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  • The African Court of Justice and Human and Peoples' Rights in Context
  • Development and Challenges
  • Online publication date: May 2019
  • pp 55-220
  • Publisher: Cambridge University Press

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Part I The Wider Context of Transitional Justice in Africa

2 The Place of the African Court of Justice and Human and Peoples’ Rights in the Prosecution of Serious Crimes in Africa

Charles C. Jalloh
1. Introduction

The present enforcement system of international criminal law essentially rests on three main pillars. First, there are prosecutions of international crimes within the national courts of the territorial states where the offense occurred. This could be through the regular criminal courts of those states or so-called “hybrid” or “mixed” chambers specifically created for that purpose by the state alone, or with the help of the United Nations (UN), as was the case in Cambodia, Bosnia-Herzegovina (BiH), East Timor, Lebanon, or Kosovo.1

Second, there are prosecutions within international courts, whether ad hoc or permanent. The former dates back to the Nuremberg and Tokyo International Military Tribunals. Those pioneers were followed more recently by the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL), all of which were either created directly as subsidiary bodies of the UN or authorized by its Security Council under its mandate to ensure the maintenance of international peace and security.2 There is, of course, also the multilateral treaty-based International Criminal Court (ICC), which as of writing, comprises 123 States Parties from all regions of the world and is endorsed in principle by 15 other signatories.

Lastly, present international criminal law also contemplates prosecutions within the domestic courts of third states. Good examples of the latter include Australia, Belgium, Canada, France, and Senegal, all of which have in the past invoked universal or quasi-universal jurisdiction in an attempt to investigate and prosecute so-called core international crimes3 such as genocide, war crimes, and crimes against humanity.4 This has occurred despite their lack of any of the usual territorial, nationality or other traditional jurisdictional links to the offenses other than the presence of the accused. These types of prosecutions, along with those in the national courts of the territorial states, form part of what the late M. Cherif Bassiouni dubs the “indirect enforcement system,”5 in contrast to international prosecutions which are part of the “direct enforcement system”6 of international criminal law.

Each of these direct or indirect enforcement models has its benefits and drawbacks. Generally, national prosecutions within the territorial state are considered ideal on legal, pragmatic or legitimacy grounds. But experience teaches that municipal courts do not always prosecute international crimes for all kinds of reasons. It is often the case that, in some situations, the concerned state and its judicial system may have collapsed or lacks the willingness and/or material ability to investigate or prosecute. Though generally relatively inexpensive, when compared to international trials, national judicial processes can also sometimes be manipulated leading to biased prosecutions.

For their part, for various reasons including the prioritizing of the parochial national over the wider community interest, third party states tend to be hesitant to invoke universal jurisdiction to prosecute foreign officials, or due to immunities, may even be legally barred from doing so—at least while the most senior ranking officials of other states are still holding office. For instance, Belgium, initially exceptional for its enthusiasm in seeking the title of “European capital of universal jurisdiction,”7 famously found itself in a legal and political challenge8 at the International Court of Justice (ICJ) in the Arrest Warrant saga when it indicted the then incumbent Congolese foreign minister.9 Belgium was reminded that, although legal steps to prosecute serious crimes is not necessarily a bad thing, any such initiatives must be scrupulously compliant with customary international law immunities. The ICJ deemed those applicable at the horizontal level as between co-equal sovereigns.10 Other more recent cases from certain European courts, such as those of France, Spain and the United Kingdom against Rwandese officials based on the universality principle, have been no less controversial.11 The end result tends to return us to the all too familiar normalcy of impunity.

Against this backdrop, international penal courts have increasingly come to be perceived as a key if not the ultimate solution to the rampant global impunity for atrocity crimes. The few UN international penal tribunals established by states since the end of the Cold War have to date successfully dispensed justice for the specific situations in the former Yugoslavia and Rwanda that they were mandated to address. The same is true of the Sierra Leone Special Court. Nonetheless, international courts also have their own share of challenges. So international criminal lawyers and states are beginning to raise doubts on whether they could be the magic bullet against individuals who perpetrate atrocity crimes.12 These include issues concerning their costly nature, their generally lengthy proceedings, and their geographic distance and remoteness from the territories and populations in whose name they seek to render justice.13

As to the permanent ICC, in addition to some worries about its slow start in terms of completed trials to date as well as other challenges, it may also lack jurisdiction or the resources to start investigations and to prosecute. Indeed, even where it does possess the jurisdiction and resources to prosecute, the Prosecutor may decline to proceed because the situation as a whole is of insufficient gravity to warrant international intervention. Where she decides to proceed, say against a sitting Head of State, the ICC may, due to perceptions of selectivity in application of its legal regime, fail to muster the state cooperation required to facilitate the rendering of such persons to answer crimes against humanity and genocide charges. The example of President Omar Al Bashir of Sudan comes to mind.14

Furthermore, given the sheer number of global hotspots and the magnitude of the atrocities, the ICC was never intended nor realistically expected to be the sole institutional response to provide criminal accountability.15 That is largely why the Court was predicated on the complementarity principle, which under Article 17 of the Rome Statute of the ICC requires states to act as the first lines of defense in the battle against impunity.16 In so doing, states placed the responsibility of prosecutions on themselves, consistent with the principles of sovereignty and international law, while undertaking to be the primary actors to investigate or prosecute Rome Statute crimes. But failing that, given the long history of bloodied wars that leave impunity to roam freely around the world, they envisaged the ICC as a back-up system. This in practice means that wherever the jurisdiction-bearing state is “unwilling or unable genuinely to carry out the investigation or prosecution,”17 the ICC could take up that mantle, in behalf of the “international community.”18 This would be the case, at least in respect of a limited group of persons bearing greatest responsibility. Viewed in this wider context, it seems apparent that even in a post-ICC world the impunity gap will be left even larger whenever national court or international tribunal action is unavailable. This irrespective whether for reasons of lack of capacity, political will or other constraints.

Given the presently bifurcated direct and indirect enforcement systems, it seems to be helpful to examine whether international criminal law could benefit from the approach of its sister discipline—international human rights law—to query whether, in addition to the currently available options to prosecute, regional or perhaps even sub-regional courts could also play a useful role in the wider quest to mete out individual criminal responsibility for atrocity crimes. Regional organizations, and their courts, may well offer some of the key advantages associated with national courts and mitigate some of the key disadvantages of international tribunals.

In engaging upon this admittedly preliminary exploration, this chapter will evaluate the work of regional organizations in international peace and security. We focus in particular on ways regional tribunals could supplement the ICC’s mandate to prosecute core international and even other serious transnational offenses. An important consideration may be that there are already in place regional human rights courts in Africa, the Americas and Europe, though with varying degrees of effectiveness. Asia and the Middle East, though presently without any human rights courts, could in the future be inspired by the other regions to eventually head in that direction. When they do so, that could make global enforcement of international criminal law through regional courts a potential reality for all regions of the world. In other words, a system of regional criminal law enforcement has the prospect of a universal reach, depending on the progress made toward universalization of regional human rights courts.

The chapter will turn the spotlight on the emerging attempt to regionalize international criminal law enforcement in Africa, the world’s second largest continent. This appears fitting for many reasons. Here, we might mention two that immediately come to mind. First, that region has been the source of all but one of the ICC’s current situational caseload. Since the States of Africa are presently the main users of the ICC, we might reasonably presume that they are the ones more likely to explore additional institutional mechanisms for the prosecution of atrocity crimes. This appears to be borne out by the practice.

Second, African States have gone furthest in developing their own court with the African Union (AU)’s recently adopted protocol that would create a criminal chamber with jurisdiction over ICC crimes almost as part of the African government pushback against the permanent ICC.19 The continent’s effort, which is the focus of this volume, appears to have been greeted with general skepticism. In such an environment, where the agenda driving the regional criminal court project has been cast into some doubt by the context in which it emerged, what can and should The Hague-based court do to ensure that its work is actually complementary, instead of competitive, with the future African court and others like it that may be established in other regions?

Structurally, the chapter proceeds as follows. Section B will draw from the early experience of the international human rights system to assess whether there could be a place for regional courts in prosecuting international crimes. It will be argued that the ICC should assume a leadership role by cooperating with states and entities wishing to design courts consistent with its own statute. This would be in line with the object and purpose of the ICC and the policy of “positive complementarity”20 which the Court itself has advanced over the past few years.

Section C of the chapter will assess the form and shape that the AU effort has taken, regrettably without any ICC engagement, partly because of the unfortunate current tension in the relationship between the Court and some of its African States Parties. In section D, we will examine some of the more innovative aspects of the regional treaty that AU States adopted in June 2014 for their proposed regional criminal court. It will be shown that the particularities of the African context have led to the inclusion of new offenses and even corporate criminal liability in the Malabo Protocol and that these go beyond what is presently contained in the ICC Statute. The idea seemed to be to address, in addition to the core crimes, pressing governance and transnational concerns facing the Africa region but which the Rome Statute framework did not address. These novel elements seem to strengthen the case for the serious consideration of regional court involvement in prosecuting international crimes.

Finally, just before the conclusion and recommendations, section E takes up some questions that may arise about the legal compatibility of regional prosecution mechanisms with prosecutions carried out by the world criminal court. In particular, I suggest that the complementarity principle, though initially conceptualized vis-à-vis the obligations of States Parties to the ICC, appears flexible enough to successfully regulate the jurisdictional relationship with regional criminal courts. Thus no amendment to the Rome Statute is necessarily required. In the main, my overarching argument is that, much as in the international human rights system which is composed of a multilayered national, regional, and international enforcement system, international criminal law would likely in the future benefit from a similar multilevel system of accountability. Africa’s opening of this additional approach to tackle impunity seems to suggest that this development may be hard to resist and perhaps even be inevitable. The last part of the chapter focuses on some of the key challenges that the future court might face.

2. The Evolution of Universal and Regional Enforcement of Human Rights Law and Possible Lessons for International Criminal Law
A. International Human Rights vs. Regional Human Rights

The global community’s experience with international human rights law, and international peace and security more generally, support the contention that there have always been some intersections and some tensions between the universal, international, on the one hand, and the regional, particular on the other hand. The cognate field of international human rights, though not the only example of the increasing regionalization of international law enforcement, appears to give a useful illustration of that latent antagonism. That tension has been in existence for decades and since at least the adoption of the Charter of the United Nations, which eventually capitulated to the compromise of coexistence between international and regional arrangements.21 It would seem, based on that experience, that the lukewarm reception that the African regional criminal court idea has received from the most ardent supporters of the ICC within civil society should not be surprising. Indeed, it may well reflect part of that longer historical trend in international law.

The early days of modern human rights law, which developed dramatically after World War II, apparently reflected similar anxieties about the best way that the international community could give effect to individual rights under international law.22 There were those who felt that having a purely international system was the best way to guarantee human rights. Another view was that a universal system would be inadequate except if supplemented with regional mechanisms, so long as both worked toward the same goal of protecting fundamental human rights. Dinah Shelton, a leading commentator in human rights law, has identified three main factors that apparently helped to diminish the initial trepidation that the development of regional systems could undermine the creation of an effective international human rights system.23 A review of those three influences appears instructive because they may be helpful to present and future debates about the place of regionalism in the criminal prosecutions of atrocity crimes. The main difference, which must be taken into account in any serious contemporary discussions in the international criminal law arena compared to the human rights system, is that we now have a permanent international criminal court around which regional systems could be anchored.24

First, regional human rights systems reflected in a broad way the emergence of a global human rights movement and norms after World War II. Given the mass atrocities experienced during the war, it was not surprising that the state-driven organizations created afterwards sought to address human rights concerns.25 This was only natural, as the guarantee of minority rights were felt to be part of what might be required to avoid a return to devastating conflict. In a way, this same rationale helps to explain the emergence of international criminal law, under which it is increasingly accepted that victims’ rights to have justice must include some type of accountability for at least the senior perpetrators of heinous international crimes. The success of the Nuremberg trials and endorsement of its principles by the international community made that a serious prospect.26 Guaranteeing some measure of criminal justice, which in some ways reflects the substantive evolution of human rights law protections including the adoption of key post-war treaties such as that aimed at preventing and punishing genocide, was often seen as part of the panoply of measures required for a return to peace and stability.27 The genocide convention thus incorporated the idea of a standing international penal tribunal to prosecute such crimes as far back as 1948. Though the notion would take half a century to bear fruit, with the adoption of the ICC Statute in July 1998.

