of the world – are free to criminalize any conduct that they deem will cause harm to individuals or communities within their jurisdiction or within their effective control, subject only to constitutional or other limits imposed by international law. In prescribing crimes, they are at liberty to act alone under national law. Where the systems contemplated at the national level are not doing the job for one reason or the other, say because of a lack of willingness or lack of capacity to do so, they are free to come together to do collectively what each of them are able to do on their own. In that sense, and reflective of their sovereign nature and the traditional bases of jurisdiction recognized under international law, they can freely assert their jurisdiction to prescribe offences as well as delegate their jurisdiction to adjudicate, and jurisdiction to enforce to a domestic or a regional court – such as that proposed by the AU for the African region – or even an international penal tribunal established for such purpose. It follows that the blending of various types and categories of crimes into a regional treaty does not necessarily require additional doctrinal justification for them to prohibit such offenses and to seek to punish those who perpetrate them.
The doctrinal match for the criminological phrases international crimes and transnational crimes reflect a plethora of definitions, many of which are not always consistent. For starters, the former as classically understood, was usually taken as a reference to what some scholars today more frequently label transnational criminal law. That is, the body of domestic law referring to those parts of municipal law addressing crimes that has cross border or extraterritorial origins and or effects.11 This was the case at least until the United Nations Security Council established the first modern ad hoc international criminal tribunals for the former Yugoslavia and Rwanda in 1993 and 1994 respectively. But the terminological confusion, which tended to lead to the loose equation of transnational criminal law with ‘traditional international criminal law’ and the law concerning the crimes within the jurisdiction of the UN ad hoc tribunals as ‘new international criminal law,’ does not end there.12
In fact, it appears to also go the other way. So that, in the literature, it is not unusual to find authors alluding to transnational criminal law when they proceed to actually discuss ‘crimes of international concern.’13 The latter would cover a wide range of conduct with little commonality other than the decision, or acceptance, by States that some form of inter-State cooperation regime or some coordinated international action must be taken by them within the domestic sphere to suppress such behaviour.14 It is also interesting that, in a way, the resurrection of State interest in the so-called serious crimes of international concern forming part of what many of us would consider international criminal law, at least as administered by the International Criminal Court (‘ICC’), originated in part from Trinidad and Tobago’s proposal to criminalize drug trafficking – itself a classic transnational crime – which ironically did not make it into the statute of the permanent international penal tribunal.15 Yet, in a further irony, the most recent work on a draft crimes against humanity convention, at the International Law Commission (‘ILC’), has drawn considerable inspiration from the statute of the ICC for its definition of the offence at the same time as it placed great reliance on various global transnational crimes conventions for its mutual legal assistance, extradition and other clauses. Both fields, it seems, are beginning to converge substantively as well as procedurally.
In any event, despite the lack of definitional clarity, the traditional distinction between international and transnational crimes on the one hand, and between international and transnational criminal law on the other, now provides at least a generally agreed basis for scholars to distinguish between so-called international crimes stricto sensu (that is the post-Nuremberg law governing the so-called ‘core crimes’ – genocide, crimes against humanity, war crimes and the crime of aggression) and transnational crimes (covering a diverse set of crimes such as slavery, drug trafficking, or money laundering). The former are seen as capturing those acts that implicate the fundamental values of the international community as a whole. As the Rome Statute of the International Criminal Court (ICC Statute) would later put it in its preamble, those offenses are among those that particularly ‘threaten the peace, security, and well-being of the world’.16 On the other hand, transnational criminal law provides for the exercise of national jurisdiction by states in respect of conduct which has transnational implications. These, by their nature, involve or affect the interests of more than one State.
But, in an attempt to draw clear boundaries to help minimize the conflation, scholars have suggested that the crucial distinction between these crime categories is that in addition to the distinctive normative goal of protecting core Grotian or Kantian community values, as Boister and Kress have suggested, international criminal law actually creates a system of direct penal responsibility for individuals under international law.17 Here, in this category of crimes, international law basically bypasses municipal law and criminalizes behaviour directly. In other words, these are universal crimes condemned by international law. They must thus be punished irrespective where in the world they are committed and by whom.18
On the other hand, when it comes to so-called transnational criminal law, there is an indirect system of liability. That system imposes obligations on States Parties to criminalize certain conduct under their domestic laws as much as some core international crimes conventions do. The obligation here is placed on the State, not on individuals. States undertake to prohibit and punish those among the latter category who commit the crime. The obligation is usually imposed in political contexts that indicate the national authorities want to jealously guard their jurisdiction to prescribe, their jurisdiction to adjudicate and their jurisdiction to enforce the relevant prohibitions rather than delegate them to a distant international penal tribunal over which they have may not have meaningful control.
The regime of ICL now largely addresses itself directly to the individual. It anticipates enforcement of the prohibitions under both national and international law at the national, and in some cases, the international level. The TCL regime, for its part, addresses itself primarily to the State and uses national courts primarily as a means for enforcement. In other words, the latter reflects a web of mutual interstate obligations generating national duties to prohibit the conduct. This is usually supplemented with a specific treaty-based duty to legislate and for a duty to either investigate and prosecute or to extradite the perpetrator, and typically limits the availability of the traditional political offence exception. The degree of enforcement of transnational crimes, as well as coordination between States, will depend on the nature of the specific offence under consideration. It will also reflect the extent to which they (i.e. States) desire to address the threat stemming from the prohibited conduct. The prohibition of such crimes in transnational criminal law regime reflects the concern with the self-interest of sovereignty conscious States. The ICL regime, while secondarily accounting for the stability and other interests of states, seems mainly aimed at protecting human beings and the preservation and even promotion of certain fundamental values within the ‘jus puniendi’19 of the international community as a whole.20 Values that include the protection of human rights and freedoms, including the right to life and at least a soft right of victims of atrocity crimes to some form of remedy and reparation.
Still, the distinction between ICL and TCL should not be overemphasized. There are certainly some remarkable overlaps between the two regimes. For instance, while ICL did insist from its founding – in what was then a rather radical idea – ‘that individuals have international duties which transcend the national obligations of obedience imposed by the individual state’,21 some of the main treaties that prohibited conduct that is now widely considered to fall within the realm of international offenses initially permitted or imposed upon states the duty to prosecute or punish such criminal conduct within their municipal law. The addition of international criminal courts as enforcement mechanisms, initially only ad hoc and eventually also permanent, came much later. At present, there is no Transnational Criminal Court, in the same way that there is an ICC. Nonetheless, for both TCL and ICL offenses, states still bear the primary legal obligation – at least at the domestic level – to investigate and prosecute the suspects who may have committed such crimes. A failure to do so may, in some cases, give rise to a duty to extradite that person upon request of another State willing and able to prosecute.22 This is the case for crimes like torture, which is both an international crime found under war crimes and crimes against humanity, but also a separate subject of a suppression treaty (i.e. the Convention Against Torture23). Of course, in the case of what we might label purely international crimes in relation to one of the current 123 States Party to the ICC, complementarity might require the unwilling and/or incapable State to surrender the suspect to The Hague. The complementarity principle, as a jurisdiction-sorting rule that initially gives priority to concrete actions of national over international authorities, further supports the argument that the distinction should not be overemphasized.
Unlike in most domestic systems, as compared to the international level, there is not at present a comprehensive penal code of crimes at the international level. The ILC, which was tasked in 1947 by the United Nations General Assembly with producing a draft code of crimes for states to consider for adoption, appear to have had no choice but to focus – as per the terms of its actual mandate concerning the topic – on the relatively narrow list of ‘offenses against the peace and security of mankind’.24 Despite its many useful contributions, including to the development of the corpus of modern international criminal law through, inter alia, the formulation of the Nuremberg Principles and the draft statute for the permanent international penal court, in addition to the draft code of crimes against the peace and security of mankind. The ILC did not explicitly adopt a comprehensive theoretical framework setting out preconditions for an international crime or the policy that should guide international criminalization when the project was finally completed in 1996.25
Bassiouni, who probably undertook one of the earliest and most complete efforts to clarify the concept of international crimes, has rightly observed that the international criminal law literature is replete with terms all of which are aimed at identifying the various crimes categories at the international level.26 This includes the use of the descriptors such as crimes under international law, international crimes, international crimes largo sensu, international crimes stricto sensu, transnational crimes, international delicts, jus cogens crimes, jus cogens international crimes, and even a further subdivision of international crimes referred to as core crimes.27 He proposed to bring some type of order by seeking to address two things. First, the criteria that should guide the policy of international criminalisation. Second, after having done so, to identify the particular characteristics the presence of any of which would, if found, be sufficient to delimit what constitutes an international crime.
With respect to the policy criteria, Bassiouni suggested five main guidelines, as follows:
(a) the prohibited conduct affects a significant international interest, in particular, if it constitutes a threat to international peace and security;
(b) the prohibited conduct constitutes egregious conduct deemed offensive to the commonly shared values of the world community, including what has historically been referred to as conduct shocking to the conscience of humanity;
(c) the prohibited conduct has transnational implications in that it involves or effects [sic] more than one state in its planning, preparation, or commission, either through the diversity of nationality of its perpetrators or victims, or because the means employed transcend national boundaries;
(d) the conduct is harmful to an internationally protected person or interests; and
(e) the conduct violates an internationally protected interest but it does not rise to the level required by (a) or (b), however, because of its nature, it can best be prevented and suppressed by international criminalization.28
(1) explicit or implicit recognition of proscribed conduct as constituting an international crime, or a crime under international law, or a crime;
(2) implicit recognition of the penal nature of the act by establishing a duty to prohibit, prevent, prosecute, punish;
(3) criminalisation of the prohibited conduct;
(4) duty or right to prosecute;
(5) duty or right to punish the proscribed conduct;
(6) duty or right to extradite;
(7) duty or right to cooperate in prosecution, punishment (including judicial assistance);
(8) establishment of a criminal jurisdictional basis;
(9) reference to the establishment of an international criminal court or international tribunal with penal characteristics; and
(10) no defence of superior orders.29
The assessment of whether a particular crime fulfils one or more of the foregoing characteristics could probably best be done empirically. The presence of any of those characteristics, in any convention, was thus apparently sufficient in the practice of states for him to label the prohibited conduct an ‘international crime’.30
Several observations can be made about the above policy criteria and the characteristics of international penalization. First, Bassiouni’s interesting scheme appears to have found some general support among scholars as a useful starting (not ending) point for discussion.31 It offers a workable framework for discussion on the classification of such crimes, though their full practical consequences cannot be explored here given our limited focus. Nonetheless, as some academics such as Cryer have noted, the foregoing criteria are not necessarily ‘self-applying, and the judgments that they are fulfilled are, for the purpose of positive international criminal law, subjective’.32 Second, and as Einarsen has also observed, Bassiouni does not explain the sources of the five policy criteria.33 Rather than being grounded on a theoretical framework, they appear to be descriptive of a wide variety of penal treaties thereby raising questions about their potential prescriptive value. Third, the history of international criminalization does not always show that States have systematically or consciously adopted and applied these criteria objectively when determining what offenses to prohibit or not. This would be consistent with the free hand that they have under principles of international law to regulate matters within their domestic spheres.
Nonetheless, by providing an empirical study based starting point for debate, it seems sufficiently clear that we can probably judge whether some of the crimes that have been proposed for the African Criminal Court offer a basis to regulate conduct as criminal in nature. This, of course, goes above and beyond what is required because international law does not demand a justification from States in their assertion of jurisdiction – as the Permanent Court of International Justice clarified in the classic Lotus Case, a position that has been admittedly somewhat softened since then. We can still nonetheless query, by careful analogy, whether the mixed basket of crimes contained in the Malabo Protocol carry with them some or all of the similarities and logic of the established crimes to explain, if not necessarily justify, their repression at the regional (i.e. African) level. To the extent that we are here contemplating a system that has been identified as far from coherent, in any event, this useful analytic scheme demonstrates that the variety of offences contained in the regional African instrument may not be outside the norm as may at first blush appear.
Based on the above guidelines, Bassiouni’s study, which obviously reflects a broad instead of narrow conception of what gives rise to international crimes such that it is inclusive of what some might ordinarily consider ‘transnational’ crimes, identified the presence of one or more of the penal features in 281 conventions. He argued that, while it would be ideal for all or most of these ten characteristics to appear in every penal treaty, this was simply not the reality.34 He went on to identify about 27 crimes in existing international conventions, which he further subdivided into four general groupings: ‘truly international’ crimes; ‘transnational’ crimes; ‘partly international or transnational’ crimes; and ‘international crimes.’ The practicality of these groupings being the way to enhance their prevention and suppression.35 These four broad classes seem to mirror each other and differ only in the quality of being pure or mixed as the language of ‘truly’ or ‘partly’ indicate.
Unlike treaties such as the ICC Statute, instruments addressing the phenomenon of transnational crimes do not establish direct penal liability by defining specific crimes in the same manner that, for example, genocide or crimes against humanity are delineated. Instead, by accepting to sign on to such a treaty as noted earlier, the State undertakes to criminalise in its domestic law the prohibited conduct as well as to provide penalties for the violations. Though the matter may not yet be entirely settled, the United Nations Convention against Transnational Organized Crime has provided some useful guidance on what criteria a crime must fulfil to fall within the so-called ‘transnational’ crimes category. Under this approach advanced by the UN, much like Bassiouni’s ten penal characteristics for what makes something an ‘international crime’, the presence of one or more of the following four factors is said to be determinative of ‘transnational crime’ status:
(1) it is committed in more than one state;
(2) it is committed in one state but a substantial part of its preparation, planning, direction or control takes place in another state;
(3) it is committed in one state but involves an organized criminal group that engages in criminal activities in more than one state; and
(4) it is committed in one state but has substantial effects in another state.36
Under this methodology, we may conclude that the transnational nature of a crime apparently relies on the existence of cross-border geographical dimensions. This is supported by the main literature on transnational criminal law which seeks to add definitional certainty on TCL as a category. It also implies the fact of several States coming together to engage in some type of cooperation to stem the perpetration of the crime as part of protecting their individual and collective interests.
3. Wither the Categories? The Classification of Crimes in the Material Jurisdiction of the African Criminal Court
The African Court of Justice and Human and People’s Rights, whose creation is contemplated by the Malabo Protocol which, as of writing, has only been signed by eleven African States, will exercise jurisdiction over general, criminal, and human rights matters through three different chambers:
(1) a General Affairs Section;
(2) a Human and Peoples’ Rights Section; and
(3) an International Criminal Law Section.37
For the limited purposes of this chapter, I do not engage on the first two types of jurisdiction which are carefully evaluated by other colleagues in this volume. Rather, I ponder the subject matter competence of the last of the three foregoing sections in a way that should inform the subsequent chapters that follow on the specific crimes. More specifically, I will examine what the Malabo Protocol defined as ‘international’ crimes as listed in its Article 28A. There is, of course, much that could be said about the subject matter jurisdiction of the African Criminal Court, triable in the International Criminal Law Section.38 However, the discussion here is limited only to the description (‘international crimes’) that the drafters gave to the 14 crimes contained in the court’s subject matter jurisdiction. This issue is of interest, not only because of the seeming confusion that exists in the literature on what makes a crime an international as opposed to a transnational one, which traditional distinction we could use the Malabo Protocol to test, but also because it is evident that the invocation of that label in the circumstances of this one instrument will be controversial. Controversial because, at the least, the classification of the crimes as ‘international’ threatens to undo the conventional paradigm among scholars and policymakers that, until recently, attempted to draw a somewhat neat division separating international from transnational crimes.
Partly because of this, and the way the Malabo Protocol relies on an eclectic mix of treaty sources for the crimes contained within the African Criminal Court’s jurisdiction, it is important to discuss these offences. This exercise becomes that much more necessary because it offers a sufficient basis to compare the African regional instrument with the international penal tribunals that have preceded it, again, even if this is not necessarily required to justify the form of the regional prohibitions under international law. The clarification may also be helpful for both theoretical and practical reasons. Indeed, in relation to the latter aspect, some scholars, such as Van der Wilt, have already relied on the conventional international versus transnational crime distinction to propose that this categorization could enable a division of labour that could help avert future jurisdictional conflicts between the African Criminal Court and the ICC.39 This is an interesting proposal, though given the arguments of this paper, I remain doubtful whether the international-transnational crimes divide could by itself be a sufficient basis to properly resolve any jurisdictional conflicts that might arise.
The ACC contains a more extensive list of fourteen crimes within its subject matter jurisdiction. It differs, in that respect, from the international and other tribunals that preceded it. Indeed, since the seminal Nuremberg trials in 1945, international criminal courts have tended to include only three main offenses within their jurisdictional ambits. Part of the reason for that stems from the practical reality that only the gravest crimes that have been widely condemned under international law can be realistically prosecuted at the international, as opposed to, the national levels. The more extensive list of crimes in the African Criminal Court are, as listed in the constitutive instrument, (1) genocide, (2) crimes against humanity, (3) war crimes, (4) the crime of unconstitutional change of government, (5) piracy, (6) terrorism, (7) mercenarism, (8) corruption, (9) money laundering, (10) trafficking in persons, (11) trafficking in drugs, (12) trafficking in hazardous wastes, (13) illicit exploitation of natural resources, and (14) the crime of aggression. The form of the list does not appear to imply any hierarchy. The first three, and the last one, are typically considered to be among the worst crimes known to international criminal law.
Applying Bassiouni’s ten penal characteristics to each of these offenses in the Malabo Protocol, if we assume all ten are present in each crime, they could reflect up to one hundred and forty. However, even on a cursory review, it becomes apparent that not all of the identified characteristics can be found in each crime. This is to be expected since some of the crimes may contain ideological or political components (for example, the crime of unconstitutional change of government), which implies that they may be expected to have a lower number of actual penal characteristics. Conversely, the offenses lacking political or ideological features might contain a larger percentage of penal characteristics. Whatever the case, for convenience, we can at the broadest level of generality sub-divide the fourteen crimes included in the Malabo Protocol into Bassiouni’s four main categories. These, it will be recalled, are (1) international crimes, (2) transnational crimes, (3) partly international crimes and (4) partly transnational crimes, which can thus be depicted graphically as follows40:
|1.International crimes||2.Transnational crimes||3.Partly international||4.Partly transnational|
|Genocide||Mercenarism||Unconstitutional change of government|
|Crimes against humanity||Money laundering|
|War Crimes||Trafficking in persons|
|Trafficking in drugs|
|Trafficking in hazardous wastes|
|Illicit exploitation of natural resources|
As a branch of public international law, international criminal law relies on the sources of international law. The formal sources are those listed in Article 38(1) of the Statute of the International Court of Justice.41 That is: treaties, custom, general principles of law, and as subsidiary means of determining the law, judicial decisions and the writings of highly qualified publicists. It follows that, to the extent that African States have included international crimes in the statute of their regional court, we might expect that they derive from the explicit recognition of the proscribed conduct as constituting a crime under international law, whether found in treaties or pursuant to customary international law composed of state practice and opinio juris.
The four crimes in the Malabo Protocol that are classified as international in nature are sometimes referred to as ‘core’42 international crimes, to wit: aggression, crimes against humanity, genocide and war crimes. It is obvious that these widely recognized crimes are rooted in international law. Two of the four (that is, genocide and war crimes) are expressed in universal multilateral treaties that are widely endorsed by African States as well as in widely known international instruments such as those produced by the ILC.43 The other two (that is, crimes against humanity and the crime of aggression) have not yet been codified in stand-alone treaties. Still, there have been several international instruments which have defined them. Those definitions have generally shaped the more specific ones included in the statutes of various international criminal tribunals. In the case of crimes against humanity, following on persistent academic proposals, there is at present an ongoing effort to develop a draft global convention on the topic within the ILC which has completed the first reading in the summer of 2017 and is expected to accomplish second and final reading in the summer of 2019.44 The crime of aggression has been defined in various international instruments, but excepting the carefully and slowly crafted definition contained in the ICC Statute, these have not been treaties.
The inclusion of these four serious international crimes in the Malabo Protocol suggests that African States take seriously their legal duty, presumably based on conventional and customary international law, to prosecute the most serious international crimes whenever they occur on the continent. The stated intention of the African Union in relation to their inclusion was apparently to create, within the African continent, a court that will have the competence to address these crimes to the highest international standards.45 In other words, the African system sought to address them as they would have been dealt with by, for instance, the ICC or any other State responsibly exercising universal jurisdiction.46
Keeping these goals in mind, in terms of sequence, the decision of the Assembly of Heads of State and Government directing the establishment of the new tribunal specifically requested that the AU Commission (‘AUC’), in proposing a treaty for their consideration, ‘examine the implications of the Court being empowered to try international crimes such as genocide, crimes against humanity and war crimes’.47 Thus, war crimes, crimes against humanity and genocide, were specifically identified as worthy of inclusion in the future regional court’s instrument. This may have come partly because of the context of the creation of the African Criminal Court as a sort of more local alternative to the ICC. As to the fourth international crime (i.e. the crime of aggression), which was later included in the draft statute, the drafters argued that the language of ‘such as’48 in the Assembly decision implied that the list of the three core crimes was an illustrative instead of a closed list. It followed that a crime of similar gravity and significance, like the crime of aggression, could be properly included in the statute of the future court.49
The above meant that, by fiat of the political directive in the decision of the African Union’s highest organ (the Assembly of Heads of State and Government) and the drafters’ reading of it, the regional court would enjoy jurisdiction over four serious international crimes. Thus, it was not surprising that Articles 28B, 28C and 28D detailed the subject matter jurisdiction of the African Criminal Court concerning the core international crimes – genocide, crimes against humanity, war crimes respectively – those being the ones deemed to be the most serious crimes of international concern. They reproduced, in terms of which definitions of those offenses to use, those set out in the Rome Statute. The Report of the Study on the Implications of expanding the mandate of the African Court of Justice and Human Rights to try serious crimes of international concern (‘AUC Report on the Amended African Court Protocol’)50 summed up the preferred approach of the drafters as follows: ‘… with regard to these three serious crimes [genocide, crimes against humanity and war crimes] where jurisdiction will inevitably be shared with the ICC, the definitions adopted should essentially be similar to (if not better than) those of the ICC.’51
The justification provided for this posture was two-fold.52 First, though this may only be half true, the report claimed that ‘in terms of the continuous development of law, the Rome Statute definitions represent the most current advances in definitions of these crimes. … Anything less may be retrogression.’ The second justification was framed by considerations of complementarity. The drafters took the view that it was necessary to reflect, in terms of the definition and content of crimes, the latest developments in international law as any variation between the Rome Statute and the African regional instrument portends challenges for complementarity practice.53 As they put it: ‘The ICC could be moved to indict a person who is already indicted before the African Court, for aspects of crimes which are covered in the Rome Statute definition and which are absent in the Amended African Court Protocol definition.’54
In the result, the Malabo Protocol definitions of the core international crimes reflected this approach. For example, regarding the crime of genocide, the regional instrument includes a new paragraph – among the established statutory or treaty list of genocidal acts – ‘acts of rape and any other form of sexual violence’. The laudable goal here was to reflect more recent advances in the law of genocide – as developed by the International Criminal Tribunal for Rwanda (‘ICTR’) in the Akayesu case. Under that jurisprudence, rape acts were seminally determined to amount to genocide if they occur in the right context.55
It can be argued, as Ambos does, that the specification of the crime in this way was superfluous, given both Akayesu and the line of tribunal jurisprudence on sexual violence that has since followed it.56 However, although a bigger leap in influencing the law of genocide might have been to expand the long contested list of so-called protected groups to cover political and perhaps even cultural groups, the explicit naming and shaming of this phenomenon present in many modern African and other conflicts is, on balance, a highly welcome development. By adding rape acts to the crime of genocide, in the Malabo Protocol, it gives greater clarity and legitimacy to the more modern prohibitions. It thus helps to address a traditional (gender) blind spot for international criminal law, especially given the more gender-neutral framing of the rape acts and the hopefully not-overbroad nature of the second part of the sentence (‘any other form of sexual violence’).57
On crimes against humanity, the Malabo Protocol reproduced essentially the same definition as that found in Article 7 of the Rome Statute. This includes the chapeau requirements, including the problematic State or organizational policy element, as well as the same list of prohibited acts as can be found in Article 7 of the Rome Statute.58 However, there were also some differences in the text. For instance, the Malabo Protocol definitions includes in its list of forbidden acts an act amounting to crimes against humanity: the crime of torture. The definition contemplates, as ‘torture’, a crime against humanity delineated as the infliction of ‘cruel, inhuman and degrading treatment or punishment’ which in the ICC, as expressed in the Rome Statute and Element of Crimes, is limited to the perpetrator’s ‘intentional infliction of severe pain or suffering’ of a person, ‘whether mental or physical,’ in his or her custody and infliction of ‘severe physical or mental pain or suffering upon one or more persons’.59 For the future African Criminal Court, a key issue will be how to distinguish the line between ordinary cruel treatment, on the one hand, and torture on the other (which entails a greater degree of cruelty), as that is defined under international human rights (not criminal) law. Indeed, because the difference between cruel treatment and torture is likely one of degree,60 the African Criminal Court’s definition captures within its prohibitive scope both severe and less severe forms of ill treatment. In a way, if we leave aside the concern about lesser degrees of inhumane treatment that should be prosecuted at the national level falling within the jurisdictional scope of the regional court, this expansion of the protective umbrella to victims of torture could be a positive expansion of the crime against humanity of torture.
Regarding war crimes, the definition of which was drawn from the Rome Statute, the Malabo Protocol retained, albeit in an attenuated form to the point of a near merger, the traditional distinction between international armed conflict (‘IAC’) and non-international armed conflict (‘NIAC’). But it also attempted to reflect the latest developments in international criminal law, not always successfully or most logically, by adding 14 new war crimes to supplement Article 8C of the Rome Statute.61 As to IACs, the African instrument included several new prohibitions amounting to war crimes as well. These included previously controversial issues, at least in the context of the ICJ and the negotiation of the Rome Statute, such as the addition of a penal prohibition banning the ‘use of nuclear weapons or other weapons of mass destruction’. With no African State being a known nuclear weapons jurisdiction, and the high possibility that such weapons would only be deployed by non-African States, it can be argued that this grave crime has as its object those officials in more developed countries that may be tempted to deploy ‘nuclear weapons’ but also other ‘weapons of mass destruction’ during a war involving states from their region. In a region of the world that has seen its share of foreign interventions from former colonial powers, and sometimes other (more private) interests, this gap filling offense could be part of the process of Africanizing international criminal law which the mainstream ICL regime has so far largely resisted.
Finally, in defining the crime of aggression, the Malabo Protocol also used as a starting point the definition in Article 8bis of the Rome Statute. That definition, like all the international crimes discussed above, was taken as a floor – rather than a ceiling – allowing a tweaking of the definition in an attempt to address specificities of the African context.62 The specificities of the African context include the extension of the manifest violations to not only cover those prohibited by the Charter of the United Nations, but also to those violations of the Constitutive Act of the African Union, as well as interference with ‘territorial integrity’ and ‘human security’ of the population of a State Party. It additionally envisages, as encompassing within the crime of aggression, a wider category of targeted actors that go beyond the traditional category of aggressor States. These would include a ‘group of states’ (presumably including military alliances such as the North Atlantic Treaty Organization), but importantly also ‘non-state actors’ and ‘any foreign entity’. The expansion of the crime to include the latter elements arguably takes more seriously the role of non-state actors such as rebel, terrorists, and militia groups in the commission of heinous atrocities in Africa.
In sum, while it may be that some of the changes made in the Malabo Protocol to the established definitions of international crimes will not in practice add much to the effectiveness of the crime, or potentially even create interpretational difficulties, the takeaway for our more limited purposes of determining whether they are appropriately categorized as international crimes is clear. They are indeed international crimes, and because of their serious nature, they are in fact rightly considered to be among the ‘core’ offenses. In this regard, evaluating them against Bassiouni’s five-part policy criteria, genocide, crimes against humanity, and war crimes, easily constitute prohibited conduct affecting a significant international interest because their commission constitutes a threat to international peace and security in respect of which African States are rightly concerned. They also entail prohibited conduct that is grave enough to shock the conscience of Africans. They are so serious that they can rightly be deemed offensive to the commonly shared values of the world community, of which the African continent is but one part. The commission of these crimes hold international implications and typically involve or affect more than one state in their planning, preparation, or commission, whether through the nationality of their perpetrators or victims, or both, and the fact that the means employed to accomplish them frequently transcend national borders. Finally, the conduct that they attempt to regulate is harmful to internationally protected interests. It flows from this that these crimes, as easily the most widely recognizable ones under modern international criminal law, also fulfil most if not all the ten penal characteristics that Bassiouni’s empirical study sought to identify and classify.
An important question arises whether, in light of the differences in the definitions of crimes introduced by the Malabo Protocol vis-à-vis other definitions of the same offenses in various international instruments, we might begin to see a form of fragmentation of international criminal law. The ILC Study on the issue of fragmentation highlights that rules of international law, including those in specialized regimes like that under study here, could have relationships of both interpretation and conflict. The ILC’s draft conclusions and commentary suggests ways such conflicts could be avoided. Using interpretation as a tool, in the future, may prove useful or even be necessary in future discussions of this issue of regional/particular versus general international criminal law. Still, it would be hard to claim that the ad hoc nature of how ICL has developed to date reflect a coherent unitary model or even understanding of the concept of international crimes let alone a system of international criminal law.63
Besides the above international crimes, the drafters of the Malabo Protocol felt that they did not need to limit the jurisdiction of the African Criminal Court to the core crimes mentioned in the decision of the AU Assembly of Heads of State and Government. They reasoned that, since various African instruments had expressed concerns about several other issues, this had opened ‘the door for the consideration of other crimes, which are of serious concern to’64 the African Union.65 Having made this determination, the question arose as to how to determine those other ‘serious crimes of concern to African states’. To delimit those, the drafters felt that they should examine treaties that had already contemplated serious matters that the Africa region and other regional economic communities on the continent had addressed over the years. The seven crimes placed in the ‘Transnational Crimes’ category in the above table (i.e. piracy, mercenarism, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, illicit exploitation of natural resources), along with the other remaining crime (i.e. corruption), were drawn from regional conventions as well as other international instruments that some African States had acceded to.66 They were therefore essentially justified for inclusion in the Malabo Protocol on the basis of their nature and gravity. They were possessing intrinsic seriousness to the violations, the need to protect the peace, good order and stability of African countries, and in some cases, their serious impact on the countries and indeed the continent as a whole. In this regard, the African Union Commission, in preparing the draft Statute, sought to draw a gravity of the crime based distinction between the ‘serious crimes of international concern’ and those ‘of serious concern to African states’.67 They thus particularized the scope of the crimes using this approach.
For reasons of space, and considering that they are discussed at length by other authors in separate chapters in this book, I will not examine each of the individual crimes that I have placed in the transnational crimes category of the Malabo Protocol. Instead, as these are already analyzed in subsequent chapters in this book, I will take two examples (i.e. mercenarism and piracy), one reflecting how the drafters drew from a regional (i.e. African) treaty and the other from an international instrument that has been widely endorsed by African States.68 These examples are arguably representative of the wider category of seven crimes in terms of their legal basis. So also is their transformation into regional (mercnearism) and international (piracy) nature such as to account for their particularity for African states. First, recognising that mercenarism has long been an issue of concern to African states as an offense which has the potential to undermine regional peace and security, Article 28H of the Malabo Protocol draws on the 1977 Convention for the Elimination of Mercenarism in Africa.69 Concluded under the auspices of the Organization of African Unity, the predecessor to the AU, the convention sought to prohibit the recruitment, training, using, and financing of mercenaries and mercenary activity as well as the active participation of a mercenary in an armed conflict or ‘in a concerted act of violence’ aimed at ‘overthrowing a legitimate government or otherwise undermining the constitutional order of a state’; ‘assisting a government to maintain power’ or ‘a group of persons to obtain power’; or ‘undermining the territorial integrity of a state’. This crime, which is a form of extension of the crime of aggression,70 is significant. Historically, the presence of all kinds of mercenaries in African wars has been significant from before during the period of colonization and since then. It was a kind of activity that was used to undermine the human rights and self-determination claims by African peoples against their colonial masters.
Second, I will refer to piracy, which many scholars would consider the oldest international crime. Be that as it may, since we do not need to resolve that debate here, Article 28F of the Malabo Protocol adopts the definition of the crime of piracy as can be found in Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS) of 1982. The offence was added to the Malabo Protocol to address the problem of piracy, which has become a major topic of concern for African states and indeed the international community as represented by the United Nations. As was argued by the drafters, ‘[t]his old crime has acquired a renewed importance in Africa, especially because piracy off the East and West African Coasts has lately become a serious concern in terms of law and order, peace, security and stability, and commerce and economic development.’71
In this regard, again using Bassiouni’s five part criteria, it can readily be shown that some of these crimes address prohibited conduct affecting a significant international or regional interest because those offences are presumed to generate a threat to regional or international peace and security. This, for instance, was the case with respect to piracy and mercenarism. The commission of these offences undermine peace and security in the Africa region. Some of the other crimes entail prohibited conduct which is so egregious as to shock the conscience of Africans. They may be deemed offensive to the commonly shared values of the African community. This can also be said to be the case, in an admittedly more dubious argument, with respect to money laundering as an economic crime, but perhaps less so trafficking in persons, drugs and the illegal dumping of harmful hazardous wastes, as well as crimes like illicit exploitation of the natural resources of entire societies. Of course, all the prohibited conduct captured by these crimes may have transnational implications in terms of involving or affecting more than one African (or even non-African) State in their planning, preparation, or commission, either through the diversity of nationality of its perpetrators or victims, or the fact that the means employed towards their accomplishment transcend national borders. In some of these crimes, the criminalized conduct is harmful to either or both internationally and regionally protected interests.
Most if not all of these crimes also reflect one or more of Bassiouni’s ten penal characteristics. They implicitly or explicitly recognize the proscribed conduct as crimes under international conventional or customary law (e.g. piracy) and implicitly recognize the penal nature of the acts by establishing a legal duty in regional conventions to take steps to recognize the need for criminalisation of the prohibited conduct (e.g. corruption). In a handful of the cases, they establish that African States bear duties, or at least enjoy rights, to investigate and or prosecute those suspects who commit them (unconstitutional change of government). They also provide a framework for the establishment of a regional criminal jurisdiction to address them (i.e. illicit exploitation of natural resources).
Following Bassiouni’s classification, two crimes (terrorism and the crime of unconstitutional change of government) have been included in a third category in the earlier table. However, like piracy, some might credibly argue that the former offence belongs to the international crimes basket. The character of terrorism, which may include transborder dimensions in both preparation and commission, also means that it is a crime that could easily be added to the partly or fully transnational offence basket. This goes to show that the categories are not necessarily watertight. It further demonstrates that they may in fact be permeable. On a broader level, this permeability may raise doubts about the formal categories more generally. Nonetheless, the goal here is not to resolve doctrinal issues that might arise in respect of them as much as it is to offer a preliminary basis through which to think about the classification of the diversity of crimes contained in the African regional treaty.
As a technical matter, the Malabo Protocol adopts the definition of terrorism provided for in Article 3 of the Organization of African Unity Convention on Prevention and Combatting of Terrorism, with minor modifications.72 Article 28G of the Protocol criminalises the promotion, sponsoring, contribution to, commanding, aiding, incitement, encouragement, attempting, threatening, conspiring, organizing, or procurement of any person, with the intent to commit an act of terrorism. An act of terrorism is defined as:
[a]ny act which is a violation of the criminal laws of a State Party, the laws of the African Union or a regional economic community recognized by the African Union, or by international law, and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public or private property, natural resources, environmental or cultural heritage (emphasis added).
To constitute a crime, the prohibited conduct or acts must be calculated or intended to intimidate, put in fear, force, coerce, or induce any government, body, institution, the general public, or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles. With respect to the acts of terrorism, it is unclear why the Malabo Protocol does not include the acts criminalised, perhaps as a starting point, by several UN Conventions and to which the obligation to prosecute or extradite (aut dedere aut judicare) applies. Despite the lack of a universally acceptable definition of terrorism, there appears to be consensus that the conduct criminalized by the 12 UN Conventions constitutes international crimes.73
The crime of unconstitutional change of government is one of the new crimes created by the Malabo Protocol. Article 28E, criminalises commission or ordering, ‘with the aim of illegally accessing or maintaining power’, several acts including carrying out a coup against a democratically elected government. Of all the crimes included in the instrument, the crime of unconstitutional change of government is perhaps one of the most important public order crimes for Africa given the history of coup d’états on the continent. It is also a key public order crime, the prohibition of which has been perhaps the most controversial. It also elicited heated debates on a wide range of issues in relevant AU organs during the drafting process.74 The drafters of the Malabo Protocol argued that:
This elaborate definition continues the trend of the AU, over the last dozen years, of appreciating that unconstitutional change of government could be sudden, forceful or violent (as in coup d’état or mercenary attacks) or could be more silent, insidious and long-drawn out (as, for example, a democratically elected government which, once in office, systematically dismantles democratic laws, principles and institutions in order to prolong its hold to power).
It is the recognition of the problematic nature of a leader illegally hanging on to power that led to a regional prohibition. Essentially, Article 25 of the African Charter on Elections, Democracy and Good Governance provided, in addition to various sanctions against the offending state, that ‘perpetrators of unconstitutional change of government may also be tried before the competent court of the Union’.75 Thus, without previously having criminalized this offense at the regional court level, the Malabo Protocol gives African states the possibility of taking enforcement action in a regional penal tribunal against a person who violates regional norms where he refuses to peacefully transfer power to a winning candidate following free and fair elections.
Recent developments help illustrate the significance of the prohibition. For example, following contested election results in The Gambia in 2016, the AU reminded President Yahya Jammeh that he would have violated regional law if he failed to relinquish power.76 The AU stated that the refusal to peacefully transfer power thwarted the will of the people. The regional organisation feared that this would lead to instability in not just the country where the president refused to step down, but that it would also undermine the peace and security of the entire Africa region. In the end, though there were some legal questions about the implications of such regional actions for regime change and African State practice on the jus ad bellum since Gambia was not even a party to the African Charter on Democracy and Governance, only a signatory (though it has accepted the principle of democratic governance under the Constitutive Act of the African Union), the Jammeh Government did proceed to peacefully relinquish power. Part of the reason was no doubt because of pressure from outside, but also the willingness of African States to put boots on the ground to enforce their collective decision. Although this outcome might have been made possible because of the threat of the use of force, from Senegal acting with the imprimatur of Addis Ababa and New York, the winner of the election, Adama Barrow, was subsequently successfully sworn in.
To sum up, using both Bassiouni’s five part criteria and his ten penal characteristics, it can readily be demonstrated that the crimes of terrorism and unconstitutional changes of government can also be explained as regional level offenses because of the harms that they cause and the regional interests that they seek to protect.
The crime of corruption has here been placed in the partly transnational crimes category. Obviously, this crime can be committed wholly in violation of domestic law and without any transnational or trans-border effects. Nonetheless, given the history of kleptocracy on the part of some African leaders, it was recognized that perpetrators can do more damage to a society by draining it of its resources essential for basic needs of the community. This frequently has a transnational dimension. In some cases, it intersects with other crimes such as money laundering. It is for that reason it was included in the Malabo Protocol to address a matter that has been of both international and regional concern, as the conclusion of several conventions in that regard demonstrates. Again, the categories are not impermeable and others may well legitimately place this crime (i.e. corruption) in the fully transnational crimes or even international crimes category given the existence of a global convention on the same subject.
Corruption as a transnational crime appears to be somewhat ill-defined and could elicit legality challenges (though there is a widely accepted UN convention on the topic). At the regional level, Article 28I of the Malabo Protocol basically replicates, with some modifications, the African Convention on Preventing and Combating Corruption.77 The chapeau suggests that the African Criminal Court will be limited to prosecuting only those acts ‘of a serious nature affecting the stability of a state, region or the [African] Union’.78 This qualifier, which we do not see replicated for the other crimes in the instrument under discussion, offers a formal gravity threshold by removing from the ambit of the regional tribunal ‘petty corruption’ for the sake of addressing what is often referred to as ‘grand corruption’. The latter is usually committed by leaders and high-level persons holding high public office, such as presidents, vice presidents, or sitting government ministers, all of whom are in a different part of the Malabo Protocol guaranteed some type of temporary immunity from prosecution during their time in office.79 On this view, it would seem that low level corrupt activity that occurs within a State will not attract the interest of the regional court, presumably because such offences could be more readily prosecuted within the national courts, and in countries that have them, they may even be pursued by national anti-corruption commissions.
Perhaps of greater concern is the lack of clarity as to the meaning of ‘stability’ – whether it is economic, political or social. If ‘stability’ is economic, and corruption is considered an economic crime, it is arguable that while embezzlement of say one million dollars could threaten the (economic) stability of one state, it might not be the case for a richer state, not least a region. In the same vein, the threshold ‘of a serious nature affecting the stability of a state, region or the Union’80 appears to be too high. Should a monetary value be attached to such a threshold? If that is the case, is it appropriate in view of differentials in the GDPs of African countries, if that is the measure adopted? How is impact of a corrupt activity to be measured?
It is arguable that, with the extensive list of fourteen crimes within its material jurisdiction, the risk is that the future African Criminal Court will be overburdened. This argument carries weight, if the experience of the international criminal tribunals that have preceded it are anything to go by. It is also not entirely clear what parameters, if any, were contemplated to regulate the relationship between the national courts in states parties to the Malabo Protocol and the African Court which will likely sit in Arusha, Tanzania. Indeed, it can be argued that given the work of the international criminal tribunals and the high costs associated with investigating and prosecuting such crimes, away from the locus criminis, the regional court would likely have benefited from a clarification that its mandate is to focus on the particularly serious international or transnational crimes within its jurisdiction. The Protocol suggested inclusion of only serious crimes of international or regional concern within the jurisdiction of the court. But, in terms of the particular definitions, the same instrument did not delineate formal limits in a systematic way. It did so only in respect of corruption, which was classified as serious and less serious, leaving the rest of the 13 crimes to the wide discretion of the prosecutor.
In the Rome Statute, the jurisdiction of the Court was narrowly crafted in such a way to limit to the ‘most serious crimes’81 of concern to the international community as a whole. The use of the terminology of ‘grave crimes’ in the preamble suggests some criteria to delimit the scope of the Court’s jurisdiction. This is not to say that they were not serious crimes, such as terrorism, which could have also been included. Though it is said that there is no formal hierarchy of crimes in the Rome Statute, we all know that some of the crimes are considered as more egregious than others. In this regard, some scholars see the four core crimes in the treaty as establishing some type of ‘quasi-constitutional threshold’82 for the addition of new crimes. In addition, it was clear from the experience of the ad hoc tribunals that preceded it during the 1998 negotiations and the policies of the Office of the Prosecutor since then, that the ICC would have to focus on those bearing ‘greatest responsibility,’83 which can be understood as an additional limitation to those holding leadership or authority positions. That also limits the possible reach of the court and helps to ensure that it is not overwhelmed with cases, especially given its wide potential jurisdiction in over 123 States Parties.