Second, various historical and political factors converged to make the development of regional human rights systems possible and perhaps even inevitable.28 In the Americas, there was a tradition of regional solidarity to address international issues. This led to the establishment of regional organizations whose founding treaties referred to human rights concerns in their charters and the adoption of instruments such as the American Declaration on the Rights and Duties of Man.29 The latter preceded the UN’s adoption of the Universal Declaration of Human Rights.30 As for Europe, which had experienced the worst mass atrocities in history by that point in the span of just two decades, international human rights norms were seen as requisite components of the rebirth of a new and more democratic and stable region. A regional human rights system was therefore thought to be necessary to help re-establish individual rights and freedoms, and in that way, contribute to helping avoid future conflict and a return to totalitarianism.31

In Africa, which had been under the yoke of colonialism for a long period, the ideas of self-determination were central to the struggle by the people of the continent for their fundamental human rights and freedoms.32 The pan-African struggle for the rights of people and national identity, the continuation of apartheid in South Africa as well as independent Africa’s desire to find its place in the world, among other factors, gave increased impetus to governmental concerns about the human rights of African peoples. It would eventually lead to the development of a regional human rights system.33 The idea of an African Convention on Human Rights was first floated by African jurists in the “The Law of Lagos” in 1961. But the Charter of the Organization of African Unity (OAU) adopted by African States in May 1963 to promote regional integration did not incorporate the proposal.34 It languished in the margins of Africa-wide government policy until the early 1980s when circumstances were favorable for the adoption of a regional human rights instrument.

It may be that, after about roughly two decades of experience with international criminal law, political pressures toward greater regional integration in Europe, the Americas and Africa, might also converge to make the development of regional international criminal law enforcement mechanisms near inevitable. It appears that there is some movement in that direction, although the different regional systems are known to have different levels of engagement on the question of criminal accountability for atrocity crimes. The strength of their cooperation in other areas of common concern, such as on issues of peace and security, economic integration, and free movement of persons, capital, and labor, continues both to widen and deepen. We have seen this evolutionary phenomenon in all the regions. This process may thus eventually give way to greater harmonization of criminal law and procedure over time. If this happens, this might open the door to integration of substantive prohibitions on penal matters into some regional enforcement regime.

In Africa, the generally bad governance and lack of credible justice and access to the rule of law and the numerous conflicts have already necessitated the adoption of a regional anti-impunity stance. Similarly, in the Americas, the regional human rights court and commission have developed an elaborate body of jurisprudence about the duty of states to investigate and prosecute various gross violations of individual rights. The two regional guardians of human rights have therefore assumed a leadership role in defining the right of victims to receive remedies and reparations for violations like torture or disappearances. The human rights mechanisms in the Americas region have frowned upon amnesties as well as monitored countries in order to ensure that States follow through its innovation of a “quasi-criminal jurisdiction” which has led to the prosecutions of over 150 cases at the national level.35

For Europe, as the movement toward greater regional integration advances further and further, the free movement of persons has given rise to increased interest in strengthening mutual legal assistance on criminal law matters. We are even beginning to see aspects of harmonization of criminal and procedural laws across European Union Member States in an attempt to act more effectively to curb transnational criminal activity including terrorism.36 Particularly significant for this argument has been the shift, within the Council of Europe system, toward a sort of “quasi-criminal review”37 jurisdiction.38 On the other hand, this process seems to have suffered some setback with Great Britain’s recent referendum in favor of exiting from the European Union. Nonetheless, the EU will continue to be a major harmonizer of criminal law policy for the overwhelming number of European States who will continue with the march toward deeper substantive and practical regional integration.

Third, during the development of the core international legal instruments that became known as the International Bill of Rights which undergird the global human rights system, the UN did not initially embrace the idea of regional human rights mechanisms. There was an initial perception that human rights protections can be better accorded to individuals at the international instead of the national level. Indeed, in such an environment, there was apparently a tendency to paint regional human rights systems as a “breakaway movement, calling the universality of human rights into question.”39 But circumstances forced a change within the context of the bitter rivalries of the Cold War. The failure over a period of 20 years of the East and West to agree on the modalities for the conclusion of a global human rights treaty, including different conceptions of weight to be placed on civil and political rights and economic, social and cultural rights, ultimately indicated that any international enforcement mechanisms agreed upon would prove to be legally weak.

The desire for binding judicial procedures to enforce the human rights of individuals thus came to be seen as more likely to be achieved at the regional instead of international level.40 This became crystal clear after the adoption of the civil and political rights, and economic, social cultural rights covenants in 1966, both of which did not include strong enforcement systems. It therefore seemed as if the international community acquiesced into the idea of regional human rights regimes to enforce such rights, if that was going to be done through judicial or quasi-judicial process of the kind we see today in regional human rights courts and commissions.41

This was so much the case that the UN General Assembly, in 1977, could instead of opposing the move to establish regional human rights courts adopt a resolution urging states to develop suitable regional machinery for the promotion and protection of human rights.42 Today, though all might agree that they have exhibited varying levels of efficacy, there is little if any doubt that the umbrella of protections we have for individuals are stronger as a result of the multilevel human rights enforcement architecture that developed at the regional and universal levels over the last several decades.

B. Regionalization Lessons from International Human Rights for International Criminal Law

Much as the regional human rights systems were “inspired by the agreed universal norms,”43 international criminal law, at the center of which sits the permanent ICC, could also inspire the prosecution of international and even transnational crimes within regional criminal courts. This makes sense for several reasons, including the links and close relationship between the goals of human rights and criminal law. Of course, the normative legal framework that underpins international criminal law has been in development for several decades with key treaties codifying prohibitions of certain types of conduct as criminal during war,44 torture,45 and genocide.46 Thus, much as in international human rights which also developed a solid corpus of law in the post-World War II period but still generally struggles for stronger enforcement of its edicts through binding judicial process, the more tasking challenging now for international criminal law might be the strengthening of its hodgepodge direct and indirect enforcement systems.47

Some of the arguments that have been advanced to justify the existence of regional human rights systems may be helpful in assessing the case for the place of regional courts as an additional or supplementary means of enforcement of international criminal law. The idea of regional criminal courts could in this context offer some advantages in that it is possible for different regions to have general concerns about atrocities which they share, such as in relation to the heinous crimes of genocide, but at the same time particular issues which could best be accommodated at a regional instead of supra-national level. In this regard, we can recall that it was the push by Trinidad and Tobago for an international mechanism to address drug trafficking which reopened in 1996 the global conversation about the need for a standing international penal court. With that in mind, in the absence of international consensus to include drug trafficking in the subject-matter jurisdiction of the ICC, a regional court could serve as a more suitable forum to prosecute such transnational offenses.48 It is common place that there was no agreement on whether to include that offense at Rome. Nor was there any consensus during the statutory amendments at Kampala. In such a context, the idea of a regional option could mean that the state, whose neighbors might well face the same or similar challenges, would not be left without some type of inter-state cooperation solution. In this way, it might find a to address its core concern as a sovereign wishing to discharge its duty to provide security and good order against drug lords operating within its territory.49

Rather than ineffectually act alone, by coming together with countries from the Caribbean and even the Latin America and wider Americas region, Trinidad and Tobago could achieve some of its goals in regulating transnational criminals, say through the expansion of the jurisdiction of the Caribbean Court of Justice or the Inter-American Court of Human Rights (IACtHR) to encompass criminal matters. There is no reason, in principle, why such a criminal jurisdiction could also not include the ICC crimes. Nor is there any reason why it could not include other serious transnational offenses. This is particularly so given the increased interdependence of States and the ability of non-state groups and other actors to more easily cross borders in an increasingly globalized world.

The existence of geographic, historical, and cultural bonds in states of a given region of the world such as Africa or the Americas could imply the existence of common values around which might arise region-specific prohibitions. On the other hand, by accepting the differentiation of regions based on such common characteristics, it could be countered that the notion of universal international crimes, in which all of humanity is said to have a vested interest in both prohibition and punishment, could to some extent be undermined. By the same token, this argument should not be overstated, since international criminal law has to date suffered not so much from over-enthusiasm in its application as much as under-enthusiasm in its enforcement. In any event, as international criminal law matures, it seems to be increasingly recognizing that there is at least a proximity difference among victims of such crimes based on their disproportionate direct impact and effects on the people of a given country or region.

Another argument that could favor the expansion of international criminal law enforcement by using regional courts as a site of prosecutions is one of legitimacy. Here, for complex historical and other reasons the decisions of a regional body, such as the AU, would likely be perceived among the African public as more legitimate vis-à-vis those of a more distant court based in the heart of Europe. The perception might be the same in relation to decisions of an EU established court within the European geographic space. The placement of prosecutions within a regional court might therefore help to anticipate and resolve one of the softer but still important concerns about the present trajectory of international criminal law. From that point of view, though unlikely to be a panacea when dealing with recalcitrant governments, it could be that the work of a regional court might generate greater acceptance by a group of states and thereby generate greater pressure for compliance from the countries in a given geographic region. Here, the sometimes rather convenient claims by some African States that the ICC is a neo-colonial Western project and the pushback on some its indictment and other decisions would suggest that there might be important legitimacy gains in having an additional regional forum to prosecute serious international crimes.

A key benefit here, that at least might partly answer some of the present criticisms of the ICC and tribunals not sitting in the locus comissi delicti, could be that the justice dispensed in a regional court would be closer to the people in whose name it was rendered.50 Globally, we now have just over 20 years of experience with international criminal tribunals. As part of this, we have had the ad hoc ICTY, ICTR, and the SCSL, and of course, the permanent ICC itself. In this regard, one of the main lessons that we have learned is about the significance of locating justice closer to the people. That much seems clear from the report of the UN Secretary-General on transitional justice in post-conflict situations, which rightly observed that, to the extent possible, future tribunals ought to be established as close to the concerned victims as possible.51

Relatedly, the publicity that is generated from such efforts would mean that information about trials can be more widely disseminated in a given region. Here, the experience of the international community starting with the ICTY and the ICTR, and now continuing with the ICC, suggests that—on balance—it is better if the prosecution of atrocity crimes can be localized, assuming security and other such considerations can be resolved. This also ties into the notion that trials closer to the victims and perpetrators would help give more visibility to justice. We saw the value of the latter especially in the context of the SCSL which had the advantage of being located in the country where the crimes occurred. If trials cannot occur in the territorial state, for whatever reason, the regional option may be better over the international. It could potentially even enhance the deterrent value of international criminal trials, assuming that the populations in the affected region are more able to partake in regional accountability efforts.

Finally, there is another more prosaic but perhaps equally important reason why it may be beneficial for a regional organization and its courts to get involved with the prosecution of atrocity crimes. This is because, all things considered, the cost of international justice has been a matter of serious concern for the funding countries since the UN set up the ad hoc Chapter VII tribunals.52 This so-called “tribunal fatigue”53 provoked the search for inexpensive tribunal models such as the hybrid SCSL and other mixed models embedded within the national courts of the requesting state.

Besides the possible impact that this could have in strengthening the domestic capacity to prosecute, in such contexts it is likely that a regional court sitting in the same region as the situation country would cost a fraction or at least less of what would be required for such justice to be administered by a distant international court. It may also allow a fairer allocation of the financial burdens for such courts, assuming that the states in a given region might more willingly offer the funding and other resources to enable the establishment of their own regional courts. This also offers additional salutary benefits in terms of reducing the costs of international or regional criminal prosecutions. On the other hand, it might still be the case that such efforts may instead reflect the same pressures if they come to rely on the funding largesse of donors from distant more developed regions.

In a nutshell, in this section I have developed some initial thoughts why, although apparently in its nascent stages, international criminal law could be moving in the direction of international human rights law toward what may become in the future the partial regionalization of enforcement of its substantive provisions. Going well beyond the present largely direct and indirect penal enforcement systems, through national courts at the horizontal level or international tribunals at the vertical level, it appears that there could be gains from having countries in certain regions come together to achieve economies of scale in carrying out prosecutions of serious crimes. It is submitted that such regimes, where they develop, may help to address some of the actual as well as the perceived shortcomings of centralized international tribunal prosecutions in a single global penal court sitting in The Hague.

Since the present back-up system is anchored by the ICC, which we already have in place and itself is organized around the complementarity principle, whatever develops at the regional level must be guided by and be generally consistent with the obligations assumed under the ICC Statute. The obligations contained in that statute, representing the collective views of many States, whether in terms of definitions of the crimes or general principles of criminal liability at the international level or fair trial guarantees and even core procedural rules derived from it, could serve as a minimum of what the international community would expect for any regional criminal law enforcement system. But the Rome Statute ought to be seen as having established a floor, rather than a ceiling, when it comes to accountability for atrocity crimes. If any region wishes to go further than the provisions of the ICC Statute, then it should be free and indeed even encouraged to do so. For such would no doubt result in better enforcement of international criminal law standards. I have elsewhere suggested that this Rome Statute or ICC Plus should be acceptable. Conversely, adoption of less than what the ICC system provides should not be (i.e. the Rome Statute or ICC Minus).

The next part of this chapter considers how some of these ideas, including the experiences and interactions between the regional and international in the area of human rights law, may be beginning to play out in the practice of one region of the world. Africa is an important place in the present discussion for several reasons. For one thing, though not always successfully, the region is continually experimenting with how best to come to terms with atrocity crimes. For another, the conflicts in the region and the initial wide support for the ICC and self-referrals by African States, among other factors, have led the world penal court to be deeply engaged with questions of criminal justice in it. Later concerns emerged in relation to the Court’s practice about the sequencing of global enforcement of justice, in light of ongoing peace initiatives in active conflict situations. These have also fueled various transitional justice policy initiatives in the region, all aimed at what we might call the Africanization of international criminal law.

C. The Context Giving Rise to Regional Prosecution of International Crimes in Africa

Despite the experiences that the international community has had with regionalization of aspects of international law, and the possible openness of some to the idea that international criminal law could also be enforced through regional court mechanisms, it seems fair to conclude that there has been a general reaction of suspicion to this development. This harkens back to the early debates about the pros and cons of universalism vs. regionalism in human rights enforcement in the immediate post-World War II period.54 Today, as back then, there appears to be a widely held perception that regional criminal accountability efforts might undermine the international project. For this reason, among international criminal lawyers, it appears that the decision of African States to adopt a treaty that would establish a regional criminal court with jurisdiction over the same crimes as those presently prosecutable before the ICC stems solely, or mainly, from the tense relationship between the AU and the ICC.55

But such a conclusion, though not perhaps unreasonable when viewed in the context of the present ICC–Africa saga, may be historically inaccurate. In fact, a careful historically sensitive analysis reveals that African States have in the past considered the idea of including a criminal jurisdiction within their regional human rights court since at least 1979.56 That is to say, around 17 years before the Rome Statute. Thus, although the proposal for a standing international penal court is probably older and possibly dates back to the days of Gustav Moynier in 1860s,57 the global court only materialized when the multilateral treaty which was widely endorsed by African States was adopted at Rome on July 1, 1998.

With that backdrop in mind, in the next section this chapter will show that it was the combination of at least four separate factors that coalesced to result in the June 2014 adoption of a regional treaty that would establish an “African Criminal Chamber”58 within the African Court of Justice and Human and Peoples’ Rights once the requisite number of 15 ratifications from AU Member States are secured. The analysis will reveal that the AU concern about the work of the ICC on the continent, though not the impetus behind the proposal for a regional criminal court, is relevant. Nonetheless, it is pertinent only to the extent that it served as a catalyst for (not the source of) African governments’ advocacy for a regional treaty to prosecute crimes under the slogan of “African solutions to African problems.”

3. The Legal Duty of African States to Strengthen Regional Cooperation to Enhance Human Security in Africa, Including through Prosecution of International Crimes

At the broadest level, the first factor that made near inevitable the notion of a regional criminal court in Africa is a much wider one that speaks to the current positioning of the African continent in global affairs. Here, we are referring to the fateful decision after the end of the Cold War by African States to transform Africa’s primary regional organization, formerly known as the OAU which had been in existence since May 1963, into what might be termed a human security-centered organization through adoption of the Constitutive Act of the African Union in July 2001.59

The decision to establish the AU was motivated by several complex considerations. These included a desire to shift from the logic of the principle of non-intervention60 in the domestic affairs of its Member States, which underpinned OAU policy and action, along with an understandable concern about preserving the territorial integrity of African States. That policy stance, which showed great deference to national sovereignty and rather limited regional level concern about gross human rights abuses within some post-colonial African States, was largely a function of history and where Africa found itself in the aftermath of the defeat of colonialism.

Despite the creation of the OAU, civil wars, bad governance, rampant public corruption, and a weak rule of law continued to plague the continent. This resulted in many countries degenerating into ethnic divisionism and fratricidal wars, and the commission of gross human rights and humanitarian law violations. Much as Europe had suffered the brunt of conflict in the early part of the twentieth century, Africa, as the world’s second largest continent with many unstable states seeking to find their own place in the world, became the scene of some of the worst atrocities toward the end of that same century.

The creation of the AU signaled a new type of continental body, legally, politically, and practically. It was to be more proactive in anticipating and addressing the scourge of conflict and commission of gross human rights violations in the region. Indeed, the OAU stance had, though preserving the integrity of the African States effectively, squandered the promising dividends of independence for ordinary people and served as a rather thorny source of insecurity for the continent for several decades. Following the footsteps of Europe and the Americas, African States did start thinking about the need to establish their own regional human rights system in the 1960s. But this idea only matured to governmental endorsement in the late 1970s. This eventually paved the way for discussions and adoption of an African human rights charter, which was heralded for its innovative approach to civil and political alongside economic rights, individual rights, and collective duties.61

But the same regional treaty that was greeted with enthusiasm entailed a key difference with other regional systems in that it opted for a quasi-judicial instead of judicial enforcement system. Specifically, instead of creating a regional rights court as had been done in the Americas and Europe, the main enforcement system was to be the African Commission on Human and Peoples’ Rights, which would be based in Banjul, The Gambia. Interestingly, the drafters of the African Charter were uncertain that African governments were ready for a binding judicial system that would give effect to human rights as had been the case in the other regions. They nonetheless suggested that a court to complement the commission should be revisited in the future.62 This occurred almost two decades later. Interestingly, for our purposes here, the Committee of Legal Experts charged with drafting the African human rights charter did briefly consider a proposal by the Republic of Guinea to establish a regional court that would also have criminal jurisdiction to judge crimes against humanity in addition to adjudicating claims relating to human rights violations.63 Nonetheless, despite the Guinean proposal to include crimes against humanity jurisdiction, it was felt that to do so would be premature for two reasons.64

First, one of the main concerns that had influenced the proposal for criminal jurisdiction was to address the South African apartheid policy as a crime against humanity. To this proposal, the principal drafter, Kéba M’baye from Senegal, pointed out that “an international penal court” had already been anticipated as an option in the International Convention on the Suppression and Punishment of the Crime of Apartheid even though states could also prosecute such crimes within their national courts.65 Second, and seemingly more importantly, the UN was already considering the establishment of “an international court to repress crime against mankind.”66 These two factors, according to the main drafter of the charter, militated in favor of shelving the criminal jurisdiction idea for the African human rights court.

In essence, African States had been active in leading the charge to develop a global treaty to criminalize apartheid due to their concern about the racism rampant in South Africa and its pernicious effect on that country’s majority black population.67 They thus put on hold the inclusion of a criminal chamber that would address a crime of particular concern to Africa because of the hope for international regulation through a permanent international penal court, which idea was then under consideration at the International Law Commission (ILC). As it would happen, neither the special court to prosecute apartheid as a crime against humanity nor the standing world criminal court they had expected were created for a while. It would take until the adoption of the ICC Statute on July 1, 1998 (i.e. 19 years later) and its entry into force on the same date in 2002 (23 years after the fact), that an international criminal tribunal with jurisdiction over apartheid as a crime against humanity would come into being.

The irony of the present suspicions about the motives of the African States in adopting a legal instrument for a regional criminal court, including among local scholars who are divided over the wisdom of the project,68 is that a reason why African countries held back on that initial proposal at the time related to a preference for international cooperation for an enduring world criminal court. Yet, from another perspective, this historical experience demonstrated to African States that particular crimes of interest to their continent (e.g. apartheid) would not necessarily generate the same interest in legal prohibition for the rest of the international community of states. The thought that they should instead wait for the global penal court meant that they forewent regional action in favor of international coordination, leading one commentator to speculate that this was a “dupe,” and that for African States, the experience was “significant” in affirming lack of global attention to Africa’s specific concerns.69

But besides the African States’ preoccupation with addressing apartheid, which took on renewed urgency after the Soweto Uprising of June 1976, the African human rights system established in the early 1980s has in its application through the commission based in Banjul generally fallen short of the achievement of its counterparts in Europe and the Americas. There have, of course, been many significant advances under difficult conditions. But the impact on the realization of the human rights of ordinary Africans as guaranteed under well crafted regional instruments has been far from ideal. The lackluster performance, partly due to the non-binding nature of the commission’s legal decisions, inadequate resources, and the lack of political will on the part of African States to actually comply with human rights standards, among other factors, would later resuscitate calls for the establishment of an African Court on Human and People’s Rights.