4. Concluding Remarks
This chapter has tried to show that traditional international criminal law and transnational criminal law literature remains confused as to the proper basis to distinguish between ‘international crimes’ and ‘transnational crimes’, and for that matter, international criminal law and transnational criminal law. Indeed, as there has historically been limited guidance as to what criteria – if any – states use to determine which crimes to include in international instruments as they negotiate relevant treaty crimes, there is only a limited academic literature attempting to systematically clarify the boundaries between these concepts. One helpful distinction that appears settled is that between crimes under international criminal law, which establish direct penal liability for persons, on the one hand, and those under suppression conventions that instead obligate states to take measures to prohibit as criminal various types of conduct under their domestic law, on the other.
In the absence of clarity in international processes as to what policies should guide criminalization of offences suitable for collective action by States, as opposed to those suitable for each of them acting separately, this contribution has drawn on the spare literature focusing in particular on Bassiouni’s proposed criteria to explore the implications of this state of affairs in what might initially appear like the hodgepodge of crimes contained in the African region’s Malabo Protocol. I have shown that, using the policy criteria and penal characteristics identified by that prominent African author as a starting point, it is not entirely surprising that African States reflect some of the same confusion in their determinations as to what prohibitions should be criminal conduct at the regional level for the future African Criminal Court. Much like how various theories can be used to explain the international prohibition of certain offenses at the international level, and the ad hoc nature in which criminalisation occurred historically, the African court instrument also reflects various regional interests being prioritized for regional over national or international enforcement action. This implies the need for greater clarity, in the future, to be set forth by national authorities as to what doctrinal frameworks drive the adoption of certain crimes for addition to the statutes of future international and regional penal tribunals. Only in this way might we start to develop a more coherent international or regional legal regime that accounts for all the harms and community interests for which prohibition is being sought.
If nothing else, though not yet in force and unlikely to be for a few more years, the arrival of the Malabo Protocol on the international legal scene has posed a serious challenge for international lawyers to explain the objective phenomenon that we might have previously taken for granted in regards to the categories of transnational and international crimes. Considering that it was a proposal by Trinidad and Tobago regarding drug trafficking that reopened the global discussion and led concretely to the final establishment of the long-awaited permanent ICC, and the fact that some states continue to advocate for addition of new ‘transnational’ crimes like terrorism to the Rome Statute, it could be that the African State practice will in the future help show the way forward towards a richer and more nuanced conception of what we consider modern ‘international criminal law’. An international criminal law that would hopefully be more responsive to the needs of developing states in terms of addressing not only individual crimes, but also the web of economic crimes and other related public order offenses that together give rise to instability and give succour to what has aptly been described as ‘system criminality’84 in international law. A criminality that, to date, has only been tackled in piecemeal fashion, in two separate silos, that is probably better considered together.
1 A. Cassese, International Criminal Law (2nd edn., Oxford University Press, 2008), at 11.
2 R. Cryer, H. Friman, D. Robinson, and E. Wilmshurst, An Introduction to International Criminal Law and Procedure (3rd edn., Cambridge University Press, 2014), at 3.
3 G. Mueller, ‘Transnational Crime: Definitions and Concepts’, in P. Williams and D. Vlassis (eds.), Combating Transnational Crime (Frank Cass, 2001) 13–21, at 13. See also N. Boister, ‘Transnational Criminal Law?’, 14 European Journal of International Law (2003) 955, 953–76.
4 Cryer, supra note 2, at 5.
6 For further discussion of at least four distinctive meanings of ‘international criminal law’, see C. Kress, ‘International Criminal Law’ in Max Planck Encyclopedia of Public International Law (Oxford University Press, 2009), available online at http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1423?rskey=bSnTKk&result=1&prd=EPIL (last visited 26 February 2017).
7 M. Cherif Bassiouni, Introduction to International Criminal Law (2nd edn., Martinus Nijhoff Brill, 2013) at 142.
8 R. Cryer, ‘The Doctrinal Foundations of the International Criminalization Process’, in M. Cherif Bassiouni (ed.), International Criminal Law (3rd edn., Martinus Nijhoff, 2008) at 108.
9 Bassiouni, supra note 7, at 142.
10 Though the official name of the court is African Court of Justice and Human and Peoples’ Rights, for convenience if perhaps at the expense of precision, I will use the short-hand ‘African Criminal Court’. This should not detract from the fact that as this volume shows, in addition to criminal law issues, the wider court has a general jurisdiction over inter-state disputes within the Africa region as well as the competence to hear human rights complaints brought by individuals as well as states – all of which would be heard by three different sections of the court. The reference to the African Criminal Court allows us to focus us only on the criminal jurisdiction of the tribunal. See, in this regard, Article 8 (nomenclature) of African Union, Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (adopted at the Twenty-Third Ordinary Session of the Assembly of Heads of State and Government Held in Malabo, Equatorial Guinea, 27 June 2014) (‘Malabo Protocol’).
11 N. Boister, ‘The concept and nature of transnational criminal law’, in N. Boister and R. Currie (eds.), Routledge Handbook of Transnational Criminal Law (Routledge, 2015) at 11.
12 C. Warbrick, ‘International criminal cooperation and the new international criminal law’, in K. Koufa (ed.), The New International Criminal Law. Thesaurus Acroasium, vol. XXXII (Sakkoulas Publications, 2003), 209–80.
13 Boister, supra note 11, at 11.
14 Cryer, supra note 8, at 146.
15 Letter dated 21 Aug 1989 from the Permanent Representative of Trinidad and Tobago to the UN Secretary-General, UN Doc. A/44/195, (1989); UN General Assembly, UN Doc. A/44/49 (1989).
16 See Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 17 July 1998 (entered into force 1 July 2002), at Preamble § 3.
17 Boister, Supra, note 11 at 11. Credit for the description of international criminal law as entailing direct and indirect systems of enforcement goes to Bassiouni. See, in this regard, his treatise on International Criminal Law cited above, supra note 7.
18 K. J. Heller, ‘What is an International Crime: A Revisionist History’, 58 Harvard International Law Journal 2 (2017).
19 See Kress, supra, note 6 (the Latin refers to the state’s right to punish criminal offenses pursuant to its laws within the jurisdictional limits of international law).
20 As the ICTY put it in Tadić, ‘a state sovereignty approach has been gradually supplanted by a human being oriented approach … International law, while of course duly safeguarding the legitimate interests of States must gradually turn to the protection of human beings’. See Decision On The Defence Motion For Interlocutory Appeal On Jurisdiction, Prosecutor v. Tadic, (IT-94–1), Appeals Chamber, 2 October 1995 § 97. See, further on this, R. Cryer, ‘International Criminal Law vs State Sovereignty: Another Round?’ 16 European Journal of International Law (2006) at 979.
21 ‘International Military Tribunal at Nuremberg, Judgment and Sentences’ 41 American Journal of International Law (1947) 172, at 221.
22 The ILC studied the obligation to prosecute or extradite and produced several careful reports. Upon conclusion of the work, perhaps due to controversy on the outcome of the project, it only recommended the General Assembly take note of its 2013 and 2014 report which it expected would offer useful guidance to States. See, in this regard, Report of the International Law Commission, Sixty-Sixth Session (5 May–6 June and 7 July–8 August 2014), UN Doc. A/69/10, 2014 at paras. 63–64.
23 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85, (adopted 10 December 1984, entered into force 26 June 1987).
24 G.A. Res. 174/ (II), 21 November 1947. The ILC considered that its mandate was limited to offences which contain a political element and which endanger the maintenance of international peace and security. This implied that it necessarily excluded, from the start, offenses such as piracy, drug trafficking, human trafficking, counterfeiting, etc. See, in this regard, the Report of the International Law Commission on its Second Session, 5 June to 29 July 1950, UN Doc. A/1316, 1950, § 149.
25 See Report of the International Law Commission on the work of its forty eighth session, 6 May–26 July 1996, Official Records of the General Assembly, Fifty-first session, Supplement No. 10, UN Doc. A/51/10, 1996; Bassiouni, supra note 7, at 141.
26 This, of course, is not the only way to think of international crimes. There are various others discussed in the literature. The choice to focus on Bassiouni’s approach is a pragmatic one, since his work is highly influential in this regard and constitutes a major attempt to advance discussions of this topic in the field. For a review of other approaches, in probably the most complete study of the concept of international crimes since Bassiouni’s attempt, Einarsen carries out a detailed review which situates Bassioni’s work in the literature, something that is possible in a monograph, but not in the context of this short chapter. Readers should see, in this regard his thoughtful treatment, T. Einarsen, ‘The Concept of Universal Crimes in International Law’, Torkel Opsahl Academic EPublisher (2012).
27 Bassiouni, supra note 7, at 142.
29 Bassiouni, supra note 7, at 145.
30 Ibid. at 143.
31 Indeed, I would have liked to further interrogate this theoretical framework. But reasons of space do not permit me to do so in this case.
32 Cryer, supra note 8, at 125.
33 Einarsen, supra note 26, at 155.
34 Bassiouni, supra note 7, at 145.
35 Ibid. at 147.
36 See United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209, 2000 (which entered into force on 29 September 2003), Art. 3(2). The convention has received wide endorsement, including from Africa, with 187 parties as of this writing.
37 See Malabo Protocol, supra note 10, at Art. 9.
38 See, in this regard, part II of this volume.
39 H. van der Wilt, ‘Complementary Jurisdiction’ in G. Werle, and M. Vormbaum (eds.), The African Criminal Court: A Commentary (T.M.C. Asser Press/Springer, 2016), 187, at 202.
40 Another possibility, which would have diverged somewhat from Bassiouni’s approach, would have been to divide the crimes into only international or transnational crimes. It would also be possible to distinguish public order crimes from the economic and environmental crimes.
41 Charter of the United Nations and Statute of the International Court of Justice, 59 Stat. 1031, [the Charter], 1055 [ICJ Statute], T.S. No. 993 [ICJ Statute at 25], 3 Bevans 1153 [ICJ Statute at 1179], 26 June 1945.
42 It can be noted that, in the views of some writers and often for unexplained reasons, the ‘core crimes’ are three in total. These are typically genocide, crimes against humanity, and war crimes. It is unclear what drives this classification. For instance, it could be speculated that these are considered ‘core’ offenses because they are some of the world’s worst crimes (i.e. based on gravity criterion). Another possibility might be to say that these are the types of crimes, which go beyond individual conduct to encompass state policy or action. Or it maybe that this is a pragmatic choice because, since Nuremberg, we have only had these three crimes as prosecutable offenses in the statutes of the various ad hoc international penal courts. Yet, even such rationales would be unsatisfactory. It is clear that on all these ways of thinking of the features that make genocide, crimes against humanity and war crimes special enough to be placed in the heinous category, aggression is no less significant because it seems equally grave. In fact, perhaps more than any other crime, it can also be linked to state action/policy or conduct. It therefore makes sense, in my view, to include aggression in my classification of what amount to ‘core crimes’ under international law.
43 The reference here is to the Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S., Dec. 9, 1948; First Geneva Convention, 75 U.N.T.S. 31, 12 August 1949; Second Geneva Convention, 75 U.N.T.S. 85, 12 August 1949; Third Geneva Convention, 75 U.N.T.S. 135, 12 August 1949; Fourth Geneva Convention, 75 U.N.T.S. 287, 12 August 1949. First Additional Protocol to the 1949 Geneva Convention, 1125 U.N.T.S. 3, 8 June 1977.
44 The instruments, which have reflected varied definitions of crimes against humanity, are principally the Statutes of ad hoc international criminal tribunals set up by or with the support of the UN. Nonetheless, the ILC is presently working on the preparation of a crimes against humanity convention. Aggression (as crimes against peace) was defined at Nuremberg, but due to political and practical limitations, only again surfaced in the Rome Statute.
45 African Union Commission, Report of The Study on the Implications of Expanding the Mandate of the African Court of Justice and Human Rights to Try Serious Crimes of International Concern, October 2010, Legal/ACJHR-PAP/5 (II), at § 53 (‘AUC Report’).
47 My emphasis. See Decision on the Implementation of the Assembly Decision on the Abuse of the Principle of Universal Jurisdiction, AU/Dec.213(XII), 1–3 February 2009, § 3, adopted at Addis Ababa, Ethiopia; Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court, AU/Dec.245 (XIII) Rev.1, 1–3 July 2009 § 3, adopted by the Assembly of Heads of State and Government, 13th Ordinary Session, Sirte, Libya.
48 AUC Report, supra note 45, at 37.
49 There is a debate concerning whether aggression can be prosecuted domestically or even regionally, See D. Akande, ‘Prosecuting Aggression: The Consent Problem and the Role of the Security Council’, Oxford Institute for Ethics, Law and Armed Conflict, (May 2010), www.elac.ox.ac.uk/downloads/dapo%20akande%20working%20paper%20may%202010.pdf (last visited 26 July 2018); See also Judgment, Jones and Others v. UK, (34356/06; 40528/06), § 213–5.
50 See AUC Report, supra note 45, at § 53.
51 See Ibid.
52 See Ibid.
53 Note that this is not complementarity à la Rome Statute (see Art. 17) but rather proposes a scenario of competing jurisdiction in respect of a particular situation or case. While the African Court can be said to be complementary to the ICC, the relationship is best described as one involving horizontal ‘burden sharing’ between two international tribunals.
54 See AUC Report, supra note 45 at § 53.
55 See Judgment, Prosecutor v. Akayesu, (ICTR-96–4-T), 2 September 1998. On Akayesu and its contribution to international law, see K. D. Askin, ‘Prosecuting wartime rape and other gender-related crimes under international law: extraordinary advances, enduring obstacles’, Berkeley Journal of International Law (2003) 288–349.
56 K. Ambos, ‘Genocide (Article 28B), Crimes Against Humanity (Article 28C), War Crimes (Article 28D) and the Crime of Aggression (Article 28M),’ in G. Werle and M. Vormbaum (eds.), The African Criminal Court: A Commentary (T.M.C. Asser Press/Springer, 2015) 39–40.
57 Indeed, well beyond the Akayesu legacy, the broad formulation used here was intended to enhance the protections of victims of sexual violence given the myriad ways that these acts can be committed.
58 See Charles C. Jalloh, What Makes a Crime Against Humanity a Crime Against Humanity, 28 American University International Law Review 2 (2013) 381–441.
59 See ‘Elements of the Crimes’, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First Session, ICC-ASP/1/3 and Corr.1, 3–10 September 2002, at part II.B.
60 There is some interesting case law from the European Court of Human Rights which have had to grapple with the difference between torture and ordinary cruel treatment, which will be instructive for the future African court. See, for instance, Judgment, Ireland v. United Kingdom, (5310/71), Court (Plenary), 18 January 1978; Judgment, Tyer v. The United Kingdom, (5856/72) Court (Chamber), 25 April 1978; Judgment, Soering v. United Kingdom, (14038/88), Court (Plenary), 7 July 1989.
61 These inclusions, which were suggested by the ICRC office in Addis Ababa, Ethiopia included inter alia employing poison or poisoned weapons; employing asphyxiating, poisonous or other gases and all analogous liquids, materials or devices and employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions.
62 A read of the AUC Report, supra note 45, which is the closest thing we have to a legislative history of the Malabo Protocol, indicates that the drafters made a distinction between crimes of serious international concern and those of particular concern to African states.
63 Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, A/61/10, (2006) § 251.
64 See AUC Report, supra note 45, at § 58. (n 45) [emphasis in original].
66 Though it does not have any official status, a helpful starting point to understand the sources of the crimes contained in the Malabo Protocol can be found in the annex to Werle’s and Vormbaum’s edited collection.
67 This distinction was drawn throughout the report. See AUC Report, supra note 45, at the same place.
68 It may be asked whether the two examples selected here are sufficiently representative of the wider category of seven to justify treating only them. A related question could be whether the seven are similar in nature, their effect and their underpinning. I think, on the first issue, the answer is yes. On the second issue, their underpinning and effects are similar, though somewhat varied. This does not, in my view, take away from the limited conclusions drawn here.
69 Organization of African Unity, OAU Convention For The Elimination Of Mercenarism In Africa, Doc. CM/817 (XXIX) Annex II Rev.1, (entered into force in 1985).
70 Bassiouni, supra note 8, at 207.
71 See AUC Report, supra note 45, at § 60.
72 See Organization of African Unity, Convention on the Prevention and Combating of Terrorism, 2219 U.N.T.S. 179, 1999 (adopted 14 July 1999, entered into force 6 December 2002).
73 See Chapter 15 in this volume. See also B. Saul, ‘Attempts to Define “Terrorism” in International Law’, 52 Netherlands International Law Review 1, (2005) 57–83; B. Saul, ‘Defending Terrorism: Justifications and Excuses for Terrorism in International Criminal Law’, 25 Australian Yearbook of International Law, (2006) 177–226.
74 On regional instruments relevant to unconstitutional change of government, see AUC Report, supra note 45, at §§ 45–50. During the adoption of the Malabo Protocol, the definition of the crime of unconstitutional change of government was controversial. Part of the reason stemmed from a desire on the part of some African delegations, especially after the Arab Spring, to provide an escape hatch for those who engage in a popular uprising as a way of unseating their government. The argument was that, under international law, there is an inherent right of a people to self-determination, and that the Malabo Protocol should not criminalize circumstances in which such a right is being exercised. See deliberations relating to the Malabo Protocol, African Union Peace and Security Council, ‘Press Statement on Unconstitutional Change of Government’ 29 April 2014, following its 432nd Meeting held an open session, ‘Unconstitutional changes of Governments and popular uprisings in Africa – challenges and lessons learnt’, 29 April 2014.
75 Adopted on 30 January 2007, entered into force 15 February 2012, at Art. 25(5).
76 See Peace and Security Council of the African Union, Communiqué, PSC/PR/COMM. (DCXLVII), adopted at the 647th Meeting in Addis Ababa, 13 January 2017, www.peaceau.org/uploads/647.psc.comm.gambia.13.01.2017-1.pdf (last visited 26 February 2017).
77 Adopted 1 July 2003, entered into force 5 August 2003.
78 Malabo Protocol, supra note 10, at Art. 281.
79 See the controversial temporary immunity clause, Malabo Protocol, supra note 10, Art. 46A bis, which provides in fairly overbroad language that is likely broader than customary international law that ‘no charges shall be commenced or continued before the African Criminal Court against ‘any serving AU Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office’. For a critique, see the chapters in this volume by ICC President Judge Eboe-Osuji (Chapter 28) and Professor Tladi (Chapter 29).
80 Malabo Protocol, supra note 10, at Art. 281.
81 Rome Statute, supra note 16 at Preamble.
82 W.A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2015), at 118.
83 C. Jalloh, ‘Prosecuting Those bearing “Greatest Responsibility”: The Contributions of the Special Court for Sierra Leone’ in C. Jalloh (ed.), The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (Cambridge University Press, 2013), at 589.
84 A. Nollkaemper and H. van der Wilt (eds.), System Criminality in International Law (Cambridge University Press, 2009).
The Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (2014) (as it is formally known) (‘Malabo Protocol (2014)’) could be said to represent many things, depending on one’s perspective. For some, it is a genuine attempt by African States to address international and transnational crimes that bedevil the African continent.1 For others, it is a cynical response to decisions of the International Criminal Court (ICC) that African leaders do not like, and the so-called ‘abuse’ of universal jurisdiction by Western states for crimes committed on the African continent.2 The aim of this chapter, however, is to simply offer objective perspectives on the provisions of the Malabo Protocol (2014) that add international criminal jurisdiction to the African Court of Justice and Human Rights (ACJHR), particularly those relating to genocide (Article 28B), war crimes (Article 28D), crimes against humanity (Article 28C) and aggression (Article 28M).
At the outset, one often forgotten matter should be recalled. The Malabo Protocol (2014) as a whole was the result of debates and negotiations between African States which manifested themselves in specific language, omissions and compromises. As with all treaties, one cannot expect a perfect outcome – it is hard, if not impossible, to please all interested parties. As a result, some of the ideas reflected in the Malabo Protocol (2014) are very innovative, salutary and make a positive contribution to the development of international criminal law. Other ideas may be unrealistic. Others are outright retrogressive and undesirable. But as it relates to core international crimes alone, the Malabo Protocol (2014), as detailed below, brings much good to the international criminal law table.
Before delving into the substantive crimes under the Malabo Protocol (2014), one issue cannot escape attention. That is the convoluted and complex legal architecture of the ACJHR as envisaged by the Malabo Protocol (2014). As the inclusion of the word ‘protocol’ in its name suggests, the Malabo Protocol (2014) is not a treaty that stands on its own. Rather, it is the last of at least 4 different treaty regimes that endeavour to work and interact together to create – among other things – Africa’s regional court for international crimes.
The first of these is the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (1998) (African Human Rights Court Protocol). This established the African Court on Human and Peoples’ Rights – the African equivalent of the European Court of Human Rights and the Inter-American Court of Human Rights. Its mandate is to guard against violations of the African Charter on Human and Peoples’ Rights (1981) – Africa’s regional human rights treaty. It hears and adjudicates on complaints from the African Commission on Human and Peoples’ Rights, States parties, African intergovernmental organizations, non-governmental organizations and individuals; it may also render advisory opinions at the request of African Union (AU) member states.3 The African Human Rights Court Protocol entered into force (and the court was established) on 25 January 2004, 30 days after the 15th AU state (Comoros) deposited its instrument of ratification.4 As of 15 June 2017, 52 of the AU’s 55 member states have signed the African Human Rights Court Protocol (1998), while 30 member states have ratified or acceded to it.5 The first set of judges were sworn in 2006 and the court is currently up and running and actively fulfilling its mandate.
The second relevant treaty is the Protocol of the Court of Justice of the African Union (2003) (African Court of Justice Protocol). This established an entirely different court, the African Court of Justice – the African equivalent of the International Court of Justice and the European Court of Justice. The court was originally envisaged by the Constitutive Act of the African Union (2000) (AU Constitutive Act), but its statute, composition and functions were left to be finalized in a separate protocol at a later time.6 The African Court of Justice’s jurisdiction extends to the interpretation and application of the AU Constitutive Act (2000), AU treaties and subsidiary legal instruments (including regulations and directives), as well as any question of international law and all matters where states parties specifically agree to confer jurisdiction upon it.7 As of 15 June 2017, 44 of the AU’s 55 member states have signed the African Court of Justice Protocol (2003), while 18 member states have ratified or acceded to it.8 It entered into force on 11 February 2009, 30 days after the 15th AU state (Algeria) deposited its instrument of ratification.9 However, unlike the African Court on Human and Peoples’ Rights, the African Court of Justice exits only on paper. The Assembly of Heads of State and Government of the AU determined in 2004 that the African Court of Justice should be merged with the African Court on Human and Peoples’ Rights, but without prejudice to the operationalization and continued existence of the latter.10
This merger brings us to the third relevant treaty: the Protocol on the Statute of the African Court of Justice and Human Rights (2008) (African Court of Justice and Human Rights Protocol). This treaty envisages a new court – the ACJHR – which, as aforementioned, would combine the functions and mandates of the African Court on Human and Peoples’ Rights and the African Court of Justice. As of 8 February 2018, 31 of the AU’s 55 member states have signed the African Court of Justice and Human Rights Protocol (2008), while only 6 member states have ratified or acceded to it.11 15 AU member states are needed to ratify (or accede to) the African Court of Justice and Human Rights Protocol (2008) before it enters into force,12 and thus the protocol – and the ACJHR – remains only on paper for the time being.
To the ACJHR, the AU has added a fourth treaty layer: the Malabo Protocol (2014). This protocol, which is the focus of this chapter, adds international and transnational crimes to the jurisdiction of the proposed ACJHR, as well as procedural and other provisions to facilitate their investigation and prosecution. 15 AU member states must ratify (or accede to) the Malabo Protocol (2014) before it can enter into force.13 As of 8 February 2018, only 11 of the AU’s 55 member states have signed the Malabo Protocol (2014), and no member state has ratified or acceded to it.14
Aside from the substantive content of the ACJHR as envisaged by the Malabo Protocol (2014), this practice of stacking treaties on top of existing treaties – particularly when they are intimately linked together in the fashion outlined above – is inelegant and prone to cause confusion. For example, it is not entirely clear whether one treaty is a prerequisite for the next treaty. Must an AU member state first ratify/accede to the African Human Rights Court Protocol (1998) (or the African Charter on Human and Peoples’ Rights (1981)) and/or the African Court of Justice Protocol (2003) before it can ratify/accede to the African Court of Justice and Human Rights Protocol (2008) and only then can it do so with respect the Malabo Protocol (2014)? The text of these treaties does not provide clear answers. If it was indeed necessary for (yet) another protocol to have been adopted, then it would have made more sense, at the very least, to have explicitly stated that only states parties to the African Court of Justice and Human Rights Protocol (2008) could become states parties to the Malabo Protocol (2014).
Nevertheless, just as one would, at some point, question the wisdom of constantly upgrading a computer instead of purchasing a new one, there is something to be said about the wisdom of the number of amendments and changes (i.e. ‘upgrades’) that have been put into place by the complicated and convoluted treaty regime that is present here. One wonders whether it would have been more advisable to simply create a new court from scratch.
3. Core International Crimes at the African Court of Justice and Human Rights under the Malabo Protocol (2014)
The crimes that would fall within the jurisdiction of the ACJHR under the Malabo Protocol (2014) include the ‘traditional’ or ‘core’ international crimes: genocide, crimes against humanity, war crimes and the crime of aggression. With respect to these crimes, the ACJHR Statute under the Malabo Protocol (2014) largely replicates the definitions found in the Rome Statute of the ICC (1998) (Rome Statute). However, in several instances it introduces innovative ideas that are salutary. In other places things could have been better, while in others, substantive omissions are apparent.
The Convention on the Prevention and Punishment of the Crime of Genocide (1948) (Genocide Convention) contains closed and narrow categories with respect to its ‘protected groups’, since they are expressly limited by that treaty to only four: national, ethnical, racial or religious groups.15 This is replicated in the Rome Statute (1998).16 Thus, if similar actions were carried out on any other group – regardless of whether the group is viewed objectively or subjectively – they would fall outside of the scope of the crime of genocide (although they would likely be considered, at a minimum, as persecution as a crime against humanity). This situation has attracted criticism directed at the definition of genocide over the years. The same criticism might also be repeated with respect to Article 28B of the ACJHR Statute under the Malabo Protocol (2014), since it lists the same four protected groups.
Moreover, the Chamber considered whether the groups protected by the Genocide Convention [(1948)], echoed in Article 2 of the Statute, should be limited to only the four groups expressly mentioned and whether they should not also include any group which is stable and permanent like the said four groups. In other words, the question that arises is whether it would be impossible to punish the physical destruction of a group as such under the Genocide Convention [(1948)], if the said group, although stable and membership is by birth, does not meet the definition of any one of the four groups expressly protected by the Genocide Convention [(1948)]. In the opinion of the Chamber, it is particularly important to respect the intention of the drafters of the Genocide Convention [(1948)], which according to the travaux préparatoires, was patently to ensure the protection of any stable and permanent group.17
This holding, that the Genocide Convention (1948) protects any stable and permanent group – as opposed to only national, ethnical, racial or religious groups – has not been wholeheartedly embraced by subsequent jurisprudence. Only the same ICTR Trial Chamber both in Rutaganda and Musema adopted it, albeit with slight modifications,18 and one can also catch a glimpse of it in the International Criminal Tribunal for the former Yugoslavia (ICTY)’s Krstić case.19
Some AU countries also appear to have moved away from the closed protected groups found in the Genocide Convention (1948) by the manner in which genocide has been incorporated into their domestic law. Thus, while some have included only the four protected groups found in the Genocide Convention (1948),20 others have gone beyond this and added political groups,21 political and ‘colour’ groups,22 social groups,23 any other groups based on ‘any arbitrary criterion’,24 or any other identifiable group.25 Given this African reality, and the aforementioned (but limited and controversial26) jurisprudence arising from Akayesu, a question might be asked: was an opportunity lost to incrementally modernize genocide so that any stable and permanent group could be protected, somewhere halfway perhaps between those AU member states that have incorporated the four protected groups of the Genocide Convention (1948) into domestic law and those that have gone beyond?
Such a change would have moved genocide away from customary international law (assuming that genocide’s definition is the same under custom and it is in the Genocide Convention (1948)). Yet, it is also true that the treaty’s original drafters could only express their vision for the protected groups through the prism and frame of reference of 1948, that is, the prevailing permanent and stable groups at that time: national, ethnical, religious and racial groups. Today, for example, it is not at all uncommon for a person to move from one religion to another. Nonetheless, a conscious decision was made to remain faithful to Article II of the Genocide Convention (1948) by the drafters of the Malabo Protocol (2014). In the absence of cases in modern times where stable and permanent groups have been targeted for genocidal acts, but were found not to fit within either national, ethnical, racial or religious groups, it appears unjustified to modify the protected groups at this time. It remains to be seen whether this continues to hold true in the future.
The ACJHR Statute as per the Malabo Protocol (2014) also adds to the enumerated list of acts and conduct that can constitute genocide. In addition to those found in Article 6(a)–(e) of the Rome Statute (1998) (which replicates Article II(a)–(e) of the Genocide Convention (1948)), Article 28B(f) adds ‘rape or any other form of sexual violence’ as acts of genocide per se. Of course, this should not be interpreted as saying that such acts could not have constituted genocide before this innovation. Indeed, the notion that rape and similar conduct, under the right conditions, could form the actus reus of genocide was first held by the ICTR’s Akayesu judgement27 and consistently recognized by international criminal case law ever since.28 But it is the first time that this jurisprudence has been formally codified as such into a definition of genocide under international law.29 Until now, rape and other forms of sexual violence has been prosecuted as genocide before international criminal tribunals as acts that cause serious bodily or mental harm,30 not as rape and sexual violence per se. It is important that such actions – particularly those directed against women – be expressly recognized as capable of constituting genocide rather than being subsumed within a broader range of criminal acts. Therefore, the addition of such acts within the enumerated list of the actus reus component of the definition of genocide is a welcome development.
On the other hand, one substantive omission from genocide under the ACJHR Statute as per the Malabo Protocol (2014) is the inchoate offence of direct and public incitement to commit genocide, which is found in Article III(c) of the Genocide Convention (1948). In the Rome Statute (1998), this offence is not found in its provision on genocide (Article 6), but is instead included in Article 25 which governs modes of liability at the ICC (specifically, Article 25(3)(e)) (a matter that invoked some disagreements among the drafters)).31 However, direct and public incitement to commit genocide is found neither in Article 28B (genocide) or 28N (modes liability) of the ACJHR Statute as per the Malabo Protocol (2014). To be fair, incitement is expressly listed in Article 28N(i) and it applies to all crimes equally.32 That is, however, not the same thing as direct and public incitement to commit genocide. Indeed, the jurisprudence33 has made it quite clear that these are substantive elements of the offence, with the ‘public’ requirement in particular having engendered some controversy in the case law.34 Thus, under the Malabo Protocol (2014), mere incitement is punishable vis-à-vis genocide – a distinct shift away from the Rome Statute (1998). This unfortunately also departs from the original intent of the drafters of the Genocide Convention (1948), who, by specifying the ‘direct’ and ‘public’ requirements, wished to allay concerns regarding freedom of speech and expression.35
The ACJHR Statute under the Malabo Protocol (2014) also introduces innovations regarding the definition of war crimes in Article 28D. While it largely replicates the lists of war crimes in the context of international and non-international armed conflicts that is found in the Rome Statute (1998) (including, notably, the 2010 ICC Kampala Amendments on war crimes in non-international armed conflicts),36 it also adds a significant number of new ones. To the list of war crimes committed during international armed conflicts the following are added:
Intentionally launching an attack against works or installations containing dangerous forces in the knowledge that such an 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 (Article 28D(b)(v));
Unjustifiably delaying the repatriation of prisoners of war or civilians (Article 28D(b)(xxviii));
Willfully committing practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination (Article 28D(b)(xxix));
Making non-defended localities and demilitarized zones the object of attack (Article 28D(b)(xxx));
Slavery and deportation to slave labour (Article 28D(b)(xxxi));
Collective punishments (Article 28D(b)(xxxii); and
Despoliation of the wounded, sick, shipwrecked or dead (Article 28D(b)(xxxiii)).
In addition, in a particularly refreshing move away from the Rome Statute (1998), the following war crime is included in Article 28D(b)(xxi): ‘Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law or armed conflict’.
Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law or armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123[.]
As is well known, this provision was the compromise solution that resulted from the controversy, difficulties and eventual deadlock that ensued during the negotiations on the inclusion of prohibited weapons in the Rome Statute (1998). It pitted those states that opposed the inclusion of nuclear weapons as a prohibited weapon in the Rome Statute (1998) against those states that, as a result of this position on nuclear weapons, opposed the inclusion of biological and chemical weapons (i.e. the poor man’s nuclear weapon) as a prohibited weapon in the Rome Statute (1998).37 However, in the words of the late Professor Cassese, ‘given the extreme unlikelihood that such amendment will ever be agreed upon, the use of those weapons, projectiles, etc. may eventually not amount to a war crime within the jurisdiction of the [ICC] [under Article 8(2)(b)(xx)]’.38 These prophetic words have proved to be right, at least so far. The ICC is now some 16 years old and we are no closer to the amendment required under this article, despite the efforts of some states (particularly Belgium and Mexico) in the lead up to the 2010 ICC Review Conference held in Kampala, Uganda. It remains a dead letter. However, the ACJHR Statute under the Malabo Protocol (2014) has boldly included Article 28D(b)(xxi) as a general provision without any strings attached. This means that a determination of whether a particular weapon causes ‘superfluous injury or unnecessary suffering or [is] inherently indiscriminate’ has been left to judges and, potentially, future judicial evolution – something that the drafters of Article 8(2)(b)(xx) of the Rome Statute (1998) were particularly weary of.
Similarly, to the list of war crimes committed during non-international armed conflicts, the ACJHR Statute under the Malabo Protocol (2014) adds the following:
Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies (Article 28D(e)(xvi));
Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations (Article 28D(e)(xvii));
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 (Article 28D(e)(xviii));
Making non-defended localities and demilitarized zones the object of attack (Article 28D(e)(xix));
Slavery (Article 28D(e)(xx));
Collective punishment (Article 28D(e)(xxi)); and
Despoliation of the wounded, sick, shipwrecked or dead (Article 28D(e)(xxii)).
While these provisions are mostly carbon copies of the same crime committed in international armed conflicts (i.e. the corresponding crime found under Article 28D(b)), the substantive differences found in Article 28D(e)(xviii) and Article 28D(e)(xx) are worth noting.
With respect to Article 28D(e)(xviii), that provision should be contrasted to its international armed conflict twin, Article 28D(b)(iv) (emphasis added): ‘Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’.
While the language of Article 28D(e)(xviii) is not exactly the same as that contained in Article 28D(b)(iv), the underlying idea largely aligns and is readily identifiable in both provisions. There are however, some important substantive differences. For one, Article 28D(e)(xviii) does not explicitly include damage to civilian objects, although this could perhaps be read into the concept of ‘civilian damage’. But more importantly, is that the standard under Article 28D(e)(xviii) appears to be lower than that under Article 28D(b)(iv); the former only requires the incidental damage/injury/loss to be excessive but the latter requires the incidental damage/injury/loss to be clearly excessive. In other words, the standard appears to have been set higher in the context of an international armed conflict (‘clearly excessive’ – Article 28D(b)(iv)) than under a non-international armed conflict (‘excessive’ – Article 28D(e)(xviii)). One struggles to understand why this should be so. The same could be said with respect to the omission of crimes against the environment in Article 28D(e)(xviii), particularly in light of the International Commission of the Red Cross’ customary international humanitarian law study which determined that customary rules had ‘arguably’ developed with respect to the protection of the environment in non-international armed conflicts.39
Concerning Article 28D(e)(xx), its international armed conflict counterpart, Article 28D(b)(xxxi)), includes additional substantive language (emphasis added): ‘[s]lavery and deportation to slave labour’. Clearly, the drafters of the provision had in mind the events of World War II, when Nazi Germany deported millions of foreign civilians and prisoners of war to provide slave labour to the German war industry; numerous individuals were charged and tried for slave labour as a war crime and/or crime against humanity in the war’s aftermath.40 However, considering that deportation generally occurs when there is an expulsion of persons across a de jure border from one country to another (or in some cases a de facto border)41 and that individuals have been convicted of this crime during a non-international armed conflict,42 there would appear to be little room to doubt that deportation to slave labour could take place on the African continent during a non-international armed conflict. This would be particularly so where the relevant armed group operates across state boundaries. The Lord’s Resistance Army, which allegedly operates in Uganda, South Sudan and the Democratic Republic of the Congo, comes to mind. Whether such an offence would be in violation of customary international law applicable in non-international armed conflicts would remain to be seen, but is not, on the face of it, far-fetched.
These criticisms aside, a positive development relating to war crimes can be seen in the crime of conscripting or enlisting children into national armed forces in an international armed conflict (Article 28D(b)(xxvii)) or armed forces during a non-international armed conflict (Article 28D(e)(vii)). While these provisions largely copy the same provisions found in the Rome Statute (1998) (in international and non-international armed conflicts),43 the provisions of the ACJHR Statute under the Malabo Protocol (2014) differ in one important way: no child under the age of eighteen years can be conscripted or enlisted. This is consonant with the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000)44 and with the African Charter on the Rights and Welfare of the Child (1990).45 It is, however, different from the Rome Statute (1998),46 Additional Protocols I and II to the Geneva Conventions (1977)47 and the Statute of the Special Court for Sierra Leone (SCSL Statute),48 which only forbid the enlistment and recruitment of children under fifteen years of age. In other words, the ACJHR Statute under the Malabo Protocol (2014) affords greater protection for children than the ICC, the Geneva Conventions and the Special Court for Sierra Leone (SCSL).
But perhaps the most interesting of all the ‘new’ war crimes is the crime of ‘using nuclear weapons or other weapons of mass destruction’ (Article 28D(g)). As aforementioned, attempts during the negotiations that led to the Rome Statute (1998) to criminalize the use of nuclear weapons proved controversial and divisive in light of stout opposition by some P5 states.49 Therefore, its inclusion in the ACJHR Statute under the Malabo Protocol (2014), which is in line with the African Nuclear-Weapon-Free Zone Treaty (Treaty of Pelindaba) (1996),50 is a most welcome innovation. Given the horrendous short- and long-term effects of the use of such weapons, their use should not be permitted, notwithstanding the 1996 advisory opinion of the International Court of Justice (ICJ) on the subject.51
Furthermore, the manner of this provision’s inclusion also helps to expose the futility of dividing war crimes between international and non-international armed conflicts, since Article 28D(g) is not included in any of the four lists of war crimes that can be committed in those two types of conflicts,52 but stands on its own. This would suggest that this crime can be committed in the course of either an international or non-international armed conflict. In other words, the prosecution of this crime would not need to establish the classification of the armed conflict as an element of the offence but merely the existence of an armed conflict regardless of its character – in the spirit of Article 3 of the ICTY Statute.
Indeed, classification can be a difficult task, particularly where non-state armed groups are involved. For example, in the ICC’s Lubanga case, the Pre-Trial Chamber’s decision confirming the charges determined that the relevant conflict was international in nature due to Uganda’s occupation of the Ituri region and only became non-international upon Uganda’s withdrawal.53 In contrast, the Trial Chamber subsequently determined that the conflict was in fact of a non-international character for the entire period and accordingly re-characterized the charges under Regulation 55.54 This was, after all, a case/conflict that involved no less than six armed groups and three states in and around the Ituri area in the Democratic Republic of the Congo.55 There is no doubt that similarly complex African classification situations will eventually be adjudicated pursuant to the ACJHR Statute under the Malabo Protocol (2014). Yet, the difficulties involved in classification could have been avoided by not dividing up war crimes into lists of those committed in international and non-international armed conflicts, at least as much as possible, particularly when we consider that many of the underlying war crimes are found in both lists anyway (especially violations of the laws and customs of war). Rather, a more attractive option would have been something similar to, or an adaption of, that found in Article 3 of the ICTY Statute, which simply states that the ICTY has the power to prosecute those who violate the law and customs of war and then provides a non-exhaustive list of such violations.56 This architecture, and ICTY jurisprudence,57 led the ICTY, in Article 3 cases, to skip conflict classification altogether and the tricky problems that they can entail.
One last war crime is worth mentioning. However, this is not because of its inclusion in the ACJHR Statute under the Malabo Protocol (2014), but rather because of its absence. This is the crime of terror (as it was known at the ICTY) or terrorism (as it was known at the SCSL/ICTR) as a war crime. It is simply not found in any of the war crimes provisions. Neither of course, is it found in the Rome Statute (1998) or explicitly in the ICTY Statute (despite convictions under Article 3 of the ICTY Statute for this crime), but it was found in the SCSL and ICTR Statutes.58 It must be remembered that this particularly odious offence is one of the very few crimes (when one excludes genocide convictions) that have attracted life sentences at any of the international criminal tribunals.59 Given this fact, and the various cases concerning this offence that were prosecuted at the ICTY and the SCSL,60 it is somewhat perplexing that this war crime was not included in the ACJHR Statute under the Malabo Protocol (2014).