The protocol for a court, aimed at supplementing the protective mandate of the commission, was eventually adopted in Burkina Faso on June 9, 1998. It entered into force on January 25, 2004.70 The regional human rights court is presently based in Arusha, Tanzania. But even that institution has, besides the usual start-up problems, failed to receive the strong endorsement of African States. Proof of this can arguably be found in the fact that only over half of African States have ratified its treaty (30 out of 55 states), and of those, an even smaller number of States Parties have, to date, filed the special declarations permitting the court to hear human rights complaints brought by individuals against them (a total of 7 out of the 30 states that already ratified as of this writing).71

With this general backdrop in mind, and the explosion of several internecine conflicts on the continent including the 1994 Rwandan genocide and the notoriously brutal conflicts in Liberia and Sierra Leone, it should be no surprise that African States have over the past two decades increasingly turned their minds toward more robust action against those who perpetrate gross human rights violations on the continent. In this regard, the establishment of the AU as a replacement of the OAU had already given rise to the inauguration of various and interlocking institutional mechanisms, forming part of the African Peace and Security Architecture that are all aimed at addressing the prevention and management of conflicts in Africa.72

In fact, as part of the growing regional sensitivity against impunity, there was an explicit legal duty in the Constitutive Act of the African Union to take concrete steps against impunity. Under Article 4(o), the AU reaffirmed its commitment to “respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities.”73 The AU further recommitted its members to “respect for democratic principles, human rights, the rule of law and good governance,” and the “promotion of gender equality” and “of social justice to ensure balanced economic development.”74 Article 4(h) of the Constitutive Act, which preceded the entry into force of the ICC Statute by a year, goes even further and confers on the AU the legal “right 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.”75 The logic of all the above provisions, and the various legal instruments and decisions adopted by the AU since it was founded, is that the continental African body can now act, including through the use of military force but also through other measures, in the defense of civilians in the African territory.76

It is notable that the protocol establishing the Peace and Security Council of the AU entrusted with the responsibility of preventing and managing conflicts on the continent was adopted in the same month as the Rome Statute entered into force in July 2002. In other words, taken together, whether as specified in the AU’s founding treaty from 2000 or the additional instruments adopted since then, the core principles contained in the Constitutive Act have supplied a legal framework, at the regional level, for the operationalization of the Responsibility to Protect in Africa. This norm has also been endorsed by the international community, including through resolutions of the UN General Assembly. But the inclusion of Article 4(h) in the AU’s Constitutive Act appears unique as the first serious attempt to ram down the barriers of state sovereignty in a significant way. It creates a regional carveout of a narrow exception to the non-intervention principle and the prohibition on the use of force against other states articulated in Article 2 of the Charter of the United Nations. All in the name of protecting civilians from war crimes, crimes against humanity and genocide.

In addition, since the days of the OAU and now accelerated under the AU, there has been steadily developing a solid body of African human rights treaties and a web of regional obligations that address the specific human rights needs of women and children, prohibition of mercenarism, corruption, dumping of hazardous wastes on the continent, trafficking in drugs and persons, etc.77 These regional instruments, forming part of African State practice, highlight greater preoccupation with public regulation on the continent to address particular problems afflicting the Africa region.

One more specific example might suffice to make the point. This relates to the African Charter on Democracy, Elections and Governance, which was adopted on January 30, 2007 at Addis Ababa, and thereafter obligated the AU and its Member States to take several measures to promote democracy on the continent.78 First, it not only deemed unacceptable any undemocratic means of acquiring power reflecting the preoccupation with coup d’états that have stunted the growth of democracy on the continent, it also anticipated that the perpetrators of unconstitutional changes of government would be barred from participating in the ensuing election.79

Second, and going even further, the AU was under this regional treaty empowered by its Member States to prosecute the perpetrators and also provided for their trial at the regional (Africa) level.80 This, if only implicitly, suggested that there would eventually be a need to adopt new criminal prohibitions that penalize “unconstitutional change of government” and that there would be some kind of competent regional tribunal to try the offenders. For that reason, the decision to include that offense naturally followed when it was proposed to merge the African Court of Justice and the African Court of Human Rights.

In sum, there is nothing in the text of the Constitutive Act and other AU instruments to make the creation of a regional criminal tribunal incompatible with the objects and purposes for which African States created their regional organization. Indeed, far from being only tied to pushback on the ICC, the AU’s legal instruments, starting with its founding treaty and several other treaties developed since then, implied there was already emerging a regional legal sensibility and even obligation that the AU States must take robust measures to address gross rights violations and international crimes committed on the continent. This is further than, at least in terms of the normative architecture, any other region has to date accomplished. Indeed, as Ademola Abass has argued, it cannot be the case that the AU would legislate on crimes that it does not intend for its own court to prosecute.81 That would simply not make any sense. In any event, action at an Africa-wide level to create a judicial mechanism becomes even more justified considering the unavailability of appropriate national or international judicial forums to prosecute some of the crimes of special concern to Africans.

4. The Hissène Habré Affair and the Committee of Eminent Persons’ Recommendation for an African Criminal Jurisdiction

The second more immediate factor that gave rise, at the regional level, to the proposal for a standing African Criminal Court (ACC) comes from the AU’s initially unplanned role and involvement in the resolution of the issue relating to the trial of former Chadian president Hissène Habré. Contrary to popular belief, the recommendation to create such a regional criminal court originates in a formal proposal that stemmed from the deliberations about the best forum to try him instead of the ICC–Africa problem.

Habré, by way of quick background, was leader of the Central African State of Chad.82 After he was deposed from power, he fled to Senegal to seek asylum, following a brief stay in Cameroon. He is alleged to have ordered the torture and deaths of many people during his time in power.83 While in Senegal, which is a party to the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment,84 some alleged victims of torture under Habré’s regime initiated a criminal complaint in 2000 before an investigative judge at the Dakar high court, claiming that he had committed various offenses including crimes against humanity and torture. An indictment was subsequently issued by the Senegalese authorities against Habré. But it was quashed by the Dakar Court of Appeal based on a finding of lack of jurisdiction. A similar complaint against Habré was subsequently filed in Belgium by a different group of victims. Belgium thereafter issued a warrant and request for his surrender for the purposes of trial on charges of torture and crimes against humanity. Instead of turning him over, Senegal approached the AU for assistance after Belgium sought Habré’s extradition.

The Assembly, the highest decision-making organ of the AU comprising the sitting Presidents and Heads of Government, adopted a decision in January 2006 in Khartoum in which they tasked the AU Chairperson to constitute a committee of eminent African jurists to study and present options on what to do with former President Habré.85 The specific mandate of the Committee of Eminent Persons was to “consider all aspects and implications of the Hissène Habré case as well as the options available for his trial.”86 Additionally, the Committee was to make “concrete recommendations on ways and means of dealing with issues of a similar nature in the future.”87 In discharging its duties, the experts were to account for various issues, including jurisdiction over the alleged crimes for which Habré should be tried; need for adherence to international fair trial standards; accessibility of the trial to alleged victims as well as witnesses; the independence and impartiality of the proceedings; efficiency in terms of cost and time of trial; and the prioritization of utilization of an African mechanism.88

The Committee examined the specific Habré case as well as the wider question regarding the future should such cases arise again. In relation to the former element, it considered that Senegal was best placed to try the former Chadian president because of its international law obligations under the Convention Against Torture. Or, if Senegal was not able to do so, it pointed out that any other African State party to the Torture Convention could also assert jurisdiction to do so. As a last resort, even an ad hoc tribunal sitting in any African State could be established to prosecute him.89 On the latter more forward-looking aspect, which is of particular interest here, the legal experts recommended a standing mechanism to deal with the impunity problem in Africa. They observed that the African Court on Human and Peoples’ Rights, whose protocol had already entered into force, and the Court of Justice of the AU whose treaty was still under the ratification process, did not provide jurisdiction to hear criminal matters at that time. Therefore, neither of those two institutions could prosecute the Habré case.90

The Committee thereafter considered the prospects for the creation of the African Court of Justice and Human Rights based on the project to merge the African Court of Human and Peoples’ Rights and the African Court of Justice.91 The Committee proposed that this new body could be granted jurisdiction to undertake criminal trials for crimes against humanity, war crimes, and violations of the Torture Convention in Africa.92 It also observed that there was room for such a development in the Rome Statute, and considered that this would not be a duplication of the work of the ICC. It emphasized that the text of such a treaty should be adopted through the quickest procedures possible.93

At the Assembly’s summit in July 2006, at the same meeting in Banjul where the Committee’s report had been presented, the AU decided that Senegal should try Habré “on behalf of Africa” with all the guarantees of a fair trial.94 The AU leadership urged all African States to cooperate with Senegal. It further directed the Chairperson to provide the support necessary to enable the effective conduct of the trial. They also pleaded to the international community to assist with resources, especially those of a financial nature. Senegal thereafter proceeded to make amendments to its law, in July 2008, in which it gave effect to this AU decision by including in its penal code certain international crimes including genocide, war crimes, and crimes against humanity, and providing for their retroactive application. This constituted the domestic legal framework that was intended to enable Habré’s trial.

But Senegal, which did not receive the financial support of the AU that had been promised and seemed to be dragging its feet for other more political reasons, did not pursue Habré for trial. It was to take two years more, and a new president in Senegal, for the AU to enter into a bilateral treaty with Senegal to create the Extraordinary Chambers in the Courts of Senegal.95 In the meantime, planning for the trial had been hastened by Belgium’s initiation of proceedings against Senegal at the ICJ in February 2009. Belgium alleged that there had been a failure on Senegal’s part to carry out its obligations under the Torture Convention either to prosecute Habré or render him over for trial. The ICJ held that the country was in breach of its obligations to properly investigate and prosecute alleged torture committed by Habré.96

The Extraordinary African Chamber, which sat in Dakar and was funded by a mix of African and Western donors, was conferred the jurisdiction to prosecute and try the person(s) most responsible for torture and serious violations of international law committed on the territory of Chad from June 7, 1982 to December 1, 1990. President Habré has since faced charges before the tribunal with his trial having opened on July 19, 2015.97 His case closed on February 12, 2016.98 The trial judgment was rendered on May 31, 2016. The former Chadian leader was convicted, while charges against up to 27 other alleged accomplices associated with his regime have already been issued by the domestic criminal courts of Chad in N’djamena. Habré’s conviction was largely upheld on appeal in April 2017.

To conclude this section, it seems notable that the AU did not immediately endorse the expert committee recommendation to add criminal jurisdiction to the African regional court. Nonetheless, it should by now be uncontroversial that the modern origin of the idea for such extension of jurisdiction was born out of the Habré affair. It can be said to be part of that Chadian case’s legacy. No explanation was given by the AU Heads of State for accepting the recommendation relating to the specific case of Habré but not the longer term proposal to create a regional criminal court. It is anecdotally reported that funding constraints played a key role. Yet, as will be seen in the next subsection, developments relating to a separate issue which raised concerns about foreign-administered justice in Africa and against Africans did encourage AU States to revisit the recommendation for a regional criminal jurisdiction.

5. The “Abuse” and “Misuse” of Universal Jurisdiction

The third factor was not the source of, but did catalyze, AU interest in creating a criminal chamber. This was the indictment of African State officials by the national courts of various European states. These included France, Spain, and Belgium, all of which raised legal and practical concerns for African States with respect to, for example, whether those foreign jurisdictions were complying with customary international law immunities. The practice in this area and how it appears to have even given rise to regional African concerns about the ICC itself has been analyzed elsewhere, so will only be briefly summarized here.99 A key thing to note about the controversial doctrine of universal jurisdiction is that this issue predated the establishment of the Committee of Eminent Persons, which had examined the Habré matter and that then recommended the expansion of the jurisdiction of the African Court to include international crimes.

Let us illustrate with reference to the two most well-known controversies regarding “universal jurisdiction” and African States. The first was the Belgian indictment and the issuance of an arrest warrant for the Congolese foreign minister, Abdulayae Yerodia Ndombasi. This famously led the Democratic Republic of Congo (DRC) to initiate proceedings against Belgium at the ICJ in which the DRC alleged that Belgium had violated its obligations under customary international law. In a much-criticized decision, at least among some commentators who lament the majority’s decision not to engage with the universality principle, the ICJ ruled in favor of DRC on February 14, 2002, finding that certain immunities are unopposable before the national courts of states even if they are not available to block prosecutions before certain international criminal courts.100

What is significant about the Yerodia case, from the perspective of our argument here, is that the African government concern about the possible abuse of the principle of universal jurisdiction by foreign courts had predated even the entry into force of the Rome Statute of the ICC. This of course was the case in relation to individual African States on their own, such as the Congo, not necessarily as part of the regional body we now know as the AU. That said, there is of course much interplay in the two. Once Member States have concerns about certain policy matters, including on foreign policy questions, they raise those issues bilaterally with the other states and at the same time pursue action within regional or international clubs that they are part of as a way of mustering political support. They could thus better identify collective solutions to initially individual problems. We have seen that phenomenon with other African States bringing up issues in Addis Ababa and New York, including on topics of international criminal justice. This, of course, is not unique in international relations.