Crimes against humanity in the ACJHR Statute under the Malabo Protocol (2014) – Article 28C – is mostly a carbon copy of the provision on crimes against humanity found in the Rome Statute (1998).61 However, a few salient matters are worth pointing out. The chapeau to Article 28C could be read as expanding the reach of crimes against humanity’s contextual element. This is so because it refers to ‘a widespread or systematic attack or enterprise directed against any civilian population, with knowledge of the attack or enterprise’. This is an interesting development, because there exists jurisprudence and academic commentary to the effect that the word ‘attack’ denotes violent and, in certain circumstances, non-violent acts.62 If that is so, one wonders what sort of additional acts the terms ‘or enterprise’ are supposed to cover. Is the term ‘enterprise’ subsumed under the term ‘attack’? An alternative view, however, is simply that the words ‘or enterprise’ serve to add further clarity to the notion that non-violent acts are encompassed by the contextual chapeau element, especially when we consider that the term ‘attack’ has also been interpreted by some jurisprudence to denote the existence of violence, a view supported by some commentators.63
Largely incorporating the crimes against humanity definition of the Rome Statute (1998) also means that the ACJHR Statute under the Malabo Protocol (2014) has included the requirement of ‘a State or organizational policy’ in Article 28C(2)(a).64 In so doing, this requirement has been added to crimes against humanity’s contextual element, thus departing from consistent ICTY and ICTR jurisprudence holding that it is not required under customary international law.65 As to what constitutes an ‘organization’ for the purposes of an ‘organizational policy’, this is an issue that has been the subject ongoing controversy at the ICC. Two views have arisen on the matter. The first view sees this term as not being defined or limited by ‘the formal nature of the group and the level of its organization’ (although this is relevant), but rather ‘on whether a group has the capability to perform acts which infringe on basic human values.’66 In other words, its ‘capacities for action, mutual agreement and coordination … are essential features to defining an organization that, by very reason of the means and resources it possesses and its membership, allow an attack to be executed.’67 The late Judge Kaul succinctly expressed the second view. According to him, the relevant organization must ‘partake of some characteristics of a State [which] eventually turns the private “organization” into an entity which may act like a State or has quasi-State abilities.’68 Without this requirement, he avers that perhaps the mafia or other similar criminal organizations would be able to commit crimes against humanity.69 The ICC Appeals Chamber has not yet pronounced itself on this matter. Consequently, uncertainty remains, although Ambos has rightly pointed out that the criteria or characteristics outlined by both sides of the debate ‘as possible distinguishing features for the determination of an “organization” shows … that those criteria are in large part identical … and only differ substantially insofar as [Judge] Kaul regards them as indications of state-likeness[.]’70
With respect to the underlying crimes, it is noticeable that not only is torture criminalized – as is the case at all modern international criminal tribunals and courts71 – but also, for the first time, Article 28C(f) explicitly adds ‘cruel, inhuman and degrading treatment or punishment’ as well. Of course, this language originates from the Torture Convention (1984) and was designed to capture conduct that, while odious and deplorable, might not necessarily amount to torture as defined in Article 1(1) of that treaty.72 However, its inclusion in the ACJHR Statute under the Malabo Protocol (2014) raises a question: where does this leave ‘other inhumane acts’ in Article 28C(1)(k)? Surely there is overlap, since many of the acts that could amount to cruel, inhuman or degrading treatment or punishment could have already been prosecuted as ‘other inhumane acts’ under Article 28C(1)(k).73 The danger here is that by including both of these provisions, the drafters could have – perhaps inadvertently – rendered one of them superfluous, unless the two can be somehow distinguished. It remains to be seen how this matter will be resolved by the judges of the ACJHR.
Finally, one interesting omission can be seen in Article 28C when compared to the Rome Statute (1998). Included (somewhat awkwardly) in the crimes against humanity provision at the ICC, is Article 7(3) of the Rome Statute (1998) which provides for a definition of ‘gender’ for the treaty as a whole, and states that the term ‘refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.’ This provision has been described by one commentator as ‘the most puzzling and bizarre language ever included in an international treaty’,74 but was added in order to address concerns that the term ‘gender’ might be read to include sexual orientation.75 The result was the compromise contained in Article 7(3). However, with its omission from the ACJHR Statute under the Malabo Protocol (2014), the judges of the ACJHR will be free from any constraining definition. Since ‘gender’ is expressly listed as one of the groups upon whom persecution as a crime against humanity can be carried out (as per Article 28C(1)(h)), it will be interesting to see if and how the concept of gender will develop.
The ACJHR Statute under the Malabo Protocol (2014) also shows innovation in respect of the crime of aggression (Article 28M). In spite of some ambiguities, it is, on the whole, a marked improvement from the 2010 ICC Kampala Amendments on aggression (i.e. Articles 8 bis, 15 bis, 15 ter, Rome Statute (1998)). With respect to the substantive crime, while broadly mirroring Article 8 bis of the Rome Statute (1998), the most notable aspect of Article 28M is that, unlike Article 8 bis, it encompasses not only acts of aggression carried out by states but also those carried out by non-state actors.76 Thus, it covers both the illegal initiation of international and non-international armed conflicts. This is important because non-international armed conflicts significantly outnumber international armed conflicts. Indeed, a recent study found that in 2012 at least 37 armed conflicts took place and of these only one was an ‘active international armed conflict …, narrowly defined’ while ‘belligerent occupations continued [in] parts of nine states and territories.’77 In 2013, the same study found that the total number of armed conflicts had risen to 39, with two active international armed conflicts and the number of belligerent occupations remaining unchanged.78 In 2014, armed conflicts rose again to 42, with only three active international armed conflicts and situations of belligerent occupation rising to 10.79
Nevertheless, this raises some questions, since in the Rome Statute (1998), an act of aggression is intimately linked to a manifest violation of Article 2(4) of the UN Charter (1945) – the prohibition on the use of force. That provision is of no relevance to a non-international armed conflict since this prohibition is addressed to states and does not apply to non-state actors (at international law).80 Article 28M(A) of the ACJHR Statute under the Malabo Protocol (2014) attempts to overcome this by, in addition to the UN Charter (1945), referring to, in the alternative, a manifest violation of the Constitutive Act of the African Union (2000) ‘and with regard to the territorial integrity and human security of the population of a State Party.’ Yet, the Constitutive Act of the African Union (2000), like the UN Charter (1945), appears to address AU member states only81 and contains no express provision regarding the use of force by non-state actors, but instead merely ‘condemn[s] and reject[s] … unconstitutional changes of governments.’82
In addition, the ICC’s aggression leadership element found in Article 8 bis(1) is also adopted into Article 28M, albeit in a slightly modified fashion – to account for the fact that aggression under the ACJHR Statute pursuant to the Malabo Protocol (2014) applies to non-international armed conflicts and non-state actors. Thus, according to Article 28M(A), the person accused of the crime of aggression must be ‘in a position effectively to exercise control over or to direct the political or military action of a state or organization.’ Two issues arise. The first issue, is that the ‘control or direct’ standard, which was copied from Article 8 bis(1), actually narrows the class of persons who could be criminally responsible for aggression when compared to the crimes against peace (as aggression was then known) jurisprudence of World War II. In fact, a number of defendants were convicted after World War II not on the basis that they controlled or directed the political or military action of their respective states, but instead because they were in a position to shape or influence such action – a less restrictive standard.83 In other words, the scope for criminal responsibility for aggression under customary international law84 is wider than that found in Article 8 bis(1) and now Article 28M(A).
The second issue, is that Article 28M(A) introduces the same interpretational difficulties that one finds in crimes against humanity, since the question that will inevitably arise is what an ‘organization’ means in this context and whether it is the same as, or different from, that found in Article 7(2)(a) of the Rome Statute (1998) (see discussion above) and Article 28C(2)(a) of the ACJHR Statute under the Malabo Protocol (2014). Here, Judge Kaul’s view that the organization must be ‘state-like’ (in the context of crimes against humanity)85 finds more favour, since the idea that the African equivalent of the mafia could be responsible for acts of aggression really begins to stretch international criminal law to a place that, frankly, gives such criminal thugs more credit than they deserve.
But the most refreshing aspect of aggression as per Article 28M – and of all the core international crimes in the ACJHR Statute pursuant to the Malabo Protocol (2014) – is that it comes, on paper, with absolutely no strings attached. No special articles, unique requirements or jurisdictional provisions that only apply to aggression are included. In stark contrast, Article 15 bis and Article 15 ter of the Rome Statute (1998) purposefully put into place barriers and jurisdictional hoops that have to be jumped through and overcome, thereby ensuring that the ICC will unlikely adjudicate upon an aggression case anytime soon. Thus, Article 15 bis(2) and Article 15 ter(2) require one year to elapse after the requisite number of ICC States Parties (30) have ratified the 2010 ICC Kampala Amendments86 before the ICC can exercise jurisdiction over aggression; Article 15 bis(3) and Article 15 ter(3) require a decision to be made after 1 January 2017 to activate the ICC’s jurisdiction over aggression (this is in addition to the one year period stipulated in Article 15 bis(2) and Article 15 ter(2));87 Article 15 bis(4) permits states to ‘opt out’ of aggression at the ICC where the ICC Prosecutor acts proprio motu or where there is a state referral88; Article 15 bis(5) provides that the ICC only has jurisdiction over aggression where the state of nationality of the accused and the state on which the crime takes have both ratified the 2010 ICC Kampala Amendments on aggression (unless the UN Security Council, acting under Chapter VII of the UN Charter, refers the matter). The ACJHR Statute under the Malabo Protocol (2014) does not contain any such provisions with respect to aggression. Rather, aggression is treated just like any other international crime; as it should be. Africa deserves credit for this straightforward approach.
Taking into account all the matters discussed in this chapter, Africa must be commended for many of the bold approaches it appears to have taken with respect to core international crimes. There are certainly a number of interesting, innovative and admirable provisions in this regard contained in the Malabo Protocol (2014) that international criminal law as a discipline should reflect upon. But the Malabo Protocol (2014) is about more than just those provisions that have been detailed and considered in this chapter.
Other positive steps can be seen with the addition of a whole host of crimes that have previously been generally considered as better dealt with through inter-state cooperation and national prosecution rather than by an international or regional criminal court (with the exception of terrorism at the Special Tribunal for Lebanon) – these include the crime of piracy (Article 28F), terrorism (Article 28G), mercenarism (Article 28H), corruption (Article 28I), money laundering (Article 28I bis), trafficking in persons (Article 28J), trafficking in drugs (Article 28K), trafficking in hazardous wastes (Article 28L) and the illicit exploitation of natural resources (Article 28L bis). Further positive steps can be seen with the inclusion of passive personality and extraterritorial protective jurisdiction (Article 46E bis(2)(c)–(d)), corporate criminal liability (Article 48C), the creation of a Defence Office as an independent organ (Articles 2(4), 22C) and the exclusion of the death penalty (Article 43A(1)–(2)).
On the other hand, eyebrows are raised by the inclusion, for example, of the crime of unconstitutional change of government (Article 28E), particularly when one considers the habitual vote-rigging, violence and other irregularities that have accompanied many of Africa’s elections in recent times. Difficulty arises in establishing that a given government is truly a ‘democratically elected government’. We must also not forget that elections, in and of themselves, are no guarantee or insurance policy against future tyranny.89 Other concerns emanate from the reality that significant additional resources will have to be invested into the ACJHR, given the wide-ranging and diverse mandate envisaged by the Malabo Protocol (2014).90 Despite an AU commitment to ensure that the ACJHR is adequately funded,91 where all the additional money will actually come from is presently unknown.
But the most controversial provision of all is Article 46A bis, which provides complete immunity for incumbent Heads of State or Government and ‘other senior state officials’. This is an issue that has, for good reason, taken over much of the debate and discussion concerning the Malabo Protocol (2014). Article 46A bis is plainly a regressive choice by Africa, since it hardwires a double standard whereby one set of laws applies to the politically weak and another to the politically strong. It is also the direct result of sentiment common among African leaders that the ICC has unfairly and in a racist manner targeted Africa in its investigations and prosecutions. Yet, one must keep in mind that this anti-ICC rhetoric only began when politically powerful Africans were sought by the ICC (such as President Al-Bashir of the Sudan or President Kenyatta and Deputy President Ruto of Kenya). It was conspicuously absent when the ICC sought politically weak Africans (such as the likes of Lubanga, Katanga, Mbarushimana, Ngudjolo and Laurent Gbagbo), and remained absent when, well after the criticisms had begun, the ICC sought other politically weak Africans (like Ongwen and Al Mahdi).92 It would thus appear, as Desmond Tutu has observed, that African leaders ‘conveniently accuse the ICC of racism.’93
And so, can it be said that the Malabo Protocol (2014) simultaneously represents a step forward and backwards in the fight against impunity? Indeed, it is not often that one hears both of these seemingly contradictory notions contained in the one judicial entity. Or are the negatives offset by the many innovations contained in the ACJHR Statute pursuant to the Malabo Protocol (2014), so that, on the whole, international criminal justice is well served? That is ultimately a matter for you the reader to decide, being guided by the various authors of this book. Suffice to say that, for now at least, the jury appears to be still out on these questions.
The views expressed herein are those of the authors and do not necessarily reflect the views of the Special Tribunal for Lebanon.
1 See for example M. Sirleaf, ‘The African Justice Cascade and the Malabo Protocol’ 11(1) International Journal of Transitional Justice (2017) 71–91; A. Abass, ‘Historical and Political Background of the Malabo Protocol’, in G. Werle and M. Vormbaum (eds), The African Criminal Court: A Commentary on the Malabo Protocol (T.M.C. Asser/Springer, The Hague/Berlin, 2017), pp. 15–16.
2 See for example H. van der Wilt, ‘Complementary Jurisdiction (Article 46H)’, in G. Werle and M. Vormbaum (eds), The African Criminal Court: A Commentary on the Malabo Protocol (T.M.C. Asser/Springer, The Hague/Berlin, 2017), pp. 189–90; C. Bhoke Murungu, ‘Towards a Criminal Chamber in the African Court of Justice and Human Rights’ 9(5) Journal of International Criminal Justice (2011) 1067–88, at 1077–9, 1088. See also African Union, Decision No. Ext/Assembly/AU/Dec.1 (October 2013), Decision on Africa’s Relationship with the International Criminal Court (ICC), 12 October 2013, paras 4, 10(ii), 10(iv); African Union, Decision No. Assembly/AU/Dec.547(XXIV), Decision on the Progress Report of the Commission on the Implementation of Previous Decisions on the International Criminal Court (ICC), Doc. Assembly/AU/18(XXIV), 30–31 January 2015, paras 3, 4(a)–(b), 9, 17(b), 17(d)–(e).
3 See generally Arts. 2, 3(1), 4(1), 5(1)–(2), Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and Peoples’ Rights (1998).
4 See Art. 34(3), Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (1998).
5 See African Union, List of Countries which have signed, ratified/acceded to the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (1998), available at: https://au.int/sites/default/files/treaties/7778-sl-protocol_to_the_african_charter_on_human_and_peoplesrights_on_the_estab.pdf (accessed 25 November 2018).
6 See Arts. 5(1)(d), 18(1)–(2), 26, Constitutive Act of the African Union (2000).
7 See Art. 19(1)–(2), Protocol of the Court of Justice of the African Union (2003).
8 See African Union, List of Countries which have signed, ratified/acceded to the Protocol of the Court of Justice of the African Union (2003), available at: https://au.int/sites/default/files/treaties/7784-sl-protocol_of_the_court_of_justice_of_the_african_union_1.pdf (accessed 25 November 2018).
9 See Article 60, Protocol of the Court of Justice of the African Union (2003).
10 See African Union, Decision on the Seats of the African Union, Assembly/AU/Dec.45 (III) Rev.1, Assembly of the African Union, Third Ordinary Session, 6–8 July 2004, para. 4; African Union, Decision on the Merger of the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union, EX.CL/Dec.165 (VI), Executive Council, Sixth Ordinary Session, 24–28 January 2005, para. 2.
11 See African Union, List of Countries which have signed, ratified/acceded to the Protocol on the Statute of the African Court of Justice and Human Rights (2008), available at: https://au.int/sites/default/files/treaties/7792-sl-protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights_3.pdf (accessed 25 November 2018).
12 See Article 9(1), Protocol on the Statute of the African Court of Justice and Human Rights (2008).
13 See Art. 9(1), Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (2014).
14 See African Union, List of Countries which have signed, ratified/acceded to the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (2014), available at: https://au.int/sites/default/files/treaties/7804-sl-protocol_on_amendments_to_the_protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights_5.pdf (accessed 25 November 2018).
15 See Art. II, Genocide Convention (1948).
16 See Art. 6, Rome St. (1998). It should be noted that during the negotiations leading to the Rome Statute (1998), some States tried to expand genocide’s protected groups, but this was met with reluctance by the majority of States. The attempts were ultimately unsuccessful. See H. von Hebel and D. Robinson, ‘Crimes Within the Jurisdiction of the Court’, in R. S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (The Hague/London/Boston, Kluwer Law International, 1999), p. 89; W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford, Oxford University Press, 2010), p. 129; W. A. Schabas, ‘Article 6: Genocide’, in O. Triffterer and K. Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary, 3rd Edition (Munich/Oxford/Baden-Baden, Verlag C. H. Beck/Hart Publishing/Nomos, 2016), margin No. 16, p. 135.
17 Trial Judgment, Prosecutor v. Akayesu, (ICTR-96–4-T), ICTR, 2 September 1998, para. 516 (emphasis added).
18Trial Judgment, Prosecutor v. Musema, (ICTR-96–13-T), ICTR, 27 January 2000, para. 162:
It appears, from a reading of the travaux préparatoires of the Genocide Convention [(1948)], that certain groups, such as political and economic groups, have been excluded from the protected groups, because they are considered to be “non stable” or “mobile groups” which one joins through individual, voluntary commitment. That would seem to suggest a contrario that the [Genocide] Convention [(1948)] was presumably intended to cover relatively stable and permanent groups. Therefore, the Chamber holds that in assessing whether a particular group may be considered protected from the crime of genocide, it will proceed on a case-by-case basis, taking into account both the relevant evidence proffered and the political, social and cultural context in which the acts allegedly took place.
See also Trial Judgment, Prosecutor v. Rutaganda, (ICTR-96–3-T), ICTR, 6 December 1999, paras 57–58.
19Trial Judgment, Prosecutor v. Krstić, ( IT-98–33-T), ICTR, 2 August 2001, para. 556:
The preparatory work of the [Genocide] Convention [(1948)] shows that setting out such a list [of protected groups] was designed more to describe a single phenomenon, roughly corresponding to what was recognized, before the Second World War, as “national minorities”, rather than to refer to several distinct prototypes of human groups.
20 As in Angola (Art. 367, Penal Code of Angola); Burundi (Art. 195, Penal Code of Burundi); Djibouti (Art. 481, Penal Code of Djibouti); Eritrea (Art. 107, Penal Code of Eritrea); Ghana (Section 49A, Criminal Code (1960)); Guinea-Bissau (Art. 101, Penal Code of Guinea-Bissau); Kenya (Section 5, International Crimes Act (2008)); Mali (Art. 30, Penal Code of Mali); Mozambique (Art. 160(2)(j), Penal Code of Mozambique); Mauritius (Sections 2, 4(1)(b), Schedule, Part II, International Criminal Court Act (2011)); Rwanda (Article 2, Loi No. 33 bis/2003, 6 September 2003); South Africa (Sections 1, 4(1), Schedule 1, Part 1, Implementation of the Rome Statute of the International Criminal Court Act (2002)); Sudan (Art. 187, Criminal (Amendment) Law (2009)); Uganda (Sections 7(1)(a), 7(2), Schedule 1, International Criminal Court Act (2010)); Zimbabwe (Section 4, Genocide Act (2000)).
21 As in Côte D’Ivoire (Art. 137, Penal Code of Côte D’Ivoire).
22 As in Ethiopia (Art. 269, Criminal Code of Ethiopia).
23 As in São Tomé and Príncipe (Art.210, Penal Code of São Tomé and Príncipe).
24 As in Burkina Faso (Art.313, Penal Code of Burkina Faso); Cape Verde (Art. 268, Penal Code of Cape Verde)); the Central African Republic (Art. 152, Penal Code of the Central African Republic); Comoros (Art. 17, Loi No. 11–022, 13 December 2011); the Congo (Art. 1, Loi No. 8–98, 31 October 1998); the Democratic Republic of the Congo (Art. 1, Law No. 8–98, 31 October 1998); Niger (Art. 208(1), Penal Code of Niger); Senegal (Art. 431(1), Penal Code of Senegal).
25 As in Lesotho (Section 93, Penal Code Act (2010)).
26 For criticism of Akayesu’s above pronouncement on genocide’s protected groups, see G. Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford, Oxford University Press, 2006), p. 230; W. A. Schabas, Genocide in International Law: The Crime of Crimes, (2nd Edition Cambridge, Cambridge University Press, 2009), pp. 151–3. As one commentator has noted, it ‘looks increasingly idiosyncratic as time goes by’: W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford, Oxford University Press, 2010), p. 129; W. A. Schabas, ‘Article 6: Genocide’, in O. Triffterer and K. Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary, (3rd Edition Munich/Oxford/Baden-Baden, Verlag C. H. Beck/Hart Publishing/Nomos, 2016), margin No. 17, p. 135; C. J. Tams, L. Berster and B. Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (Munich/Oxford/Baden-Baden, Verlag C. H. Beck/Hart Publishing/Nomos, 2014), margin No. 60, p. 115.
27 Trial Judgment, Prosecutor v. Akayesu, (ICTR-96–4-T), ICTR, 2 September 1998, paras 731–4.
28 See for example, Trial Judgment, Prosecutor v. Kayishema and Ruzindana, (ICTR-95–1-T), ICTR, 21 May 1999, para. 108; Trial Judgment, Prosecutor v. Rutaganda, (ICTR-96–3-T), ICTY, 6 December 1999, para. 51; Trial Judgment, Prosecutor v. Musema, (ICTR-96–13-T), 27 January 2000, para. 156; Trial Judgment, Prosecutor v. Bagilishema, (ICTR-95–1A-T), 7 June 2001, para. 59; Trial Judgment, Prosecutor v. Krstić, (IT-98–33-T), ICTY, 2 August 2001, para. 513; Trial Judgment, Prosecutor v. Semanza, (ICTR-97–20-T), 15 May 2003, para. 320; Trial Judgment, Prosecutor v. Stakić, (IT-97–24-T), ICTY, 31 July 2003, para. 516; Trial Judgment, Prosecutor v. Kajelijeli, (ICTR-98–44A-T), 1 December 2003, para. 815; Trial Judgment, Prosecutor v. Brđanin, (IT-99–36-T), ICTY, 1 September 2004, para. 690; Trial Judgment, Prosecutor v. Blagojević and Jokić, (IT-02–60-T), ICTY, 17 January 2005, para. 646; Trial Judgment, Prosecutor v. Muvunyi, (ICTR-2000–55A-T), 12 September 2006, para. 487; Appeal Judgment, Prosecutor v. Seromba, (ICTR-2001–66-A), 12 March 2008, para. 46; Trial Judgment, Prosecutor v. Popović et al., (IT-05–88-T), ICTY, 10 June 2010, para. 812; Trial Judgment, Prosecutor v. Tolimir, (IT-05–88/2-T), ICTY, 12 December 2012, para. 737; Trial Judgment, Prosecutor v. Karadžić, (IT-95–5/18-T), ICTY, 24 March 2016, para. 545.
29 It should be noted that some States have already explicitly included rape and sexual violence as the actus reus of genocide for the purposes of their domestic law. See section 268.4(2), Criminal Code (1995) (Australia); Art. 2, Organic Law No. 08/96 (1996) on the Organization of Prosecutions for Offences constituting the Crime of Genocide or Crimes Against Humanity since 1 October 1990 (Rwanda); Article 607(1)(2), Código Penal (Spain).
30 See Art. 4(2)(b), ICTY St.; Article 2(2)(b), ICTR St.; Article 4, ECCC Law; Art. 6(b), ICC St. (1998).
31 See K. Ambos, ‘Article 25: Individual Criminal Responsibility’, in O. Triffterer and K. Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary, (3rd Edition Munich/Oxford/Baden-Baden, Verlag C. H. Beck/Hart Publishing/Nomos, 2016), margin No. 35, p. 1016.
An offence in committed by any person who, in relation to any of the crimes or offences provided for in this Statute:
(i) Incites, instigates, organizes, directs, facilitates, finances, counsels or participates as a principal, co-principal, agent or accomplice in any of the offences set forth in the present Statute[.]
33 It is worth noting that this jurisprudence only arises from cases originating at the ICTR. No accused was ever charged with direct and public incitement to commit genocide at the ICTY, and hence no ICTY jurisprudence exists. At the Extraordinary Chambers in the Courts of Cambodia (ECCC), this crime was not specifically included in its governing statute, while the Special Court for Sierra Leone (SCSL) did not have jurisdiction over genocide at all.
34 Compare Appeal Judgment, Kalimanzira v. The Prosecutor, (ICTR-05–88-A), 20 October 2010, para. 157 and Appeal Judgment, Ngirabatware v. The Prosecutor, (MICT-12–29-A), 18 December 2014, paras 52–4 (both pointing to widely circulated speeches and articles rather than speeches to small and closed groups) with Appeal Judgment, Nzabonimana v. The Prosecutor, (ICTR-98–44D-A), 29 September 2014, para. 128; Appeal Judgment – Partially Dissenting and Separate Opinion of Judge Pocar,Prosecutor v. Kalimanzira, (ICTR-05–88-A), 20 October 2010, para. 45 (both pointing out that the size of the audience when a speech was given was not an element of the offence).
35 See W. A. Schabas, Genocide in International Law: The Crime of Crimes, (2nd Edition Cambridge, Cambridge University Press, 2009), pp. 319–24; C. J. Tams, L. Berster and B. Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (Munich/Oxford/Baden-Baden, Verlag C. H. Beck/Hart Publishing/Nomos, 2014), margin numbers 6–8, pp. 160–61.
36 See Art. 8(2)(a)(i)–(viii), Rome St. (1998) (grave breaches of the Geneva Conventions (1949); Art. 8(2)(b)(i)–(xxvi), Rome St. (1998) (other serious violations of the law and customs of international armed conflicts); Art. 8(2)(c)(i)–((iv), Rome St. (1998) (serious violations of Common Art. 3 of the Geneva Conventions (1949)); Art. 8(2)(e)(i)–(xv), Rome St. (1998) (other serious violations of the law and customs of non-international armed conflicts).
37 For a more complete history of the negotiations leading to this compromise solution, see H. von Hebel and D. Robinson, ‘Crimes Within the Jurisdiction of the Court’, in R. S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (The Hague/London/Boston, Kluwer Law International, 1999), pp. 113–16; R. S. Clark, ‘Building on Article 8(2)(b)(xx) of the Rome Statute of the International Criminal Court: Weapons and Methods of Warfare’ 12(3) New Criminal Law Review (2009) 366–89, at 369–77; M. Cottier and D. Křivánek, ‘Article 8(2)(b)(xvii)–(xx): Prohibited Weapons’, in O. Triffterer and K. Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary, (3rd Edition Munich/Oxford/Baden-Baden, Verlag C. H. Beck/Hart Publishing/Nomos, 2016), margin numbers 565–73, pp. 454–7.
38 A. Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ 10(1) European Journal of International Law (1999) 144–71, at 152.
39 See J-M. Henckaerts and L. Doswald-Beck (eds), International Committee of the Red Cross Customary International Humanitarian Law – Volume I: Rules (Cambridge, Cambridge University Press, 2009), p. 151, Rule 45: ‘The use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment is prohibited. Destruction of the natural environment may not be used as a weapon.’ See also pp. 143–51, Rules 43–4.
40 See Judgment, United States of America et al. v. Göring et al., in Trial of the Major War Criminals before the International Military Tribunal – Volume 1: Official Documents (Nuremberg, International Military Tribunal, 1947); Judgment, United States of America v. Milch, Case No. 2, Military Tribunal II, 16 April 1947, in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 – Volume II (Washington, Nuernberg Military Tribunals, 1949); Judgment, United States of America v. Flick et al., Case No. 5, Military Tribunal IV, 22 December 1947, in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 – Volume VI (Washington, Nuernberg Military Tribunals, 1952); Judgment, United States of America v. Krauch et al., Case No. 6, Military Tribunal VI, 29 July 1948, in Trials of the War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 – Volume VIII (Washington, Nuernberg Military Tribunals, 1952); Judgment, United States of America v. Krupp von Bohlen und Halbach et al., Case No. 10, Military Tribunal III, 31 July 1948, in Trials of the War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 – Volume IX (Washington, Nuernberg Military Tribunals, 1950); Judgment, United States of America v. von Weizsäcker et al., Case No. 11, Military Tribunal IV, 11 April 1949, in Trials of the War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 – Volume XIV (Washington, Nuernberg Military Tribunals, 1949).
41 See Appeal Judgment, Prosecutor v. Stakić, (IT-97–24-A), ICTY, 22 March 2006, paras 278, 300 (in the context of a crime against humanity); see also Appeal Judgment, Prosecutor v. Naletilić and Martinović, (IT-98–34-A), ICTY, 3 May 2006, para. 152. This holding was subsequently applied to cases involving deportation as a war crime: Trial Judgment, Prosecutor v. Prlić, (IT-04–74-T), ICTY, 29 May 2013, Vol. 1, para. 132; Vol. 3, paras 810–39; see also Trial Judgment, Prosecutor v. Krnojelac, (IT-97–25-T), ICTY, 15 March 2002, para. 473.
42 See for example Trial Judgment, Prosecutor v. Milutinović et al., (IT-05–87-T), ICTY, 26 February 2009, Vol. 3, paras 475, 630, 788, 930, 1138 and Trial Judgment, Prosecutor v. Đorđević, (IT-05–87/1-T), ICTY, 23 February 2011, para. 2230 (where the accused were convicted of, inter alia, deportation as a crime against humanity during 1999 Kosovo War between Serbia/Yugoslavia and Kosovo Albanians (a separate international armed conflict ensued between the member States of the North Atlantic Treaty Organization and Serbia/Yugoslavia)).
43 See Art. 8(2)(b)(xxvi), Rome St. (1998) (international armed conflicts); Art. 8(2)(e)(vii), Rome St. (1998) (non-international armed conflicts).
44 See Art. 1–4, Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000) (however, while the conscription of children under the age of eighteen years is prohibited (Article 2), Article 3(1) still nonetheless permits the recruitment of children over the age of fifteen eighteen years into the national army of States, provided that it is voluntary, with parental consent, fully informed and with reliable proof of age (in contrast, under Article 4(1), armed groups are prohibited from recruiting children under the age of eighteen years at an time)).
45 See Arts. 2, 22(2), African Charter on the Rights and Welfare of the Child (1990). As of 15 June 2017, 44 of the AU’s 55 member States have signed this treaty, while 48 member States have ratified or acceded to it. See African Union, List of Countries which have signed, ratified/acceded to the African Charter on the Rights and Welfare of the Child (1990), available at: https://au.int/sites/default/files/treaties/7773-sl-african_charter_on_the_rights_and_welfare_of_the_child_1.pdf (accessed 25 November 2018).
46 See supra fn. 43.
47 See Art. 77(2), Additional Protocol I to the Geneva Conventions (1977); Art. 4(3)(c), Additional Protocol II to the Geneva Conventions (1977).
48 See Art. 4(c), SCSL Statute. See also Art. 4(c), Residual SCSL St.
49 See supra fn. 37.
50 See Art. 2–6, African Nuclear-Weapon-Free Zone Treaty (Treaty of Pelindaba) (1996). As of 15 June 2017, 52 of the AU’s 55 member states have signed this treaty, while 41 member States have ratified or acceded to it. See African Union, List of Countries which have signed, ratified/acceded to the African Nuclear-Weapon-Free Zone Treaty (Treaty of Pelindaba) (1996), available at: https://au.int/sites/default/files/treaties/7777-sl-the_african_nuclear-weapon-free_zone_treaty_the_treaty_of_pelindaba_3.pdf (accessed 25 November 2018).
51 See Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, Advisory Opinion of 8 July 1996, ICJ Reports 1996, p. 226 (where the ICJ did not, under any branch of international law at that time, find that nuclear weapons were illegal per se). See generally G. Nystuen, S. Casey-Maslen and A. G. Bersagel (eds), Nuclear Weapons Under International Law (Cambridge, Cambridge University Press, 2014).
52 I.e. Art. 28D(2)(a)(i)–(viii) (grave breaches of the Geneva Conventions (1949); Art. 28D(2)(b)(i)–(xxxiii) (grave breaches of Additional Protocol I to the Geneva Conventions (1977) and other serious violations of the law and customs of international armed conflicts); Art. 28D(2)(c)(i)–(iv) (serious violations of Common Art. 3 of the Geneva Conventions (1949)); Art. 28D(2)(e)(i)–(xxii) (other serious violations of the law and customs of non-international armed conflicts).
53 See Decision on the Confirmation of Charges, Prosecutor v. Lubanga, (ICC-01/04–01/06–803-tENG), 29 January 2007, paras 220, 235–7.
54 See, Judgment Pursuant to Article 74 of the Statute, Prosecutor v. Lubanga, (ICC-01/04–01/06–2842), 14 March 2012, paras 563–7.
55 Namely, the Union des Patriotes Congolais (UPC) (and its military wing, the Force Patriotique pour la Libération du Congo (FPLC)), Rassemblement Congolais pour la Démocratie – Kisangani/Mouvement de Libération (RCD-ML) (and its military wing, the Armée Populaire Congolaise (APC)), Front des Nationalistes Intégrationnistes (FNI), Force de Résistance Patriotique en Ituri (FRPI), Parti pour l’Unité et la Sauvegarde de l’Intégrité du Congo (PUSIC) and the Forces Armées du Peuple Congolais (FAPC), together with Uganda, Rwanda and the Democratic Republic of Congo (DRC). See, Judgment Pursuant to Article 74 of the Statute, Prosecutor v. Lubanga, (ICC-01/04–01/06–2842), 14 March 2012, paras 503–67.
The International Tribunal [ICTY] shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property.
57 See Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Tadić, (IT-94–1-AR72), ICTY, 2 October 1995, paras 87–93.
58 See Art. 4(d), ICTR St.; Art. 3(d), SCSL St.; see also Art. 3(d), Residual SCSL St.
59 See Appeal Judgment, Prosecutor v. Galić, (IT-98–29-A), ICTY, 30 November 2006, Disposition (for the campaign of shelling and sniping undertaken by Bosnian Serbs forces during the notorious 3-year, 10 month siege of Sarajevo in Bosnia and Herzegovina).
60 See Trial Judgment, Prosecutor v. D. Milošević, (IT-98–29/1-T), ICTY, 12 December 2007; Appeal Judgment, Prosecutor v. D. Milošević, (IT-98–29/1-A), ICTY, 12 November 2009; Trial Judgment, Prosecutor v. Brima et al., (SCSL-04–16-T), SCSL, 20 June 2007; Appeal Judgment, Prosecutor v. Brima et al., (SCSL-2004–16-A) , 22 February 2008; Trial Judgment, Prosecutor v. Fofana and Kondewa, (SCSL-04–14-T), 2 August 2007; Appeal Judgment, Prosecutor v. Fofana and Kondewa, (SCSL-04–14-A), 28 May 2008; Trial Judgment, Prosecutor v. Sesay et al., (SCSL-04–15-T), 2 March 2009; Appeal Judgment, Prosecutor v. Sesay et al., (SCSL-04–15-A), 26 October 2009; Trial Judgment, Prosecutor v. Taylor, (SCSL-03–01-T), 18 May 2012; Appeal Judgment, Prosecutor v. Taylor, (SCSL-03–01-A), 26 September 2013.
61 See Art. 7, Rome St. (1998).
62 Trial Judgment, Prosecutor v. Akayesu, (ICTR-96–4-T), 2 September 1998, para. 581: ‘[a]n attack may also be non violent in nature, like imposing a system of apartheid … or exerting pressure on the population to act in a particular manner’; Trial Judgment, Prosecutor v. Musema, (ICTR-96–13-T), 27 January 2000, para. 205: ‘[a]n attack may also be non-violent in nature’; K. Ambos, Treatise on International Criminal Law – Volume II: The Crimes and Sentencing (Oxford, Oxford University Press, 2014), p. 58: ‘the attack need not necessarily be “violent in nature” (e.g., the system of apartheid)’; W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford, Oxford University Press, 2010), p. 153: ‘[a]lthough many of the specific acts of crimes against humanity involve physical violence, such offences as persecution and apartheid, for example, may be perpetrated as a result of legislation and government policy.’
63 See Appeal Judgment, Nahimana v. The Prosecutor, (ICTR-99–52-A), 28 November 2007, para. 918: ‘an attack … means the perpetration … of a series of acts of violence, or of the kind of mistreatment referred to in sub-paragraphs (a) to (i) of the Article [Article 3, ICTR Statute]’; Case 002/01 Trial Judgment, Co-Prosecutors v. Nuon and Khieu, (002/19–09–2007/ECCC/TC/E313), 7 August 2014, para. 178: ‘[a]n attack is a course of conduct involving the commission of a series of acts of violence’; G. Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford, Oxford University Press, 2006), p. 156 (after citing Akayesu (see supra fn. 62)): ‘[t]he author does not agree with the view that the establishment and maintenance of such a system of apartheid can be regarded as “non-violent” or that, for that matter, any “attack” within the meaning of crimes against humanity could be non-violent in the broad sense of the word’; G. Boas, J. L. Bischoff and N. L. Reid, International Criminal Law Practitioner Library – Volume II: Elements of Crimes under International Law (Cambridge, Cambridge University Press, 2008), p. 41: ‘[a]n “attack” for the purposes of crimes against humanity […] has been simply and consistently described by ad hoc chambers as “a course of conduct involving the commission of acts of violence”’.
64 See Art. 7(2)(a), Rome St. (1998).
65 See Appeal Judgment, Prosecutor v. Kunarac et al., (IT-96–23 & IT- 96–23/1-A), ICTY, 12 June 2002, paras 98–101; Appeal Judgment, Prosecutor v. Blaškić, (IT-95–14-A), ICTY, 29 July 2004, para. 120; Appeal Judgment, Semanza v. The Prosecutor, (ICTR-97–20-A), 20 May 2005, para. 269; Appeal Judgment, Gacumbitsi v. The Prosecutor, (ICTR-2001–64-A), 7 July 2006, para. 84. However, some commentators have been critical of the ICTY Appeals Chamber’s original analysis in Kunarac that underlies this holding: see M. C. Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (New York: Cambridge University Press, 2011), pp. 25–8.
66 Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, Situation in the Republic of Kenya, (ICC-01/09–19-Corr), 31 March 2010, para. 90. See also Corrigendum to “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, Situation in the Republic of Côte d’Ivoire, (ICC-02/11–14-Corr), 15 November 2011, para. 46; Decision on the Confirmation of Charges Pursuant to Article 67(1)(a) and (b) of the Rome Statute, Prosecutor v. Ruto et al., (ICC-01/09–01/11–373), 23 January 2012, para. 33; Decision on the Confirmation of Charges Pursuant to Article 67(1)(a) and (b) of the Rome Statute, Prosecutor v. Muthaura et al., (ICC-01/09–02/11–382-Red), 23 January 2012, para. 114.
67 Judgment Pursuant to Article 74 of the Statute, Prosecutor v. Katanga, (ICC-01/04–01/07–3436-tENG), 7 March 2014, paras 1119–1120. See also Judgment Pursuant to Article 74 of the Statute, Prosecutor v. Bemba, (ICC-01/05–01/08–3343), 21 March 2016, para. 158.
68 Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya – Dissenting Opinion of Judge Hans-Peter Kaul, Situation in the Republic of Kenya, (ICC-01/09–19-Corr), 31 March 2010, para. 51. See also, Dissenting Opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II’s ‘Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang’, Prosecutor v. Ruto et al., (ICC-01/09–01/11–2), 15 March 2011; Dissenting Opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II’s ‘Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali’, Prosecutor v. Muthaura et al., (ICC-01/09–02/11–3), 15 March 2011; Decision on the Confirmation of Charges Pursuant to Article 67(1)(a) and (b) of the Rome Statute – Dissenting Opinion of Judge Hans-Peter Kaul, Prosecutor v. Ruto et al., (ICC-01/09–01/11–373), 23 January 2012; Decision on the Confirmation of Charges Pursuant to Article 67(1)(a) and (b) of the Rome Statute – Dissenting Opinion of Judge Hans-Peter Kaul, Prosecutor v. Muthaura et al., (ICC-01/09–02/11–382-Red), 23 January 2012.
69 See generally Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya – Dissenting Opinion of Judge Hans-Peter Kaul, Situation in the Republic of Kenya, (ICC-01/09–19-Corr), 31 March 2010, paras 33–70.
70 K. Ambos, Treatise on International Criminal Law – Volume II: The Crimes and Sentencing (Oxford, Oxford University Press, 2014), pp. 74–75. See also C. K. Hall and K. Ambos, ‘Article 7[(2)(a)]: Crimes Against Humanity’, in O. Triffterer and K. Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary, (3rd Edition Munich/Oxford/Baden-Baden, Verlag C. H. Beck/Hart Publishing/Nomos, 2016), margin No. 110, p. 249.
71 See Art. 7(1)(f), Rome St. (1998); Art. 5(f), ICTY St.; Art. 3(f), ICTR St.; Art. 2(f), SCSL St.; Art. 2(f) Residual SCSL St.; Art. 5, ECCC Law.
72 See Art. 16(1)–(2), Torture Convention (1984).
73 See Trial Judgment, Prosecutor v. Kupreškić et al., (IT-96–16-T), ICTY, 14 January 2000, para. 566 (inhumane and degrading treatment as an ‘other inhumane act’); Trial Judgment, Prosecutor v. Tadić, (IT-94–1-T), ICTY, 7 May 1997, para. 730 (beatings as an ‘other inhumane act’); ICTY, Prosecutor v. Kvočka et al., Trial Judgment, Case No. IT-98/30/1-T, 2 November 2001, para. 209 (beatings and humiliation as ‘other inhumane acts’); Trial Judgment, Prosecutor v. Akayesu, (ICTR-96–4-T), 2 September 1998, para. 697 (forced undressing and public nakedness as ‘other inhumane acts’); Trial Judgment, Co-Prosecutors v. Kaing, (001/18–07–2007/ECCC/TC/E188), 26 July 2010, para. 372 (imposition of deplorable conditions of detention as an ‘other inhumane act’).
74 T. van Boven, quoted in D. M. Koenig and K. D. Askin, ‘International Criminal Law and the International Criminal Court Statute: Crimes Against Women’, in K. D. Askin and D. M. Koenig (eds), Women and International Human Rights Law, Vol. 2, p. 20, fn. 73.
75 See W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford, Oxford University Press, 2010), p. 186; C. Steains, ‘Gender Issues’, in R. S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (The Hague/London/Boston, Kluwer Law International, 1999), pp. 371–5; V. Oosterveld, ‘The Definition of “Gender” in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice?’ (2005) 18 Harvard Human Rights Journal (2005) 55–84, at 58–66.
76 This is not to say that the actions of non-State actors could never fall within the definition of aggression under Art. 8 bis. Indeed, Art. 8 bis(2)(g) specifically refers to the actions of ‘armed bands, groups, irregulars or mercenaries’ against a State provided that they are of sufficient gravity and that were ‘sen[t] by or on behalf of a State’ or a State was ‘substantially involve[d] therein.’ In other words, unless the actions of a non-State actor can be attributed to a State or a State can be proved to be substantially involved in them, they would stand to be excluded from Art. 8 bis.
77 ‘Armed Conflicts in 2012 and their Impacts’, in S. Casey-Maslen (ed.), The War Report: 2012 (Oxford, Oxford University Press, 2013), pp. 3–4.
78 ‘Armed Conflicts in 2013 and their Impacts’, in S. Casey-Maslen (ed.), The War Report: Armed Conflict in 2013 (Oxford, Oxford University Press, 2014), pp. 27–9.
79 ‘Summary’, in A. Bellal (ed.), The War Report: Armed Conflict in 2014 (Oxford, Oxford University Press, 2015), p. 7.
80 M. Shaw, International Law, (6th Edition Cambridge, Cambridge University Press, 2008), p. 1148–9: ‘Article 2(4) of the UN Charter [(1945)] prohibits the threat or use of force in international relations, not in domestic situations. There is no rule against rebellion in international law. It is within the domestic jurisdiction of states and is left to be dealt with by internal law.’ But see E. Lieblich, ‘Internal Jus Ad Bellum’ 67(3) Hasting Law Journal (2016) 687–748 (where the author proposes a novel theory of jus ad bellum which would apply within a State – both to governments as well as non-State armed groups).
81 See Arts. 4(a), (e)–(g), (i), Constitutive Act of the African Union (2000).
82 Art. 4(p), Constitutive Act of the African Union (2000).
83 For a detailed account of the relevant jurisprudence, see K. J. Heller, ‘Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression’ 18(3) European Journal of International Law (2007) 477–97. See also C. McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court (Cambridge, Cambridge University Press, 2013), p. 182: ‘A comparison between the definition of a potential perpetrator under Article 8 bis(1) and the range of persons prosecuted by the post-war Tribunals show that Heller was right to conclude that the decision to adopt the control or direct standard “represents a significant retreat from the Nuremberg principles – not their codification”’.
84 As various international criminal tribunals have held on numerous occasions, World War II-era jurisprudence is ‘indicative of customary international law’: Appeal Judgment, Prosecutor v. Taylor, (SCSL-03–01-A), 26 September 2013, para. 417 (and the case law cited therein). See also Appeal Judgment, Prosecutor v. Šainović et al., (IT-05–87-A), ICTY, 23 January 2014, paras 1627–42.
86 As of 25 November 2018, 37 ICC States Parties have ratified the 2010 ICC Kampala Amendments on the crime of aggression: Andorra, Argentina, Austria, Belgium, Botswana, Chile, Costa Rica, Croatia, Cyprus, the Czech Republic, El Salvador, Estonia, Finland, Georgia, Germany, Guyana, Iceland, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, The Netherlands, Palestine, Panama, Poland, Portugal, Samoa, San Marino, Slovakia, Slovenia, Spain, Switzerland, Trinidad and Tobago and Uruguay.
87 Accordingly, the ICC?s jurisdiction over the crime of aggression was only activated as of 17 July 2018 by the ICC Assembly of States Parties in December 2017: see ICC, Resolution ICC-ASP/16/Res.5, Activation of the jurisdiction of the Court over the crime of aggression, 14 December 2017.
88 As of 25 November 2018, only Kenya and Guatemala have lodged an Art. 15 bis(4) declarations opting out of the 2010 ICC Kampala Amendments on the crime of aggression. The existence of Art. 15 bis(4) is difficult to reconcile with Art. 120 of the Rome Statute (1998) which provides that ‘[n]o reservations may be made to this Statute’. Particularly as it applies to new ICC States Parties, it would appear to be the very definition of a reservation as contained in Article 2(d) of the Vienna Convention on the Law of Treaties (1969): ‘“reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State’.
89 This might explain, perhaps, why numerous States, including a number in Africa, have included a ‘right to rebel’ within their domestic law. See Benin (Art. 66, Constitution of the Republic of Benin); Burkina Faso (Art. 167, Constitution of Burkina Faso); Chad (Preamble, Constitution of Republic of Chad); Cuba (Art. 3, Constitution of the Republic of Cuba); the Czech Republic (Art. 23, Czech Charter of Fundamental Rights and Freedoms); the Democratic Republic of the Congo (Art. 64, Constitution of the Democratic Republic of the Congo); Ecuador (Art. 98, Constitution of the Republic of Ecuador); El Salvador (Arts. 87–88, Constitution of the Republic of El Salvador); Estonia (Art. 54, Constitution of the Republic of Estonia); Germany (Art. 20(4), Basic Law for the Federal Republic of Germany); Greece (Art. 120(4), Constitution of Greece); Honduras (Art. 3, Constitution of Honduras); Liberia (Art. 1, Constitution of the Republic of Liberia); Peru (Art. 46, Constitution of Peru); Portugal (Arts. 7(3), 21, Constitution of the Portuguese Republic); Slovakia (Art. 32, Constitution of the Slovak Republic); Togo (Art. 45, Constitution of the Republic of Togo); and Venezuela (Art. 350, Constitution of the Bolivarian Republic of Venezuela).
90 To put things into some perspective, consider that the ICC’s approved budget for 2016 was €139.59 million (approximately $US151.55 million at 14 November 2016) (see ICC, Resolution on the Programme budget for 2016, the Working Capital Fund and the Contingency Fund for 2016, scale of assessments for the apportionment of expenses of the International Criminal Court and financing appropriations for 2016, Resolution ICC-ASP/14/Res.1, 26 November 2015); while the entire AU’s budget for the same year was $US416.86 million (see African Union, Decision on the Budget of the African Union for the 2016 Financial Year, Decision No. Assembly/AU/Dec. 577(XXV), 14–15 June 2015).
91 See African Union, Decision on the Progress Report of the Commission on the Implementation of Previous Decisions on the International Criminal Court (ICC) Doc. Assembly/AU/18(XXIV), Decision No. Assembly/AU/Dec.547(XXIV), 30–31 January 2015, paras 15–16, 17(b).
92 See M. J. Ventura and A. J. Bleeker, ‘Universal Jurisdiction, African Perceptions of the International Criminal Court and the New AU Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights’, in E. A. Ankumah (ed.), The International Criminal Court and Africa: One Decade On (Cambridge/Antwerp/Portland, Intersentia, 2016), pp. 442–4; S. Batohi, ‘Africa and the International Criminal Court: A Prosecutor’s Perspective’, in G. Werle, L. Fernandez, M. Vormbaum (eds), Africa and the International Criminal Court (The Hague/Berlin, T.M.C. Asser Press/Springer, 2014), p. 50; T. Murithi, ‘Between Political Justice and Judicial Politics: Charting a Way Forward for the African Union and the International Criminal Court’, in G. Werle, L. Fernandez, M. Vormbaum (eds), Africa and the International Criminal Court (The Hague/Berlin, T.M.C. Asser Press/Springer, 2014), pp. 182–f4.
93 D. Tutu, ‘In Africa, Seeking a License to Kill’, The New York Times, 10 October 2013.
Corporate criminal liability may fill a gap in the traditional framework for punishing individual actors to deter mass atrocities. Corporate policies, according to many scholars, reward and coordinate the activities of natural persons who might have acted differently as individuals. The argument of this chapter is that the same may be true of organizations other than corporations, and that closing the many gaps left in the net cast around crimes against humanity and war crimes will require holding noncorporate organizations accountable in court.
At the Nuremberg Trial, US prosecutor Robert Jackson famously compared aggression to assault with bare fists, which was a crime under all “civilized” laws, and he argued that multiplying the offense by a million and adding machine guns and explosives to the mix was no defense.1 Similarly, the hiring of “hit men” or the inflaming of social tensions to the point of assault or riot is also an offense under civilized laws. The question arises, does crossing national borders and multiplying the scale of the offense by thousands or millions – while adding missiles, mortars, and tanks to the mix – immunize from penal remedies what would otherwise be an offense?
The African Court of Justice and Human and Peoples Rights is poised to exercise the power to punish a plethora of pan-African population-level crimes. This chapter focuses on the modes of liability clause of the amended statute of the court, which extends African court criminal liability to legal persons. A complicating factor is the wording of the relevant article, Article 46C, which refers to “corporation[s],” “corporate personnel,” “corporate intention,” and a “body corporate” without referring in parallel provisions to organizations other than corporations.2 Such organizations – which include partnerships, political parties, and unincorporated associations in the form of terror groups – are suspected of committing or facilitating a variety of crimes that will be within the jurisdiction of the future African court, and such organizations have been sued in U.S. federal courts for genocide, rape, torture, summary executions, terrorism, and other extrajudicial killings.3
Political groups such as parties, armies, and fronts have been guilty of some of the worst atrocities in recent memory – the devastation of Sierra Leone, eastern Angola, eastern Congo (Kinshasa), and northern Uganda, for example. Religious organizations, charities, and foundations probably lie behind some of the most horrific episodes of terrorism and civilian enslavement and massacre by terrorist groups. For example one only needs to recall the African embassy bombings of 1998, the Somali university and other bombings, the Kenyan Westgate shopping mall massacre, the Boko Haram attacks on Christians and pro-government Muslims in northern Nigeria and neighboring states, and the Islamic State massacres of Copts and other Christians in Libya and Tunisia.4 Religious and gender-related persecution by nonstate actors such as churches and armies has also been a problem, including the sexual abuse of children by Catholic priests rotated from parish to parish, female genital mutilation in northern and eastern Africa, the involvement of Christian churches in exorcisms and violence against albinos and other social groups, the destruction of Tawerga by the Libyan rebel thuwar, and violence between Christians and Muslims in the Central African Republic, Egypt, Ethiopia, and Eritrea. In Rwanda, in 1994, the church was a sanctuary for fleeing Tutsis but also a site of many massacres, sometimes with the direct complicity of the church. This led to the war crimes trial of Benedictine nuns, implicated in helping commit genocide.5 Ethnic, local-territorial, and clan organizations such as tribes are also suspected of playing a major part in widespread atrocities in northern Nigeria, western Sudan (Darfur) Liberia, and elsewhere.
Other scholars have explored the criminal accountability of noncorporate associations under international law, especially in the context of the “Butare Four” case. Luc Reydams observes that one innovation in the Belgian disposition of that case was to convict an accused for preparing reports that fomented violence against ethnic Tutsis, in an environment that led to the massacres of thousands of them in the region, but which reports were not distributed as a public incitement, and which did not result in a conspiracy finding under Belgian law either; the charge was accessory or accomplice to murder and assassination.6 Christopher Harding argues that organizational accountability apart from the accountability of members may be justified when there are organizational dynamics or cultures, independence of organizations from dominant individual personalities, organizational capacity for bilateral or multilateral dealings, and concrete objectives or interests of the organization.7 Dov Jacobs has proposed that the phrase “or organizations” be added to Article 25(1) of the Rome Statute, governing the persons over whom the ICC has jurisdiction, currently “natural persons.”8
Attribution of individual criminal accountability is seen as a key gap in the ICC Elements of Crimes, as is effective enforcement against clandestine groups such as paramilitaries and against groups created or used to sell arms or buy mineral or oil resources to knowingly finance armed attacks, war crimes, and dissolution of nation-states’ integrity. Aiding and abetting is a theory that is thought to fill some of the gaps left by superior responsibility, direct commission, and other theories that focus on the top or bottom of pyramidal or network-like organized criminality requiring cooperative acts.9 However, the theory of joint criminal enterprise leaves a gap for large-scale ethnic cleansing or territorial destruction, and for members of a group who form a common design or plan to commit international crimes where such crimes occur as a natural and foreseeable result of the group enterprise but were outside its original design or plan.10
This chapter has three sections. In Section 1, it makes the case that partnerships, trusts, and other unincorporated business associations are not currently covered by Article 46C, and that they should be. In Section 2, it surveys evidence that political and tribal groups, including parties, authorities, statelets, and clan groups are committing crimes within the jurisdiction of the African court and that Article 46C could beneficially apply to them. In Section 3, it concludes with a survey of how religious foundations, trusts, and associations could lead or become complicit in serious crimes, and describes situations in which Article 46C might need to extend to them. The collective crimes that this Section focuses on include genocide, torture, enslavement, recruitment of child soldiers, destruction of sacred sites, corruption, and terrorism, among others less commonly committed or aided by organizations besides corporations.
Article 46C of the Draft Protocol is entitled “Corporate Criminal Liability.” That provision has also been analyzed by Joanna Kyriakakis, in her separate chapter for this volume. However, it refers in its first paragraph or section to the court having “jurisdiction over legal persons, with the exception of States.”11 This raises the question of whether noncorporate legal persons are included in this category.
It appears from the rest of Article 46C, with the exception of section 6, that only corporations may be criminally liable under the statute, as the title of Article 46C also implies. Section 2, for example, states that “Corporate intention to commit an offence may be established by proof that it was the policy of the corporation to do the act which constituted the offence.”12 There is no provision made here for assessing the intentions of organizations other than corporations. Sections 3 through 5 and 7 of Article 46C, moreover, refer to attribution of policies and knowledge to a “corporation” or its “conduct” or “culture.”13 Section 6, by contrast, states that: “The criminal responsibility of legal persons shall not exclude the criminal responsibility of natural persons who are perpetrators or accomplices in the same crimes.”14 The phrase legal persons sweeps more broadly than “corporation,” but as with the preamble, its effect is unclear or arguably nonexistent with it comes to noncorporations, due to the title and sections 2–5, and 7 of Article 46C.
A survey of the other crimes defined in the Draft Protocol provides ample reason to be concerned that organizations other than corporations could exploit loopholes in Article 46C. For example, two or more persons might create a partnership whereby they murder or enslave other persons, but no one individual committed a murder or trafficked in persons with knowledge that multiple such acts had been or were being committed, thereby escaping a crime against humanity charge.15 Likewise, such partners could plan to unlawfully and wantonly appropriate private property, while no one partner appropriates “extensive” properties; in such a case, only the partnership, but not the individuals, may be culpable under Article 28D(a)(iv).16 Or they could establish a partnership by which one of them commits an unlawful act dangerous to public or private property or the cultural heritage of a state, and the other foments a general insurrection in a state without necessarily committing a particular unlawful act, in which case the individuals might escape prosecution for terrorism under Article 28B even though the partnership’s activities as a whole satisfy the elements of a crime.17
Moreover, if some members of an unincorporated association intend to endanger the lives of persons in order to bring about a general insurrection by engaging in armed conflict, while other members take no part in armed conflict but do intend to endanger lives during the insurrection, all the members might avoid terrorism charges.18 Finally, if two or more persons associate in a mafia or other corrupt organization to give gifts to government officials in exchange for acts or omissions, but one person gives the gifts, while the other(s) solicit or receive the official acts in exchange for them, none of them might be prosecutable under Article 28I, whereas if they were joined in a corporation and their knowledge and conduct was charged to it, then the corporation would have been subject to such a prosecution.19 Some of the individuals in these hypotheticals might be chargeable as inciters, accomplices, conspirators, or joint criminal enterprise participants, but these forms of liability also leave significant gaps and impose often difficult hurdles in prosecuting enterprises.
Business organizations other than corporations also develop policies, practices, and cultures that transcend individual intentions. For comparative purposes, American courses on the subject often begin with an exploration of fiduciary duties to a venture, which Justice Cardozo described as an onerous burden of good faith and fair dealing, whether the venture was a joint enterprise, a partnership, or a trust.20 A participant in such a joint project owes the enterprise “undivided loyalty” that is “relentless and supreme,” according to Cardozo’s opinion for the court.21 Similarly, in civil-law systems it may be said that a partnership is an agreement among several persons to share in the proceeds from some venture – a winery, for example – and that these persons owe duties of care to one another in carrying out “the partnership business.”22 Partners share the profits of ventures; the default rule is that they share equally, while they can contract for different shares.23 A trust, at civil law, was a legal relationship in which one person requested another to convey a thing or perform some act – freeing a slave was one prominent example.24 In modern societies, another kind of trust emerged to handle complex businesses such as railroads, oil companies, and banks. Some trusts combined so many competing companies into one venture that they stood accused of monopolizing a line of trade, and gave rise to anti-trust law.25 Indeed, the Sherman Anti-Trust Act is said to have been the inspiration for charging the Schutzstaffel (the S.S.), the Nazi party, and other substate organizations as criminal actors at Nuremberg.26 Today, legal persons include corporations, general partnerships, limited partnerships, trusts, joint stock companies, unincorporated membership associations, syndicates, unions, and other groups.27
Like corporations, other forms of companies or entities can obtain knowledge of their representatives’ conduct, and develop policies or imputed activities as a consequence.28 There is no reason why the corporate form would be uniquely capable of committing the crimes often acknowledged as involving organizations – bribery, environmental crimes, and genocide.29 Indeed, under Canadian law, war crimes and crimes against humanity by “legal persons” – not restricted necessarily to corporations – are subject to actions for international crimes.30 Pursuant to the doctrine of universal jurisdiction, a state is entitled to define the persons subject to prosecution for international crimes according to its own law and standards.31
Moreover, various “legal persons” other than corporations act as complainants-plaintiffs or as defendants-respondents in civil as well as criminal cases.32 By attempting to shape the legal rights and responsibilities of states and other nonstate actors, they arguably open the door to confronting a similar level of criminal accountability as corporations. In order to maintain parity of treatment among corporations, unincorporated associations, and other legal persons, it makes sense to extend the scope of Article 46C to partnerships, associations, foundations, trusts, armies, fronts, political parties, tribes, and other organizations that are not corporations.
It may not be the norm that corporations commit grave crimes of international concern. More commonly, the wealthy and powerful – and sometimes the poor and ambitious – form political movements and their armed wings, variously known as parties, fronts, bases, armies, and states.
Many of the worst atrocities of the twentieth century began in this way. Before World War I, a political movement called the Committee of Union and Progress emerged in the Ottoman Empire, dedicated to the aim of seizing the businesses and properties of the empire’s Christian populations, events later known as the Armenian Genocide but actually broader than that. American and British diplomats wrote of the party’s scheme to kill, drive away, and plunder the Christian peoples of the empire.33 The National Socialist Worker’s Party of Germany, and elite Death’s Head Units of the Schutzstaffel (S.S.), began as World War I veterans who had sported the silver “death’s head” associated with the aristocratic German cavalry officer prior to the war in order to indicate their trench warfare specialty.34 In the 1920s, the Nazis evolved out of a veteran-dominated group called the Freikorps, some of whom – distinguished by their loyalty to Adolf Hitler – wore the silver Death’s Head of the elite trench soldiers.35 Nationalism and anti-Semitism often motivated these paramilitary thugs, which grew into a militia of 200,000, including sympathizers.36 Joining the Sturmabteilung, the Freikorps units murdered dozens of the Nazis’ political rivals per year, and developed a branch called the S.S. which would take a leading part in the Holocaust.37 Hitler’s right hand, Heinrich Himmler transformed the Freikorps into an “organization called the Totenkopfverbände (Death’s Head Units) to run concentration camps and for other special duties.”38 In 1939, Hitler told his troops that he was sending the Death’s Head Units to the east to kill without mercy those of Polish race and language. The Units grew to 40,000 persons by 1945.39 If the Freikorps and Sturmabteilung had been banned by some international proceeding or institution in the 1920s, countless lives may have been saved.
Scholars use a variety of terms for such politico-military organizations that may seize part of the state’s authority, be deployed by the state, or seek to intimidate or displace the state: death squads, militias, irregular armed groups, vigilantes, civil defense forces, national guards, and paramilitary forces.40 Famous examples include the Interahamwe of Rwanda, the Janjaweed of Sudan, the ZANU-PF of Zimbabwe, the Basij of Iran, the “Sons of Iraq,” the shabiha in Syria, and the village guards in Turkey. Moreover, Kenyan women’s organizations blamed militias for the post-election killings, tortures, and mutilations of members of ethnic groups during the month of January 2008.41 The International Commission of Inquiry on Libya blamed the Misrata rebel militia or thuwar for ethnically cleansing and killing the Tawergas, referred to as slaves (abid) or blacks by the Misratans in language evoking the Darfur genocide.42 Some of the crimes that motivated the creation of the Special Court for Sierra Leone began when Foday Sankoh’s Revolutionary United Front seized diamond fields in the Kono region of the country, advancing from there into other areas where child soldiers were conscripted, sex slaves taken, and killings and amputations were committed.43 Even worse crimes (in terms of overall magnitude) took place in Angola, where Jonas Savimbi’s National Union for the Total Independence of Angola won control of the country’s major diamond-producing regions as early as 1992, and traded them around the world unhindered until 1999, when Security Council resolutions impacted the rebels’ $500 million per year in sales.44 In the Democratic Republic of the Congo (DRC), the Rally for Congolese Democracy (RCD-Goma), the National Congress for Defense of the People, and other proxy forces of Rwanda and Uganda have turned the east into a zone of terrible violence and mass rape, alongside the plunder of diamond and mineral resources.45
In the 1990s, there were various reports that multinational corporations had acted in concert with local security forces or thugs to commit genocide, torture, and human-rights violations.46 For example, the Amungme tribal council in Irian Jaya, the Republic of Indonesia, alleged that mining company Freeport-McMoran Copper & Gold, Inc. acted with local officials to deport his people from their habitat, to destroy this habitat, to commit genocide, and to commit torture and human-rights violations by death threats, surveillance, and other international torts.47 Similarly, the residents of Bougainville, Papua New Guinea (PNG), alleged that an Australian mining company violated international law by colluding with PNG forces to blockade their community and ensure that war crimes and racial discrimination were perpetrated against them.48 In a case arising out of Burma, a federal court initially ruled that an oil company could be held liable for international crimes involving a joint venture to use forced labor and violence to build a pipeline.49 More recently, similar cases have emerged out of Africa.50 In one of them, the U.S. Court of Appeals for the Second Circuit concluded that multinational corporations could be sued for having aided and abetted a violation of the law of nations, although the case is now likely to be dismissed for insufficient links to the U.S. mainland under the “touch and concern” test.51
The continuing struggle for resources, as well as the rise of political and religious extremism, led to widespread atrocities over the past decade or two. By the second term of President Obama, crimes against children, civilians, cultural heritage, established governments, sectarian and tribal groups, and economic infrastructure were seemingly very common. Schools and shelters for children frequently come under attack, notably in Nigeria but also elsewhere.52 Child soldiers continued to be conscripted in large numbers.53 Stories of exploitation and enslavement appeared in an alarming number of press and nongovernmental organization (NGO) reports.54 For example: “In Nigeria, the abduction of more than 250 school girls, and the killing of boys and girls in attacks on schools by Boko Haram, are tragic examples of how radicalized extremist armed groups are targeting children.”55 Conflicts involving atrocities against civilians spread like wildfire from one nation to another, with Libyans traveling to Afghanistan and Iraq to perpetrate terrorist acts, returning to Libya to wage civil war there, driving other Libyans and Libyan arms into the Sahel, sparking conflagrations in those countries among others, and eventually contributing to the creation of the Islamic State.56 Enslavement remains distressingly common, for example in Mauritania, Niger, Haiti, India, Pakistan, and the United States.57
Churches and mosques were burned to the ground and the traditions of pagan and neo-pagan religions continued to be ground into dust.58 Many Buddhist, Taoist, Hindu, and Jewish temples and historic sites would also be destroyed if China, India, and Israel were less powerful militarily. Plunder and the wanton destruction of villages, economic assets, and essential infrastructure continued unabated.59 Large populations in diverse contexts lost secure access to food, safe water, sanitation, housing, warm clothing, employment, health, and personal security. Corruption’s role in diluting and diverting the wealth of developing nations into private stashes and foreign accounts persisted. Climate change threatened to kill millions of people.
Nonstate armed groups as well as some states perpetrated mass atrocities affecting children and other civilians.60 The UN special rapporteur on torture and cruel, inhuman, or other degrading treatment or punishment highlighted “the exercise of de facto control or influence over nonstate actors operating in foreign territories,” as well as military occupation and more traditional military and law-enforcement operations, as presenting a danger of torture or violations of international humanitarian law, international criminal law or customary international law.61
For example, Leila Zerrougui, the Special Representative of the Secretary-General on children and armed conflict, has reported that assaults on schools and hospitals happened in many warzones, and were potentially war crimes. Child soldiers continued to be used, and the impact of war on children was worsening.62 Ms. Zerrougi commented that children were being revictimized as child soldiers in the Central African Republic even after they had escaped this life once before.63 During the same discussion, Nigeria pointed to the DRC and Mali as nations that it called upon to abide by their pledges to end the use of children in conflict.64
The Russian Federation remarked that in Syria, “rebels, including Al Qaeda groupings, had forced minors into active participation in the conflict.”65 The International Association for Democracy in Africa has observed that despite interventions against it, “Al Qaeda had been victorious since its depredations had fragmented heterogeneous democratic societies on the basis of religion and color, and set communities against each other.”66 A US delegate to the General Assembly commented that macabre episodes around the world, “from Syria to the Central African Republic, South Sudan to the Democratic People’s Republic of Korea, were a reminder that the challenge of ending mass atrocities was greater than ever.”67
These trends are visible in UN displacement data. The number of internally displaced persons according to estimates went from 1.2 million in 1982 to 24 million in 1992 to 40 million in 2015.68 In 2011, there were many countries in Africa with large populations of displaced and stateless people according to the Office of the UN High Commissioner for Refugees. Angola, Burundi, CAR, Chad, Cote d’Ivoire, the DRC, Ethiopia, Eritrea, Kenya, Libya, Rwanda, Somalia, Sudan, Uganda, Western Sahara, and Zimbabwe had 100,000 or more persons of concern to UNHCR.69 By 2013, Mali and South Sudan were suffering insurgencies and had been added to the list of countries with 100,000 or more persons displaced or “of concern” to UNHCR, while the displacement crises in Kenya and Libya had abated somewhat. The number of those displaced from the CAR was nearly six times as large as in 2011.70 By 2014, Nigeria and perhaps some others such as Kenya and Libya had rejoined the list of countries suffering mass displacement, with 1.2 million internally displaced persons in Nigeria and hundreds of thousands in Kenya and Libya.71 More recently, Nigeria’s figure has surpassed two million, driven by Boko Haram’s actions such as attacking schools and enslaving boys and girls.72
International and domestic criminal tribunals have belatedly begun to turn their attention to political organizations. In 1999, the International Criminal Tribunal for the former Yugoslavia concluded that an individual could be charged with the likely or foreseeable crimes committed by a plurality of individuals who share a common purpose.73 Two forms of this “joint criminal enterprise” mode of culpability relax the requirement that the individual intend to commit the underlying crime, requiring instead an intention to further an overall system of criminality, or an intent to carry out a criminal plan along with recklessness as to a crime outside that plan being committed.74 In 2004, the International Criminal Tribunal for the former Yugoslavia stated that this joint criminal enterprise mode of liability was available in genocide cases.75 In 2012, the Special Court for Sierra Leone convicted Charles Ghankay Taylor for actions committed as President of Liberia that “assisted or encouraged” the Revolutionary United Front of Sierra Leone, to commit mass atrocities and plunder of resources including diamonds.76 Revealingly, Libya reportedly funded and supplied forces that committed atrocities, whether affiliated with Taylor, Foday Sankoh, or Omar Hassan al-Bashir.77 In 2014, the International Crimes Tribunal convicted the leader of a death squad during Pakistan’s 1971 civil war, the Bangladesh War of Independence, sentencing him to death for a massacre of hundreds of persons.78 The Supreme Court of Bangladesh upheld the death penalty for the leader of the political movement Jamaat-e Islami, which collaborated with the Pakistanis in 1971.79
The problems confronting such individualized prosecutions for organizational policies or crimes are manifold. First, most individuals escape prosecution because they are not extradited or their states do not submit to tribunals’ jurisdiction, and as natural persons they enjoy due-process rights not to be tried and punished with prison terms in absentia.80 The accused might even be promoted to high office, as occurred in the DRC, Iraq, and Sudan.81 The ICC has announced that it will suspend or abandon investigations, even when referred to it by the Security Council, if the accused are protected by the relevant state and its allies.82 Second, even if jurisdiction over the person and the territory exists, the nature of clandestine death squads and other nonstate actors is that they may act independently of their supporters, feign ignorance, avoid wearing uniforms or accepting public responsibility for atrocities, and intimidate witnesses.83 Third, as mentioned at the outset of this chapter, an individual accused might well lack knowledge of all elements of the crime, even when the organization would know or intend the remaining elements. Lacking knowledge of an element might preclude Rome Statute culpability.84 Finally, a tribunal may find that joint criminal enterprise culpability is not consistent with the principle of legality or nullum crimen sine lege.85
Statelets, or regions seeking autonomous governance or being subjected against their will to insurgencies or secessions against the state, can commit international crimes without necessarily being subject to traditional restraints such as World Court jurisdiction or responsible state institutions that might cooperate with the ICC or other tribunal and extradite individuals to it. Yet these statelets can be larger, richer, and more powerful than some states. The Palestinian Authority, for example, had institutions potentially larger and with more resources than those of East Timor (2008 budget of less than $800 million) or Liberia (less than $300 million).86 The Islamic State in 2015 grew larger than Scotland or Jordan and had more revenue from oil and antiquities trafficking, as well as donations from persons in Qatar, Saudi Arabia, etc. than East Timor or Liberia, using those estimates from 2008.87 The RCD in the DRC may have been larger than the armies of the CAR or Malian governments.88 Terrorist movements like the Taliban insurgency in Afghanistan of 1992–1996, the Chechen insurgency in Russia of 1994–1996, and the Kosovo Liberation Army insurgency in Yugoslavia of 1994–1999 were nearly as large as the RCD and larger than the CAR military, for example.89 An enormous gap in international law may exist if these territories escape most international judicial proceedings due to not being “states.” A window for clandestine international crimes may be opened for states desiring to undermine or destroy their neighbors, such as Pakistan in Afghanistan, Albania in Yugoslavia, etc.90
Other than terrorism evolving into genocide as with the Nazis and the Islamic State, or corruption as defined in 28I, the extension of Article 46C could have implications for the fight against impunity for enslavement, recruitment of child soldiers, destruction of sacred sites, and torture. For example, the nation-states and their officials that perpetrate enslavement as a crime against humanity may be immune from accountability under various doctrines, while private organizations would enjoy no such immunity in some cases.91 Government officials who support terrorist groups such as Boko Haram and the Islamic State that recruit child soldiers and destroy sacred sites might also enjoy immunity under limiting doctrines of international and domestic law, for example.92 Alleged torturers might make similar arguments, although there is an emerging trend to reject such a ploy.93 The persons perhaps least likely to fall into the custody of the African court or the ICC would theoretically be accountable, while officials in league with them would be immune. It may help to recognize the accountability of the group that includes officials or governmental agencies, and nonimmune suspects on the ground, but other persons as well.
B. How Article 46C Could Cover Political and Other Groups
Given these challenges, it would not be that difficult to clarify Article 46C’s application to noncorporate organizations.
A political party, like a partnership or other noncorporate business, could be defined as a legal person. Its policies, knowledge, and conduct could be aggregated or inferred from the statements or decisions of its leaders, or from the repeated actions of its followers. This is already permissible for corporations under 46C, as well as for conspirators, aiders and abettors, and joint criminal enterprise participants under international law and domestic counterparts like the Rome Statute and the U.S. Code. The Rome Statute established criminal responsibility for aiders and abettors and joint criminal enterprises (common purpose/knowing contribution) as well as conspirators.94 The U.S. Code includes the War Crimes Act defining grave violations of the Geneva Conventions a U.S. offense, as well as sections making conspiracy and aiding and abetting crimes.95 Civil-law systems such as the Netherlands may also recognize the culpability of those who aid states or other actors who commit international crimes.96 The Allied Control Council Law No. 10, Article II(a), presumably developed with the participation of civil-law France or even with German legal principles in mind, imposed responsibility on anyone who, while not being accessories or abettors or inciters, “was a member of any organization or group connected with the commission of any such crime …”97
There are precedents for creating new remedies for victims of criminal organizations. In the 1960s, the US Congress devoted renewed attention to the problem of La Cosa Nostra, the “Mafia,” and other “mobsters” and organized criminals who engage in “planned, ongoing, continuing crime as opposed to sporadic, unrelated, isolated criminal episodes.”98 The problem addressed was that “large amounts of cash coupled with threats of violence, extortion, and similar techniques were utilized by mobsters to achieve their desired objectives: monopoly control of these enterprises.”99 The “power of organized crime to establish a monopoly within numerous business fields” was repeatedly raised.100 The law Congress passed, the Racketeer Influenced and Corrupt Organizations Act, focuses on criminal organizations which perpetrate a pattern of interstate criminal activities as an enterprise.101 Its scope extends to “any person employed by or associated with any enterprise engaged in … interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity,” or “who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt … to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in … the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.”102 In cases of murder, arson, and fraud, among others, the law “makes it unlawful to invest, in an enterprise engaged in interstate commerce, funds ‘derived … from a pattern of racketeering activity,’ to acquire or operate an interest in any such enterprise through ‘a pattern of racketeering activity,’ or to conduct or participate in the conduct of that enterprise ‘through a pattern of racketeering activity.’”103
Religious foundations or endowments are legal persons that may have policies, whether in writing or inferred as the most reasonable explanation of their adherents’ conduct.104 Such a foundation’s knowledge that an offense is to be committed could be proven with evidence that the foundation or institution had knowledge of the crime being certain or likely, and that the foundation’s culture “caused or encouraged” it.105 An institution’s culture could be an “attitude, … course of conduct or practice existing within the … area of the [institution] in which the relevant activities take place.”106
International terrorism is an obvious case in which policies, cultures, and practices may make crimes likely because of a religious group’s actions. Article 28G of the Draft Protocol defines “terrorism” to include dangerous crimes “calculated or intended” to intimidate government officials, the public, or a public institution, or to disrupt public services such as schools, or to cause a general insurrection or revolution, or to incite or promote such intimidation, disruption, or insurrection.107 There is a loophole, however, for actions by “organized armed groups” that are “covered by” international humanitarian law.108 If terrorism rises to the level of civil war, it might cease to be terrorism under this provision, because murder, destruction of public property, kidnapping without trial, torture, rape, and starvation are “covered by” humanitarian law.109
One example of terrorism by a religious group that has outraged the conscience of many and led to multinational efforts at suppression and accountability is the campaign by the Lord’s Resistance Army of Uganda (the LRA). Accused of waging 18 years of uninterrupted warfare by 2005, leading to possibly hundreds of thousands of deaths as well as the displacement of 400,000 people across three countries, the LRA is a religious group as its name suggests, and operates as an insurgency and terrorist organization with Sudan’s sponsorship.110
Other notable examples of terrorism include the National Islamic Front (NIF), Boko Haram, Al Qaeda Islamic Army, the Al-Nusra Front, Ahrar al-Sham, the Army of Conquest, the Army of Islam, and the Islamic State. Al Qaeda emerged at the confluence of the NIF, the Muslim Brotherhood, and the Wahhabi takfiri movement from Saudi Arabia. The NIF of Sudan grew out of the Sudanese Muslim Brotherhood until it gained power from a more secular government in 1989.111 The Brotherhood’s plan was to clean out the non-Arabs from a “belt” of territory adjoining the majority-Arab populations of northern Sudan, from the region of the Fur and Masalit in the west through the Nuba in the center to the Dinka and Beja further east.112 The NIF preached “Salvation” for the nation and called its critics the enemies of Islam, a crime punishable by death.113 In 1991, a global congress of Brotherhood-linked terrorist groups took place in Khartoum; its leader proclaimed the goal of erasing national borders and imposing Islamic law across the region.114 In 1994, some in the NIF had welcomed Al Qaeda, Hamas, and similar groups from North Africa to Sudan.115 Over the next decade, Islamic concepts such as jihad and mujahideen shaped the NIF’s ethnic cleansing of non-Arab populations, even finding a place in the constitution of 1998,116 leading one scholar to conclude: “The raison d’être of the atrocities committed by government-supported Arab militias is the racist, fundamentalist, and undemocratic Sudanese state… Khartoum’s genocidal policy in Darfur and the south is also a grab for resources.”117 Sudanese training camps allegedly dispatched assassins and saboteurs to Egypt, Ethiopia, and Saudi Arabia.118 “Trainees included Egyptians, Sudanese, Eritreans, Palestinians, Yemenis, and Saudis.”119 Hamas became the template for turning Muslim Brotherhood branches into terror groups region-wide.120 At the same time, the Popular Defense Forces grew in size, later to take key roles in Sudan’s southern and Darfur genocides.121 An NIF ideologue reportedly contacted Rashid al-Ghannouchi, whose Al-Nahdah or Ennahda party later took a leading role in the “Arab Spring.”122 Western Europe as well as the more secular regimes in Egypt, Libya, and Tunisia were suspected to be the targets of all this.123
The path from the NIF’s Sudan to Al Qaeda and Boko Haram is not difficult to trace. Sudan and Iran supported the Bosnian secession from Yugoslavia, opening up a base of operations for the Afghan and Arab mujahideen to operate in Europe, North Africa, and Western Asia.124 In the 1980s and 1990s, from bases in Afghanistan and Bosnia, Al Qaeda Islamic Army was formed out of various extremist social groups in Arab League countries, notably Egypt and Saudi Arabia.125 Litigation attorneys offered to represent 2,000 families of victims of the September 11 massacre by Al Qaeda in New York City and Washington DC. They alleged that the “Saudi interests accused of having knowingly facilitated transfers of money to Al Qaeda were named as the principal defendants [and]… include[d] three Saudi princes, seven banks, and several international charities…”126 In 2003, Arabic television networks such as Al-Jazeera carried the Al Qaeda message to kill the Jews and Americans around the world.127 In 2008, the United States recognized al-Shabaab as a foreign terrorist organization; the next year, Al Qaeda announced that all Muslims should join its side in the Somali regional civil war.128 The Somali capital of Mogadishu had fallen into the hands of Al Qaeda fighters and other jihadists and militias.129 Reports surfaced in 2001 of bin Laden profiting from the Sierra Leone rebel diamonds.130 Boko Haram began in 2003 and grew powerful in 2009–2010, after members allegedly traveled to Sudan and Somalia and made contact with Al Qaeda, and Boko Haram later launched an uprising that killed 700 in days.131
In 2011 and early 2012, Al Qaeda and allied rebels in Syria obtained arms and men from Sudan, Qatar, Saudi Arabia, Tunisia, Libya, Turkey, and other Persian Gulf, North African, or NATO-member countries.132 It did not take long for the rebels to declare a jihad against Syria, a U.N. member state, which they often waged by cleansing Christian populations, destroying churches, executing people without trial, abducting women and other hostages, setting off bombs, looting oil and antiquities and selling them in Turkey and elsewhere, and destroying civilian infrastructure while imposing mass poverty.133 Having crossed into Syria from Iraq, the Islamic State of Iraq (and Syria) crossed back into Iraq, cleansing Assyrian Christians, Kurds, and Yezidis from Mosul and the roads to Erbil, Kirkuk, and Baghdad, and enslaving Assyrian Christians and Yezidis as a matter of policy.134 This displaced more than 1.4 million people in Iraq, leaving zero out of the 35,000 to 50,000 Christians and few of the 50,000 to 70,000 Kurds and Yezidis who had lived in Mosul.135 Radical Sunni clerics who allegedly arrived in northern Iraq from the Persian Gulf countries urged ISIS to cut off water and electricity to Christian villages across the front line, which it did.136 The total decline in Iraq’s Christian population – on an indefinite basis – is expected to reach 95%, from 1.4 million at its peak to 50,000 or so. This parallels the expected disappearance of Christianity from the territory of the Palestine Liberation Organization, another alleged participant in the 1993 NIF religious conference, and Christianity’s near-disappearance from Turkey after 1924.137 The Islamic State of Iraq inflicted more violence against civilians in 2011, or “one-sided violence,” than the government of Cote d’Ivoire, and more than Libya and Nigeria combined.138 It perpetrated more such killings in 2010 than the government of Myanmar and the Janjaweed (part of the government of Sudan), combined.139 Its crimes were on a par with those of the LRA.140 In 2015, the Committee on the Rights of the Child reported that “children and families belonging to minority groups, in particular Turkmen, Shabak, Christians, Yazidi, Sabian-Mandaeans, Kaka’e, Faili Kurds, Arab Shia, Assyrians, Baha’i, Alawites, who are systematically killed, tortured, raped, forced to convert to Islam and cut off from humanitarian assistance by the so-called ISIL in a reported attempt by its members to suppress, permanently cleanse or expel, or in some instances, destroy these minority communities.”141 This campaign was well underway in 2007.142
Instead of insisting that all those contributing to jihad in Syria be punished, some persons in Turkey and the territories of the Arab League aided them. Fighters poured in from Qaeda-held area of Libya,143 as veterans of Qaeda operations there and in Afghanistan, Pakistan, Bosnia, Chechnya, and Iraq joined the insurgency.144 Weapons for the terrorists often were paid for by donors from Saudi Arabia.145 Instead of targeting that flow, the United States asked Russia to disarm Syria, contrary to its policy on the Iraqi government, its Kurdish region, and the Syrian Kurds.146 The death toll may rise from an expected 5,400 or 15,000 from a government victory in 2011 or 2012, to a million or more from decades of terror and response as in Angola, Iraq, and the DRC.147
Meanwhile, the Popular Front for the Liberation of Eritrea (EPLF) itself emerged in “1970 in a camp of the Palestinian Fatah movement in Amman, Jordan,” and by 1989 conquered Asmara.148
In addition to Sudan and the Palestinian Authority, Eritrea, the CAR, the DRC, and Nigeria have become among the most unfree and persecution-prone places in the world. According to the State Department, Sudan, the CAR, the DRC, and Nigeria merited a 5 on the “Political Terror Scale” in 2010, indicating extreme levels of persecution on a par with Myanmar or North Korea.149 Eritrea joined Afghanistan, Chad, Brazil, Burundi, China, Colombia, Egypt, Ethiopia, Iran, Iraq, India, Israel and occupied territories, Kenya, Mexico, Russia, Somalia, Sri Lanka, Syria, Uganda, and some other countries as warranting a 4 on the scale in 2010.150 Eritrea also had one of the worst levels of malnourishment in the world, at 65% of the total population in 2006–2008.151
The rise of warlords, rebel armies, terrorist organizations, statelets, and other nonstate threats to population security and economic growth has arguably driven mass exoduses of civilians. Table 10.1 illustrates this phenomenon as of 2010; I discuss above some estimates published since then.
|Serbia (and Kosovo)||182,955|
|Central African Republic||162,755|
If entire communities affected by these exoduses at the hands of terrorist groups proved to be unable to reconstitute themselves, this would be a completed genocide according to a broad, originalist reading of the Genocide Convention’s Article II, subsections II(b)–II(d).152 Next to Sierra Leone, Somalia, Mali, the DRC, Chad, and the CAR had the worst rate of under-five mortality in the world, each over 164 deaths per 1,000 births, or 16%.153
These events led to widespread terrorist massacres in Africa, ranging from the African embassy bombings of 1998 to the Somali university and other bombings, the Kenyan shopping mall massacre, the Boko Haram attacks on Christians and pro-government Muslims in northern Nigeria and neighboring states, and the Islamic State massacres of Copts and other Christians in Libya and Tunisia. In Nigeria, Boko Haram reported receiving support from persons in Saudi Arabia and Sudan.154 In Mali, France believed that jihadists such as Ansar al-Dine had received cash from persons in Qatar, who also supported the jihadists in Syria according to the French government. In Afghanistan, the Taliban was receiving arms and money from similar sources as Boko Haram and Ansar al-Dine. The Seleka of the CAR as well as Ansar al-Dine procured weapons released by government stockpiles by the Libyan rebels, which included Al Qaeda members.156 In South Sudan, the horrific atrocities of the White Army insurgents against the newly independent and desperately poor state were supercharged by arms shipments from the NIF regime in Khartoum.157 Millions are homeless and starving as a result.158 The country already has more child soldiers conscripted into fighting than Sierra Leone did at the end of its conflict, or 11,000 children separated from their families and almost 1,500 dead, possibly triggering Article II(e) of the Genocide Convention.159
Imposing corporate criminal liability will not solve many of the atrocity-related problems confronting the African continent, because nonstate groups other than corporations may be responsible for a preponderance of these crimes. Armies, parties, fronts, and the like came to the fore in the DRC, Sierra Leone, and Uganda, for example. Religiously inspired groups linked to Sudan and Somalia have perpetrated serious crimes in Nigeria, among other places, while groups linked to persons in Sudan, Qatar, Saudi Arabia, Tunisia, Libya, Turkey have perpetrated similar crimes in Iraq and Syria, among other places. Such groups can form knowledge of their members’ acts and adopt policies that may violate international norms, just as corporations do. Culpability for noncorporate organizations is necessary to ensure that perpetrators of population-level crimes such as enslavement, child soldiering, forcible transfer, destruction of essential infrastructure or government institutions, or genocide do not enjoy impunity. Moreover, recognizing broader associational responsibility may avoid impediments to the fight against impunity posed by doctrines of intent, immunity, and effects-based tests for crimes such as corruption, enslavement, murder, or terrorism.