The perfect example of this is the second round of universal jurisdiction-based indictments. These were against Rwandan leaders and led to a strong reaction from the AU that this constituted a blatant “abuse” of the principle of universal jurisdiction.101 Certain French and Spanish courts had indicted several high-level Rwandese officials. In the case of the former, this did not include President Paul Kagame, and in the case of the latter, it did. The judges sought warrants for him and 43 others including the Chief of Protocol to the President, Madame Rose Kabuye.102 This would later lead to a major diplomatic row between Kigali and Paris, especially after Madame Kabuye was arrested in Germany, on a European arrest warrant. The AU subsequently adopted strongly worded resolutions that may have far-reaching implications for the development of state practice respecting universal jurisdiction. Those decisions most notably called for a moratorium on the issuance of arrest warrants against African leaders by European courts; decided to constitute an AU–EU expert group on universal jurisdiction with both African and European experts; and ultimately as of September 2010, seized the UN General Assembly’s Sixth Committee of the matter. The Sixth Committee is now undertaking a global study on universal jurisdiction. The study continues as of this writing. In 2018, due in part to the politicization of the topic in the General Assembly and the call of many States for it to assist in bringing greater legal clarity, the International Law Commission added the topic to its long-term program of work based on a proposal of this author.

More pertinent for our purposes tracing the genesis of the criminal jurisdiction for the African Court of Justice and Human and Peoples’ Rights, in several later decisions on universal jurisdiction the AU, because of the use of universal jurisdiction against Rwandese officials, directed its commission to explore, in consultation with the Banjul Commission and the African Court, the “implications” of empowering the regional court with jurisdiction “to try international crimes such as genocide, crimes against humanity and war crimes.”103 This decision was further reiterated during their annual 2009 summit in Sirte, Libya.104 In other words, the African government concern about alleged abuse of universal jurisdiction seemingly returned the AU to more serious consideration of the proposal to endow the African Court, which had been initially proposed by the Committee of Eminent Persons, with criminal jurisdiction. Needless to say, the recommendation had essentially been initially put on the shelf. The concern about foreign-imposed justice from universal jurisdiction therefore resuscitated it and later bore other implications for the ICC’s work on the continent.

The point I wish to make here is that the recent rounds of universal jurisdiction indictments against African leaders in Europe, most of which seemed to have ultimately been withdrawn, sped up urgency in the AU for an African mechanism that will try African crimes on African soil. Again, the fraught ICC–Africa relationship, which is important and will be considered next, played into this. But, by now, it should be apparent that this additional factor was only one of several aspects that seemed to strengthen the African government resolve to add a regional criminal jurisdiction in the AU’s future regional court.

6. The Africa–ICC Relationship

The final and perhaps most important single concern that led African States to start fast-tracking their plans for the creation of a criminal jurisdiction stemmed from the African government dissatisfaction with the work of the ICC on the continent, and in particular, the activities of the Office of the Prosecutor (OTP) in the Sudan situation. It is widely known that the decision of the ICC Prosecutor to seek an indictment against the Sudanese Omar President Al Bashir in March 2008 provoked a strong reaction from the AU. In its first decision on the matter, the AU expressed grave concern that the delicate regional efforts to make peace in the Sudan may be impeded if not entirely jeopardized by such a move.105 This same type of stance was taken by the AU Peace and Security Council when the ICC Pre-Trial Chamber (PTC) finally approved the proposed indictment for the Sudanese leader on charges of crimes against humanity.106 The AU insisted that it was not against prosecution of anyone, but made clear that in light of the then humanitarian catastrophe that was taking place in Darfur, it was opposed to the timing of the prosecution. It felt that this would render it difficult to find a political solution to the conflict in Sudan. An interesting element of this decision was the direction that the AU Commission convene a meeting of African States Parties to the Rome Statute so that they could exchange views and develop recommendations on the ICC’s work in Africa, especially its action “against African personalities.”107

From the point of view of escalation of concern in the ICC–Africa relationship, the follow-on step was the AU’s request for a deferral of the Sudan situation under Article 16 of the Rome Statute. This request was forwarded to New York. It was later reiterated. The repeated deferral request was implicitly rejected.108 African States thereafter decided, collectively, that in view of the Security Council’s implicit refusal to act to address the African government concern, none of them shall cooperate with the ICC in respect of the arrest and surrender of President Al Bashir.109 This problematic decision, taken on July 3, 2009 at Sirte, Libya, remains on the AU books to this day. It underscored the African government conclusion that the timing of the indictment was wrong and had resulted in what the AU considered to be negative consequences for peace. However, from the perspective of ICC law, this decision arguably puts individual African States-Parties to the Rome Statute in violation of their obligations under the Rome Statute which imposes a general duty on all ICC States-Parties to cooperate with the ICC.

Besides this far-reaching decision framing the future of ICC–Africa relations in relation to non-cooperation in the Sudan situation, which has frustrated the attempts to have Al Bashir arrested to answer charges, the AU leaders also took another less well-known but equally important step in July 2009. It decided that the jurisdiction of the regional court of the continent should be enlarged to entrust it with the mandate “to try serious crimes of international concern such as genocide, crimes against humanity and war crimes, which would be complementary to national jurisdiction and processes for fighting impunity.”110 Subsequent developments since then, including the issuance of indictments arising from the Kenya Situation, have all fueled the political posturing of African countries, insisting that the continent should develop its own regional criminal justice system to prosecute serious crimes of concern to the continent as a whole.111

The upshot of all this for us was that the AU Commission contracted a non-governmental organization, the Pan African Lawyers Union (PALU) located in Arusha, Tanzania, to prepare a detailed study and a draft treaty that would amend the protocol of the Statute of the African Court of Justice and Human Rights. In June 2010, PALU issued its first report and draft legal instrument to the AU Legal Counsel’s Office which then requested certain changes. A revised version of the draft treaty was submitted in August 2010 to two validation workshops held in October and November 2010. Legal advisers of African States then held several meetings to consider the draft instrument in March, May, and October/November of 2011, which in turn led to further amendments and adoption of the draft protocol.

Upon approval at the ministerial level, the treaty was then submitted to the AU Assembly in July 2012, and contrary to general expectations that it would be adopted, the Heads of State requested further study of the “financial implications” of the expanded jurisdiction. They also sought clarification of the definition of the novel crime of unconstitutional change of government. A report was subsequently prepared on which further consideration was required, although it glossed over the huge financial costs of international criminal jurisdiction. In the final step, in a May 2014 meeting, the legal advisers of AU States met in the inaugural meeting of the Specialized Technical Committee on Legal Affairs in Addis Ababa where additional amendments to the protocol were made. These were thereafter endorsed by the ministers of justice and then forwarded to the Assembly of Heads of State which adopted the protocol and opened it for signature on June 27, 2014. As of writing, nine African States have signed the treaty. None has yet ratified it.

A. Innovations in the Criminal Jurisdiction of the African Court of Justice and Human and People’s Rights

This chapter, when it opened, suggested that one of the potential benefits of having regionalized criminal courts, whether within a human rights court as proposed for AU States or independently as part of a standalone criminal jurisdiction, is that the crimes of special concern to a particular region could be addressed in a way that might not be feasible in an international tribunal. An examination of the Malabo Protocol seems to bear this argument out. Even though the treaty is not yet in force, we can anticipate that based on the treaty-making practice in Africa, we will likely see the achievement of the 15 ratifications required to bring the treaty into force in possibly between the next 5 to 10 years. Of course, if there is serious member state push, it is possible for that to occur sooner as well.

1. Expanding the Scope of International Criminal Law

First, besides the fact that the African Court will have a tripartite jurisdiction over civil, general, and criminal matters, which itself is a first in the history of regional and international criminal courts, the protocol contains an expansive subject-matter jurisdiction over serious international crimes like genocide, crimes against humanity, war crimes, and the crime of aggression. The definitions of these crimes used international instruments, in particular the Rome Statute, as the initial inspiration for the codification. This seems appropriate in the sense that, because the ICC has to date been endorsed by 34 African States, it is important that the AU States reflect the consensus definitions of at least a large part of its 55 Member States and the additional 90 countries from other parts of the world that have joined the ICC. Africa being a part of that wider community should ensure its prohibitions help to solidify that arguably emerging body of law.

Nonetheless, as I further discuss in Chapter 8 of this volume, though the Rome Statute was taken as a starting point, it was rather interestingly, from the perspective of the normative development of a strong corpus of international criminal law, not seen as the be-all and end-all. In other words, African States felt that the definitions of those “core international crimes” could, as appropriate, be supplemented by African States to reflect progressive developments in the law. They also naturally accounted for the specificities of the African context in fleshing out some of the prohibitions. An example of the former is illustrated by the tweaking of the definition of the crime of genocide. While the definition incorporated into Article 28B of the Malabo Protocol copied verbatim the one contained in Article 6 of the Rome Statute, which itself can be traced back to the widely endorsed 1948 Genocide Convention, AU States decided to add a new paragraph to capture and even expand upon the legacy of the ICTR in the Akayesu case in relation to acts of sexual violence by criminalizing “acts of rape or any other form of sexual violence,” whenever they are committed in a genocidal context. This codification is an important step forward in the development of the crime and modern international criminal law, especially given the horrific acts of sexual violence in contemporary armed conflicts. It also helps to address a gendered blind spot of international criminal law.

In terms of the latter, another example is the crime of aggression which had not yet entered in force for the ICC. The AU States took the essence of the Rome Statute definition in their criminalization of the crime of aggression in Article 28M. But, here again, they went well beyond it both in terms of the underlying prohibited acts and the persons who can commit the crimes. Though there were other differences in the African definition which could raise questions of inconsistency in the prohibition of aggression vis-à-vis the Rome Statute and other definitions developed under the auspices of the UN, a particularly interesting feature is that the AU version of the offense can be committed not just by a state but also non-state actors. Sayapin discusses these elements in Chapter 11 of this volume.

2. Bridging International and Transnational Crimes

Second, and going much further than the incorporation of certain international crimes into the Malabo Protocol, African States have in their instrument tried to prohibit offenses “of particular resonance on the continent.”112 This means that they have attempted to overcome the barrier, artificially drawn in theory and hard to distinguish in practice, between “international crimes” and “transnational crimes.” Thus, in addition to war crimes, genocide, crimes against humanity, and aggression, the Malabo Protocol also contains the crimes of unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, and illicit exploitation of natural resources. All these crimes are discussed in several standalone chapters of this book.