1 R. Houghwout Jackson, Opening Address for the United States of America by Hon. Robert H. Jackson, International Military Tribunal (1946), p. 43, https://books.google.com/books?id=42bzAAAAMAAJ.
2 Draft Protocol on Amendments to the Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and People’s Rights, OAU Doc. No. Exp/Min/IV/Rev. 7 (2012), https://africlaw.files.wordpress.com/2012/05/au-final-court-protocol-as-adopted-by-the-ministers-17-may.pdf [hereinafter “Draft Protocol”].
3 E.g., Ellul v. Congregation of Christian Bros., 774 F. 3d 791 (2d Cir. 2014); Sikhs for Justice v. Indian National Congress, 17 F. Supp. 2d 334 (S.D.N.Y. 2014); Adhikari v. Daoud & Partners, 95 F. Supp. 2d 1013 (S.D. Tex. 2015); Safra v. Palestinian Authority, 82 F. Supp. 3d 37 (D.D.C. 2015).
4 E.g., E. Knox, “Note: The slippery slope of material support prosecutions: Social media support to terrorists”, 66 Hastings Law Journal (2014) 295–330, at 305.
5 L. Reydams, “Belgium’s first application of universal jurisdiction: The Butare Four case”, 1 Journal of International Criminal Justice (2002–2003) 428–36, at 431.
6 Ibid., at 429–35. The case is arguably the sole successful use of the Belgian universal jurisdiction law of 2001, which was repealed in 2003, although remnants of it survived in the penal code of Belgium; R. Baker, “Universal jurisdiction and the case of Belgium: A critical assessment,” 16, no. 1 ILSA Journal of International and Comparative Law (2009) 141–67, at 154, 157–8.
7 Individuals, Organizations and Criminal Responsibility (Cullompton, UK: Willan Publishing, 2007) 63–4, 226–7.
8 “The Sheep in the Box: The Definition of the Crime of Aggression at the International Criminal Court,” in C. Burchard, O. Triffterer & J. Vogel (Eds.), The Review Conference and the Future of the International Criminal Court (The Hague, the Netherlands: Kluwer Law International, 2010), 131–151, at 147–9.
9 J. Bischoff, “Reception of Common Law in Substantive International Criminal Law,” in Larissa van den Herik & Carsten Stahn (Eds.), The Diversification and Fragmentation of International Criminal Law (Dordrecht, the Netherlands: Matinus Nijhoff, 2012), p. 537; Cecilia Cristina Naddeo, “Praising the region: What might a complementary criminal justice system learn from the Inter-American Court of Human Rights?” in ibid. 189–90, 208; Aaron Fichtelberg, “Resource Wars, Environmental Crime, and the Laws of War: Updating War Crimes in a Resource Scarce World,” in Avi Brisman & Nigel South (Eds.), Environmental Crime and Social Conflict: Contemporary and Emerging Issues (Abingdon & New York: Routledge, 2016), 184–8, 190. See also, Antonio Cassese, Guido Acquaviva, Mary Fan, & Alex Whiting, International Criminal Law: Cases and Commentary (Oxford: Oxford University Press, 2011), p. 381
10 A.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR (Antwerpen/Oxford: Intersentia, 2005), 68–69, 728.
11 Draft Protocol, art. 46C.
15 Ibid., art. 28C.
16 Ibid., art. 28D.
17 Ibid., art. 28C.
19 Ibid., art. 28I.
20 Meinhard v. Salmon, 249 N.Y. 458 (1928).
22 J. Baron Moyle ed., The Institutes of Justinian (Oxford: Clarendon Press, 4th ed. 1906), 148–50.
23 Ibid., 148–9.
24 Ibid., 98–100.
25 D. Dewey, Monopoly in Economics and Law (Chicago: Rand McNally & Co., 3rd ed. 1966), 140–7.
26 S. Darcy, Collective Responsibility and Accountability under International Law (Leiden: Brill, 2007) 198–202.
27 Carden v. Arkoma Associates, 494 U.S. 185 (1990); United Steelworkers of America, AFL-CIO v. R.H. Bouligny, Inc., 382 U.S. 145, 149–51 (1965); Chapman v. Barney, 129 U.S. 677 (1889); Underwriters at Lloyd’s, London v. Osting-Schwinn, 613 F. 3d 1079, 1086–92 (11th Cir. 2010); Certain Interested Underwriters at Lloyd’s, London, England v. Layne, 26 F.3d 39, 43–44 (6th Cir. 1994); Penrod Drilling Co. v. Johnson, 414 F.2d 1217, 1222 (5th Cir. 1969); C. Alan Wright et al., Federal Practice and Procedure, vol. 13F (St. Paul, MN: West Group, 3rd ed. 2009), § 3630.
28 Cf. New York Central & Hudson River Railroad Co. v. United States, 212 U.S. 481 (1909), addressing whether a corporation can commit the crime of bribery.
29 M. Kelly, “Prosecuting Corporations for Genocide”, 6 Harvard Law & Policy Review (2012) 340–367, at 353–4, 366.
30 L. Cameron & V. Chetail, Privatizing War: Private Military and Security Companies under Public International Law (Cambridge University Press, 2013), 343. See also, C. Wanless, “Corporate Liability for International Crimes under Canada’s Crimes Against Humanity and War Crimes Act”, 7 Journal of International Criminal Justice (2009) 207.
31 Demjanjuk v. Petrovsky, 776 F.2d 571 (6th Cir. 1985). Cf. also, Kadic v. Karadzic, 70 F. 3d 232, 238–42 (2d Cir. 1995).
32 E.g., Vietnamese Association for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104, 112–13 (2d Cir. 2008); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003); Association of Holocaust Victims for Restitution of Artwork and Masterpieces v. Bank Austria Creditanstalt AG, et al., 04 Civ. 3600 (S.D.N.Y. August 19, 2005).
33 G. Horton, The Blight of Asia: An Account of the Systematic Extermination of Christian Populations by Mohammedans and of the Culpability of Certain Great Powers; with the True Story of the Burning of Smyrna, Indianapolis: The Bobbs-Merrill Co., 1926, ch. 3, www.hri.org/docs/Horton/hb-3.html; V. Dadrian, The History of the Armenian Genocide: Ethnic Conflict from the Balkans to Anatolia to the Caucuses (New York: Berghahn Books, 2003), 180, 184. Said Halim, a leader of this movement who later rose to high office in the Ottoman Empire, believed in the purification of minorities from Turkey. Dadrian, History, p. 404; Ahmet Seyhun, Said Halim Pasha: An Ottoman Statesman and Islamist Legal Thinker (1865–1921), Ph.D. dissertation (McGill University, 2002), 10, 17, 27, 98, 120–21, 138, 142, 155.
34 T. D. Grant, Stormtroopers and Crisis in the Nazi Movement: Activism, Ideology and Dissolution (New York: Psychology Press, 2004) 39–40.
35 R. M. Spector, World without Civilization: Mass Murder and the Holocaust, History and Analysis, vol. 1 (Lanham, MD: University Press of America, 2005), 221.
36 F. Bajohr, “The ‘Folk Community’ and the Persecution of the Jews: German Society under National Socialist Dictatorship, 1933–1945”, 20 Holocaust and Genocide Studies (2006) 184–8.
37 P. Johnson, Modern Times: The World from the Twenties to the Nineties (New York: HarperCollins, paperback ed. 2001), at 124–5, 278–89; W. Shirer, The Rise and Fall of the Third Reich (New York: Fawcett Crest, paperback ed. 1992), at 70, 297, 581–72.
38 Johnson, Modern Times, p. 287.
39 “SS-Totenkopfverbände,” in Samuel Totten & Paul Bartrop (Eds.), Dictionary of Genocide vol. 1 (Santa Monica, CA: ABC-CLIO, 2008), p. 407.
40 S. Carey & N. Mitchell, “Pro-Government Militias”, Annual Review of Political Science 20 (2017): 127–147 Carey and Mitchell, draft at 3, 8–9, 43, www.sowi.uni-mannheim.de/lspol4/wp-content/uploads/2015/11/Carey-and-Mitchell-ARPS-online.pdf. See also, H. Travis, Genocide, Ethnonationalism, and the United Nations: Exploring the Causes of Mass Killing Since 1945 (Abingdon & New York: Routledge, 2013), pp. 36–55, 120–131, 153, 157–160; H. Travis, “The United Nations and Genocide Prevention: The Problem of Racial and Religious Bias,” Genocide, Studies International 8 (2014): 122–153, 129–136.
41 Kenya: Women’s Memorandum to the Mediation Team, All Africa.com (January 31, 2008).
42 International Commission on Libya Report (March 2, 2012), para. 59.
43 M. Kaplan, “Note: Carats and Sticks: Pursuing War and Peace Through the Diamond Trade”, 35 New York University Journal of International Law and Politics (2003) 559–617, at 567–71. See also, G. Joses Yoroms, “Militia as a Social Phenomenon: Toward a Theoretical Construction”, in D. Francis (Ed.), Civil Militia: Africa’s Intractable Security Menace? (Aldershot: Ashgate, 2005); J. Alie, “The Kamajor Militia in Sierra Leone: Liberators or Nihilists?”, in Francis, (Ed.), Civil Militia.
44 Kaplan, “Carats and Sticks,” 573–7.
45M.E. Baaz, “Why Do Soldiers Rape? Masculinity, Violence, and Sexuality in the Armed Forces in the Congo,” International Studies Quarterly 53 (2009): 495–518; Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, UN Doc. No. S/2002/1146, ¶ 215 (2002), www.un.org/News/dh/latest/drcongo.htm. As a U.S. report explained in 2004:
War broke out in 1998 between the Government and rebel forces backed by the Governments of Rwanda and Uganda…
In the case of the May 2002 Kisangani massacre committed by the RCD/G, six of the nine defendants were acquitted of involvement; two escaped and only one defendant was still in prison at year’s end. The military judicial authorities who handled the inquiry overlooked reprisals that their soldiers took against the civilian population. On August 19, President Kabila promoted the two RCD/G officers charged with leading the massacres, Laurent Nkunda and Gabriel Amisi (also known as Tango Fort), to Brigadier-General…
Gang rapes by members of armed groups, which were common in the east, continued to be violent, sometimes involving props such as tree branches, and resulted in vaginal fistula, a rupture of vaginal tissue that leaves women unable to control bodily functions and vulnerable to enduring ostracism.
U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, Congo, Democratic Republic of the: Country Reports on Human Rights Practices 2003 (February 25, 2004), www.state.gov.
46 D. Cassel, “Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts”, 6 Northwestern J. of International Human Rights (2008) 1, at 8–9; J. Paust, “Human Rights Responsibilities of Private Corporations”, 35 Vanderbilt Journal of Transnational Law (2002) 801.
47 Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999).
48 Sarei v. Rio Tinto PLC., 221 F. Supp. 2d 1116, 1116–1119, 1148–1162 (C.D. Cal. 2002), rev’d in part, 456 F.3d 1069 (9th Cir. 2006), withdrawn and new opinion at 487 F. 3d 1193 (9th Cir. 2007), further proceedings at 671 F. 3d 736 (9th Cir. 2011) (en banc), vacated, --- US ---, 133 S.Ct. 1995 (2013).
49 Doe I v. Unocal Corp. (“Unocal I”), 963 F.Supp. 880, 890–91 (C.D. Cal.1997), aff’d and portions of opinion adopted by 248 F.3d 915 (9th Cir. 2001).
50 Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013); Presbyterian Church of Sudan v. Talisman Energy, 582 F. 3d 244 (2d Cir. 2009); In re South African Apartheid Litigation, 15 F. Supp. 3d 454 (S.D.N.Y. 2014).
51 Khulumani v. Barclays Nat’l Bank Ltd., 504 F.3d 254, 270 (2d Cir. 2007) (citation omitted), subsequent proceedings at 15 F. Supp. 3d 454.
52 CNA/EWTN News, “Nigerian Bishop: Life Here Has Become ‘Cheaper Than Salt,’” North Carolina Register, October 29, 2014, www.ncregister.com/daily-news/nigerian-bishop-life-here-has-become-cheaper-than-salt; Zenit Staff, “Worst-hit Nigerian Diocese Reeling From Boko Haram Attacks,” Zenit (October 28, 2014), https://zenit.org/articles/worst-hit-nigerian-diocese-reeling-from-boko-haram-attacks/.
53 Cf. UN Human Rights Council, Human Rights Council Hears Special Representative of the Secretary-General on Children and Armed Conflict (September 10, 2013), http://reliefweb.int/report/world/human-rights-council-hears-special-representative-secretary-general-children-and-armed.
54 E.g., ibid.; “Boko Haram, ISIS Christians Killings,” Newsmax (April 20, 2015), www.newsmax.com/world/GlobalTalk/boko-haram-isis-christians-killings/2015/04/20/id/639599/; Patrick Goodenough, “Christians and Yazidis in Iraq Subjected to Savage Rapes, Sexual Slavery,” CNS News.com (2015), http://cnsnews.com/news/article/patrick-goodenough/christians-and-yazidis-iraq-subjected-savage-rapes-sexual-slavery; Loveday Morris, “Islamic State Says It Is Buying and Selling Yazidi Women, Using them as Concubines,” Washington Post, Oct. 12, 2014; see also, Prosecutor v. Al Bashir, ICC-02/05–01/09 (March 4, 2009), at 6, www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/Situation+ICC+0205/Related+Cases/ICC02050109/Court+Records/Chambers/PTCI/1.htm; James Tracy, “Human Costs of War and Violence,” in Mickey Huff & Andy Lee Roth (Eds.), Censored 2013: Dispatches from the Media Revolution (Seven Stories Press, 2014) 107–11; U.N. Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Iraq, Mar 5 2015, http://documents.un.org; U.N. Security Council, Assessment of the work of the Security Council during the presidency of China, Annex to the letter dated 19 March 2015 from the Permanent Representative of China to the United Nations addressed to the President of the Security Council (February 2015), http://documents.un.org.
55 Special Representative of the Secretary General for Children and Armed Conflict, Report to the U.N. General Assembly, UN Doc. No. A/69/212 (July 31, 2014), para. 8, documents.un.org.
56 Tracy, “Human Costs”; H. Travis, “Genocide, Counterinsurgency, and the Self-Defense of UN Member States Before the International Criminal Court,” U.C. Davis Journal of International Law & Policy 22 (2016): 139–202, 180–194, 200–201.
57 H. Duffy, “Human Rights Cases in Sub-regional African Courts: Towards Justice for Victims or Just More Fragmentation,” in The Diversification and Fragmentation of International Criminal Law 163–166; M. Fisher, “This Map Shows Where the World’s 30 Million Slaves Live. There Are 60,000 in the U.S.”, The Washington Post WorldViews Blog (October 17, 2013), www.washingtonpost.com/news/worldviews/wp/2013/10/17/this-map-shows-where-the-worlds-30-million-slaves-live-there-are-60000-in-the-u-s/.
58 Travis, “Why Was Benghazi”; Travis, “Wargaming,” 121–3.
59 E.g., E. Watkins, “Sanctions, Saboteurs Take Toll on Syria’s Oil Industry”, Oil & Gas Journal, November 14, 2011, 25.
60 Special Representative of the Secretary General for Children and Armed Conflict, Report, paras. 8, 53 . “Out of the 59 parties cited for grave violations in the annexes to the report of the Secretary-General on children and armed conflict (A/68/878-S/2014/339), 51 are non-State armed groups.” Ibid., para. 18.
62 U.N. Human Rights Council, Human Rights Council hears Special Representative of the Secretary-General on Children and Armed Conflict (September 10, 2013), http://reliefweb.int/report/world/human-rights-council-hears-special-representative-secretary-general-children-and-armed.
67 U.N. General Assembly, International Criminal Tribunals Made “Enormous Contribution” to Ending Impunity, General Assembly Hears in Briefings on Handover of Work to Residual Mechanism (October 13, 2015), http://reliefweb.int/report/world/international-criminal-tribunals-made-enormous-contribution-ending-impunity-general.
68 F. Deng, “Africa’s internally displaced and the development of international norms: Standards versus implementation”, in J. I. Levitt (Ed.), Africa: Mapping New Boundaries in International Law (Hart Publishing, 2008), 82; “Number displaced worldwide hits record high – UN report,” BBC News (June 18, 2015), www.bbc.com/news/world-33178035.
69 UNHCR Global Trends 2011: A Year of Crises, at 38–45.
70 UNHCR Global Trends 2013: War’s Human Cost, at 45–9.
71 UNHCR Global Trends 2014: World at War, at 49–53; Nicholas Crawford et al., Protracted Displacement: Uncertain Paths to Self-reliance in Exile, ODI HPG Report (September 2014), https://view.officeapps.live.com/op/view.aspx?src=http%3A%2F%2Fwww.odi.org%2Fsites%2Fodi.org.uk%2Ffiles%2Fodi-assets%2Fpublications-opinion-files%2F9854.xlsx.
72 “Over 2.1 Million Displaced in Nigeria: IOM,” ReliefWeb (2016),
73 Prosecutor v. Tadic, Case No. IT=94-I-T, Appeals Chamber, Judgment (July 15, 1999), reprinted in 38 International Legal Materials 1518 (1999); Michael Newton, “What Is the Significance of the Documents Entered Into Evidence by the Prosecution?”, in Michael Scharf & Gregory McNeal (Eds.), Saddam on Trial: Understanding and Debating the Iraqi High Tribunal (Durham, NC: Carolina Academic Press, 2006), 183–4.
74 Tadic, paras. 203–4.
75 Prosecutor v. Rwamakuba, Decision on Interlocutory Appeal Regarding the Application of Joint Criminal Enterprise to the Crime of Genocide, Appeals Chamber, 22 Oct. 2004, para. 31; Newton, “What Is the Significance,” 184; Saddam on Trial 256–7.
76 Prosecutor v. Charles Taylor, Case No. SCSL-03–01-PT, Judgment (26 April 2012), ¶¶ 5–21, www.refworld.org/docid/4f9a4c762.html; Aislinn Laing, “‘Blood diamond’ trial: the case against Charles Taylor”, The Telegraph (U.K.) (June 16, 2011), www.telegraph.co.uk/news/worldnews/africaandindianocean/liberia/8578540/Blood-diamond-trial-the-case-against-Charles-Taylor.html;
77 J. Millard Burr & R. O. Collins, Darfur: The Long Road to Disaster (2006) 242–24; D. Brown, “Who is Foday Sankoh?”, The Guardian (May 17, 2000), www.guardian.co.uk/world/2000/may/17/sierraleone; M. Habboush, “Sudan’s Bashir offers to help form new Lybian army”, Reuters Alertnet (January 7, 2012), www.trust.org/alertnet/news/sudans-bashir-offers-to-help-form-new-libyan-army; Liang, “‘Blood Diamond’ trial”; Gérard Prunier, Darfur: A 21st Century Genocide (Penguin, 2008), p. 58.
78 D. Bergman, “Verdicts Stir Up Controversy over Bangladesh War Crimes Tribunal”, International Justice Tribune (November 5, 2014), www.justicetribune.com/articles/verdicts-stir-controversy-over-bangladesh-war-tribunal.
80 Cf. Draft Protocol, art. 46Ebis. Thus, the International Criminal Court convicted only one person in more than 10 years out of a population of more than seven billion on earth. For example, the United States famously “unsigned” the Rome Statute and passed legislation to protect its service members from standing trial in The Hague, by force if necessary.
81 Saddam and the Nazis, The History Channel, cable television transmission, 2005; Said Aburish, Saddam Hussein: The Politics of Revenge, London, Bloomsbury, paperback ed. 2001 22–23, 54–58, 72–100. See also, Mark Fritz, “Ex-CIA Official James Critchfield Dies,” Associated Press, April 23, 2003.
82 Reuters, “Sudan’s Bashir claims victory over ICC after court shelves Darfur probe,” December 13, 2014, www.reuters.com/article/us-sudan-icc-bashir-idUSKBN0JR0K520141213.
83 “Death squads,” in Dinah Shelton (Ed.), Encyclopedia of Genocide and Crimes Against Humanity, Vol. 1 (Farmington Hills, MI: Thomson Gale, 2005) 229–30.
84 As one court stated: “Officers, directors, or agents of a corporation participating in a violation of law in the conduct of the company’s business may be held criminally liable individually therefor… . [But] it is essential to criminal liability on his part that he actually and personally do the acts which constitute the offense or that they be done by his direction or permission… .” United States v. Krupp, Case No. 10, Trial Transcript (Nuremburg Trib. 1948), reprinted in Trials of War Criminals Before the Nuremburg Military Tribunals Under Control Council No. 10, Vol. 9 (U.S. Government Printing Office, 1950), 1448.
85 Khmer Rouge leader Ieng Sary made this argument, unsuccessfully, in 2008. Order on the Application at the ECCC of the Form of Liability Known as Joint Criminal Enterprise, Case No. 0002, ECC Doc. No. D97/13 (December 8, 2009), para. 1.
86 CIA. The World Factbook 2010, p. 676; CIA. The World Factbook 2008, at 330 (2008), “Fiscal Year 2008 East Timor Budget” East Timor Legal Blog (April 2009), http://easttimorlegal.blogspot.com/2009/04/fiscal-year-2008-east-timor-budget.html; Liberia 2007–08 Budget Fact Sheet (2008), http://docs.google.com/viewer?a=v&q=cache:w5N7fSf8g0cJ:www.emansion.gov.lr/doc/200708budget_fact_sheet.pdf.
87 Travis, “Why Was Benghazi Saved.”
88 J. Friedman, “Manpower and Counterinsurgency Data Set, to accompany J. A. Friedman, ‘Manpower and Counterinsurgency,’ Security Studies 20(4) (2011): 1–36” http://scholar.harvard.edu/files/friedman/files/friedman-manpower_and_counterinsurgency_data.xlsx.
90 Cf. C. Hedges, “Serbs Using Land Mines in Effort to Seal Kosovo-Albania Border,” The New York Times, June 12, 1998, www.nytimes.com/1998/06/12/world/conflict-balkans-albania-serbs-using-land-mines-effort-seal-kosovo-albania.html (Yugoslav officials believed that Kosovo Liberation Army was using Albania as sanctuary from which to attack Yugoslav territory); A. Waheed Wafa, “U.N. Deputy Urges Pakistan to Curb Taliban,” The New York Times, January 9, 2007, p. A9 (Afghanistan charged Pakistan with harboring Taliban, which it blamed for 124 suicide bombings in 2006).
91 E.g., Princz v. Federal Republic of Germany, 26 F.3d 1166, 1173–75 (DC Cir. 1994) (refusing to find that Germany waived sovereign immunity for jus cogens violations such as enslavement of civilians as a crime against humanity during wartime); Joo et al. v. Japan, 172 F Supp. 2d 52 (D.D.C. 2003), aff’d, 332 F.3d 679 (D.C. Cir. 2003) (sexual enslavement of Korean and other civilian women in territories occupied by Empire of Japan during World War II).
92 E.g., Arrest Warrant of April 11, 2000 (Dem. Rep. of Congo v. Belg.), 2002 I.C.J. 3 (February 14) at §§ 70–75; Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012); Matar v. Dichter, 563 F.3d 9 (2d Cir. 2009); In re Terrorist Attacks of September 11, 2001, 538 F.3d 71 (2d Cir. 2008); Belhas v. Ya’alon, 515 F.3d 1279 (D.C. Cir. 2008); Plaintiffs A, B, C, D, E, F v. Zemin, 282 F. Supp. 2d 875 (N.D. Ill. 2003); Fotso v. Republic of Cameroon, No. 12-cv-1415, 2013 WL 3006338 (D. Or. June 11, 2013); Yousuf v. Samantar, 1:04cv1360 (LMB/JFA), 2011 WL 7445583 (E.D. Va. February 15, 2011). These cases are cited in Ramona Pedretti, Immunity of Heads of State and State Officials for International Crimes (Leiden: Brill, 2015), 107, 156–64. See also Peter Burns & Sean McBurney, “Impunity and the United Nations Convention Against Torture: A shadow play without an ending,” in Craig Scott (Ed.), Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Oxford: Hart Publishing, 2001), 277–8; Lorna McGregor, “Addressing the relationship between state immunity and jus cogens norms: A comparative perspective,” in Wolfgang Kaleck et al. (Eds.), International Prosecution of Human Rights Crimes (London: Springer, 2006), 69–84.
93 E.g., Yousuf v. Samantar, 699 F.3d 763, 777 (4th Cir. 2012); United States v. Emmanuel, No. 06–20758, 2007 WL 2002452 (S.D. Fla. Nov. 8, 2007); Regine v. Bartle, Ex Parte Pinochet, 38 I.L.M. 581, 593–5 (H.L. 1999); Pedretti, Immunity, p. 110; Burns & McBurney, “Impunity,” 282–6.
94 Rome Statute of the International Criminal Court, art. 25, adopted by the U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on July 17, 1998, UN Doc. No. A/Conf. 183/9, reprinted in 37 I.L.M. 999 (1998).
95 M. John Garcia, Cong. Research Serv., RL 32438, U.N. Convention against Torture (CAT): Overview and Application to Interrogation Techniques 10 (January 25, 2008), available at fpc.state.gov/documents/organization/101750.pdf; see also, Charles Doyle, Cong. Research Serv., R41223, Federal Conspiracy Law: A Brief Overview (April 30, 2010), p. 13, available at www.fas.org/sgp/crs/misc/R41223.pdf.
96 Kelly, “Prosecuting Corporations for Genocide,” 340.
97 Quoted in S. Darcy, Collective Responsibility and Accountability under International Law (Ardsley, NY: Transnational, 2007), p. 279.
98 Sedima, SP RL v. Imrex Co., 473 U.S. 479, 526 (1985) (quoting Report of the Ad Hoc Civil RICO Task Force of the ABA Section of Corporation, Banking and Business Law (1985) 71–2).
99 Congressional Record 113 (1967), p. 17998.
100 Congressional Record 115 (1969), p. 6993.
101 Sedima, op cit., 487–8, 495–6.
102 Ibid., 483.
103 Ibid., 508 (Marshall, J., dissenting). See also, Congressional Record 116 (1970), p. 35295.
104 Draft Protocol, art. 46C(1)–(2).
105 Ibid., art. 46C(4).
106 Ibid., art. 46C(7).
107 Ibid., art. 28G(A)-(B).
108 Ibid., art. 28G(D).
109 E.g., ibid., art. 28E.
110 E.g., Republic of Uganda, Ministry of Health, Internally displaced persons health and mortality survey, Uganda, 2005 ii, 1, 19–20; C. Blattman and J. Annan, “Child combatants in northern Uganda: Reintegration myths and realities”, in R. Muggah (Ed.), Security and Post-Conflict Reconstruction: Dealing with Fighters in the Aftermath of War (Routledge, 2008) 103–26, 103–8; Peter Eichstaedt, First Kill Your Family: Child Soldiers of Uganda and the Lord’s Resistance Army (2009), p. xix, 9; E. Mendes, Peace and Justice at the International Criminal Court (2010), p. 65; Dep’t of State, African Affairs Remarks, U.S. Efforts to Counter the Lord’s Resistance Army (December 17, 2011), available at www.state.gov/p/af/rls/rm/2011/178501.htm.
111 Burr & O’Collins, Darfur 39, 67–71, 202–4, 244–9.
112 Ibid., 202–5.
113 K. Maluil Jok, Conflict of National Identity in Sudan (Frankfurt: Peter Lang, 2013) 54–6.
114 Y. Bodansky, “Iran’s Pincer Movement Gives It a Strong Say in the Gulf and the Red Sea,” Defense & Foreign Affairs’ Strategic Policy, March 1992, 10 ff.; H. Travis, “Teaching People to Commit Genocide”, Assyrian International News Agency, April 2015, www.aina.org.
115 Jok, Conflict, p. 232.
116 Ibid., 54–251.
117 M. Mutua, “Racism at root of Sudan’s Darfur crisis,” Christian Sci. Monitor, July 14, 2004, www.csmonitor.com/2004/0714/p09s02-coop.html.
118 Bodansky, “Iran’s Pincer Movement,” 10 ff.
121 Ibid. See also, Nsongurua J. Udombana, “When Neutrality Is a Sin: The Darfur Crisis and the Crisis of Humanitarian Intervention in Sudan,” 1153.
122 Bodansky, “Iran’s Pincer Movement”; Charles Richards, “Soft Words in Sudan Conceal Face of Terror,” The Independent (U.K.) (9 June 1993), https://www.independent.co.uk/news/world/soft-words-in-sudan-conceal-face-of-terror-hassan-al-turabi-wears-his-notoriety-lightly-charles-1490494.html.
123 Bodasky, “Iran’s Pincer Movement.”
124 M. S. Beelman, “In Bosnia, Arms Embargo Looks Like a Sieve”, Associated Press/The Daily Courier, July 31, 1994, A12; Millard Burr & Robert O. Collins, Revolutionary Sudan: Hasan al-Turabi and the Islamist State, 1989–2000 (Leiden, the Netherlands: Brill, 2003), 142–3; Netherlands Institute for War Documentation, Final Report on “Srebrenica, a ‘safe’ area - Reconstruction, background, consequences and analyses of the fall of a safe area” (2002), quoted in Cees Wiebes, Intelligence and the War in Bosnia, 1992–1995 (Munster: LIT Verlag, 2003), x`pp. 196–7; Craig Unger, House of Bush, House of Saud (2003), 111–13.
125 J. O. Tamayo, “Experts Had Rejected Possibility of Suicide Hijackings as ‘Too Weird,’” Miami Herald, September 13, 2001.
126 A. Gerson, “Terrorism and Genocide: Determining Accountability and Liability”, 28 Thomas Jefferson Law Review (2005) 79 (Proceedings of the Conference on Law and the Humanities’ Representation of the Holocaust, Genocide and Other Human Rights Violations) (citing Burnett v. Al Baraka Inv. and Dev. Corp., 274 F. Supp. 2d 86 (D.D.C. 2002); Barrera v. al Qaida Islamic Army (S.D.N.Y. 2003); Federal Ins. v. al Qaida (S.D.N.Y. 2003); Vigilant Ins. v. Kingdom of Saudi Arabia, No. 03 Civ. 8591 (S.D.N.Y. 2003); Ashton v. al Qaeda Islamic Army, No. 02 Civ. 6977 (S.D.N.Y. 2002); Salvo v. al Qaeda Islamic Army, No. 03 Civ. 5071 (S.D.N.Y. 2003); Tremsky v. Osama bin Laden, No. 02 Civ. 7300 (S.D.N.Y. 2002)).
127 Daily Trust, “PanAfrica; Uganda Arrests Nigerians over Terror Suspicion,” Africa News, May 22, 2003. Tal Samuel-Azran, Al-Jazeera and U.S. War Coverage (Peter Lang, 2010), 31–34, 109, 150, http://books.google.com/books?id=Ay8FckfL5vAC&pg=PA31.
128 Violent Islamist Extremism; Hearing of the Senate Committee on Homeland Security and Governmental Affairs, Federal News Service, March 11, 2009.
129 “Somalia,” in Guy Arnold (Ed.), The A and Z of Civil Wars in Africa (Scarecrow Press, 2009), p. 341.
130 Kaplan, “Carats and Sticks,” 608–9.
131 D. Smith, “In the Shadow of Nigeria’s Taliban”, The Mail & Guardian (South Africa), January 24, 2011.
132 J. Schanzer, “Saudi Arabia Is Arming the Syrian Opposition: What Could Possibly Go Wrong?”, Foreign Policy, February 27, 2012, www.foreignpolicy.com/articles/2012/02/27/saudi_arabia_is_arming_the_syrian_opposition; “Sudan becomes the newest player in Syria’s protracted conflict: NYT,” Sudan Tribune (August 13, 2013), www.sudantribune.com/spip.php?iframe&page=imprimable&id_article=47635; Hannibal Travis, “Why Was Benghazi Saved, But Sinjar Allowed to Be Destroyed?” 10(1) Genocide Studies International (2016) 139–182.
133 “Commending American Christian Leaders for Standing in Solidarity with Christians and Other Small Religious Communities in Egypt, Iraq and Syria,” Congressional Record 160 (2014): E769–03, 2014 WL 2050391; “Condemning Kessab Attacks,” Congressional Record, vol. 160 (2014): E489–03, 2014 WL 1315782; Human Rights Watch, Syria: Executions, Hostage Taking by Rebels (October 11, 2013), www.hrw.org/news/2013/10/10/syria-executions-hostage-taking-rebels; International Crisis Group, The Rising Costs of Turkey’s Syrian Quagmire, Crisis Group Europe Report N°230, April 30, 2014 10–13, 20–39; L. Morris, “Syrian Armenians, Who Had Been Insulated from War, Forced to Flee After Rebel Offensive”, Washington Post, April 2, 2014, reproduced in Congressional Record 160 (2014): E517; Peace Association of Turkey and Lawyers for Justice, War Crimes Committed Against the People of Syria: Report (Dec. 2013/January 9, 2014), http://pwlasowa.blogspot.fr/2014_01_09_archive.html; K. Sengupta, “We Left Homs Because They Were Trying to Kill Us”, The Independent (U.K.), Nov. 2, 2012, p. 42; Society for Threatened Peoples, Written Statement to Human Rights Council, UN Doc. No. A/HRC/22/NGO/143 (February 22, 2013), p. 3; UN Secretary-General Ban Ki-Moon, Situation of Human Rights in the Syrian Arab Republic: Implementation of Human Rights Council Resolution 19/22, UN Doc. No. A/HRC/20/37 (June 22, 2012), p. 5.
134 S. Res. 530 – 113th Congress (2013–2014): A resolution expressing the sense of the Senate on the current situation in Iraq and the urgent need to protect religious minorities from persecution from the terrorist group the Islamic State of Iraq and the Levant (ISIL); Nina Shea, “Only America Can Save Iraq’s Last Christians,” Fox News (July 29, 2014), www.foxnews.com/opinion/2014/07/29/only-america-can-save-iraq-last-christians.html.
135 Shea, “Only America”; “Iraq: ‘All the Christians Have Fled Mosul,’” Catholic World Report, June 12, 2014, www.catholicworldreport.com/Blog/3185/iraq_all_the_christians_have_fled_mosul.aspx.
136 Shea, “Only America”; Alex Mclintock & Scott Spark, “The Last Christians Flee Mosul in Iraq,” Australian Broadcasting Corporation (July 24, 2014), www.abc.net.au/radionational/programs/religionandethicsreport/ the-last-christians-flee-mosul-in-iraq/5620674.
137 Mclinktock & Spark, “The Last Christians”; “Iraq: ‘All the Christians.’” See also, H. Travis, “Wargaming the ‘Arab Spring’: Predicting Likely Outcomes and Planning U.N. Responses”, 46 Cornell Journal of International Law (2013) 75–143, at 79.
138 Uppsala Conflict Data Project, One-sided violence data set, version 1.4–2012.
139 Ibid. See also, Udombana, “When Neutrality Is a Sin,” 1154–5.
140 Uppsala Conflict Data Project, One-sided violence data set. The data set refers to about 732 LRA killings in 2008, 1,300 in 2009, and 145 in 2010, versus 510 for the Islamic State in 2008, 518 in 2009, and 571 in 2010. The latter’s high point was in 2007 with 1,436, when LRA was blamed for 62, much fewer than in 2008.
141 U.N. Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Iraq, Mar 5 2015, www.un.org/crc.
142 U.S. Department of State, International Religious Freedom Report 2006 (March 2007), www.state.gov/g/drl/rls/irf.
143 Asia Times (2012), www.atimes.com/atimes/Middle_East/ML02Ak01.html; D. Sherwood, “Syria Will Be Bloodiest Yet”, The Daily Star, January 1, 2012, www.dailystar.co.uk/news/view/227911/Syria-will-be-bloodiest-yet/.
144 N. Kazimi, “Handing Jihadis Cause”, Newsweek (International Edition), May 9, 2011 (lexisnexis.com “Magazine Stories, Combined” database) (declaring that veterans of al Qaeda’s operations in Pakistan/Afghanistan, Iraq, “Chechnya, Bosnia, and a bunch of other jihadist hotspots” were “working between Syria and Baghdad.”); Reuters, “Russia Says 15,000 Foreign Terrorists in Syria” (March 8, 2012), www.reuters.com/article/201/03/08/us-syria-russia-idUSBRE82714E20120308; J. Rosenthal, “Al-Qaeda in Rebel Syria”, The National Review (March 8, 2012), www.nationalreview.com/articles/292904/al-qaeda-rebel-syria-john-rosenthal?pg=2 & www.nationalreview.com/articles/292904/al-qaeda-rebel-syria-john-rosenthal/page/0/1?pg=2&splash=; J. Steele, “Diary”, 34, No. 6 London Review of Books (2012) 44–7, www.lrb.co.uk/v34/n06/jonathan-steele/diary; Watkins, “Sanctions, Saboteurs.”
145 J. Schanzer, “Saudi Arabia Is Arming the Syrian Opposition: What Could Possibly Go Wrong?”, Foreign Policy, February 27, 2012, www.foreignpolicy.com/articles/2012/02/27/saudi_arabia_is_arming_the_syrian_opposition. See also, As`ad AbuKhalil, “How the Saudi-Qatari Rivalry Has Fueled the War in Syria,” The Intercept (June 2018), https://theintercept.com/2018/06/29/syria-war-saudi-arabia-qatar/; Seymour Hersh, “The Red Line and the Rat Line, “The London Review of Books 36 (April 17, 2014), pp. 21–4, www.lrb.co.uk/v36/n08/seymour-m-hersh/the-red-line-and-the-rat-line ; “Jihadis in Syria use Turkish safe house network,” The Times of Israel (December 7, 2013), www.timesofisrael.com/jihadis-in-syria-use-turkish-safe-house-network/; Christina Lin, “Chinese stratagems and Syrian buffer zone for Turkey-Qatar pipeline,” The Times of Israel Blogs (August 1, 2015), https://blogs.timesofisrael.com/chinese-stratagems-and-syrian-buffer-zone-for-turkey-qatar-pipeline/; Roula Khalaf and Abigail Fielding-Smith, “How Qatar seized control of the Syrian revolution,” Financial Times, May 17, 2013, www.ft.com/content/f2d9bbc8-bdbc-11e2-890a-00144feab7de; David Phillips, Research Paper: Isis-Turkey Links, HuffPost (2015), www.huffingtonpost.com/david-l-phillips/research-paper-isis-turke_b_6128950.html; Lale Sariibrahimoglu, “On the Borderline – Turkey's Ambiguous Approach to Islamic State,” Jane's Intelligence Review (2014), www.janes.com/images/assets/804/44804/On_the_borderline_-_Turkey_s_ambiguous_approach_to_Islamic_State.pdf.
146 E. Dermy, “Russia to Keep up Syria Arms Sales”, A. France-Presse, August 17, 2011; C. Brauchli, Arms and the World, Common Dreams (January 7, 2012), www.commondreams.org/view/2012/01/07-4.
147 Associated Press, “UN Security Council Discusses Crisis in Syria”, (2012); Reuters, “Syrian Rebel Leader Threatens to Escalate Attacks,” Reuters, January 3, 2012. See also, A. France-Presse, “DR Congo calls on world court to ‘stop Rwandan war of aggression,’” June 14, 2002, www.namibian.com.na/2002/june/africa/0268BCEAFC.html; G. Burnham, et al., “Mortality after the 2003 Invasion of Iraq: A Cross-sectional Cluster Sample Survey”, The Lancet (October 11, 2006) 1–8 (study covering first three years of post-2003 war in Iraq)
148 H. Erlich, “Eritrea’s Double Identity,” The Jerusalem Report, October 31, 1991, p. 31.
149 Political Terror Scale (2011), www.politicalterrorscale.com (filename PTS_2010_oct_25_2011.xls).
151 FAO Statistics Division, Prevalence of undernourishment in total population (percentage) (2008).
152 Prosecutor v. Blagojevic & Jokic, Case No. IT-02–60-T, Trial Chamber, Judgment (January 17, 2005), §§ 666, 675). See also, Prosecutor v. Akayesu, Case No. ICTR-96–4-T, Trial Chamber I, Judgment (September 2, 1998). www.un.org/ictr/english/judgements/akayesu.html; Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation - Analysis of Government – Proposals for Redress (Washington, DC: Carnegie Endowment for International Peace, 1943), www.preventgenocide.org/lemkin/AxisRule1944-1.htm. See also, H. Travis, “On the Original Understanding of the Crime of Genocide,” Genocide Studies & Prevention: An International Journal 7 (2012): 30–55, 35–9.