What is particularly intriguing about some of these nine additional offenses is that they extend beyond concern about individuals to also addressing environmental issues such as toxic dumping. There is also the collapsing of what we might consider more political crimes and more economic crimes. The predicate context in which governance deteriorates in a given state and on a path toward open conflict is also addressed through crimes like corruption. Moreover, some of these crimes that have historically been of great concern to Africa such as mercenarism and corruption have not generated significant international attention or interest before African action at their internationalization. It should not be surprising therefore that such crimes are prioritized by AU States within the framework of their regional court, since those kinds of offenses tend to be ignored by international criminal tribunals. For countries like Trinidad and Tobago, that apparently continues to advocate for drug trafficking to be treated as a matter of sufficient international concern to merit inclusion in the subject-matter jurisdiction of the ICC, one could see such an alternative approach as we see in Africa offering a potentially more viable solution. Here, instead of unsuccessfully pushing its efforts for criminalization in The Hague, it could seek a regional convention that prosecutes that same transnational crime within a court or tribunal in the Latin America and Caribbean region.

3. Extending Criminal Liability to Corporations Involved in Atrocity Crimes

A third feature of the AU court’s treaty is also very significant considering the link between rights violations and resource driven conflicts: criminal responsibility is not just individual in nature, but also can be invoked in respect of corporate entities. Under this scheme, the executives of multinational corporations can be held individually responsible for participating in the commission of the international and transnational offenses codified in the Malabo Protocol, where those are committed in the territory of an African State party. But the corporations that they run could also be prosecutable – as Kyriakakis discusses in Chapter 27. So, to the extent that they aid and abet or instigate or somehow facilitate the commission of gross international and transnational crimes, they can also be held directly accountable in the States Parties to this regional treaty or in the regional court. This will likely be a controversial feature of the court, especially in the parts of the world from which many corporations that fuel third world conflicts come. On the other hand, one only has to think about the examples of contemporary “resource conflicts” such as conflict oil, conflict diamonds, and so on to note the possible significance of this regional crime in a continent whose many wars are somehow always linked to resource or mineral extraction.

This extension of criminal liability, in recognition of the role played by corporate entities in fueling contemporary conflicts in which atrocity crimes are committed, did in fact lead to a proposal during the Rome conference to include that type of jurisdiction in the permanent ICC. That suggestion apparently failed, due largely to the opposition of some powerful Western States. From the perspective of the developing world, some might perceive this as proof of the predominance of the powerful countries in shaping the form that international law takes to suit their interests. Indeed, as Vincent Nmehielle has argued,

the inability of international criminal justice mechanisms such as the Rome Statute to address corporate criminal responsibility is indeed a challenge to the credibility of enforcing international criminal law in Africa and in most of the developing world where multinational corporations have not been known to be innocent in allegations of complicity in the commission of atrocity crimes.113

Though the parameters of how this corporate criminal liability would work in practice remain to be seen, as with the above discussed and indeed other aspects of the Malabo Protocol, any success in holding corporate or legal persons liable for atrocity or other transnational crimes holds the potential to expand the reach and effectiveness of international criminal law. It will likely spark conversations about the scope and reach of the future of this body of international law in light of the relatively more limited mandate and jurisdiction of the ICC. It could even open the door for other regions of the world, for example Latin America, to potentially use the African Court as a model. To that extent, by unlocking the idea of corporate criminal prosecutions for international and transnational crimes, Africa might well make a useful contribution to the development of international law. For it is plausible, as we have seen in other substantive issue areas, mainstream international law might develop in this direction as well. The ILC’s draft convention on crimes against humanity, which was adopted on first reading in the summer of 2017, provides space for liability of legal persons for crimes against humanity in the national jurisdictions of those states that recognize such type of liability.

4. Road-testing the Public Defender Model

Fourth, and turning more to the institutional dimension of the court, it is noteworthy that the Malabo Protocol sought not just to reflect the particular African concerns but also some of the best practices in the establishment of international criminal tribunals. As the first regional criminal court, and on top of that, one embedded within the framework of a permanent regional court of justice, it was explicitly determined to follow the pretrial, trial, and appellate chamber structure of the ICC for the International Criminal Law Section of its jurisdiction. It is not certain that this was a wise decision, given the practical limits now evident in that model for the world criminal court. Nonetheless, in addition to the usual organs of prosecutor, chambers, and registry, the ACC would be the first permanent regional tribunal to include a full-fledged defense office organ. This last-minute change, at the proposal of the Office of the Legal Counsel of the AU in the May 2014 Addis Ababa meetings (for which one of the present authors had served as an independent expert), is significant. The inattentiveness to defense needs has been an institutional weakness for modern international courts. This includes at the ICC itself, which does not have a full-fledged defense office. Having such a mechanism essentially ensures that the defense office in the future tribunal will be a more co-equal organ to the prosecution and the other organs of the tribunal. It thereby helps to ensure greater equality of arms between the adversarial parties in the proceedings. Taylor thoughtfully discusses the defense office feature in Chapter 24.

7. The Legal Relationship Between the African Court and The International Criminal Court

In this section of this chapter, we consider a question which tends to lurk in the background of the ongoing debates among ICC supporters about the AU’s proposed criminal chamber with jurisdiction to prosecute Rome Statute crimes. That is, the nature of the legal relationship that we can begin to expect between The Hague-based court and its African counterpart if and when the latter’s treaty comes into force. The answer to this issue is important, not just for the Africa region but also for the argument made here that regional courts from all parts of the world could potentially become integral to an interlocking web of future enforcement regimes for international criminal law.

A. The Shared Goals of the ICC and the African Criminal Chamber to Tackle Impunity

The legal texts of the Rome Statute and the Malabo Protocol both contain jurisdiction sorting provisions that would permit the two bodies to function in a manner that is mutually supportive and complementary of each other. The preambulary provisions of both instruments set out the core purposes of the two tribunals. The ICC Statute affirms, among other things, that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.” It speaks to a determination to “put an end to impunity for the perpetrators of these crimes and thus to contribute” to their prevention, recalls the “duty of every state to exercise its criminal jurisdiction over those responsible for international crimes,” and emphasizes that the ICC “shall be complementary to national criminal jurisdictions.” These are the words of the preamble.

For its part, the Malabo Protocol expresses similar sentiments, although in relation to the specific African context. It, among other things, recalls the AU’s right to intervene in Member States in grave circumstances where war crimes, genocide, and crimes against humanity have occurred as discussed earlier. It also avers to serious threats to legitimate order in order to restore peace and security, and reiterates respect for some of the core principles contained in the Constitutive Act including the “condemnation and rejection of impunity” generally and in respect of specific crimes such as terrorism and aggression. The preamble further acknowledges that the proposed court can play an important role in securing peace, security, and stability on the continent as well as to promote justice and human rights; and notes that African States were convinced that the adoption of the protocol “will complement national, regional and continental bodies and institutions of human and peoples’ rights.” It could have mentioned the ICC or any international courts or bodies, but did not do so. Neither, by the same token, did it frown upon them.

B. Complementarity as a Jurisdiction Regulating Principle

In addition to expressing the above guiding principles, the ICC Statute explicitly provided in substantive Article 1 that the court has power to “exercise its jurisdiction over persons for the most serious crimes of international concern” and again reiterates that the Court was intended to round out national criminal jurisdictions. This complementarity is given effect in the admissibility provisions, which regulate the ICC’s concurrent jurisdiction with its States Parties, and in particular Article 17. The entire scheme rests on the important premise that the Member States enjoy primary jurisdiction and consequently the right to first assert that jurisdiction, whereas the court only has secondary jurisdiction and a right to act as a last resort where certain conditions are met. Thus, the ICC is to deem a case inadmissible before the Court where 1) it is being investigated by a state with jurisdiction and the state has decided not to prosecute, unless that decision to prosecute is a result of unwillingness or inability of the state genuinely to prosecute; 2) where the case has been investigated but a decision is made not to prosecute; 3) the person concerned has already been tried for conduct which is the subject of the complaint; and finally, 4) the case is of insufficient gravity to warrant further action. What will constitute unwillingness and inability is further fleshed out in two additional paragraphs of Article 17.

Similarly, inspired by Article 17 though not referring explicitly to the ICC Statute or the ICC itself, the Malabo Protocol also considers that it will be guided by the complementarity principle. In the main, with very few changes to the wording, the ACC also establishes that its jurisdiction “shall be complementary to that of the National Courts, and to the Courts of the Regional Economic Communities where specifically provided for by the Communities.”114 The Malabo Protocol goes on to further reflect the admissibility provisions of Article 17 of the Rome Statute in several subsequent paragraphs of Article 46H.

It does not, however, mention specific international criminal jurisdictions like the ICC. Interestingly, the initial PALU draft contained a specific reference to complementarity with the ICC. But that reference was removed from later drafts, likely due to the fraught political climate between the AU and the ICC at the time. Since the two courts will be operating at a horizontal level, as there is no legal hierarchy between them, this would imply that the two bodies would have to work out in advance how they will relate to each other through some type of relationship agreement and/or through their jurisprudence. Managing this up front would redound to the benefit of both institutions. There is precedent for both institutions entering into relationship agreements or memoranda of understanding. The details, of the type found in Articles 18 and 19 of the Rome Statute, in respect of preliminary rulings regarding admissibility and challenges to the jurisdiction of the African Court by African States Parties, were also not addressed in the Malabo Protocol. Presumably, this is because it was felt that these could be better addressed under the rules of procedure.

Clearly, in respect of both the ICC and the ACC, complementarity is envisaged vis-à-vis the national jurisdictions of states parties to the relevant instrument. Under both, as a general rule, the two entities are secondary back-up systems to those of the Member States which have the first bite at the apple to investigate or prosecute. Where unwillingness or inability are shown, the international or regional jurisdiction would then be triggered. The major difference in the two relates to the African Court’s inclusion of regional economic communities in the calculus. This suggests that a double failure is required, to the extent any of those had provided for jurisdiction over international crimes. As no regional economic community has yet had jurisdiction, even though judges of the Economic Community of West African States (ECOWAS) Court of Justice have shown interest in advocating for it, we can set aside that discussion for now.

C. Positive Complementarity for National and Regional Courts

A legal question arises whether from the perspective of the Rome Statute, the complementarity clauses in the two treaties, both of which contemplate state to court admissibility considerations, can apply to the court of a regional organization. Here, at least two possibilities can be discerned. The first is that we can analyze the complementarity relative to the States Parties of both courts. In this scenario, for all the States Parties of the ICC that also happen to endorse the African Court, the admissibility analysis of complementarity would at the level of the ICC require an examination of whether the state took action to prosecute the Rome Statute crimes. Such an assessment could include whether that was done directly by the state itself, or alternately for example, through a farming out of the work through a self-referral of its own situation to the regional African Court. The question would then arise, where this has happened, whether the regional court’s actions amounted to the types of credible or genuine investigations and prosecutions reflecting the kind of active pursuit of the same persons for substantially the same conduct such as to render the situation and cases inadmissible before the ICC.

As a matter of principle, as mentioned above, since the ICC itself including the OTP along with academics have been advocating the policy of proactive or positive complementarity, which basically refers to the court encouraging States Parties as well as non-parties to take effective investigation and prosecution of Rome Statute crimes, it would seem that a flexible reading of the Article 17 requirements would help achieve that goal in the region of Africa. In this way, the ICC, instead of foreclosing the option of regional prosecutions, would support its States Parties and even others to do more to tackle impunity.

Under the ICC Statute, African States, which constitute the largest single regional bloc within the Rome System of justice with 34 members, bear the primary responsibility to prosecute and yet experience serious international or transnational crimes that they are hardly able to prosecute. The over-representation of African States on the ICC situational docket has brought into stark relief the fact that many African States presently lack the substantive capacity to prosecute serious international crimes. The handful that might have capacity such as to fulfill the complementarity requirements might have difficulty adjudicating highly political cases or at least those involving the most powerful government officials.