153 The UN Inter-Agency Group for Child Mortality Estimation, 2012; Maternal, newborn and child health data by country (most recent year to 2011 with some trend data included).
154 Smith, “In the Shadow.”
155 UNHCR, Global Trends 2010 (2011), p. 42, www.unhcr.org/4dfa11499.html.
156 Travis, “Genocide, Counterinsurgency,” pp. 190–94; Tracy, “Human Costs.”
157 “Genocide, Counterinsurgency,” pp. 194–6; see also, S. Paterno and S. Morgan, “The White Army factor in South Sudan’s conflict”, Sudan Tribune (January 27, 2014), http://a.next.westlaw.com; Hereward Holland “In South Sudan, tribal militias exact revenge (+video),” Christian Science Monitor (January 17, 2012), 2012 WLNR 1142994.
158 U.N. Mission in South Sudan, Hunger Could Threaten over Four Million in South Sudan (February 8, 2012), http://webcache.googleusercontent.com/search?q=cache:VJsI5qXyr3gJ:unmiss.unmissions.org/Default.aspx%3Ftabid%3D3481%26ctl%3DDetails%26mid%3D6047%26ItemID%3D52935%26language%3Den-US+sudan+%22four+million%22+hunger+2012&cd=1&hl=en&ct=clnk&gl=us.
159 U.N. Children’s Fund, Press Release, UNICEF Advocate Ishmael Beah Witnesses Impact of Conflict on Children in South Sudan (2015), http://reliefweb.int/report/south-sudan/unicef-advocate-ishmael-beah-witnesses-impact-conflict-children-south-sudan.
In accordance with Article 28A(1)(14) of the Malabo Protocol, the International Criminal Law Section of the African Court of Justice and Human and Peoples’ Rights shall have power to try persons for the crime of aggression. Article 28M of the Protocol sets out a definition of the crime for the Court. The definition is largely in line with current international law on the subject but also reflects important regional features. This article analyses the substantive provisions of Article 28M, in a comparative fashion, and suggests that it could potentially become, once the Malabo Protocol enters into force, even more efficient than the Rome Statute’s provisions on the crime of aggression, as far as African States are concerned.
The crime of aggression is a core crime under international law.1 It was first introduced in the Charters of the Nuremberg2 and Tokyo3 Tribunals, and was subsequently invoked in the course of the Nuremberg follow-up trials.4 Cold War antagonisms made its prosecution impossible for decades to come: not a single trial involved charges of aggression since the late 1940s. The crime of aggression was included in Article 5 of the Rome Statute of the International Criminal Court (ICC) in 1998, but neither the crime itself nor the conditions for the exercise of the ICC jurisdiction with respect to it were defined until the 2010 Kampala Conference.5 Even then, the activation of the ICC jurisdiction with respect to the crime of aggression was postponed until 2017, at the earliest, and ICC jurisdiction was made subject to a number of further limitations.6
Article 28M of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (hereinafter referred to as the Malabo Protocol) of 27 June 2014 establishes the jurisdiction of the African Court of Justice and Human and Peoples’ Rights (hereinafter referred to as the African Court) with respect to the crime of aggression. The definition of the crime is largely in line with current international law – in particular, with Article 8 bis of the Rome Statute – but it also contains a number of important regional features and innovations. This contribution offers a comparative analysis of the Malabo Protocol’s Article 28M against the background of Article 8 bis of the Rome Statute, upon which Article 28M is based, and highlights the latter’s specific features and practical implications of its future invocation by the African Court.
2. ‘Chapeau’ of the definition (Article 28M(A) of the Malabo Protocol)
Article 28M(A) of the Malabo Protocol contains a ‘chapeau’ of the definition, which largely mirrors an analogous provision of the Rome Statute7 but goes even further, as far as three important elements are concerned:
For the purpose of this Statute, ‘Crime of Aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a state or organization, whether connected to the state or not, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations or the Constitutive Act of the African Union and with regard to the territorial integrity and human security of the population of a State Party (emphasis added).
It may seem that this introductory provision is a mere restatement of the pre-existing customary law on the subject, including of Article 8 bis (1) of the Rome Statute: it alludes to the modes of criminal conduct listed in the Nuremberg and Tokyo Charters (‘planning, preparation, initiation or execution’), reaffirms the Nuremberg and Tokyo Tribunals’ conclusions regarding potential defendants’ superior standing in their respective State or organisational structures (‘person in a position effectively to exercise control over or to direct the political or military action of a state or organization’), and includes only the most significant violations of the Charter of the United Nations or the Constitutive Act of the African Union (‘which, by [their] character, gravity and scale, constitut[e …] manifest violation[s]’ of the UN Charter or the Act) among the acts of aggression for the purpose of the Malabo Protocol.8 However, Article 28M(A) does deviate from the letter and substance of Article 8 bis (1) of the Rome Statute, because (1) establishes jurisdiction not only with respect to representatives of States but also to those of non-State actors, (2) refers to the Constitutive Act of the African Union, in addition to the Charter of the United Nations, and (3) lists human security of the population of a State Party among protected values. These aspects require some analysis and clarification.
A. Jurisdiction with Respect to Persons in a Position Effectively to Exercise Control Over or to Direct the Political or Military Action of a State or Organisation
Since the relevant international trials held in the 1940s, aggression was considered as a ‘leadership crime’ requiring special subjects – that is, high-ranking civilian and military State officials – and lower-ranking State officials were to be excluded from the range of potential subjects of the crime. Hence, Article 8 bis (1) of the Rome Statute made reference to ‘person[s] in a position effectively to exercise control over or to direct the political or military action of a State’ – thus limiting its jurisdiction to top-echelon State agents only. Formally, Article 28(M)(A) of the Malabo reproduces this provision, since it establishes the African Court’s jurisdiction with respect to the crime of aggression committed by ‘person[s] in a position effectively to exercise control over or to direct the political or military action of a state’. However, it should be noted that the efficiency of this provision is seriously impaired by Article 46A bis of the Malabo Protocol (‘Immunities’): ‘No charges shall be commenced or continued before the Court against any serving AU Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office’. This broadly worded provision was designed to shield against prosecution, including on charges of aggression, not only serving AU Heads of State or Government, but also all other senior civilian and military State officials who would typically be involved in such a crime – that is, Ministers of Defence, Heads and members of General Staff, Ministers of Foreign Affairs and of the Interior, directors of special services, members of Parliaments approving an internationally unlawful use of armed force, and even prominent public figures (for example, religious or social leaders) inciting the commission of the crime. Hence, as a matter of practice, Article 28M would unfortunately remain a dead letter, as far as serving senior officials of AU Member States are concerned, until their tenure of office is over, and prosecutions of such individuals under Article 28M would only be possible, if ever, once their official capacities would cease. Obviously, the feasibility and efficiency of such belated prosecutions would depend upon the concerned States’ political will and other attendant circumstances.
Formally, Article 28M(1) of the Malabo Protocol also establishes the African Court’s jurisdiction with respect to the crime of aggression committed by representatives of non-State actors (organisations) who would use force in violation of international law. Although the military danger of non-State organisations such as Al Qaeda, Daesh, etc. is evident, and Article 28M(A) of the Malabo Protocol certainly constitutes a progressive development of regional international law, and as such is deserving of attention, this author maintains his previously expressed opinion regarding the non-applicability of the elements of the crime of aggression to non-State actors:
It is understood that Article 8 bis (1) [of the Rome Statute] does not cover (even large-scale instances of) autarkic use of armed force by non-State actors. Unlike some authors […] this writer does not believe that such cases must be covered by the Rome Statute’s definition of the crime of aggression. Since its inception in the theory of international law, the concept of aggression was understood in its relationship with the State […], and there is no obvious reason for changing this conceptual understanding. Firstly, armed attacks by non-State actors would almost certainly be covered by other relevant rules of international law, including those of the Rome Statute (cf. Articles 6, 7 and 8). Secondly, such uses of force would be almost implausible without, at least, an implicit support or acquiescence from States harbouring the non-State actors perpetrating the attacks – a situation covered by Article 8 bis (2) (g) of the Rome Statute […]. Subparagraph (g) refers to a State’s ‘substantial involvement’ in the ‘sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to [acts of aggression]’. It is submitted that allowing a non-State group to prepare for a large-scale armed attack against persons or property situated in another State should indeed be considered as the host State’s ‘substantial involvement’, because not taking determined measures for repressing such criminal activities would denote the host State’s sharing those activities’ aims or, at least, acquiescing to them. Displaying a similar tolerance towards a non-State actor’s preparation for the commission of a crime under international law – genocide, crimes against humanity or war crimes – may be indicative of the existence of an aggressive mens rea on the part of leaders of the host State […]9
Hence, in the light of current customary international law, the extension of the African Court’s jurisdiction with respect to the crime of aggression to representatives of non-State actors (organisations) appears to be redundant, given that various forms of the use of force by non-State actors are already covered by Articles 28B (‘Genocide’), 28C (‘Crimes against humanity’), 28D (‘War crimes’), 28G (‘Terrorism’), and 28H (‘Mercenarism’), and Article 28M(B)(h) of the Malabo Protocol, in and of itself, establishes criminal responsibility for ‘[t]he sending or materially supporting by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State […]’ (emphasis added, see infra 3(A)(8)).
The Constitutive Act of the African Union,10 adopted at Lomé, Togo, on 11 July 2000, reaffirms the Purposes and Principles of the United Nations11 and adapts them, respectively, in Articles 3 (‘Objectives’) and 4 (‘Principles’), to African realities. With due regard to those realities, the following rules on the use of force add to relevant provisions of the Charter of the United Nations:12
‒ the African Union is empowered to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity (Article 4(h));
‒ Member States are empowered to request intervention from the Union in order to restore peace and security (Article 4(j));
‒ unconstitutional changes of governments should be condemned and rejected (Article 4(p)).
The disjunctive sentence in Article 28M(A) of the Malabo Protocol (‘the Charter of the United Nations or the Constitutive Act of the African Union’, emphasis added) should not be read as juxtaposing the Constitutive Act vis-à-vis the Charter of the United Nations, despite the preposition ‘or’ used. The Charter of the United Nations is a treaty of prevalent legal force,13 and placing it before the Constitutive Act is quite appropriate, since the provisions of the Act should not contradict those of the Charter (cf. infra 3(A)(1), though). Although the Constitutive Act’s more specific rules do not have direct equivalents in the Charter, they should not be interpreted as contravening the Charter but rather should be read in conjunction with it: since Article 52 of the Charter explicitly endorses the operation of regional arrangements, the provisions of the Constitutive Act’s Article 4 referred to above should be regarded as additional grounds for internationally lawful uses of force. Consequently, the instances of the use of force in accordance with subparagraphs (h), (j) and (p) of the Constitutive Act’s Article 4 are not to be regarded as acts of aggression under Article 28M(A) of the Malabo Protocol, and should not entail individual criminal responsibility.
Article 28M(A) of the Malabo Protocol concludes with a reference to two specific values protected by the provision against acts of aggression – namely, to ‘the territorial integrity and human security of the population of a State Party’. Whereas States’ territorial integrity is a well-established value protected by international law against aggression,14 the notion of ‘human security of the population of a State Party’ seems to overlap with the definition of crimes against humanity for the purpose of the Malabo Protocol (cf. Article 28C). Since crimes against humanity ‘target fundamental, recognized human rights, in particular, life, health, freedom, and dignity’ (primary object of the crime) and thereby call into question ‘the security and well-being of the world’ (secondary object of the crime),15 treating similar acts, additionally, under the heading of the crime of aggression would, in this author´s opinion, somewhat distort both concepts. It is therefore advisable to limit the notion of aggression to what it traditionally has been – that is, the use of force against the territorial integrity, political independence or other essential features of statehood – and to deal with crimes against the ‘human security of the population’ under the heading of crimes against humanity.
As will be seen below, Article 28M of the Malabo Protocol was almost literally borrowed from Article 8 bis of the Rome Statute – with the latter’s substantive advantages and, probably more importantly for practical purposes, limitations. Where the corresponding elements of both provisions overlap exactly, this author’s earlier reflections on relevant provisions of the Rome Statute are reproduced, with an understanding that they should also be fully applicable to the Malabo Protocol’s respective rules. In turn, linguistic and, especially, substantive differences between Article 28M of the Malabo Protocol and Article 8 bis of the Rome Statute are emphasised, and their legal consequences are shown.
Like Article 8 bis (1) of the Rome Statute, Article 28M(A) of the Malabo Protocol begins with an important reservation to the effect that the definition of the crime of aggression shall apply ‘[f]or the purpose of [the] Statute [of the African Court]’ only. The purpose of including this reservation in both provisions is very practical:
This restrictive clause was a part of the compromise reached at the First Review Conference, in order to make the new definition workable and not to upset the interests of States, which are not Parties to the Statute. Professor Kai Ambos reports that the United States were preoccupied with making sure that the proposed amendment only affect the ICC Statute, without creating any legal effect beyond the material, personal and temporal fields of its application […] It must hence be concluded that the definition may not, at this stage, be regarded as claiming universal recognition, neither can it prevent the development, at the national or international levels, of alternative legal theories or rules pertaining to the crime of aggression, even after the entry into force of Article 8 bis […]16
Since the Malabo Protocol’s definition of the crime of aggression is intended for the purpose of the African Court only, its future application by the Court may, over time, evolve into a regional custom. Moreover, this author believes that the Malabo Protocol’s provision on the crime of aggression could, potentially, become even more efficient than its ‘parent provision’ in the Rome Statute (see infra 4).
Under Article 28M(A) of the Malabo Protocol, four modes of conduct are criminalised in connection with an act of aggression – planning, preparation, initiation and execution. As these terms have been ‘borrowed’ from the Nuremberg and Tokyo Charters almost verbatim – with the exception of ‘execution,’ which replaced the original term, ‘waging a war of aggression’ – they may now be considered as having a customary value.17 Notably, the same modes of conduct are criminalised under Article 8 bis (1) of the Rome Statute.
Since Article 28M(A) of the Malabo Protocol largely builds upon pre-existing international law – in particular, upon Article 8 bis (1) of the Rome Statute – this author’s earlier reflection on the relationship between a State’s act of aggression and an individual crime of aggression appears to retain its relevance:
It suffices to restate here […] that an act of aggression should be regarded, in the context of Article 8 bis (1), as a direct result of perpetrators´ criminal conduct, and not merely as its ‘by-product’ delivered through the intermediary of a State. The potential perpetrators of the crime are described in Article 8 bis (1) as being as such capable of planning, preparing for, initiating or executing an act of aggression. In this logical structure, ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations’ referred to in Article 8 bis (2) results immediately from (an aggregate of) individual criminal acts, and ‘the State’, which uses force against protected values listed in the provision becomes a ‘tool’ in the perpetrators’ hands – an indispensable one, given the nature of the crime at issue, but it still is a ‘mechanical’ tool, not a subject capable of taking autonomous decisions to the contrary to the perpetrators’ will, for they themselves embody the State´s will. In other words, for the purpose of the ICC Statute, a ‘crime of aggression’ consists in that ‘a person in a position effectively to exercise control over or to direct the political or military action of a State’ participates in ‘planning, preparation, initiation or execution’ of an internationally wrongful act involving ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations’, the ‘character, gravity and scale’ of which would warrant the concern of the international community as a whole […]18
For the author’s reservation on the (in)ability of non-State actors to engage in the commission of an act of aggression, see supra 2(A).
4. ‘[W]hich, by Its Character, Gravity and Scale, Constitutes a Manifest Violation of the Charter of the United Nations or the Constitutive Act of the African Union’
The qualification of a requisite intensity of an act of aggression included in Article 28M(A) of the Malabo Protocol and pertaining to the ‘character, gravity and scale’ of an act of aggression also restates pre-existing international law – that is, a corresponding sentence of Article 8 bis (1) of the Rome Statute:
Article 8 bis (1) concludes with an essential provision to the effect that a use of force between States may be deemed to amount to an act of aggression for the purpose of the ICC Statute only if, ‘by its character, gravity and scale, [it] constitutes a manifest violation of the Charter of the United Nations’ […] In other words, in order to qualify as an act of aggression for the purpose of Article 8 bis (1), a State´s use of force must be so unlawful, devastating and massive as to meet, respectively, the cumulative benchmarks of ‘character, gravity and scale’ laid down in the ‘manifest standard’ […] This provision resulted from discussions within the Special Working Group on the Crime of Aggression […] on the requisite intensity of armed force to be involved in an alleged State act of aggression […] in order for such act’s authors to be held responsible by the ICC. As Stephan Barriga points out, an explicit aim of this clause is to exclude from the ICC jurisdiction ‘not only […] minor border skirmishes and other small-scale incidents but also acts whose illegal character [would be] debatable rather than manifest’ […] and hence to limit the Court’s jurisdiction to individual acts bringing about ‘the most serious’ internationally wrongful uses of force […] of ‘concern to the international community as a whole’ […] It is accordingly understood that inter-State confrontations involving the use of armed force […] but not reaching the cumulative normative threshold articulated in Article 8 bis (1) should not be regarded as acts of aggression for the purpose of the ICC Statute, since, to borrow from S. Barriga’s terminology, ‘border skirmishes and other small-scale incidents’ would conspicuously not meet the ‘gravity’ and ‘scale’ requirements […] and, in turn, State acts whose illegality under applicable public international law were ‘debatable’ (such as the forcible protection of nationals abroad or the bona fide ‘humanitarian intervention’ […]) would not correspond to the ‘character’ criterion – even if their gravity and / or scale were sufficient. It appears that the threshold was placed at such a high level – and appropriately so – on the one hand, with the purpose of limiting the ICC´s future workload, and, on the other hand, with a view to reinforcing the link between a State act of aggression and a corresponding individual crime […]19
Notably, Article 28M(A) of the Malabo Protocol, like Article 8 bis (1) of the Rome Statute (in contrast to some of its travaux préparatoires), contains no examples of ‘manifest violation[s] of the Charter of the United Nations or the Constitutive Act of the African Union’. Its purpose is to set an overall high threshold of gravity of an act of aggression, whereas the latter´s more specific definitional elements are included in Article 28M(B).
The second paragraph of Article 28M contains a list of acts, which qualify as acts of aggression for the purpose of individual criminal responsibility under the Malabo Protocol. The list is exhaustive and hence corresponds to the principle of legality, as understood in international criminal law.20 Before proceeding to consider specific examples of acts of aggression,21 some general remarks are worthwhile.
Like in Article 8 bis (2) of the Rome Statute, the reference to a declaration of war in Article 28M(B) of the Malabo Protocol is superfluous, as the legal significance of relevant rules largely diminished since the middle of the 20th century:
Since the Second World War, such declarations have in practice been very rare and, besides, they lost their legal significance with the adoption of the 1949 Geneva Conventions […] The declaration of war must have been recalled in this context with a view to emphasising, once again, the important ‘threshold of gravity’ of consequences an alleged act of aggression should entail […] – that is to say, the level of violence of an international armed conflict. Even so, it would have been more accurate to refer to the non-recognition of a subsequent state of war by the States involved, and not to a prior or parallel declaration thereof, for such a declaration would not, in accordance with international humanitarian law, affect the legal qualification of the difference resulting from an alleged act of aggression as an international armed conflict, irrespective of the duration of that conflict.22
Next, unlike Article 8 bis (2) of the Rome Statute, Article 28M(B) of the Malabo Protocol does not make any direct reference to the UN General Assembly resolution 3314 (XXIX). With due regard to this author’s critical point with respect to the Rome Statute’s provision on the crime of aggression, the absence of the reference to the 1974 UN Definition of Aggression in the Malabo Protocol should be regarded as an progressive development of international law:
[A]ll other crimes within the jurisdiction of the ICC (Articles 6–8) have been listed in the Statute as a matter of its own content, which reinforces the Court’s ratione materiae competence. The definitions of those other crimes were either specifically formulated for the purpose of the Statute (crimes against humanity, Article 7), or classified for its purpose (war crimes, Article 8), or reproduced verbatim from a relevant international treaty (genocide, Article 6). It is uncertain why it was deemed necessary to quote a non-binding document – such as the General Assembly resolution 3314 (XXIX) – in Article 8 bis (2) while the other crimes within the jurisdiction of the Court had been formulated without references to other, even binding, sources of international law (with the exception of the 1949 Geneva Conventions in Article 8(2)(a) of the Statute and their Common Article 3 in Article 8(2)(c) of the Statute).23
Finally, it should be noted that most of the acts listed in Article 28M(B) of the Malabo Protocol were borrowed from Article 8 bis (2) of the Rome Statute – and, through its intermediary, from Article 3 of the 1974 UN Definition of Aggression. At the time of negotiating the Rome Statute’s provisions on the crime of aggression, there seemed to be no universal recognition of those provisions’ legal value:
It was reported that there had been no unanimity within the Special Working Group on the Crime of Aggression with respect to whether subparagraphs (a) to (g) of the 1974 Definition’s Article 3 all represented current customary international law: some members of the Special Working Group ‘took the view that that was only true for subparagraph (g)’, for its content had already been confirmed by the International Court of Justice […] Other experts noted that most of the acts listed in Article 3 had been ‘reflected in the practice of the Security Council’, while for some acts there existed none […] This is unsurprising: the Security Council is a political body in whose action national interests of its members, especially of permanent members, prevail […] and the Council may not be expected to apply rules of international law in the same impartial way as a judicial body – such as, in the future, the International Criminal Court – should have to do.24
Obviously, the drafters of the Malabo Protocol took the view that the UN Definition of Aggression did represent customary international law, since they integrated its key provisions in Article 28M(B) as a matter of its own law, in line with this author’s previous recommendation, for the purpose of the African Court:
Be that as it may, Article 8 bis (2) could well have done without a direct reference to the General Assembly resolution 3314 (XXIX) but might have simply reproduced the relevant provisions of Article 3 of the 1974 Definition of Aggression as a matter of the Statute’s own content. Such a verbatim integration of those provisions in the Rome Statute would have elevated them from the rank of ‘soft law’ to the level of treaty law binding on the Statute’s States Parties – certainly, pending the future entry into force of Article 8 bis […] – and would have helped avoid scholarly critique similar to this author’s.25
A. Examples of Acts of Aggression
The generic definition of an act of aggression in Article 28M(A) is followed by eight specific examples (in subparagraphs (a)–(h)), seven of which almost literally reproduce the relevant provisions of pre-existing international law. The subparagraphs (a)–(h) of Article 28M(B) are crucial, for they represent, for the purpose of the Malabo Protocol, prima facie acts of aggression, about which its States Parties to the Statute agreed that such acts ‘shall constitute acts of aggression’ (emphasis added) – certainly, provided that they, by their character, gravity and scale, constitute manifest violations of the Charter of the United Nations or the Constitutive Act of the African Union (cf. supra 2(B), 2(D)(4)). A brief analysis of subparagraphs (a)–(g) is offered below.
Judging by its comprehensive wording, subparagraph (a) of Article 28M(B) seeks to protect the security of States Parties against the broadest possible range of internationally unlawful uses of force:
(a) The use of armed forces against the sovereignty, territorial integrity and political independence of any state, or any other act inconsistent with the provisions of the Constitutive Act of the African Union and the Charter of the United Nations.
With due regard to this contribution’s limited volume, two brief comments should be made here. First, it is likely that the African Court, when dealing with individual cases on charges of aggression in the future, would invoke subparagraph (a) in almost every single case, in conjunction with another, more specific subparagraph of Article 28M(B), due to the former’s more general character. Hence subparagraph (a) should explicitly protect not only the elements of statehood of the State affected by aggression but also other fundamental values, whereas subparagraphs (b)–(h) would criminalise specific objective methods of using force unlawfully against a victim State. Conceptually, since an act of aggression is one gravely inconsistent with the provisions of the Constitutive Act of the African Union and the Charter of the United Nations (see supra 2(D)(4)), every act of aggression should be regarded as a disruption of peace in the world and, specifically, on the African continent– and this aspect appears to be overlooked in subparagraph (a) of Article 28M(B). Second, it is worth noting, that, unlike in Article 28M(A) where the UN Charter is accorded priority, in subparagraph (a), the Constitutive Act of the African Union is listed first and hence seems to have priority over the Charter – if not as a matter of law, then, at least, as a matter of practice. Given the overall good quality of the Protocol’s text, it is quite unlikely that the drafters of the Protocol made a technical mistake here. Rather, this could be a subtle way to emphasise the significance of the Constitutive Act as a treaty, which reflects regional realities and accordingly endows the African Court with broad powers in the area of maintaining peace and security in the region.
Subparagraph (b) of the Malabo Protocol’s Article 28M(B) restates verbatim Article 8 bis (2)(a) of the Rome Statute and reads as follows:
(b) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof.
A closer look at the key notions contained in this provision, which mirrors its ‘parent provision’ – Article 8 bis (2)(a) of the Rome Statute – exactly, should help elucidate the implications of the entire subparagraph in terms of international law:
This provision’s keyword being ‘territory’, it protects the territory of States against four modes of internationally wrongful military impact: invasion, attack, military occupation, annexation […] From the point of view of international law, invasion and annexation are grave assaults against the territorial integrity of a State, whose manifest illegality derives from Article 2(4) of the Charter of the United Nations […] It must be recalled that, since 1945, territorial acquisitions effected by military force in contravention of the Charter have usually been regarded as violations of international law […] Likewise, ‘military occupation’ means that restrictions are imposed upon the political independence of a State […] and ‘invasion’ implies that the armed forces of a State concerned trespass another State’s frontiers illegally, which constitutes a breach of the principle of the inviolability of frontiers […]26
It is understood that the term ‘the armed forces of a State’ should be interpreted in the sense of other applicable international law – more specifically, Article 43 of Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I).
Like subparagraph (b) of the Rome Statute’s Article 8 bis (2), subparagraph (c) of the Malabo Protocol’s Article 28M(B) seeks to protect States’ territorial integrity, for it mentions ‘the territory of another State’ twice:
(c) The bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State.
The only difference between, respectively, Article 28M(B)(c) of the Malabo Protocol and its ‘parent provision’ – Article 8 bis (2)(b) of the Rome Statute – consists in the insertion of a definite article at the beginning of the sentence. Otherwise, the provision inherited all substantive limitations of its original source:
Again, ‘bombardment’ and ‘the use of any weapons’ are actions permissible under international humanitarian law – certainly, with limitations deriving from the well-established principles of proportionality and distinction between combatants and civilians […] Likewise, any scholarly analysis of this provision should of necessity take into account the rules of international law applicable to the use of specific types of weapons – such as chemical, biological, nuclear and certain conventional weapons […] Yet, this provision is not about criminalising ‘bombardment’ or ‘the use of [any] weapons’ in the sense of international humanitarian law, for it does not cover unlawful attacks against enemy nationals or property – these are criminalised by Article 8 (war crimes) of the Rome Statute. Its protected object is different – a State’s territory. The criminality of acts covered by subparagraph (b) of Article 8 bis (2) consists in that they are directed against a State’s territory, which – along with population and public authorities – constitutes a State’s very self […]27
Subparagraph (d) of the Malabo Protocol’s Article 28M(B) adds ‘airspace’ to the ports or coasts of a State whose blockade is criminalised under subparagraph (c) of Article 8 bis (2) of the Rome Statute:
(d) The blockade of the ports, coasts or airspace of a State by the armed forces of another State.
This addition is important, since airspace constitutes a part of a State’s territory and extends over its entire land, internal and territorial waters,28 and thus considerably extends the territorial scope of protection against aggression, in comparison to Article 8 bis (2)(c):
The rationale for the criminalisation of blockade lies in the status of ports and coasts as parts of a coastal State’s territory […] As in the context of the preceding paragraphs, the qualification of a violent (‘by the armed forces of another State’) restriction of the coastal State’s sovereignty over its territory – including over its territorial sea […] – as aggression is certainly warranted. Moreover, blockade can be used as a basis for attacks […], bombardment or the use of weapons […] against the coastal State, or for an attack on a State’s armed forces […], which in themselves qualify as acts of aggression.29
Like subparagraph (d) of Article 8 bis (2) of the Rome Statute, subparagraph (e) of the Malabo Protocol’s Article 28M(B) supposedly criminalises the ‘first strike’ by the armed forces of a State against those of another State:
(e) The attack by the armed forces of a State on the land, sea or air forces, or marine and fleets of another State.
The substitution of an indefinite article at the beginning of the Rome Statute’s Article 8 bis (2)(d) by a definite article in Article 28M(B)(e) of the Malabo Protocol is of a technical nature and should bear no legal implications. The substance of Article 28M(B)(e) appropriately reflects pre-existing international law:
It seems that this provision applies to the initial armed attack, because any response to such an attack – provided that it complies with applicable international law, in particular, in terms of proportionality – would be regarded as an individual or collective self-defence in the sense of Article 51 of the Charter of the United Nations […] Although there is no mention of territory in this subparagraph, the reference to the ‘land, sea or air forces, or marine and air fleets’ may be taken to imply that a State’s territory, which includes its land and subsoil, territorial sea, internal waters, […] and air space, […] is the ultimate object of an armed attack hereby criminalised. As each of the constituents of territory is defended by a relevant combat branch, an aggressive attack against one of these should be regarded as (at least, an indirect) attack against the territorial object they defend. Hence, the qualification of such an armed attack as aggression does comply with the overall logic of Article 8 bis (2).30
6. Internationally Wrongful Use of a State’s Armed Forces Present within the Territory of Another State
Subparagraph (f) of the Malabo Protocol’s Article 28M(B) builds upon subparagraph (e) of the Rome Statute’s Article 8 bis (2) and qualifies as an act of aggression the conduct of a State’s armed forces, which had previously arrived in another State with the latter’s consent but afterwards acted in a hostile manner either against the receiving State or against a third State:
(f) The use of the armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the African Union Non-Aggression and Common Defence Pact or any extension of their presence in such territory beyond the termination of the agreement.
The African Union Non-Aggression and Common Defence Pact was adopted on 1 January 2005 and entered into force on 18 December 2009.31 This document is key for our purpose, because, in addition to examples of acts of aggression listed in the Malabo Protocol, in provides, in Articles 1(c)(ix–xi) three further modes of action, which qualify as acts of aggression:
ix. the acts of espionage which could be used for military aggression against a Member State;
x. technological assistance of any kind, intelligence and training to another State for use in committing acts of aggression against another Member State; and
Although these modes of action are not listed explicitly in Article 28M(B) of the Malabo Protocol, it appears that they should also qualify as individual criminal acts for the purpose of the Malabo Protocol’s definition of the crime of aggression, because the Malabo Protocol’s Article 28M(B)(f) refers explicitly to the African Union Non-Aggression and Common Defence Pact.
The public danger of the acts covered, respectively, under Article 28M(B)(f) of the Malabo Protocol and Article 8 bis (2)(e) of the Rome Statute lies in the following:
In addition to dangers of a military character, which are implicit in this subparagraph and which might, in accordance with the other subparagraphs of the definition, themselves qualify as acts of aggression […], the act in question would also violate the principle of fulfilment of obligations under international law in good faith[…] As the material (ratione materiae) regulations for the presence of foreign armed forces in a State’s territory are clearly determined in applicable treaties, and their temporal (ratione temporis) field of application is always determined (in the treaties themselves), the qualification of a grave […] breach thereof as an act of aggression would duly conform to international law.32
7. Allowing the Use of a State’s Own Territory for the Commission of an Act of Aggression Against Another State
Like the preceding subparagraph, subparagraph (g) of the Malabo Protocol’s Article 28M(B) also deals with the conduct of States, which accommodate foreign troops or armaments in their territories:
(g) The action of a State in allowing its territory, which it has placed at the disposal of another State to be used by another State for perpetrating an act of aggression against a third State.
The rationale for regarding such conduct, under both the Malabo Protocol and the Rome Statute, as an act of aggression is as follows:
In accordance with applicable international treaties, a State’s territory may be placed at the disposal of another State for the stationing of armed forces, or the placement of armaments, or for both […] The responsibility of the host State would thereby consist in guaranteeing that the foreign armed forces or armaments would not be used for breaching international law  In order to qualify as aggression, the allegedly unlawful acts actually perpetrated by the State whose armed forces are stationed, or whose armaments are placed, in the receiving State must be covered by any other substantive subparagraph of Article 8 bis (2). If the host State’s relevant officials become aware of such unlawful acts, they must, without delay, resort to lawful – unilateral or multilateral – measures […] available to their State to stop their occurrence, otherwise they may themselves become liable for facilitating or tolerating an act of aggression.33
Importantly, the conduct referred to, respectively, in subparagraph (h) of the Malabo Protocol’s Article 28M(B) and in subparagraph (g) of the Rome Statute’s Article 8 bis (2) is the only example of an act of aggression, among those listed, whose customary nature under international law has, so far, been confirmed by the International Court of Justice:
(h) The sending or materially supporting by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.
Since the conduct in question has been dealt with at length in the ICJ’s Nicaragua Judgment, the readers should be referred to relevant paragraphs in that Judgment, for details.34 Additionally, the following considerations on the matter could be useful:
While the phrase about carrying out ‘acts of armed force against another State of such gravity as to amount to the acts listed above’ seems relatively clear in the light of the foregoing analysis, two supplementary observations ought to be made here. Firstly, it is submitted that the phrase ‘armed bands, groups, irregulars or mercenaries’ should especially cover, in the modern world, private military companies insofar as their staff engage in hostilities on behalf of the employer States or under their control, whereby private military companies may be dealt with under the heading of ‘armed groups’ […] The nature of such companies is perceptibly different from that of ‘armed bands’ and ‘irregulars’, nor would they normally meet either of the two ‘standard’ international legal definitions of mercenaries […] so treating them, for the purpose of Article 8 bis (2), under the generic heading of ‘armed groups’ is appropriate. Since international law for the regulation of private military companies’ status is in statu nascendi, States may feel tempted to so frame the legal frameworks applicable to such private companies as to ‘outsource’ to them some of their own tasks, and thus effectively to exempt themselves from a part of responsibility under international law. The outcomes of the so-called ‘Montreux process’ remain to be seen […]
The second substantive comment pertains to the attribution of acts carried out by ‘armed bands, groups, irregulars or mercenaries’ to the State on whose behalf they act. The rules of attributing such entities’ conduct to a State are found, especially, in Articles 5, […] 7 […] and 8 […] of the 2001 Articles on Responsibility of States for Internationally Wrongful Acts […] The International Law Commission’s official Commentary on Article 5 introduces the notion of ‘parastatal entities’, which ‘exercise elements of governmental authority in place of State organs’, […] ‘provided that in each case the entity is empowered by the law of the State to exercise functions of a public character normally exercised by State organs, and the conduct of the entity relates to the exercise of the governmental authority concerned’, […] and directly mentions ‘private security firms’ as an example of such parastatal entities […]35
Obviously, States employ private military and security companies in the exercise of their conventional function – the use of force – with a view to limiting their own responsibility for violations of international law, which are likely to occur in the course of respective armed conflicts. Hence, with a view to ensuring their own security, and to preventing impunity, States Parties to the Malabo Protocol could consider dealing with the employment of private military and security companies in the commission of acts of aggression, in the sense of subparagraph (h) of the Malabo Protocol’s Article 28M(B), with due regard to Article 5 of the 2001 Articles on State Responsibility. Since the invocation of individual criminal responsibility for the crime of aggression connected with the employment of ‘parastatal entities’ already has a foundation in international law, such an approach should not be incorrect as a matter of practice. Besides, it is recommended to explicitly mention private military and security companies in subparagraph (h) of the Malabo Protocol’s Article 28M(B), when a suitable occasion to amend the provision arises.
As was shown above, Article 28M of the Malabo Protocol inherited most limitations of its ‘parent provision’ – Article 8 bis of the Rome Statute, although it does contain some innovative elements reflective of progressive development of international law. The Malabo Protocol was adopted on 27 June 2014 and should enter into force thirty days after the deposit of instruments of ratification by fifteen Member States of the African Union, in accordance with Article 11(1). In accordance with Article 11(2), for each Member State which shall accede to it subsequently, the Protocol and Annexed Statute shall enter into force on the date on which the instruments of ratification or accession are deposited. As of 1 June 2016, the Protocol has been signed by nine Member States of the African Union but has not yet been ratified by a single Member State.36
Potentially, though, Article 28M may turn into a powerful provision binding upon 54 States on a large and populous continent, which has been suffering from murderous conflicts for far too long, and surpass the success of Article 8 bis of the Rome Statute as a matter of practice.37 The latter should, hopefully, enter into force in a foreseeable future, since it has already earned thirty requisite ratifications,38 and the ICC Assembly of States Parties should be prepared to activate the ICC jurisdiction with respect to the crime of aggression in accordance with its own agenda. Yet, given some African States´ current concerns with respect to the ICC, and with due regard to the ICC´s principle of complementarity, endowing an efficient regional mechanism of criminal justice – such as the reformed African Court could be – with jurisdiction with respect to the crime of aggression should be regarded as a welcome development, since it would usefully and legitimately release the ICC of at least some of its potential workload (of course, provided that the African Court would exercise its jurisdiction fairly and impartially).
It is this author’s hope that the Malabo mechanism would help turn Africa into a more peaceful continent, and that the authors of unlawful uses of force on that continent would be held accountable. True, the provision on immunities of serving AU Heads of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office, which was included in Article 46A bis of the Malabo Protocol, would be a serious impediment to the timely exercise of justice. However, this provision should not prevent prosecutions of former senior State officials, once their tenure is over, and, knowing this, many of such officials should hopefully refrain from exercising their authority in violation of international law, while in office. Besides, quite a number of African States have already enacted domestic provisions criminalising aggression and other crimes against peace,39 and prospects of domestic ‘Habré-style’ prosecutions should be another restraining factor.
This contribution draws, to an extent, upon chapter 5 of the book and reflects the views of the author alone. The author thanks Professor Noah Weisbord (Florida International University College of Law) for his helpful comments on this chapter’s draft.
1 See G. Werle and F. Jessberger, Principles of International Criminal Law, 3rd edition (Oxford University Press, 2014), pp. 529–56. See also A. Cassese, P. Gaeta, L. Baig, M. Fan, C. Gosnell and A. Whiting, Cassese’s International Criminal Law, 3rd edition (Oxford University Press, 2013), pp. 136–45
2 See the Charter of the Nuremberg Tribunal, Art. 6(a). See also: S. Sayapin, The Crime of Aggression in International Criminal Law: Historical Development, Comparative Analysis and Present State (T. M. C. Asser Press / Springer, 2014), pp. 40–3, 149–61.
3 See the Charter of the Tokyo Tribunal, Art. 5(a). See also S. Sayapin, supra note 2, pp. 43–4, 161–80.
4 See S. Sayapin, supra note 2, pp. 45, 180–190. See also Y. Dinstein, War, Aggression and Self-Defence, 5th edition (Cambridge University Press, 2011), pp. 142–143.
5 Ibid., pp. 56–62. See also A. Cassese, ‘On Some Problematical Aspects of the Crime of Aggression’, 20 Leiden Journal of International Law (2007), pp. 841–9; R. S. Clark, ‘Negotiating Provisions Defining the Crime of Aggression, Its Elements and the Conditions for ICC Exercise of Jurisdiction Over It’, 20 EJIL (2009), No. 4, pp. 1103–1115; C. Kress, ‘The Crime of Aggression before the First Review of the ICC Statute’, 20 Leiden JIL (2007), pp. 851–65; C. Kress, ‘Time for Decision: Some Thoughts on the Immediate Future of the Crime of Aggression: a Reply to Andreas Paulus’, 20 European Journal of International Law (2009), No. 4, pp. 1129–1146; S. D. Murphy, ‘Aggression, Legitimacy and the International Criminal Court’, 20 EJIL (2009), No. 4, pp. 1147–1156; A. Paulus, ‘Second Thoughts on the Crime of Aggression’, 20 EJIL (2009), No. 4, pp. 1117–1128; N. Weisbord, ‘Conceptualising Aggression’, 20 Duke Journal of Comparative and International Law (2009), No. 1, pp. 1–68; N. Weisbord, ‘Prosecuting Aggression’, 49 Harvard International Law Journal (2008), No. 1, pp. 161–220.
6 S. Sayapin, supra note 2, pp. 298–312.
7 Cf. Art. 8 bis (1) of the Rome Statute: ‘1. For the purpose of this Statute, ‘crime of aggression’ means ‘the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.’
2. For the purpose of paragraph 1, ‘act of aggression’ means ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations […]’
8 Cf. S. Sayapin, supra note 2, pp. 257–8.
9 Ibid., p. 260, footnotes omitted. However, see A. Cassese, P. Gaeta, L. Baig, M. Fan, C. Gosnell and A. Whiting, supra note 1, p. 140: ‘Arguably, international criminal liability for aggression might also arise where then armed attack against a state is planned, organized, initiated or executed by individuals belonging to a non-state organization or other organized entity. Nothing precludes non-state organizations form being able to use massively armed force against a foreign state […] While there are sound arguments for extending criminal responsibility for aggression to instances of massive use of armed force by non-state actors, the ICC Kampala Review Conference took a different approach: the definition of the crime of aggression finally adopted restricts criminal liability [to] persons ‘in a position effectively to exercise control over or to direct the political or military action of a state’ because of questions over whether current customary international law supported an extension of the crime to non-state or minor official actors’.
10 For the official English text of the Constitutive Act, see: www.au.int/en/about/constitutive_act (last accessed 29 May 2016)
11 Cf. Arts. 1 and 2 of the Charter of the United Nations.
12 Cf. Arts. 2(4) and 51 of the Charter of the United Nations.
13 Cf. Art. 103 of the Charter of the United Nations.
14 S. Sayapin, supra note 2, pp. 238–9.
15 G. Werle and F. Jessberger, supra note 1, pp. 333–4.
16 S. Sayapin, supra note 2, pp. 258–9, footnotes omitted.
19 S. Sayapin, supra note 2, pp. 261–3, footnotes omitted.
22 S. Sayapin, pp. 263–4, footnotes omitted, emphasis in the original.
23 Ibid., p. 264, footnotes omitted, emphasis in the original. See also: S. Sayapin, ‘The Definition of the Crime of Aggression for the Purpose of the International Criminal Court: Problems and Perspectives’, in 13 Journal of Conflict and Security Law (2008), issue 2, pp. 333–52, at 346–7.