One could imagine a scenario then, as we see in Uganda for instance, where there might be a preference to use the domestic courts to harass and imprison opposition leaders. One could imagine such a context rising to persecution of a person and say a particular ethnic group, giving rise to the commission of international crimes. In the ICC itself, if we think of the Kenya situation, we can see some of the challenges that might be involved in the investigation and prosecution of incumbent government officials such as the president or his deputy. That experience perhaps underscores the need for a regional instead of solely a national alternative. The regional jurisdiction would, if this argument is right, complement the international court’s reach. Under this argument, each of the African States Parties to the ICC, as well as African non-parties, should be positioned to prosecute the core heinous offenses within the Court’s jurisdiction as well as become part of the regional and international mechanism.

There is nothing in the Rome Statute, and international law generally, to prohibit them from doing so individually or through a collective such as a regional body like the AU’s criminal court. Nor, for that matter, are there any prohibitions for any other regional body in say Europe and Latin America or Asia to come together to do collectively what each of them can do alone. In this way, the states of the region can, in compliance with their obligations under international law, cooperate whether bilaterally or multilaterally to discharge their duty to prosecute core international crimes. The only caveat might be that they must then do so in line with the principles of the Rome Statute which would not accept sham proceedings aimed merely at shielding the accused. On the other hand, in relation to the situations where overlaps of situational and individual jurisdiction arise between the two courts, some sort of jurisdictional coordination will be required. That is where creative interpretation of both the ICC Statute and the Malabo Protocol could offer practical solutions.

The above interpretation, which advocates that complementarity is flexible enough as a jurisdiction sorting concept to admit of regional bodies such as the future African Court in additional to national jurisdictions, is consistent with the views of some of the ICC’s Member States. For instance, on March 14, 2014, Kenya proposed, in light of the AU decision to adopt the protocol, an amendment to the Rome Statute that would explicitly mention regional organizations.115 Though the issue seems to still be under discussion, it appears that there is some who find such amendment unnecessary since the present framework can accommodate such a regional body. Chapter 24 assesses in detail the ACC's complementarity principle.

8. Key Challenges for The Future African Court

In as much as the preceding sections have suggested that there are good reasons favoring the prosecution of international and other crimes within regional courts such as the proposed African Court, this is only one part of the picture that we must assess. The other half of the story is the fear that such a regional project could undermine, if not imperil, the hard-won achievement of a permanent international penal court. So, while due to space I will not consider all the issues, let us now discuss five major concerns that could give cause for pause in terms of the establishment of a criminal chamber within the African Court of Justice and Human Rights. I will attempt to offer some preliminary reflections that could help alleviate some of these concerns.

A. Practicality of a Criminal Chamber

The first issue is one of pragmatics. It can be argued that it is unlikely that the proposed criminal chamber will effectively exercise its jurisdiction over international crimes in Africa. The fact is that, idealism and aspiration aside, there is a history of poor performance by continental African institutions. Naming names can be controversial in this respect, but as an example, we could point to the African human rights system itself. That system, by any measure, is seen as underperforming behind its older and more established European and Inter-American counterparts.

Take, for instance, the work of the African Commission on Human and People’s Rights based in Banjul and created by the 1982 African Charter on Human and People’s Rights. That body, which was considered innovative for combining notion of rights and duties for the first time in a major human rights treaty, was held up for its promise much like we might do today for the innovations we can discern from the Malabo Protocol. But, the practice of that institution has not matched the initial excitement invested in its promise. There has been, among other things, a woeful lack of money and resources, and various operational difficulties that have limited that body’s tremendous promise to guarantee human rights in Africa. On top of that, due to the lack of bindingness of its decisions under its communication procedures, that body’s work, while generally important in advancing the cause of human rights on the continent, has been stymied with non-compliance on the part of governments found to have violated the human rights of their citizens.

Relatedly, when the decision was made to improve the Banjul Commission and create a regional court that could enter binding decisions against African State violators of human rights, only a handful of countries have accepted its jurisdiction to hear individual complaints. At last count, there were only seven following the withdrawal of Rwanda’s declaration after several cases were failed against it; meaning that the premier human rights court on the continent, has no jurisdiction over the individual human rights concerns of the citizenry of roughly 48 African countries. In fact, only 30 of the 55 AU members have ratified the treaty establishing the human rights court. If we look at the estimated count of the populations of the countries that are covered, and those that are not, we will basically find that of approximately 700 million people, less than roughly 100 million enjoy the protective umbrella of the continent’s premier human rights court. It is remarkable that the Court’s protective ambit, as limited as that itself could be, excludes approximately 600 million Africans. The end result is that, in well over ten years of its existence, the African Court has so far only had a few cases. Ironically, even the ICC itself has a broader jurisdictional reach in Africa than the Arusha Court, at more than half of the African States Parties.

In the same period, since it was formally established in 1998, the present human rights court has issued only a handful of judgments on the merits. And, even in those instances, it seems uncertain that the countries in issue have implemented those decisions. We also do not appear to have much pressure for compliance from the AU or other African States. On the other hand, as one African commentator who himself has been a member of the Banjul Commission has argued, we must take into account the relative youth of AU institutions starting with the AU itself and its sub-organs and entities such as the Court.116 The more the AU can strengthen itself, the more likely that its States Parties and sub-regional bodies of African States will become stronger as well. Be that as it may, even if the criminal court is created, it will almost certainly have some of the same organizational start-up problems as we have seen affecting other AU created institutions. Funding constraints will be part of this.

This is only somewhat different, however, from the experiences of the international criminal courts we have had. For example, the ICTY took many years to settle into and even ramp up and then conclude its work. The ICTR, which reflected some of the travails of African institutions in its early years, also took a few years before it could get on track. The SCSL, though it issued its first indictments within six to eight months of the Prosecutor’s arrival in Sierra Leone, was only expected to operate for three years. As it closed down it had only completed about ten cases and operated for nearly a decade and a half. The Cambodia tribunal, for its part, is also notorious for its own manifold problems. In other words, though we might hope for something different, the African and other international precedents do not suggest many reasons to be too confident. The wide jurisdiction and the sheer breadth of the project to merge three courts into one may be innovative, in principle, but does not come without their own major institutional headaches.

Lastly, and even more significantly, what about the ICC itself? It has taken the ICC about ten years to finish its first case from investigations to conclusion in the seminal Thomas Lubanga trial. It also, after so many years, just secured its first acquittal and managed to complete a second case, though with some judicial help to the prosecution through recharacterization of the charges. The first point to take away from this discussion is that there will be problems. The second point is that such problems are not unique to Africa. There, they might be particularly acute, but they do also expose the teething problems associated with the development of such complex institutions on which we often place so many high and unreaslitic expectations.

B. Lack of Political Will to Prosecute Those Most Responsible for Atrocity Crimes

This will be another concern. Failure of the AU to cooperate with the ICC through its Sirte July 2009 decision, and in the arrest of Bashir, suggests that the AU will not be willing to punish Heads of States that commit crimes within the framework of a regional court. In fact, on this argument, the inclusion of a clause reiterating the immunity of sitting presidents from prosecution, deputy presidents, and other senior government officials in Article 46Abis of the Malabo Protocol, can be seen as proof of the intention to exclude real accountability.117

Those in the highest positions of government tend to be the ones implicated in fomenting the violence that in turn often leads to the commission of atrocity crimes. A look at the Sudan and Kenya situations as well as those of the DRC, the Central African Republic (CAR), and the various other African situations currently before the ICC, and before that the Rwanda and Sierra Leone conflicts, would bolsters this argument. In other words, from this admittedly skeptical view, there is even risk of political manipulation of any new chamber by self-interested African leaders. This argument again finds some traction in the last-minute AU decision to include a clause conferring temporary immunity for sitting Heads of State and other senior government officials, largely at the behest of Kenya.

But several other factors will be important in a regional criminal justice process in Africa. It may also be that there is reason to be optimistic that we are better off having a regional mechanism as well than if we left prosecutions of international crimes solely to individual African jurisdictions. Political realities and past history suggest that African States, like some others elsewhere, will probably try to influence the work of national justice institutions if they seek to prosecute high-ranking government officials. Similarly, in the same way that international courts are not insulated from the politics of international institutions, it is highly likely that a regional court will have greater independence and impartiality compared to a national court. It might therefore have greater likelihood of non-manipulation by a single state if the cases take place in a regional or international court rather than if prosecutions occurred at the level of the national jurisdiction.

C. History of Underfunding African Human Rights Institutions

Third, and leaving aside potential institutional deficiencies and the controversies surrounding immunity, perhaps the biggest constraint that any future ACC will face is a lack of the resources and funding for its effective functioning. This is a significant concern that could stand as a real impediment to the functioning of the criminal chamber. The entirety of the AU receives programmatic support for many activities through donor assistance. And, when it comes to international criminal trials, the AU found it difficult to convince its Member States to marshal the resources necessary for the trial of a single case involving a single person (i.e., Habré in Senegal). If the AU was unable to do more than offer a modest contribution of $1 million of the total funds required to carry out the single Habré trial in Senegal, despite the repeated pledges of some its members to do so, is it realistic or feasible to expect that they will provide the funds required to carry out expensive international investigations and prosecution of crimes across several countries on the African continent? Probably not.

In any event, leaving the Habré case aside in relation to which there was an order for the AU to establish a trust fund to secure reparations for victims which has not been established, the creation of a single regional criminal chamber in Africa does create space for economies of scale. Of course, the unit costs of an international criminal trial, at least those done in the current ad hoc international tribunals, appear to be roughly in the neighborhood of between $15 and 20 million per trial. Certainly, African States will not at present be willing to pay such high expenditures for a single criminal trial. A more modest and more realistic system will have to be devised. This should consider the cost of justice in the countries of the continent. But, even if the costs of trials are dramatically lower in the future African Court, the reality is that millions of dollars will still be needed if the court is to play a useful role in the fight against impunity across the region. It would seem that it will obviously be better if African States, themselves impoverished, can come together to marshal the resources required to prosecute the international crimes in their own backyards rather than creating ad hoc tribunals such as the Senegal Extraordinary Chambers or trying to do so alone within the framework of their national courts. Nonetheless, in carrying out investigations in situation countries, some of the same types of challenges that the ICC have faced will likely come up also for the African Court so long as it enjoys jurisdiction spanning several African States. These inter-related concerns will have to be addressed if the institution is to be more than a mere paper tiger. The two chapters on the challenges of financing the future court, in Part 4 of this volume, provide a sobering read.

D. Fear of Undermining the ICC

A fourth important challenge for the idea of an effective an African criminal jurisdiction is more philosophical. This is the fear that its very existence could undermine the important ongoing work of the ICC on the continent. Indeed, the wider context of establishment leaves the African Criminal Chamber vulnerable to the perception, whether legitimate or not, that it is nothing but a form of political backlash against the ICC.

At the same time, it has been shown that a coming together of different factors has driven the agenda for a regional court. Consideration of the formal AU decisions in which they continue to condemn some of the ICC’s actions tend to lend it some credence. And the AU’s failure to repeal some of these decisions, including the July 2009 decision on regional non-cooperation taken at Sirte Libya, does not help matters. Nor does the refusal to allow the ICC to open a liaison office in Addis Ababa. All these might suggest that with a regional court in place, there will likely be a shift of cooperation away from The Hague. This is speculative, as it is hard to tell. In the final analysis, what is clear is that there is a need for dialogue and engagement between the AU and the ICC. Recent developments, including the first amicus curiae application by the AU Commission in 2015 in which one of the present author was involved as external counsel to bring the AU’s legal concerns to the Appeals Chamber in the Kenyan cases, is a step in the right direction. This opened the door for the ICC Appeals Chamber to, in turn, invite the AU to participate in recent proceedings concerning Al Bashir and the question of immunity and the duties of states to cooperate in his arrest in 2018. These demonstrate that valid legal concerns raised by AU States will be taken seriously by the judges, and still allows the ICC to exercise its independent judicial-making authority to review politically controversial cases.