24 Ibid., pp. 264–5, footnotes omitted. See also: S. Sayapin, ‘The Definition of the Crime of Aggression for the Purpose of the International Criminal Court: Problems and Perspectives’, supra note 23, at 347.
25 S. Sayapin, supra note 2, p. 265, footnotes omitted.
26 Ibid., p. 266, footnotes omitted. On the notion of belligerent occupation, see: Y. Dinstein, The International Law of Belligerent Occupation (Cambridge University Press, 2009), pp. 1–8
27 Ibid., p. 267, footnotes omitted, emphasis in the original.
28 See J. Crawford, Brownlie’s Principles of Public International Law, 8th edition (Oxford University Press, 2012), p. 203
29 See S. Sayapin, supra note 2, pp. 267–8, footnotes omitted.
30 Ibid., p. 268, footnotes omitted.
31 For the text, see: www.au.int/en/sites/default/files/treaties/7788-file-african_union_non_aggression_and_common_defence_pact.pdf (last accessed 3 June 2016)
32 See S. Sayapin, supra note 2, p. 269, footnotes omitted, emphasis in the original.
33 Ibid., pp. 269–270, footnotes omitted.
34 See Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), International Court of Justice, judgment of 27 June 1986, ICJ Reports (1986) 14, paras. 75–125, 187–209, 227–45.
35 See S. Sayapin, supra note 2, pp. 270–72, footnotes omitted, emphasis in the original.
36 For the status of ratifications of the Malabo Protocol, see: www.au.int/en/sites/default/files/treaties/7804-sl-protocol_on_amendments_to_the_protocol_on_the_statute_of_the_african_court_of_justice_and_human_rights_19.pdf (last accessed 4 June 2016)
37 See passim T. Murithi, ‘Between Political Justice and Judicial Politics: Charting a Way Forward for the African Union and the International Criminal Court’, in G. Werle, L. Fernandez and M. Vormbaum (eds.), Africa and the International Criminal Court (T. M. C. Asser Press, Springer, 2014), pp. 179–93.
38 For the status of ratifications of the Kampala amendments, see: http://crimeofaggression.info/the-role-of-states/status-of-ratification-and-implementation/ (last accessed 4 June 2016)
39 See S. Sayapin, supra note 2, pp. 207–22. See also S. Barriga, ‘The crime of aggression’, in M. Natarajan (ed.), International Crime and Justice (Cambridge University Press, 2011), pp. 329–34; G. Kemp, Individual Criminal Responsibility for the Crime of Aggression (Intersentia, 2010), p. 129; A. Reisinger Coracini, ‘Evaluating domestic legislation on the customary crime of aggression under the Rome Statute’s complementarity regime’, in C. Stahn, G. Sluiter (eds.), The Emerging Practice of the International Criminal Court (Leiden, Boston, 2009), pp. 725–54
This section examines the inclusion of transnational crimes within the jurisdiction of the Criminal Chamber of the African Court of Justice Peoples and Human Rights (hereinafter the African Court or Criminal Chamber as suits) by the Statute of the Court as amended by the Malabo Protocol (hereinafter the Statute). Under Article 28(A) of the Amended Statute the Court ‘shall have power to try persons for the crimes provided hereunder’ inter alia:
(4) Unconstitutional change of Government
(9) Money Laundering
(10) Trafficking in Persons
(11) Trafficking in Drugs
(12) Trafficking in Hazardous Wastes
(13) Illicit Exploitation of Natural Resources
If this potentially bold and distinctive expansion of jurisdiction leads to an establishment of a functioning court with an effective jurisdiction, the AU will have taken a major step beyond other regional measures such as the EU’s capacity to declare regional offences obliging member states to implement them or the quasi-criminal jurisdiction of the Inter-American court of Human Rights.1
This expansion arose out of the study by Donald Deya for a criminal chamber within the African Court commissioned by the AU and submitted in 2010.2 These transnational crimes were included within the amended draft ACJHR protocol released in 20113 and in the amended protocol adopted by the African Heads of States and Governments in Malabo, Equatorial Guinea, on 27 June 2014.
This chapter introduces some of the reasons for the expansion of jurisdiction, and some of the substantive, procedural and institutional problems that will need to be overcome to operationalise this new jurisdiction. It begins, however, with the nature of this jurisdiction.
Fortunately, the heated debate about the Chamber’s compatibility with the Rome Statute and the ICC’s jurisdiction is not relevant to assessment of this expansion because these transnational crimes were never included in the ICC’s jurisdiction4 and there is no issue of the Chamber being used to protect its leaders from prosecution for core international crimes before the ICC.5 The inclusion of these crimes within the jurisdiction of the African Court takes us back rather to the debate at Rome about the inclusion of certain treaty crimes within the jurisdiction of the ICC, and many of the arguments raised in regard to the appropriateness of developing international jurisdiction over treaty crimes remain pertinent to exploring what this expansion means and why it was undertaken.6
The transnational crimes inserted into the African Court’s jurisdiction are not international crimes in the strict sense of the word. Some are defined in existing AU instruments, some are from more general instruments, and some are sui generis. Some of these crimes are peculiar to Africa. Unconstitutional change of government, for example, is a major concern for Africa and while the African Charter on Democracy Election and Governance (ACDEG),7 adopted in 2013, obliges AU member States to ‘take legislative and regulatory measures to ensure that those who attempt to remove an elected government through unconstitutional means are dealt with in accordance with the law’, the Protocol creates an explicit regional international crime in this regard.8
The treaties that define certain of these actions merely create obligations on states to enact criminal offences in their domestic law. They are not actually crimes in international criminal law, but only in domestic criminal law.9 The possible exception to this is the status crime of mercenarism, because Article 3 of the UN Mercenaries Convention provides that someone who fits the definition of a mercenary ‘commits an offence for the purposes of this convention’. However, the Convention imposes legal obligations on States to take action under their domestic law and no international jurisdiction is provided for. If the specific UN or AU crime suppression conventions do not create these crimes, what does?
Interpreting the proposed jurisdiction of the African Court over the transnational crimes depends on how the Criminal Chamber’s transnational crimes jurisdiction is conceptualised: is it a stand-alone regional court exercising its own inherent jurisdiction over transnational crimes or is it a delegate of the States parties of the Protocol exercising their delegated jurisdiction. If it is the former then the Criminal Chamber (a) applies its own substantive crimes, (b) establishes its own jurisdiction and (c) applies its own procedures for cooperation, and it does not matter if the State party where the offence occurred has not established the crime, the jurisdiction, or the procedures. If it is the latter then the State party where the offence occurred will (a) have to establish the offence, (b) have to establish the jurisdiction, and (c) have to establish the procedure, before all of these can be delegated to the Court.10 Conceptually, the Court’s jurisdiction over transnational crimes fits more aptly into the extant global scheme of transnational cooperation against transnational crime if the Criminal Chamber is seen as the delegate of States parties, working within that system to suppress transnational crimes that until now have only been crimes in national law subject to multilateral obligations to cooperate and not as crimes applying individual criminal liability in international law. Yet that is not what the AU has done. Article 3 of the Protocol states that the Court is vested with original jurisdiction while Article 46E bis (1) says that States Party accept the jurisdiction of the court with respect to the crimes in the Statute. It thus seems clear that the Court has original jurisdiction over these crimes – it is, to coin a phrase, a stand-alone regional transnational criminal court. The complementarity provision Article 46H (1) states that ‘the jurisdiction of the Court shall be complementary to that of the national courts, and to that of regional economic communities where specifically provided for by the Communities’, which implies that the chamber is to function in regard to these crimes as to others in much the same fashion as the ICC does to States parties of the Rome Statute.
It is the Protocol that lists these crimes, defines them, and expressly provides that the Court shall have the power to try them. This is clarified by article 46B(1) which provides that ‘a person who commits an offence under this Statute shall be held individually responsible for this crime’ and which suggests that (a) the Statute itself creates these crimes, and (b) that given individual responsibility is being applied, the crime is by definition no longer just a transnational crime but is, at least within Africa, a regional international crime (i.e. a supra-national crime in the region, rather than just a crime in the domestic law of AU Member States). Du Plessis questions the law-making authority of the AU in this regard, noting that the AU’s Constitutive Act,11 and more specifically, article 4(h), only gives the AU power to take measures ‘to intervene in a member State’ in respect of the three categories of core international crimes: war crimes, genocide and crimes against humanity, but Nmehielle counters that there is nothing in these provisions limiting intervention to military action.12 Du Plessis’s argument in regard to Article 4(h) only bites if the Criminal Chamber’s jurisdiction over transnational crimes is regarded as fundamentally interventionist. Although they do not expressly sanction intervention, other principles of the AU Constitutional Act spelled out in Article 4 relate to this goal including the promotion of social justice, promotion of peace and security, human rights, democratic principles and primarily ‘the rule of law and good governance’.13 It would be more appropriate to consider the Criminal Chamber’s jurisdiction over transnational crimes as being more in line with the regime in transnational criminal law, by serving as a further venue to prosecute difficult cases with the cooperation of the territorial State. Article 3 of the Constitutive Act does provide for objectives of the promotion of a range of social goods by the Union and in article 3(d) the promotion of ‘common positions on issues of interest to the continent and its peoples’; the Protocol does promote a common position – regional prosecution – in regard to certain transnational crimes.
When transnational crimes are moved from a national to a regional jurisdiction that identifies a regional interest; it does not shift these crimes into the general international jurisdiction and, as of yet, there is no general support for doing so. In a sense the AU is more the agent of the State than of the international community in this regard. But in regionalising these crimes it is irreverently challenging the power balance that currently reflects the fact that international criminal law is generated by the international community and transnational criminal law is generated by certain influential states and regions, that in essence it reflects the interest of one State in pursuing individuals who break its laws transnationally. The AU is taking up that interest, on behalf of States within the region. Why is it doing so?
This expansion appears to have been undertaken for various reasons.14
First, out of regional interest.15 It was felt necessary to enable Africa to prosecute these crimes like terrorism committed by non-state actors because they are of particular resonance to Africa. One potential group of accused are members of African political and economic elites allegedly involved in transnational crimes who enjoy relative impunity in their own States. The Court may serve to avoid prosecution of African leaders abroad by dealing with these matters in Africa. Commentators have noted the negative reaction in Africa to a French Court’s issue of indictments for corruption against five serving African presidents in 2009.16 The enthusiasm of African states for criminal prosecutions of these individuals before the Court has, however, been questioned.17 Yet there are few prosecutions in foreign courts of transnational crimes committed by African leaders. African nationals do, however, engage in transnational criminal activity both in African and abroad. Nigerian drug trafficking organisations have, for example, proliferated globally.18 Foreign nationals engage in trafficking of all kinds in Africa, through Africa, and from Africa. It is more likely that there will be pressure to use the Criminal Chamber to resolve problems of capacity in African states in regard to a swathe of offences of a transnational nature. The temptation of international criminal justice is that it will provide a forum to resolve this problem of incapacity but the Criminal Chamber neither can nor, it is submitted, should it in regard to all but the most serious offences of concern to Africa.
Second, in order to remove impunity from corporations operating in Africa that engage in criminal conduct.19 Africa’s unsatisfactory experience of the implication of corporate entities in certain exploitative crimes that impact negatively in Africa is clearly at the heart of the expansion.
Third, because of inter-African difficulties in cooperation. It is clear that States within Africa are worried about transnational crimes and the political difficulties of extradition. They seek a neutral non-State venue for prosecution (which is very similar to CARICOM’s motivation for expanding the jurisdiction of the ICC over transnational crimes).20 The AU has not, however, backed CARICOM’s efforts to expand the jurisdiction of the ICC because it is not a party to the Rome Statute, and because it feels that the Rome Statute does not entirely fill this field of normative endeavour.
Fourth, because of AU legislative activity or pronouncement in regard to the particular crime. Nevertheless, the list is not comprehensive. It omits for example, trafficking in small arms, smuggling of migrants, and the illegal trade in wildlife, all major transnational crimes and subjects of concern for the AU.21 It also omits participation in an organised criminal group, the key offence in the UN Convention against Transnational Organised Crime,22 to which every African State is a party except Somalia and the Republic of the Congo.23
Fighting impunity is the overall goal24 of including these crimes within the jurisdiction of the Criminal Chamber. The other goals set out in the preamble relevant to this expansion of jurisdiction do suggest a concern with the maintenance of legitimate internal sovereignty of African States and defence of social and individual rights. The relevant goals include the following: ‘respect for democratic principles, human and people’s rights, the rule of law and good governance’; ‘respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities’; and ‘to promote sustained peace, security and stability on the Continent and to promote justice and human and peoples’ rights as an aspect of their efforts to promote the objectives of the political and socio-economic integration and development of the Continent’.25 While these goals are sufficiently general to justify the enactment of these crimes, they do not cover the goals of specific offences. Where, for example, is respect for the environment which underlies the trafficking in hazardous waste offence? Commenting more generally Du Plessis notes that these crimes will force the Chamber to tackle ‘a raft of … social ills that plague the continent’.26 This is but one of a number of potential difficulties with this expansion.
4. Contextual Factors Applicable to all Transnational Crimes within the Jurisdiction of the Criminal Chamber which may Complicate their Application
A. The Importance of Not Undermining Existing Treaty Regimes for the Suppression of Transnational Crime
The definitions of many of the transnational crimes are drawn from the criminal provisions in treaties that are central to different ‘prohibition regimes’ in transnational criminal law. While there are some variations in the definition of crimes between regional and global suppression conventions, on the whole there is a remarkable degree of consistency. These ‘crimes’ serve as conditions for the operation of prohibition regimes that serve as bridges for cooperation between States and are the focus of institutional development around the world, of legal practice, and of expertise. African states play an important part in these regimes. The elevation of these transnational crimes to the status of a regional crime in the jurisdiction of the African Court raises the potential difficulty of ‘fit’ with these existing regimes, which will have to be assessed in regard to each crime. The definition of piracy in Article 28F, for example, is drawn almost verbatim from Article 101 of the 1982 UN Convention on the Law of the Sea.27 Some of the originating instruments are AU instruments. The definition of terrorism in Article 28 G subparagraph (A) and (B), for example, is drawn from the definition in Article 1(3) of the OAU Convention on the Prevention and Combatting of Terrorism.28 One problem may be that if the definitions of these offences in the Amended Statute differ from those in the suppression conventions, they will pull African states in conflicting directions when it comes to enacting these offences in their domestic law. The African Court should try to avoid this outcome by attempting through its interpretation of provisions to reinforce these prohibition regimes, not undermine them. For example, one element contained in the rubric of the definition of money laundering in the UN’s suppression conventions which is absent from the definition of money laundering in Article 28 I Bis of the Statute of the Court is the requirement that the actions criminalised be done ‘intentionally’. The Court is thus free to impose this subjective test, or apply more stringent tests sometimes followed in national law in some States parties including negligence based money laundering. If it does so it will be increasing the scope of criminalisation, creating a problem of legality if the case originates in a territory of a State which only requires intention. To some extent this reflects the lowest common denominator nature of the provisions in the suppression conventions. It will be important for the Court to conform its position to the law of the territorial State or face challenges.
A particular legal problem is that the provision describes certain regulatory crimes but does not provide the standard of legal behaviour from which that criminal behaviour deviates. So, there are legal ways to supply drugs or off-load waste or deal in natural resources and these ways are partly set out in certain international instruments. However, these are promises by States to other States, not international custom. The actual guidance for individual’s on how to regulate their behaviour are set out in the national law of States parties to these instruments. It follows that if an individual is to be prosecuted before the Criminal Chamber for the violation of, for example, the correct way of disposing of waste, regulation of the correct way of disposing of waste will have to have been made in national law of the jurisdiction where it occurs as a pre-condition for that prosecution. If not – there will be no crime. Reliance on a regional instrument to provide the correct way for doing so would be in violation of the principle of legality because those regional instruments may never have been applied in the territory where the disposal was carried out. National legislation will be necessary to provide the yardstick and to be effective it will have to be available in every state. This implies that the AU will have to undertake an exercise in positive complementarity regarding the regulatory standards which these crimes violate.
Several of the crimes listed in the amended Statute are either not crimes or defined differently in the domestic law of African states. This necessitates an exercise in positive complementarity to ensure the legislative enactment of appropriate offences in African states to enable them to cooperate with the criminal chamber.29 Arguably they are required to do so when becoming party because the Protocol creates offences. The jurisdictional expansion at national level over these crimes will also be necessary to ensure fair warning to potential violators and State cooperation with the Court. It seems that this is not entirely what the drafters of the Protocol had in mind, however. In article 28G’s definition of terrorism they include the requirement that the act must violate, in addition to the laws of a ‘State Party’ (to the Protocol one assumes), the law of the AU itself, or a regional economic organisation recognised by the AU, or international law generally. This suggests that one of the goals of the AU’s new jurisdiction is to have a court for the prosecution of these crimes where currently there is none. The notion that terrorism is an international crime, a notion that has been propagated by the Special Tribunal for Lebanon, is highly controversial and rejected by most commentators.30 Its status as a regional African crime depends not on the OAU Convention on the Prevention and Combatting of Terrorism,31 which simply provides in article 2(1) for an obligation on States Parties to criminalise terrorism in their national law, but on article 28 of the Statute of the Court. Prosecution in the Criminal Chamber that relies on the regional proscription in the absence of a national proscription of the conduct raises fundamental issue of legality and of notice certain to spawn human rights challenges (possibly even within the human rights jurisdiction of the Court itself). Even if the Criminal Chamber is only used for symbolic prosecution of carefully selected cases, it would be unreasonable to assume that individuals that fall into its jurisdiction will know that the Protocol has promulgated certain crimes that apply to them in the Statute of the Court.
The most significant problem raised by the inclusion of transnational crimes within the Court’s jurisdiction is that no court can hope to cope with prosecution of a large number of cases of these crimes, the vast majority of which are likely to be trivial. This ‘gravity threshold problem’ is really two problems.
First, the Protocol does not indicate at which stage in the procedure this threshold should be set and managed. Perhaps the most appropriate way of applying such threshold criteria would be through prosecutorial discretion (whether cases are taken up by the prosecutor, by authorised AU organs or submitted by AU member states or individuals or NGOS within those states).32 The Court also has the power to decide whether a crime is of ‘sufficient gravity’ to justify admissibility under Article 46 H (2)(d), and to exclude it if a crime is not sufficiently grave.
Second, the Protocol does not provide criteria to set this threshold. For a court with a limited capacity there must be further conditions. It is a problem to which the International Law Commission’s scheme for inclusion of the treaty crimes within the jurisdiction of the then proposed ICC was alive, when it recommended that they had to reach a threshold of seriousness in order to fall under the ICC’s jurisdiction.33 How serious a breach is enough for the Court to take it up? That has to be tied back to the Court’s goals of fighting impunity and promoting justice and stability. There is little about the definitions of the crimes that is of assistance in establishing such a threshold.
|mercenarism||low||armed conflict/threat to order|
|corruption||high||crime must be of a ‘serious nature affecting the stability of a state, region or the Union’|
|money laundering||high||Court has power ‘to make a determination as to the seriousness of any act or offence.’|
|transboundary waste||low-moderate||transboundary nature|
|illicit exploitation of natural resources||moderate||crime must be of a ‘serious nature affecting the stability of a state, region or the Union’|
Some of these crimes are morally repugnant (human trafficking), but they are not of equal moral repugnance (drug trafficking). The activities themselves are varied although they can be roughly broken down into activities motivated mainly by corporate or individual monetary gain (piracy, mercenarism, corruption, money laundering, people trafficking, drug trafficking, hazardous waste trafficking, illicit exploitation of natural resources) and by attacks on the State and its constitutional order (terrorism, mercenarism, corruption), although as we can see some crimes fit into both categories. Gravity is not an intrinsic element in the way these offences are defined. The amplificatory elements in the core international crimes – systematic and scope in the definitions of crime against humanity, the presence of an armed conflict in the definition of war crimes, the genocidal intent in genocide – are absent. It has thus been questioned whether the transnational crimes ‘meet the definition of “most serious crimes of concern to the international community” as understood by Article 5(1) of the Rome Statute.’34 Although these crimes do cause serious social effects, these negative effects are usually the result of the aggregated social harm of large numbers of individual relatively low impact offences rather than of large scale individual offences. Nor does the nature of the victim assist much. While the core international crimes protect individuals from their own cancerous State and State like entities, transnational crimes protect the State and its citizens from other citizens. Some deal with direct harms to individuals, some with harms of an economic kind, some with harms to the State, some with harms to governance, some with harms to resources, and some with harms to the environment.
Taking only the ‘worst’ cases is desirable because these in penal theory terms have the greatest deterrent and retributive value. A purely empirical comparative measure is probably impossible because the data to make such a relative judgment is simply not available in Africa. There may also be a need in specific cases for the expressive message of fighting impunity to make an example of someone in order to coax the relevant justice system into greater activity. The challenge is to find a suitable general threshold that will enable the court to take into account issues like the socio-economic harm apparently done by the crime, as well as the need for making an exemplary judgment in cases which may not on an absolute scale be among the worst but which are relatively harmful because of, for example, the complete lack of prosecution of such crimes in a State, sub–region or in Africa as a whole. The empirical nature of these offences do, however, suggest a numbers of criteria which loosely applied can serve as criteria for a gravity threshold:
(i) Crimes that ‘pose a threat to the peace, order and security of a region’ for the reasons listed above or for other reasons may be considered for prosecution.35 The formula used in some of the crimes in article 28, seems apt: Whether the crime is ‘sufficiently serious to affect the stability of a State, region or the Union’.
(ii) Many of these activities have a higher impact when they involve cross-border activity or effects as they involve the interests of different States, different communities. They involve problems of extraterritoriality that provide a reasonable basis for regional concern, and problems of international cooperation to which the Court’s jurisdiction might provide a practical solution. Following the definition of ‘transnational’ in article 3(2) of the UN Convention against Transnational Organized Crime36 (UNTOC), seriousness would be indicated by activity that (a) is committed in more than one State; (b) is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State; (c) is committed in one State but involves an organised criminal group that engages in criminal activities in more than one State; or (d) is committed in one State but has substantial effects in another State.
(iii) The commission of many of these offences requires organisation involving cooperation amongst networks of individuals, sometimes in a transnational context. This organisation provides a multiplier effect justifying a regional response. It facilitates the commission of offences otherwise not possible and increases the harmful social or political impact they have because of the impact on scale and scope. Some guidance on the number of individuals involved, the length of time, the nature of their relationship, and their purpose can be obtained from the definition in article 2(a) of the UNTOC of an ‘organised criminal group’ as ‘a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences … in order to obtain, directly or indirectly, a financial or other material benefit’. A ‘structured group’ is further defined in article 2(c) as a ‘group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure’. A corporation can be one of the persons involved in such organisation given that Article 46 C provides for corporate criminal liability.
(iv) The definition of serious crime in article 2(b) of the UNTOC as the availability of a maximum punishment of at least four years or more deprivation of liberty at national law in the national jurisdiction where it has occurred may provide some guidance as to what kinds of transnational crime are considered serious but should not be seen as a rigid standard because of the possibility that national law may be unreformed and penalties low for what is regionally considered a serious crime. Moreover, other purely national legal indications of seriousness should if available be taken as a guide.
(v) Serious harm in individual cases may depend on specific considerations like the large volume and value of material involved, the tenure of the activities, their complexity, the size of profits, the potential number of victims and the vulnerability of victims, the presence of violence, corruption or abuse of public office, all of which can lead to higher potential social or political impact. In essence, these elements suggest a quantitative and qualitative assessment from the victim’s perspective.
(vi) Some decisions of the ICC’s interpreting the Rome Statute’s37 threshold for seriousness suggest that role and position (high rank) of the alleged offenders is a crucial factor when assessing gravity38 and can transform a trivial crime into a serious crime,39 while others40 have rejected reliance on the perpetrator’s status. It is submitted that in transnational crimes the identity of the perpetrator is a relevant consideration.
The occurrence of these criteria in regard to a specific crime could be used to assess promotion of that crime into the jurisdiction of the Court as anticipated by article 28 A (2). The presence of all these criteria should not, however, necessarily be required; a nuanced assessment of the case may require only one or a selection to exist before prosecution is justified.
The transnational crime suppression conventions usually provide for modes of responsibility as a perpetrator in the definition of the offence itself and do not single out this mode of responsibility in a specific provision. They do usually, however, provide for details regarding different appropriate forms of secondary responsibility. For example, article 27 of the UN Convention against Corruption41, entitled ‘Participation and Attempt’, provides in paragraph one for criminalisation in national law of ‘participation in any capacity such as an accomplice, assistant or instigator’ of a Convention offence, in paragraph two for the optional criminalisation in domestic law of ‘any attempt to commit a’ Convention offence, and in in paragraph three for the optional criminalisation in national law of ‘the preparation for a’ Convention offence. The Statue of the African Court uses a single consolidated provision, for both core international crimes and transnational crimes, Article 28 N, entitled ‘modes of responsibility’ which provides:
i. Incites, instigates, organises, directs, facilitates, finances, counsels or participates as a principal, co-principal, agent or accomplice in any of the offences set forth in the present Statute;
ii. Aids or abets the commission of any of the offences set forth in the present Statute;
iii. Is an accessory before or after the fact or in any other manner participates in a collaboration or conspiracy to commit any of the offences set forth in the present Statute;
iv. Attempts to commit any of the offences set forth in the present Statute.
Some of these modes in article 28N such as liability as a co-principal, developed in regard to the core international crimes by the ICC, are unknown in the language of the suppression conventions. Some of these modes such as conspiracy are drawn from the common law and are usually subject to some form of compatibility with basic law provision, if they are included at all, in a suppression convention. In result the Statue of the Court expands the scope of these offences. It may be difficult to reconcile some of the general modes with the specific modes internal to the crimes as defined in the suppression conventions or in Statute of the African Court itself. Article 28N should thus be considered the general provision on modes of responsibility. It covers many of the modes likely to be found in suppression conventions but not all. Taking the example of the UNCAC, it does not cover the specific mode of ‘preparation’. In a case where preparation was a possible charge at the national level but not in the Criminal Chamber, the prosecution cannot put that charge because it does not enjoy that substantive jurisdiction but would have to formulate it as an attempt if possible or abandon it. The same reasoning applies to the criminalisation of modes of responsibility such as ‘sheltering’ a mercenary in the OAU Convention for the Elimination of on Mercenarism in Africa;42 its status as an OAU Convention does not expand the jurisdiction of the court because neither the Convention nor the Statute of the Court reveal such an intention, although the specific modes of participation such as ‘sheltering, organising, equipping, promoting, supporting or employing mercenaries’ may assist in the interpretation of broad modes of participation mentioned in article 28N such as ‘facilitation’. Article 28N does cover many of the modes found in the Statute’s definitions of the crimes themselves.
|Crime||Modes of responsibility covered by article 28N||Modes of responsibility not covered by article 28N|
|piracy||(voluntary) participation, incitement, (intentional) facilitation||none|
|terrorism||aid, incitement, encouragement (abet), attempt, conspiracy, organising||promotion, sponsoring, contribution to, command, threat, procurement|
|mercenarism||participation (direct), finances||recruits, uses, trains|
|corruption||participation in any of the defined corrupt activities suffices for liability||none|
|money laundering||participation, conspiracy, attempts, aiding, abetting, facilitating, counselling||association with|
|human trafficking||participation in any of the defined human trafficking activities suffices for liability||none|
|drug trafficking||participation in any of the defined drug trafficking and cultivation activities suffices for liability||none|
|transboundary waste||participation in any of the defined hazardous waste trafficking activities suffices for liability||none|
|illicit exploitation of natural resources||participation in any of the defined exploitation of natural resource activities suffices for liability|
Sometimes, however, the mode of responsibility internal to the crime is more specific. Article 28 F criminalises ‘voluntary participation’ and ‘intentional facilitation’ while article 28N speaks only of ‘participation’ and ‘facilitation’. Generally speaking, following the rule lex specialis derogat lex generalis it would not be open to put a charge of, for example, reckless facilitation based on article 28N when article 28F specifically required mens rea in the form of intention. Article 28 N does not cover some modes of responsibility covered in the specific definitions of the crimes. For example, it does not cover the ‘promotion’ of terrorism under article 28GB, an inchoate offence that considerably broadens the scope of criminal liability. However, given the specific mention of this mode in the Statute the lex specialis rule means that that it was the intention of the States parties to expand the subject matter jurisdiction of the Court to include promotion of terrorism. It follows that the prosecutor would be entitled to put a charge of promotion of terrorism and would not be barred from doing so because of the failure to mention this form in the general provision for modes of responsibility in article 28N. The same reasoning applies to all the definitions that provide for specific internal modes of responsibility additional to those in article 28N.
The suppression conventions are notoriously vague on sentencing, leaving the fixing of penalties to States because it is such a sensitive issue. Where they do make provision, early treaties tend to call for the application of severe penalties, later treaties penalties in proportion to the gravity of offences, while some treaties such as the UN Drug Trafficking Convention, list aggravating factors which suggests a range of penalties from the trivial to severe.43 State practice varies widely.
|Crime||Penalty provisions from suppression conventions||Penalty provisions in state practice|
|piracy||UNCLOS leaves it to national courts ‘to decide upon the penalties to be imposed’.44||Heavy terms of imprisonment rising to life;45 sometimes death.46|
|terrorism||OAU Convention requires punishment ‘by appropriate penalties that take into account the grave nature of such offence’.47||Heavy terms of imprisonment depending on the activity;48 sometimes death.49|
|mercenarism||OAU Convention requires punishment as a crime against peace50 and makes the assumption of command an aggravating circumstance.51||Heavy terms of imprisonment have been applied and so has the death penalty.52|
|corruption||OAU Convention gives no guidance as to tariffs.||Practice varies widely with the use of the full range of penalties including fines, forfeiture, and imprisonment up to life.53|
|money laundering||UNCAC requires adequate punishment or punishment that takes into account the gravity of the offence.||Range of penalties for different levels of offences with heavy maximum fines and heavy terms of imprisonment for more serious forms.54 Provision for confiscation is usually made.|
|human trafficking||Human Trafficking Protocol makes no provision for penalties; suggests denying or revoking a convicted trafficker’s entry visas.55 UNTOC provisions that criminal sanctions should be proportionate to the gravity of the offence and should be taken into account for parole, apply mutatis mutandis.||Range of penalties for different levels of offences are available including fines. Heavy maximum penalties are available when the victims are physically harmed.56|
|drug trafficking||The drug conventions emphasise proportionality although the 1988 Convention emphasises that this should be at the severe end of the scale.||The range of penalties which include imprisonment and fines57 varies and frequently extends to heavy punishments including life.58 Some AU members apply the death penalty for drug trafficking.59|
|transboundary waste||Bamako Convention does not provide guidance in regard to penalties.||Where national law exists, penalties are low and consist of fines and imprisonment.60|
|illicit exploitation of natural resources||ICGLR 2006 Protocol against the Illegal Exploitation of the Natural Resources provides for imposition of ‘effective and deterrent sanctions commensurate with the offence of illegal exploitation … including imprisonment…’ It also provides for ‘effective and deterrent sanctions and proportionate criminal or non-criminal sanctions including pecuniary sanctions’ against corporate bodies.61||Penalties are low or non-existent; where they do exist, low penalties are often imposed.62|
Under the Statute of the Court, Article 43 A (2) provides that the Court may only impose fines and/or penalties of imprisonment (something important for corporate criminal liability), while Article 43 A (4) provides that the Court should take into account factors such as the gravity of the offence and the individual circumstances of the accused person. The Statute is silent on aggravating factors, which should be developed by the Court itself in a subordinate instrument. It is also silent on post-sentencing procedures like parole and the possibility of prisoner transfer to the State of origin; again, the Court will have to develop these in a subordinate instrument. Under Article 43A (5) ‘the Court may order the forfeiture of any property, proceeds or any asset acquired unlawfully or by criminal conduct, and their return to their rightful owner or to an appropriate Member State.’ This appears to make criminal confiscation (in personam) available to the Court, and implies a power to take preliminary measures to trace, freeze and seize assets. It is not clear whether civil forfeiture (in rem) or value transfer procedures (where the Court makes an estimation of unlawful profit by the accused and confiscates that amount), are available. Article 46J Bis (2) notes that if a State Party is ‘unable to give effect to a forfeiture order it shall take measures to recover the value of the proceeds, property or profits ordered by the Court to be forfeited’, which suggests that value confiscation is available. Under Article 45, restitutionary measures to victims are left to the Rules which will have to consider some of the detailed provisions in this regard in suppression conventions, but Article 45(4) provides expressly that no rights are prejudiced by this provision.
The jurisdiction of the Court is laid down in Article 46 E Bis (2) as follows:
2. The Court may exercise its jurisdiction if one or more of the following conditions apply:
(i) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft.
(ii) The State of which the person accused of the crime is a national.
(iii) When the victim of the crime is a national of that State.
(iv) Extraterritorial acts by non-nationals which threaten a vital interest of that State.
The language is slightly muddled but it appears to mean the Court will have jurisdiction if the crime occurs on the territory of an AU Member State or upon a vessel or aircraft registered with an AU Member State (territoriality and ship and aircraft jurisdiction), or if the accused is a national of an AU Member State (nationality jurisdiction), or if the victim is an AU Member State (passive personality jurisdiction), or if the accused are non-nationals who threaten a vital interest of the State from outside its territory (protective jurisdiction). Establishing territorial jurisdiction is a standard obligation in suppression conventions.63 Establishing nationality jurisdiction is almost always a permissive provision in suppression conventions (but commonly extended to habitual residence). Establishing passive personality jurisdiction is limited to anti-terrorism conventions, and again is permissive. The protective jurisdiction may line up with similar but again permissive principles in suppression conventions.
Arguably the African states which have established these different forms of jurisdiction may delegate it to the African Court. It appears, however, that as the African Court enjoys original jurisdiction it will not matter as a strict question of law in the Criminal Chamber if some African states have not adopted these extraterritorial forms of jurisdiction. However, it may lead to arguments based on legality. Moreover, it will become practically problematic if the Court seeks the assistance of the relevant state in the arrest of accused persons and they do not have criminal jurisdiction over those persons. Territoriality is not the issue; it is nationality, passive personality and the protective jurisdiction. Many States do not take these permissive options; to align themselves with the African Court they are going to have to. Article 46 E Bis (2) does not mention the duty generally included in crime suppression conventions to extradite or prosecute, which implies a legal obligation to establish jurisdiction when extradition is not granted. It raises the question of whether an AU Member State on whose territory an alleged transnational criminal is found but refuses to extradite them, will (i) meets its obligations under a suppression convention if it does hand them over to the African Court, and (ii) whether the African Court will lawfully have jurisdiction.
In general, however, the principles enumerated in Article 46 E Bis (2) potentially give it a broad jurisdiction over individuals located in and outside of the AU. Any legal incompatibility of the Court’s jurisdiction with the jurisdiction of AU members will be avoided if they have all enacted the relevant offences and subject them to these jurisdictions. This is what is implied by the provision in Article 46H (1) that the ‘jurisdiction of the Court shall be complementary to that of national courts as well as Regional Economic Communities where specifically provided for by those Communities’. The Court´s jurisdiction cannot complement a State Party´s non-existent jurisdiction over the crime. This view is reinforced in the detail of Article 46H (2), which grounds admissibility on extant investigation or prosecution, decisions not to do so, double jeopardy, and in Article 46H (3), which is about the quality of national proceedings (shielding, delay, lack of independence), and in Article 46H (4), which is concerned with the state of the domestic criminal justice system, all of which imply the State in question has already enacted the same offence with the same jurisdiction. The difficulty will be exercising extraterritorial jurisdiction over individuals in non-African states who are alleged to be responsible for offering bribes, supplying drugs, trafficking humans, dumping waste etcetera in Africa. The foreign State may have a legal relationship with the territorial African State, and the African State may have a relationship with the African Court, but the foreign State will not (yet) have a legal relationship with the African Court.
Immunity to jurisdiction is of obvious relevance to transnational crimes potentially committed by the holders of senior government offices, such as corruption. If immunity is removed for office bearers there is an incentive to retain office.64 The new immunity provision in Article 46Ab is provides:
No charges shall be commenced or continued before the Court against any serving AU Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.
Under international law immunity ratione personae and immunity ratione materiae shield the prosecution of one State’s officials in another State’s criminal jurisdiction.65 Placing the listed transnational crimes in the jurisdiction of what is in effect a regional international criminal court will remove immunity both of a material and personal kind for these crimes.66 The usual immunities available for transnational crimes including diplomatic immunity, the immunity of officials from IGOs and the immunity of officials under domestic law67 will be removed because of the change of status of these crimes, although only in Africa. Article 46 A Bis, however, modifies general international law and grants some of what is removed back again by reinstating personal immunity, at least while in office.68
Unlike the system of transnational criminal law, where substantive criminalisation is only a necessary condition for elaborate procedural cooperation by States, the Statute embraces criminalisation in order to establish its jurisdiction. The Statute condenses the complex and pluralistic procedural regimes in the suppression conventions into a few relatively short provisions.
Processing transnational crimes raises a number of specific issues, all of which will require activity by the Court through the adopting of subordinate instruments and the necessity of national legislation. Sub-regional instruments such as those promulgated for purposes of mutual legal assistance by SADEC, ECOWAS, and the Francophonie States may come in useful if some way of utilising them can be worked out. It would be an advantage for the AU to adopt its own mutual legal assistance and extradition instruments, with the role of the Court built into them.
The early phases of investigation of many of these offences will require the use of intelligence led policing techniques, and in particular covert policing activities such as undercover policing and electronic surveillance. At the same time to avoid challenge in the Court it will require the protection of the human rights of those subject to these processes to ensure that evidential material is properly obtained. As the case progresses, stronger legal powers will be required. To respond adequately to a transnational crime like drug trafficking, for example, the pre-trial chamber, trial chamber and appeal chamber envisaged in article 16 will have to be able to exercise all the usual powers to summons drug traffickers, subpoena witnesses, etcetera. Under Article 46 L AU Member States are obliged to cooperate in the provision and the modes of assistance are spelled out. Under Article 46 L (3) the Court is permitted to seek help from non-member states and to conclude agreements to that end. Such agreements will be necessary to ensure effectiveness when the OTP approaches the Pre-Trial Chamber for orders and warrants, for example, under Article 19bis (2), to be applied to individuals outside the AU. Difficult situations will also arise in regard to AU Member States in regard to the Trial Chamber’s power under Article 22(A)(7) to questions suspects, victims and witnesses and collect evidence, engage in inspections in loco, if the particular State loci delicti has not enacted the particular crime because their own law enforcers will not have that power. The Court cannot rely on the provisions in the suppression conventions to compel assistance from non-AU States because it is not party to these conventions (the AU could sign some of them but could only operate as a party if its Constituent Act made it clear it had the competence to do so on behalf of its members as with the various EU treaties). More ambitiously, the AU could consider actually acceding to the UNTOC,69 in order to access its procedural cooperation machinery. It would be obliged to declare its level of competence with respect to the matters governed by the Convention when doing so,70 but by adopting jurisdiction over these offences in the African Court the AU’s level of competence would be significant. The AU Secretariat could then approach the UNTOC Secretariat, the UNODC, to coordinate activities (and the UNODC is obliged to do so).71 It could then approach the UNTOC Conference of Parties, which is charged with promoting and reviewing the Convention and doing so in cooperation with regional organisations,72 to work out how best to make the cooperation machinery in the Convention available to the Court (particularly important for the Courts work with non-AU members).
The prosecutors and judges will have to have the skill set of a successful transnational criminal lawyer, and in particular familiarity with the modus operandi used by traffickers and the different law enforcement issues involved. Article 22(5) provides that the prosecutors have to be ‘highly competent in and have extensive practical experience in the conduct of investigations, trial and prosecution of criminal cases.’ Article 22C(4) envisages a Principal Defender with experience in domestic or international criminal law; again, this must extend to transnational crime. Article 3(4) provides that judges must be expert in inter alia ‘international criminal law’. Questions have already been raised about their expertise in international criminal law.73 Again, they will also have to be expert in transnational criminal law.
Commentators have raised questions about the funding of this increase in jurisdiction.74 The ambitious jurisdictional reach has the potential to dilute the funds made available75 so that prosecutions of crimes that are arguably more important such as genocide or crimes against humanity will be underfunded. And then there is the cost of incarceration. Some funding may come from shares of asset forfeiture. Another way of funding the court’s expansive jurisdiction over transnational crimes would be to franchise that jurisdiction. In this model a particular member state of the AU could, if it felt it necessary to transfer prosecution of, for example, a corruption case, out of its territory into the Court to avoid domestic pressure on the Court, be asked to pay for that prosecution and all punishment costs. To take this idea even further, it might be possible to make provision for subsidised sponsorship of the particular trial by foreign donors where they felt it was generally in their interest, and extradition was not forthcoming.
The Statute of AU Court as supplemented by the Malabo Protocol has created a stand-alone regional transnational criminal court. It has a path-breaking jurisdiction over a number of transnational crimes that were formerly only the subject of treaty obligations on States parties under various crime suppression conventions to establish national criminal offences. This novel jurisdiction presents an opportunity for the region to address impunity for these offences. The two challenges the Court faces are both surmountable: to establish a high threshold for admissibility of cases so that only the most serious are addressed by the Court; and to establish a workable system for the policing and prosecution of these offences involving cooperation with States both within and without Africa. If these challenges can be met, the Court will be in a position to make an entirely unique contribution to the suppression of these selected transnational crimes within the region, and to develop a model which other regions which face similar threats might follow.
This work was completed while the author was a visiting scholar at the University of Hamburg, funded by the receipt of a Friedrich Wilhelm Bessel Prize from the Alexander von Humboldt Foundation. My thanks to my host, Professor Florian Jessberger (University of Hamburg), and to the Humboldt Foundation, for their generosity.
1 The World Federalist movement is campaigning for a Regional Criminal Court for Latin America.
2 AU, Legal/ACJHR-PAP/4(II) Rev.2.
3 AU, Legal/ACJHR-PAP/4(II) Rev.5, Art. 14 (13 November 2011).
4 C. Bhoke Murungu, ‘Towards a Criminal Chamber in the African Court of Justice and Human Rights’, 9 Journal of International Criminal Justice (2011) 1067, at 1069–70.
5 A common criticism – see ibid.
6 See generally, N. Boister, ‘The Exclusion of Treaty Crimes from the Jurisdiction of the Proposed International Criminal Court: Law, Pragmatism, Politics’, 3 Journal of Armed Conflict Law (1998) 27; D. Robinson, ‘The Missing Crimes’, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) 497, at 498. For general comment on the relationship between international and transnational crimes in the Protocol see C. Jalloh, ‘The Nature of the Crimes in the African Criminal Court’, 15 Journal of International Criminal Justice (2017) 799.
7 Assembly/AU/Dec.147 (VIII) (2007).
8 See A. Abass, ‘Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges’, 24(3) European Journal of International Law (2013) 933–46, at 939.
9 M. Du Plessis, ‘Implications of the AU Decision to Give the African Court’s Jurisdiction over International Crimes’, 235 Institute for Security Studies Paper (June 2012) 1, at 7, notes that they ‘are not yet fixed in in the international criminal law firmament.’
10 See generally N. Boister, ‘Treaty Crimes, International Criminal Court?’, 12(3) New Criminal Law Review (2009) 341–65.
11 1 July 2000.
12 M. Du Plessis, ‘Implications of the AU Decision to Give the African Court’s Jurisdiction over International Crimes’, No. 235 Institute for Security Studies Paper (June 2012) 1, at 8; V. O. Nmehielle, ‘“Saddling” the New African Regional Human Rights Court with International Jurisdiction: Innovative, Obstructive, Expedient?’, 7(1) African Journal of Legal Studies (2014) 7, at 28.
13 Art. 4(m).
14 See V. O. Nmehielle, ‘“Saddling” the New African Regional Human Rights Court with International Jurisdiction: Innovative, Obstructive, Expedient?’, 7(1) African Journal of Legal Studies (2014) 7–42.
15 P. Manirakiza, ‘The Case for an African Criminal Court to Prosecute International Crimes Committed in Africa’, in V.O. Nmehielle (ed.), Africa and the Future of International Criminal Justice (The Hague: Eleven International Publishers, 2012) 375, at 394.
16 C. Bhoke Murungu, ‘Towards a Criminal Chamber in the African Court of Justice and Human Rights’, 9 Journal of International Criminal Justice (2011) 1067, at 1069–70.
17 M. Du Plessis, ‘Implications of the AU Decision to Give the African Court’s Jurisdiction over International Crimes’, No. 235 Institute for Security Studies Paper (June 2012) 1, at 2.
18 See, for example, P. Williams, ‘Nigerian Criminal Organizations’, in P. Letizia (ed.), The Oxford Handbook of Organized Crime (Oxford: Oxford University Press, 2014) 254, at 255 et seq.
19 See V. O. Nmehielle, ‘“Saddling” the New African Regional Human Rights Court with International Jurisdiction: Innovative, Obstructive, Expedient?’, 7(1) African Journal of Legal Studies (2014) 7, at 30.
20 See the discussion in N. Boister, ‘Treaty Crimes, International Criminal Court?’, 12(3) New Criminal Law Review (2009) 341–65.
21 See, for example, Action Plan for the Implementation of the African Union Strategy for the Control of Illicit Proliferation, Circulation and Trafficking of Small Arms and Light Weapons; The Migration Policy Framework for Africa, 2006; African Union Decision on Illegal trade in Wildlife, AU Doc. EX.CL/Dec.832(XXV).
22 15 November 2000, 2225 UNTS 209, in force 29 September 2003.
23 Status of Ratification, 1 June 2016.
24 Preamble paragraph 11.
25 Preamble paragraphs 9, 10 and 12 respectively.
26 M. Du Plessis, ‘Implications of the AU Decision to Give the African Court’s Jurisdiction over International Crimes’, 235 Institute for Security Studies Paper (June 2012) 1, at 6.
27 Montego Bay, 10 December 1982, 1833 UNTS 3, in force 6 November 1994.
28 Adopted at Algiers, 14 July 1999; in force 6 December 2002.
29 M. Du Plessis, ‘Implications of the AU Decision to Give the African Court’s Jurisdiction over International Crimes’, No. 235 Institute for Security Studies Paper (June 2012) 1, at 10.
30 See B. Saul, ‘Legislating from a Radical Hague: The United Nations Special Tribunal for Lebanon Invents an International Crime of Transnational Terrorism’, 24 Leiden Journal of International Law (2011) 677.
31 Adopted at Algiers, 14 July 1999; in force 6 December 2002.
32 Art. 29 of the Statute as amended by Art. 15 of the Protocol.
33 ‘Report of the ILC, 45th session’ UNGAOR 48th Sess. Supp. No. 10 UN Doc. A/48/10 (1993) at 284.
34 C.J. Naldi and K.D. Magliveras, ‘African Union Debates Adding an International Criminal Law Section to Its Court’, 28(9) International Law Enforcement Reporter (2012) 335.
35 A condition suggested by Trinidad and Tobago in its failed proposal to the Review Conference of the ICC to include drug trafficking.
36 15 November 2000, 2237 UNTS 319, in force 9 September 2003.
37 Rome Statute of the International Criminal Court 2187 UNTS 3 (opened for signature 17 July 1998, entered into force 1 July 2002), Art. 17(1)(d). See generally Susana Sacouto and Katherine Cleary, ‘The Gravity Threshold of the International Criminal Court’ (2007) 23 American University Law Review 809; Margaret De Guzman “Choosing to Prosecute: Expressive Selection at the International Criminal Court (2012) 33 Michigan Journal of International Law 265.
38 Situation in the Republic of Kenya ICC Pre-Trial Chamber II, ICC-01/09–19, 31 March 2010 at ; Situation in the Republic of Cote dIvoire ICC Pre-Trial Chamber II, ICC-02/11–14, 30 October 2011 at ; Prosecutor v. Lubanga ICC Pre-Trial Chamber I, ICC-01/04/-01/06, 24 February 2006 at .
39 Situation on the Registered vessels of the Union of the Comoros, the Hellenic Republic & the Kingdom of Cambodia ICC Pre Trial Chamber I ICC-01/13–34, 16 July 2015 at .
40 Situation in the Democratic Republic of Congo ICC Appeals Chamber, ICC-01/04–169, 13 July 2006 at ; Prosecutor v. Abu Garda ICC Pre Trial Chamber I, ICC-02/05–02/09–243, 8 February 2010 at ; Prosecutor v. Muthaura, Kenyatta and Ali ICC Pre Trial Chamber II, ICC-01/09–02/11–338, 23 January 2012 at .
41 31 October 2003, 2349 UNTS 41, in force 14 December 2005. An ECOWAS Protocol on the fight against Corruption was signed in December 2001 but still awaits ratification.
42 OAU Convention for the Elimination of Mercenarism in Africa, 3 July 1977, CM/817 (XXIX) Annex II Rev.1.
43 See N. Boister, An Introduction to Transnational Criminal Law 2nd edn, 97.
44 Art. 105.
45 Sentences imposed on Somali pirates range from five to twenty years, although a penalty of thirty-three years has been imposed. UNODC, UNODC and Piracy, www.unodc.org/easternafrica/en/piracy/index.html last visited 28 September 2011. In 2006, for example, ten Somali pirates were sentenced to seven years in Kenya. Republic v. Hassan Mohamud Ahmed, Criminal Case No. 434 of 2006 (1 November 2006). See J. Gathii, ‘Kenya’s Piracy Prosecutions’, 104 American Journal of International Law (2010) 416, 417.
46 ’Yemen sentences Somali Pirates to Death’, BBC News, 18 May 2010, available at http://news.bbc.co.uk/2/hi/8689129.stm last visited 28 September 2011.
47 Art. 2(a).
48 Art. 94 of Benin’s Penal Code allows for penalties of five to ten years imprisonment, in cases where the act was intended to force the State or any of its organs to accomplish or abstain from accomplishing any act falling within its prerogative. Section 10(1) of Cameroon’s Law No. 2001–19 of 18 December 2001 permits life imprisonment as a maximum punishment.
49 In terms, for example, of section 4(2) of Nigeria’s Terrorism Prevention Act 2011, when death results from the act of terrorism.
50 Art. 1(3).
51 Art. 2.
52 M. J. Hoover, ‘The Law of War and the Angolan Trial of Mercenaries: Death to the Dogs of War’, 2 Case Western Reserve Journal of International Law (1977) 323, at 328–9, referring to the nine prison terms ranging from 16 to 30 years and four death sentences at the Angolan mercenaries’ trial.
53 See, for example, s 26 of South Africa’s Prevention and Combating of Corrupt Activities Act 12 of 2004, which uses a range of maxima for various offences including life. Section VII of the DRC’s Penal Code 1940 also uses a range of punishments with quite low maxima to fifteen years but includes confiscation and bans on holding public office.
54 S 16 of Kenya’s Proceeds of Crime and Anti-Money Laundering Act 2009 provides for a maximum term of 14 years or a fine of 5 million shillings or the value of the property laundered, which increases to 25 million shillings when a body corporate is convicted.
55 Art. 11(4).
56 For example, Art. 3 of Senegal’s ACT No. 2005–6 of 10 May 2005 on the fight against human trafficking and similar practices and the protection of victims, provides for various penalties such as between 2 and 5 years and a fine of half million to 2 million francs for organizing begging. Art. 1 provides penalties of from 10 to 30 years when the offence is committed using torture or barbarism or for harvesting organs, or risks death, or results in permanent disability.
57 See, for example, s33 of Mauritius’s Dangerous Drugs Act no 41 of 2000, which provides for a maximum penalty of a fine of 500,000 rupees and imprisonment not exceeding 10 years for the precursor offence.
58 See, for example, s4(a) of Kenya’s Narcotic Drugs and Psychotropic Substances (Control) Act, 1994 (cap 245).
59 Egypt’s Narcotics Law No. 182 of 1960, art. 40. See, for example, D. Williams and V. Allen, ‘Egypt Sentences UK Pensioner to death for drug smuggling: Oxford graduate, 74, guilty over £3 million cannabis haul’, Mailonline, 3 June 2013, www.dailymail.co.uk/news/article-2335211/Egypt-sentences-UK-pensioner-Charles-Raymond-Ferndale-death-drug-smuggling.html. Most death sentences are in practice commuted to life.
60 See, for example, s144 of Kenya’s Environmental Management Coordination Act cap 387 which allows for imprisonment for a term of not more than eighteen months or to a fine of not more than three hundred and fifty thousand shillings or to both such fine and imprisonment.
61 Art. 15.
62 Under Malawi’s National Parks and Wildlife Act a maximum custodial sentence of five years is provided for illegal possession of ivory, but fines as low as US$55 have been imposed at first instance – see EIA, The Enforcement Imperative: Combating the Illegal Trade in Ivory (2004) 6.
63 See N. Boister, An Introduction to Transnational Criminal Law 2nd edn, 251; R. Clark, ‘Jurisdiction over Transnational Crime’, in N. Boister and R. Curried (eds), The Routledge Handbook of Transnational Criminal Law (Abingdon: Routledge, 2014), at 91.
64 M. Du Plessis, ‘Shambolic, Shameful and Symbolic: Implications of the African Union’s Immunity for African Leaders’, No. 278 Institute for Security Studies Paper (November 2014) 1, at 8.
65 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ Reports 2002, Para 59; R v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 3) (2000) 1 AC 147; Court of Cassation, Criminal Chamber, Appeal No. 00–87215, Appeal judgment, Decision No. 64; ILDC 774 (FR 2001), 13 March 2001.
66 See the discussion by M. Du Plessis in ‘Shambolic, Shameful and Symbolic: Implications of the African Union’s Immunity for African Leaders’, No. 278 Institute for Security Studies Paper (November 2014), 8.
67 See Boister, An Introduction to Transnational Criminal Law 2nd edn, 273.
68 See Tladi, Chapter 25, in this volume.
69 Art. 36(2) and (4).
70 Art. 37(2).
71 Art. 33(2)(c).
72 Art. 32(1) and (3)(c) respectively.
73 K. Rau, ‘Jurisprudential Innovation or Accountability Avoidance? The International Criminal Court and Proposed Expansion of the African Court of Justice and Human Rights’, 97 Minnesota Law Review (2012) 669, at 705; M. Du Plessis, ‘Implications of the AU Decision to Give the African Court’s Jurisdiction over International Crimes’, 235 Institute for Security Studies Paper (June 2012) 1, at 6.
74 M. Du Plessis, ‘A Case of Negative Regional Complementarity? Giving the African Court of Justice and Human Rights Jurisdiction over International Crimes’ EJIL Talk; M. Du Plessis, ‘Implications of the AU Decision to Give the African Court’s Jurisdiction over International Crimes’, at 9; K. Rau, ‘Jurisprudential Innovation or Accountability Avoidance?’, 696–8.
75 M. Du Plessis, ‘Implications of the AU Decision to Give the African Court’s Jurisdiction over International Crimes’, at 6.
This chapter examines the inclusion of trafficking in drugs within the transnational crimes jurisdiction of the Criminal Chamber of the African Court of Justice Peoples and Human Rights (hereinafter the Criminal Chamber) established under article 28(1) of the amended Statute of the Court. Drug trafficking is not a crime within the jurisdiction of any other international or regional tribunal and there is thus no practice yet to draw on for interpretive purposes.1 For this reason, in addition to an orthodox textual analysis, given that the complementarity provision article 46H (1) states that ‘the jurisdiction of the Court shall be complementary to that of the national courts, and to that of regional economic communities where specifically provided for by the Communities’, the Criminal Chamber can seek guidance in the interpretation of article 28K in the UN drug control conventions2 and the practice of AU member States in the implementation of these treaties. This chapter follows suit and resorts for interpretive guidance to the amended Statute of the Court, the terms of the international drug conventions to which AU members are party and selected examples of state practice from AU member States, as well as to regional arrangements made by AU members.
Freedom from the social ill-effects of non-medical and non-scientific drug use falls within the general goal of promotion of ‘development of the Continent’ articulated in the Preamble of the amended Statute.3 Although data is limited,4 the AU’s rolling Action Plan on Drug Control5 notes that the production, trafficking and use of illicit drugs is a growing challenge in Africa.6 Similar sentiments have been articulated at a sub-regional level in the ECOWAS Political Declaration on Drug Trafficking and Other Organised Crimes in West Africa and the ECOWAS Regional Action Plan to Address the Growing Problem of Illicit Drug Trafficking, Organised Crimes and Drug Abuse in West Africa.7 A particular concern is the use by South American drug traffickers of West Africa for transhipment of Cocaine. Tamfuh records:
Since the US administration got tough on traffickers from Latin America, Africa is increasingly becoming a transit hub for Latin American drugs destined for the Europe and the US, with the Gulf of Guinea playing the key role. West Africa has also become a passageway for illicit drugs from South America. The South American cartels and their local accomplices are gradually turning Central Africa into a stepping stone along their “cocaine route” to Europe by exploiting local weaknesses such as deficient controls at ports, poor traveller inspection equipment, porous land and sea borders and endemic corruption and overwhelming insecurity.8
S v Archula,9 a case involving the trial in Sierra Leone of 18 accused including a number of Colombians for smuggling more than a tonne of cocaine on an Antonov aircraft disguised as a Red Cross plane through Sierra Leone, is a graphic illustration of the complexity of these operations. West Africa is also a source of methamphetamine smuggled into East and South-East Asia, while East Africa is growing in importance as a transit area for Afghan heroin bound for Europe and elsewhere.10
A key priority of the AU’s Action Plan is improved criminal justice capacity in the investigation and prosecution of drug-related organised crime.11 The Criminal Chamber can provide some capacity regarding large-scale drug trafficking offences, but there is a danger that it will be swamped under the potentially huge number of offences, which necessitates caution in selecting cases. In the International Law Commission’s scheme for inclusion of the treaty crimes within the jurisdiction of the then proposed ICC, it was recommended that they had to reach a threshold of seriousness in order to fall under the ICC’s jurisdiction, a measure designed to prevent the ICC from being overwhelmed by minor cases.12 There is nothing in article 28K or the drug conventions that serves as a threshold to sift out those cases worth prosecuting from the potentially thousands of cases of no individual moment. Given the Criminal Chamber’s potentially enormous jurisdiction it will be necessary to filter out all but the most serious cases. The Court must rely on State authorities exercising a degree of self-discipline in these cases by not submitting cases to the court that are trivial simply because they do not have the wherewithal to prosecute themselves. At the Court itself, the exercise of prosecutorial discretion to screen potential cases will be the main mechanism for doing so (whether cases are taken up by the prosecutor, by authorised AU organs or submitted by AU member states or individuals or NGOS within those states).13 The Rome Statute’s14 guidance regarding gravity of offences may prove of some use regarding the necessity to prosecute only offences of regional concern and not to overburden the court.15 The gravity threshold in article 17(1)(d) is undefined, but in relation to situations the ICC in the Kenya16 and the Ivory Coast17 decisions has held that the role and position (high rank) of the alleged offenders is a crucial factor when assessing gravity. In the Gaza18 case the court felt that that the gravity requirement may be judged in relation to the crime itself or its alleged perpetrators, meaning that the status of the accused could transform a non-serious crime into a grave crime. However, while in Lubanga19 the ICC based admissibility of specific cases on (1) seniority and (2) the systematic or large-scale nature of the conduct, later cases such as Ntaganda,20 Abu Garda21 and Muthaura22 have rejected reliance on the perpetrator’s status and taken the view that gravity should involve a quantitative and qualitative assessment from the victim’s perspective. Given that in drug trafficking the notional victim is the African Union, State(s) and by extension society itself, some assessment of the scale and nature of the crime, the manner of its commission and its impact on the State and on the community, is indicated. Yardsticks for seriousness that provide a useful guide of scale and impact include the scale of the operation measured by transnationality,23 involvement of organised criminal groups, tenure of the operation, complexity of the operation, mass of drugs involved, size of profits, the potential number of users, presence of violence, corruption or abuse of public office. The status of individuals whether as key members of the drug trafficking network or as senior officials (given the potential for corruption) and influential members of the community must also be potential indicators of seriousness. These criteria should not be cumulative; a nuanced assessment of the case may require only one or a selection to exist before prosecution is justified. The governing principle should be that it is the illicit drug traffic that is the Chamber’s target (something implicitly recognised in the fact that all of the offences within the Criminal Chamber’s jurisdiction are supply side offences).
Although one of its goals is to strengthen legal frameworks24 the AU’s Plan of Action on Drug Control 2013–7 does not address the legal requirements on AU member states under the UN drug control conventions to take steps against the illicit manufacture and trafficking of drugs. Nor, in comparison to some of the other transnational offences in the protocol, is there an AU treaty regarding drug trafficking so the Criminal Chamber will not be enforcing a pre-existing AU definition of the offence. It is the Statute of the Court as amended by the Protocol, which establishes the crime of drug trafficking in the Criminal Chamber’s jurisdiction. Article 28K defines ‘trafficking in drugs’ as follows:
1. For the purposes of this Statute, trafficking in drugs means:
(a) The production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of drugs;
(b) The cultivation of opium poppy, coca bush or cannabis plant;
(c) The possession or purchase of drugs with a view to conducting one of the activities listed in (a);
(d) The manufacture, transport or distribution of precursors knowing that they are to be used in or for the illicit production or manufacture of drugs.
2. The conduct described in paragraph 1 shall not be included in the scope of this Statute when it is committed by perpetrators for their own personal consumption as defined by national law.
3. For the purposes of this Article:
(A) “Drugs” shall mean any of the substances covered by the following United Nations Conventions:
(a) The 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs of 1961;
(b) The 1971 Vienna Convention on Psychotropic Substances.
(B). “Precursors” shall mean any substance scheduled pursuant to Article 12 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 20 December 1988.
The definition in article 28K reflects the text in selected parts of article 3(1) of the 1988 UN Drug Trafficking Convention25 (although tailored to suit), which in turn originates in article 36(1) of the 1961 Single Convention on Narcotic Drugs (as amended by the 1972 Protocol).26 The only African States that are not party to the 1988 Convention are South Sudan and Somalia. The fact that almost every AU member State has thus promised to enact these offences, makes the incorporation of the substance of these offences into the Protocol a plausible argument to defence challenges based on the principle of legality. This defence argument might gain some traction though where the State implementing the drug conventions has enacted an offence that bears little or no resemblance to the text of the treaties. The common objectives of these conventions are to specifically limit ‘the production, manufacture, export, import, distribution of, trade in, use and possession of’ the drugs scheduled under the treaties ‘to medical and scientific purposes’27 and to ‘suppress’ other illicit activities.28 The ultimate purpose is to benefit the ‘health and welfare of mankind’.29
The first condition for suppression of certain activities regarding drugs is listing (and chemically defining) the drugs regarding which the enumerated actions are illegal. The drug conventions provide a system for the scheduling of substances with dependence producing properties, and for the tabling of precursor substances (substances frequently used in the illicit production or manufacture of drugs).30 These schedules and tables are continually updated as new substances with similar properties are discovered or invented.
Scheduling identifies the substances subject to control and the appropriate level of control. Thus under the 1961 Convention, Schedule I drugs (more addictive narcotics such as opium) are subject to greater control than those in Schedule II (less addictive narcotics such as codeine). Inclusion in either schedule by the UN’s Commission on Narcotic Drugs) (the functional commission of ECOSOC which supervises the application of the international drug conventions) on the recommendation of a WHO Expert Committee in the first instance depends on whether the substance in question is liable to similar abuse to the substances already in that schedule. Schedule III is limited to preparations not liable to abuse, while Schedule IV contains a selection of Schedule I drugs considered particularly liable to abuse (such as heroin) not offset by therapeutic advantage and thus subject to special control measures. In similar manner, psychotropic substances are scheduled in four schedules under the 1971 Convention. Under the 1988 Drug Trafficking Convention, drug precursor substances are arranged in two different tables by the International Narcotics Control Board (the independent body which monitors implementation of the drug conventions). Article 28K (3) of the amended Statute of the Court incorporates by reference the scheduling/tabling system in the drug conventions. It provides that for the purposes of article 28K, ‘[d]rugs shall mean any of the substances covered by’ the Single Convention (as amended by its 1972 Protocol31) and the 1971 Convention on Psychotropic Substances,32 while precursors are those ‘substances scheduled’33 pursuant to article 12 of the 1988 UN Drug Trafficking Convention.
Drug legislation in some AU members refers directly to the international classification system. For example, article 2 of Algeria’s 2004 drug law34 defines ‘stupéfiant’ as the substances scheduled in the 1961 Convention but separates out ‘substances psychotrope’ as those substances scheduled under the 1971 Convention. Direct reference of this kind to the international schedules provides a more exact and up-to-date guide than legislation like Nigeria’s National Drug Law Enforcement Decree 48 of 1949, which in s10(a) defines the substances which cannot on pain of penalty be imported, manufactured, produced, processed planted or grown as ‘the drugs popularly known as cocaine, LSD, heroine or any other similar drugs’.
When it comes to identifying the substance(s) involved in a particular case before the Criminal Chamber, practical issues will abound. Scientific analysis of substances will be necessary to provide expert evidence in court, but can be provided by national drug analysis laboratories located in certain AU members such as the Forensic Science Laboratory of the South African Police Service. The UN Office of Drugs and Crime (the part of the UN Secretariat which administers all the UN’s efforts against transnational crime) can also provide guidance in this regard.35 Many drugs for illicit supply have been adulterated with other substances and while determining the exact amount of the prohibited substance involved is not critical for conviction, if not determined correctly it can raise issues about whether the substance before the court is the same as that originally seized. Moreover, the correct determination of the weight of the drugs may be important on sentence. Given the impossibility of transferring the substance in its entirety to the Criminal Chamber, it would be prudent for subordinate measures to be adopted that presumed that in any prosecution for one of the defined drug trafficking offences that a sample taken from any substance by means of or in respect of which the offence was allegedly committed possesses the same properties as the substance36 and that a reasonable estimation of the weight of the drugs involved is permissible as evidence in the Criminal Chamber. Provision will also have to be made in subordinate measures for forfeiture, authorised safe-keeping during the chain of custody of the drugs before and prior to trial37 and supervised destruction of the substances involved thereafter as is required in article 4(2)(c) of the SADC Protocol on Combating Illicit Drug Trafficking38 and is the practice in AU member states.39
Under the conventions, scheduling does not prohibit scheduled drugs; it is the implementation at a national level of the penal provisions of the conventions that prohibits certain actions regarding these drugs. The convention obliges states to criminalise: the drug control scheme as laid down in the UN Conventions requires criminalisation at a national level of (i) a certain action such as ‘production’, (ii) regarding a certain scheduled substance such as heroin, (iii) so long as that action is not for ‘medical or scientific purposes’. The latter division between licit and illicit production of a scheduled drug arises from article 4(c) of the Single Convention’s general obligation on States parties ‘to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs.’ Article 3(1) of the 1988 Drug Trafficking Convention recognises this by providing that the various enumerated actions must be ‘contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention’. This echoes the definition of the ‘illicit traffic’ in article 1(1)(1) of the 1961 Convention as ‘contrary to the provisions’ of that Convention. It implies that the offences only apply to actions for non-medical and non-scientific purposes. Article 28 K (1) does not explicitly recognise that some of the prohibited actions can be undertaken for licit medical and scientific purposes. It thus could be used to convict an individual pharmaceutical company of ‘manufacture’ of a scheduled substance even if it is for a ‘medical purpose’ recognised by the territorial state’s national law. This would be contrary to the position under the conventions and under the domestic law of AU members.40 This lacuna in the amended Statute of the Court can easily be remedied by a subordinate measure to the effect that actions recognised as having licit medical, scientific, and law enforcement purposes, in the drug conventions and in national law, do not fall within the scope of any of the offences in article 28K. This could be addressed through the proposed Elements of Crimes.
Drug trafficking as defined in article 28 K (1) is made up of a range of supply related offences.41 Article 28 K (2) provides that ‘[t]he conduct described in paragraph 1 shall not be included in the scope of this Statute when it is committed by perpetrators for their own personal consumption as defined by national law.’ It thus excludes from the jurisdiction of the Criminal Chamber Court ‘use’ or ‘possession for use’, avoiding a potential deluge of cases and the controversy surrounding inroads into personal rights.42 It might be argued by some that article 28K (2) goes too far. An individual accused could feasibly produce methamphetamine for example, for their own use, and under the exception it would not matter how much they produced, their action would not fall within the jurisdiction of the Court. Inferences from the evidence will, however, circumscribe this exception; the greater the volume of production or weight of the drugs involved the more likely the purpose was to supply.
The elements of the drug ‘supply’ offence in article 28(K)(1)(a) are as follows:
(a) The perpetrator produced, manufactured, extracted, prepared, offered, offered for sale, distributed, sold, delivered on any terms whatsoever, brokered, dispatched, dispatched in transit, transported, imported or exported. This list reproduces the forms of conduct listed in article 3(2) of the 1988 Drug Trafficking Convention. Any one or more of these forms of conduct will suffice. Each has its own specific meaning, although they may overlap. ‘Production’ is defined in the 1961 Convention as the agricultural ‘separation of opium, coca leaves, cannabis and cannabis resin from the plants from which they are obtained’.43 ‘Manufacture’ ‘means all processes, other than production, by which the drugs may be obtained and includes refining as well as the transformation of drugs into other drugs.’44 ‘Extraction’ is the physical or chemical means of separating and collecting substances from mixtures.45 ‘Preparation’ means mixing for use.46 Although undefined, ‘offering’ involves tendering a drug to a potential consumer for acceptance or refusal, including as a gift. ‘Offering for sale’ implies offering for purchase. ‘Distribution’ ensures that drugs move through the chain of supply from producer to consumer, and ‘sale’ the disposal of drugs for some consideration. The catchall ‘delivery on any terms whatsoever’ ensures the inclusion of any form of delivery including constructive delivery through, for example, the transfer of keys to a storage facility. In ‘brokerage’ agents negotiate on behalf of buyer or seller to facilitate the transaction. ‘Dispatch’ involves the sending of drugs to a specific destination while ‘dispatch in transit’ involves sending drugs to a destination outside that territory or to one of which the dispatcher or carrier are ignorant. ‘Transport’ involves the conveying of drugs from one place to another by any mode through any medium with the specific purpose of carrying to a specific place or person.47 The ‘import’ and ‘export’ of drugs is the ‘physical transfer of drugs from one State to another State, or from one territory to another territory of the same State.’48
In some AU member states these actions are covered by fewer broader terms. Thus s1(1) of Ghana’s Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990, only specifically prohibits ‘import’ and ‘export’, while section 3(1) specifically prohibits ‘manufacture, produce or distribute’, and section 6(1) specifically prohibits ‘supply’. Kenya’s approach is even more concise with the generic term ‘trafficking’ used in s4 of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994, but then in a common formula section 2 gives an expansive definition of ‘trafficking’ that specifies all of the forms spelled out in the drug conventions. In Kenyan practice there has been some dispute about whether it is necessary to specify in the indictment which specific mode of trafficking listed in that definition has been undertaken so long as one of these forms of action is actually undertaken on the evidence.49 The better view and the practice that should be followed in the Criminal Chamber is that the charge sheet must disclose the specific form of drug ‘supply’ alleged so as to guide the prosecution in the evidence they must lead to establish the charge and properly inform the accused of the particular conduct alleged against them.50
(b) Drugs (as scheduled under the 1961 and 1971 Conventions).
(c) Intentionally. While article 28(K)(1)(a) is silent as to mens rea, both the 1961 and 1988 Conventions from which it is derived provide that each of the proscribed acts must be ‘committed intentionally’.51 Although most domestic legislation of AU member states does not specify the state of mind applicable to drug offences, the courts apply subjective mens rea to these offences in the absence of an express contrary statutory intention. While it has been held in Kenya that knowledge that someone is engaged in an act of trafficking is not a part of Kenyan law,52 in other AU member states it is clear that mens rea is an ingredient of the offence and on the general principle actus non facit reum nisi mens sit rea the latter position must be the correct interpretation of the amended Statute. Intention suggests a purpose to engage or at least subjective foresight of a high probability of engaging in one of the listed actions with knowledge of the fact that one is supplying a drug;53 recklessness in the sense of foresight of a possibility and reconciliation to that possibility will not suffice. In practice evidence of mere possession will not be enough to establish an intent to supply without further additional evidence such as the weight of drugs possessed. The South African Constitutional Court has held that ‘If an accused is found to have been in possession of a large quantity of dagga, it might, depending on all the circumstances and in the absence of an explanation giving rise to a reasonable doubt, be sufficient circumstantial evidence of dealing…’.54 The jurisprudence from the AU member states on drug-related offences may prove to be a useful source of persuasive authority in the interpretation and application of the Malabo Protocol.
The elements of the drug ‘cultivation’ offence in article 28(K)(1)(b) are as follows:
(a) The perpetrator cultivated. According to the 1961 Convention ‘cultivation’ includes within its scope the unregulated, illicit, prohibited cultivation of the opium poppy, coca bush or cannabis plant.55 Precisely what amounts to the action of cultivation is undefined, but it is usually taken to involve some deliberate fostering of the plant through objectively verifiable actions such as watering and weeding rather than simply witting or unwitting possession of property on which plants grow. In South African law, for example, it is taken to mean ‘to promote or stimulate the growth of any plant’.56
(b) The opium poppy, coca bush or cannabis plant. Following the definitions in the 1961 Convention, “Opium poppy” means the plant of the species Papaver somniferum L.57 “Coca bush” means the plant of any species of the genus Erythroxylon.58 “Cannabis plant” means any plant of the genus Cannabis.59 These are the definitions used in AU members.60 It follows that no person could be accused under this offence of cultivating cannabis resin or cannabis oil, which are derived from cannabis by ‘production’, an action within the scope of the supply offence.
(c) Intentionally. While article 28(K)(1)(a) is silent as to mens rea, both the 1961 and 1988 Conventions from which it is derived provide that each of the proscribed acts must be ‘committed intentionally’.61 It is necessary that the accused must have known the identity of the plant that they were cultivating. If they genuinely thought (which seems unlikely) that they were cultivating a tomato plant rather than cannabis they could not, for example, be found guilty. Finally, it has been pointed out in the South African case of S v Mbatha62 that the application of mens rea in this context entails more than just the intention to stimulate the growth of the plant (which is implicit in the act of cultivating) but in addition an ulterior purpose to sell or supply (deal in) the drug. Given that the cultivation offence in article 28(K)(1)(b) is not simply an analogue of possession and is a more serious offence involving participation in one aspect of the supply side of the drug traffic, it would be useful for subordinate measures to be adopted by the Criminal Chamber making it clear that such ulterior purpose is a necessary element of the mens rea for this offence.
(a) The perpetrator possessed or purchased. Although undefined, purchase usually involves buying the drugs for consideration, while possession (also a condition relevant to many of the forms of supply discussed above) involves both a physical element (detentio) of the drugs, and a mental element (animus possidendi), awareness that they are in one’s physical control.63
The limits of the physical element are difficult to draw. A typical approach is that followed in Seychelles law where it may be established through a continuous act that involves either physical custody or the exercise of control.64 To put it another way, possession may be actual in the sense that the accused has it in their personal possession or constructive in the sense they knowingly have it in another place, room or conveyance, or in the possession of another person for their or another’s benefit.65 Seychelles’ jurisprudence suggests that control should be exclusive before one can be found to be in possession of the drug.66 But more expansive approaches are taken. In Sierra Leone, for example, proof of the finding of a drug within the immediate vicinity of the accused or on an animal, vehicle, vessel or aircraft that the accused was at the time in charge of or that he accompanied it leads to a presumption that the accused is in possession.67 It would not be advisable for the Criminal Chamber to take such a rigid position in this regard but to consider the evidence as a whole in deciding whether the accused enjoys effective control or not.
The mental element is complicated because it doubles in function as both an element of the actus reus and of the mens rea. While article 28(K)(1)(a) is silent as to mens rea, both the 1961 and 1988 Conventions provide that each of the proscribed acts must be ‘committed intentionally’.68 The key issue is whether the accused must know they are in possession of a substance or in addition, know that it is prohibited or even further, know the identity and qualities of that substance. Practice differs. Under Seychelles law the court must be satisfied that the accused had knowledge of the drug they possessed.69 In Namibia the accused need not be fully aware of the name and nature of drug concerned; animus is satisfied by knowledge of the existence of the thing itself and not its qualities.70 This permits in principle a mistake of fact of a basic kind to negate a charge (for example, the accused thought cannabis seeds were tomato seeds) but not of a more refined kind (the accused thought it was pure cocaine not cocaine adulterated with washing powder). This is an approach the Criminal Chamber would be advised to take. A common question is how much knowledge is required to establish possession of drugs found within some conveyance that the accused owns or controls or in which they were being carried. A similar issue arises regarding possession of drugs found within a dwelling that the accused owns or controls, lives in or was present in. As Botswana’s Court of Appeal has pointed out, in a case involving the discovery of 7894 mandrax tablets secreted in compartments in the boot of a car, ‘[u]sing innocent people to transport habit-forming drugs is something which, no doubt, is not unknown in the underworld of drugs, but a plea by the driver of a vehicle caught in possession of drugs that he was unaware that they were there is also not unknown.’71 The practice in some AU members tends to depend on the degree of knowledge that the accused has of the presence of the drugs within the conveyance or dwelling, rather than their degree of control they have over the vehicle. Kenyan law insists that a passenger in a vehicle is not in possession of any drugs found therein unless they enter the vehicle with the full knowledge it is being used to convey drugs.72 In other AU members control is the issue. In Namibian law, possession of the motor vehicle leads to a strong inference that he or she is in possession of its contents, an inference that place an evidential burden on the accused to raise real doubt that they had no reason to suspect that its contents were illicit.73 One way of avoiding this problem is to adopt a presumption (rebuttable or irrebuttable) that the accused is aware that they are in possession of the drugs found in their possession, something common in domestic legislation.74 A more principled way of alleviating some of the burden on the prosecution is to take the view that once detentio is proved the necessary animus is presumed unless the accused can meet an evidential burden that raises some doubt about their awareness thus shifting the burden onto the prosecution to adduce evidence sufficient to establish beyond reasonable doubt that the mistake was not honest.
(b) Drugs (as scheduled under the 1961 and 1971 Conventions).
(c) With a view to production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation. The implication is that ‘possession’ or ‘purchase’ must be for the ulterior purpose of use in the chain of supply, not for personal use. Although offences of this type are common among AU members,75 such an ulterior purpose may be difficult to prove and for this reason the UN’s Official Commentary on the 1961 Convention suggests that states provide for a ‘legal presumption that any quantity exceeding a specified small amount is intended for distribution.’76 Presumptions of this kind are common in post-1961 domestic drug legislation but are vulnerable to constitutional challenges for breaching the presumption of innocence.77 The Statute does not provide for such a presumption, and it would be more principled to allow proof of evidence such as large quantities of drugs found in the accused’s possession as well as other circumstantial evidence to serve to shift an evidential burden onto the accused that they did not have such an ulterior purpose.
The elements of the ‘precursor’ offence in article 28(K)(1)(d) are as follows:
(a) The perpetrator manufactured, transported or distributed. ‘Manufacture’ of precursors involves all the processes by which these substances may be obtained including refinement and transformation, ‘transport’ means the conveying of precursors from one place to another by any mode or medium, and ‘distribution’ the movement of the substance through the chain of supply from producer to consumer. The practice in the AU in this regard is patchy. South Africa, for example, only penalises the manufacture or supply of a scheduled precursor substance78 while regulating the import and export of these substances in the normal way.79
(b) Precursors (as defined in article 12 of the 1988 Drug Trafficking Convention and Tabled in Tables I or II).
(c) Intentionally. While article 28(K)(1)(a) is silent as to mens rea, both the 1961 and 1988 Conventions from which it is derived provide that each of the proscribed acts must be ‘committed intentionally’.80
(d) Knowing that they are to be used in or for the illicit production or manufacture of drugs. These offences must be carried out with specific knowledge of the illicit purpose to which these things are to be put in order to avoid extending their scope to innocent suppliers. Establishing knowledge – to know something as a fact – may be difficult and some States have lowered this threshold to suspicion.81
Article 28N expands the modes of responsibility for these offences to ‘any person who’:
ii. Aids or abets the commission of any of the offences set forth in the present Statute;
iii. Is an accessory before or after the fact or in any other manner participates in a collaboration or conspiracy to commit any of the offences set forth in the present Statute;
iv. Attempts to commit any of the offences set forth in the present Statute.
Article 28N covers all of the inchoate and participatory actions provided for in the 1961 Convention and in the 1988 Convention and adds some of its own. The 1961 Convention obliges parties to criminalise ‘participation in, conspiracy to commit and attempts to commit’ its offences as well as, ‘preparatory acts and financial operations’ in connection with its offences (although this obligation is subject to any ‘constitutional limitations’ of the States parties, which indicates that some States parties would not be able to take it up through constitutional incompatibility).82 The 1988 Convention obliges parties to criminalise the ‘organization, management and financing’ of the supply offences but without constitutional limitation.83 Its obligations to criminalise ‘public’ incitement (through the media),84 conspiracy and inchoate forms of article 3(1) offences85 are, however, also subject to the constitutional limitation, as is criminalisation of ‘participation in, association or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any’ article 3(1) offence.86 One difficulty may be that inchoate offences such as conspiracy (an agreement to commit an offence) are common in common law AU members87 but not in civil law AU members where it may be unknown. It is unclear what the implication of this is for domestic jurisdictions, in civil law states, which would have the first responsibility to prosecute the crimes under the complementarity principle and the failure of which is required before the Criminal Chamber will have jurisdiction over the matter.
The amended Statute provides no guidance for the punishment of the offences defined in article 28K. The penal provisions in the drug conventions suggest proportionality is an overriding concern although the 1988 Convention emphasises that punishment should be at the severe end of the scale. Article 36(1) of the 1961 Convention provides (i) that all the forms of drug-related conduct enumerated in article 36(1) shall be ‘punishable offences’ and (ii) ‘serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.’ The 1971 Convention also adopts this dual punishment regime. Article 3(4)(a) of the 1988 Convention introduces a stronger normative element which can be interpreted as pointing to more severe penalties. It requires that parties must ensure that article 3(1) offences are punished by penalties that consider their ‘grave nature’, using punishments ‘such as’ ‘imprisonment or other forms of deprivation of liberty’, ‘pecuniary sanctions’ and ‘confiscation’. The 1988 Convention also provides a non-exhaustive list of aggravating factors,88 which may characterise an article 3(1) offence as ‘particularly serious’, and which parties must permit their courts to take into account. These include the involvement of an organised criminal group in the offence, the involvement of the offender in other international organised criminal activities, the involvement of the offender in other illegal activities facilitated by the offence, the use of violence or arms by the offender, the holding of public office by the offender, use of minors, commission of the offence in a prison, educational facility, social service facility, and previous convictions. The punitive tendency is sustained at a regional level. For example, article 4(2)(b) of the SADC Protocol provides that domestic legislation in SADC States shall provide for ‘maximum custodial sentencing which will serve both as punishment and deterrent and would include provision for rehabilitation.’
Statutory schemes for the punishment of these offences among AU members vary widely, but imprisonment is common and potential punishments heavy. Some employ statutory minima,89 some statutory maxima,90 some a range between a minimum and a maximum,91 and in rare instances penalties are stipulated.92 The tariff range frequently extends to heavy punishments including life.93 The imposition of fines may be in addition94 or in the alternative to imprisonment but they are often relative to the value of local currencies and standard of living in local economies and do not provide an Africa-wide frame of reference.95 Some AU members apply the death penalty for drug trafficking.96 Although the drug conventions are silent in this regard, human rights bodies have criticised executions for drug offences as violations of international law97 and the UNODC Executive Director has noted that the weight of opinion is that these offences do not reach the threshold of most serious crimes.98 Employment of aggravating factors is common and they may include previous convictions,99 holding public office, membership of a criminal organisation, resort to the use of violence or weapons, involvement of health personnel100 or even membership of a group organised extraterritorially for the purpose of committing the crime.101
Practice in domestic courts differs widely. Considering factors like the volume of the substance involved (on the theory that greater quantity means greater profit deserves greater punishment102) and the harmful potential of the particular class of drugs (revealed by its scheduling), supply is usually punished by periods of imprisonment, or fines, or combinations of the two. Courts have, however, emphasised that in drugs cases volume and type of drug are not the only factors to be considered and that other individuating factors must be taken into account when exercising the inherent sentencing discretion of the courts.103 Punishment of the organisers of the traffic is clearly the target, something colourfully illustrated in the judgment of the Swaziland Supreme Court in R v Iddi and Others:104
 The above dictum is authority for the proposition that the big kahunas who lead the networks described in (d) above should receive substantial custodial sentences. It is a notorious fact that these faceless bosses who head, control and direct wholesale distribution networks are rarely, if ever caug