E. Regionalism and Fragmentation of International Criminal Law

A final argument we could raise against the regional criminal jurisdiction is the notion that regionalism is not a good idea because it might lead to the further fragmentation118 of international criminal law. To the extent that there is conflict in the norms developed in Africa with those in the ICC Statute, this would be undesirable from the perspective of the goals of African States as well as the development of a universal international criminal justice system. The potential mushrooming of regional and sub-regional courts creates the prospect for courts with distinctive legal bases that could have inconsistent and incoherent legal bases, and apply inconsistent interpretations to decisions adjudicating war crimes, crimes against humanity, genocide, and the crime of aggression. This would threaten the unity of international penal law. On the other hand, the African experiment, by taking as a starting point the Rome Statute and progressively building upon it in most instances, implies that there is a desire to ensure that the obligations assumed by African States are at least compliant with the ICC regime. This might help to maintain greater coherence and perhaps even help to avoid fragmentation of regional and international criminal law.

9. Concluding Remarks and Recommendations

This chapter has examined whether there could be a viable place for regional courts in the global struggle against impunity. In this view, much as in the international human rights system that has developed over the last half century, international criminal law—which is still trying to find the best ways to dispense justice on behalf of the victims of atrocity crimes—would likely benefit from regionalization of some of its enforcement of its prohibitions. Each part of that mutually reinforcing enforcement system can play its own role in the fight toward the same goal of combating impunity for serious international crimes. I have suggested in this chapter that, as in the global human rights system, international criminal law could also have at least three layers.

First, consistent with the principles of sovereignty and international law, national courts would continue to act as the first responders to the impunity crisis that we presently face in the international community. In the Africa region, whose overwhelming number are supporters of the Rome Statute for example, the regionalization of the duty to prosecute through an institutional mechanism will help bolster the capacity for countries in the continent to prosecute war crimes, crimes against humanity, genocide, and aggression. Those same national courts would also have jurisdiction over the transnational and other economic offenses that are of particular concern to the African region and that are codified in the Malabo Protocol. By pooling their resources, they would likely be better able to give effect to the fundamental precepts of complementarity and discharge their legal obligations to prosecute.

Second, at the regional level, again as we can tell from the Africa illustration, we could have regional courts endowed with jurisdiction to prosecute the crimes prohibited in the Rome Statute and possibly additional others that have also been condemned by the international community such as torture and terrorism. There is even the possibility, once the regional court door is opened, that we might also see the capacitation of courts embedded in sub-regional bodies such as the East African Court of Justice or the ECOWAS Court of Justice to prosecute such crimes. Other regions and sub-regions of the world might explore this model over time, both for efficiency and other practical reasons. Such a development would seem consistent with the experience of human rights courts, allowing each region of the world the opportunity to give its own unique stamp to the development of a global anti-impunity architecture. There are already strong indications of such potential developments in the Americas region.

Finally, at the international level, we would have an additional back-up system for whenever national courts are unable and or unwilling to prosecute. Here, the ICC will continue in its role as the permanent and premier world criminal court. Its place would be reserved to step in when states, including the ones in the African region, prove to be inactive, unwilling, and/or unable to prosecute the heinous crimes of most serious concern to the international community as a whole, consistent with the complementarity principle contained in the Rome Statute. This role will be crucial when it comes to investigating, trying, and punishing sitting Heads of States, their deputies or other senior government officials that are, for one reason or the other, not easily prosecutable at the national or regional court level.

A few preliminary recommendations can be developed from the discussion in this chapter. For the ICC, as its current president Judge Chile Eboe-Osuji (Nigeria) seems to have argued in Chapter 28 of this volume, an important one is that the court should keep an open mind toward working with not just states but also regional organizations, as it develops proactive or positive complementarity. This implies a willingness to engage, whether at the organ or ICC level, with initiatives that might be in development in different regions of the world. Such engagement would help to ensure that whatever regional systems are designed will be compatible with the goals of the Rome Statute and the regime that it is developing. The ICC, which will continue to be at the center of that system wherever national or regional action falls short of the expectations of the international community, must recognize that this will be in its long-term interest. It certainly seems obvious that the Court will in any event be unable to fulfill all the hyper expectations created for it in the minds of victims of atrocity crimes around the world.

The type of engagement with African concerns we saw through the 2013 Assembly of States Parties (ASP) debate or the 2017 hosting of joint seminars with the AU, for instance, are all important in creating mutual trust. In turn, that could lead to deeper conversations about how the Court, without transforming itself into a development agency, could work with African States to turn over a new leaf. On the side of the AU, it could continue to encourage its African States Parties and possibly take decisions in that regard to push for a closer dialogue within the ICC States Parties on positive complementarity and an assessment of the implications of regional court jurisdiction. Consideration should also be given to the role the ICC and other international partners, such as the UN, could play in offering technical assistance in anticipation of more signatures and further ratifications of the Malabo Protocol.

To national jurisdictions that are part of the 123 States Parties of the ICC regime, especially those that are struggling to come out of conflict, consideration should be given to collaborating with other states at the regional or even sub-regional level in order to explore the implications of cooperating to give effect to their duties to prosecute war crimes, genocide, crimes against humanity, and the crime of aggression. In a new spirit of mutual accommodation, the ICC could work out how to meaningfully assist its members to put in place things like the proposed criminal chamber to prosecute ICC offenses. As part of that, The Hague court could, whether through its organs or perhaps more appropriate its ASP, convene a discussion with the judges of regional human rights courts and the States Parties to consider options under which regionalization could be used to help reinforce the difficult mandate it has to fight impunity at the secondary level under the Rome Statute.

For regional organizations and human rights court systems, including those in Europe and the Americas, some consideration could begin to take place on whether and how criminal jurisdiction could be incorporated into their mandates, at least for certain types of core international offenses. To the extent that transnational crimes are of interest, in a particular region, the feasibility and desirability of considering those should be part of that discussion. As would the implications. A key lesson, based on the African experience, is that greater effort must be made to spell out how to resolve conflicts of jurisdictions. This should provide a framework whereby complementarity, rather than competition, is fostered as a central goal. Such is the way we might ensure that there is a unified global regime that works toward the same principal objective of tackling impunity.

To African and global civil society, which as discussed in another chapter have played an important role in advancing international criminal justice through advocacy, recognition should be given to the reality that the ICC was neither designed nor ever intended to be the panacea to the global scourge of atrocity. In that context, while the world criminal court should continue to receive all our support, it is not inconsistent with that support to appreciate that national and regional mechanisms could be other ways to advance the cause of individual criminal accountability and justice for victims of gross human rights violations around the world.

1 For a discussion of the presumed benefits of such courts, see Laura A. Dickinson, The Promise of Hybrid Courts, 97 Am. J. Int’l. L. 295 (2003); Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia (Cesare Romano, André Nollkaemper and Jann Kleffner eds. 2004); Sarah Williams, Hybrid and Internationalised Criminal Tribunals: Selected Jurisdictional Issues (Michael Bohlander ed. 2006).

2 For an overview, see William A. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (2006); see also The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (Charles Jalloh ed. 2014).

3 These are the kinds of offenses discussed in Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), (February 14, 2002), Judgment, I.C.J. Rep. 2002 3. For the distinction between “core” from other international crimes, see Chapter 8 (in this volume).

4 There is a tremendous body of literature on universal jurisdiction. See, for a small sample, A. Hays Butler, The Diplomacy of Universal Jurisdiction: A Review of the Literature, 11 Crim. L. For. 353 (2000). For challenges, see Antonio Cassese, Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction, 1 J. Int’l Crim. Just. 589 (2003); Georges Abi-Saab, The Proper Role of Universal Jurisdiction, 1 J. Int’l Crim. Just. 596 (2003); Maximo Langer, The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes, 105 Am. J. Int’l. L. 1 (2011); Luc Reydams, The Rise and Fall of Universal Jurisdiction, in The Routledge Research Handbook on International Criminal Law 337 (William Schabas and Nadia Bernaz eds. 2011).

5 Introduction to International Criminal Law 25 (2nd edn. M. Cherif Bassiouni ed. 2013).

7 Charles Jalloh, Universal Jurisdiction, Universal Prescription? A Preliminary Assessment of the African Union Perspective on Universal Jurisdiction, 21 Crim. L. For. 63 (2010).

8 Steven Ratner, Belgium’s War Crimes Statute: A Postmortem, 97 Am. J. Int’l. L. 888 (2003).

9 For critical remarks, see Neil Boister, The ICJ in the Belgian Arrest Warrant Case: Arresting the Development of International Criminal Law, 7 J. Conf. and Sec. L. 293 (2002); Antonio Cassese, When may Senior State Officials be Tried for International Crimes? Some Comments on the Congo v. Belgium Case, 13 Eur. J. Int’l L. 853 (2002).

10 Arrest Warrant case, supra note 3 at paras. 58–61.

11 See Jalloh, supra note 7; see also Harmen van der Wilt, Universal Jurisdiction under Attack: An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States, 9 J. Int’l Crim. Just. 1043 (2011).

12 Christopher Gosnell, The Adoption of the Essential Features of the Adversarial System, in International Criminal Law 332–3 (3rd edn. Antonio Cassese et al. eds. 2008).

13 Ibid. at 312.

14 Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05–01/09, Warrant of Arrest (March 4, 2009). For a discussion of the legal issues that arise, see Paola Gaeta, Does President Al Bashir Enjoy Immunity From Arrest? 7 J. Int’l Crim. Just. 315, contra Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and Its Impact on Al Bashir’s Immunities, 7 J. Int’l Crim. Just. 333 (2009).

15 For instance, in Sierra Leone, during that country’s conflict it is alleged that there were over 32,000 perpetrators of atrocity crimes. Only nine suspects were successfully prosecuted in the SCSL for international crimes between 2002 and 2013. In Rwanda, 15,286 criminals were tried in the ordinary courts for genocide-related offenses over 17 years, while 1,958,634 people faced some accountability under the traditional gacaca traditional justice system in 10 years and the ICTR handled 90 indictees of which 80 cases were concluded cases (also in 18 years). The ICC has been involved with, for example, the Democratic Republic of Congo (DRC) since mid-2004. It has only indicted a handful of Congolese suspects. These includes its first case involving Thomas Lubanga, for a conflict that has claimed well over five million deaths. For meaningful justice to be served in the DRC, it seems obvious that the domestic courts would have to step up to their responsibilities in line with the complementarity principle.

16 Rome Statute of the International Criminal Court, U.N. Doc A/Conf. 183/9 (1998) [hereinafter Rome Statute]. For in-depth discussions of the challenges of implementation, see Linda E. Carter, The Future of the International Criminal Court: Complementarity as a Strength or a Weakness? 12 Wash. U. Global Studies L. Rev. 451 (2013); Mark S. Ellis, Sovereignty and Justice: Balancing the Principle of Complementarity Between International and Domestic War Crimes Tribunals (2014). As to the challenges of application of Article 17 in Africa in the context of the Kenya Situation, see Charles Jalloh, Kenya vs. ICC Prosecutor, 53 Harv. Int’l L. J. 269 (2012).

17 Rome Statute, art. 17(a).

18 Rome Statute, preamble, para. 9.

19 See Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, adopted by the Assembly of Heads of State and Government of the African Union, Twenty-Third Ordinary Session, Malabo, Equatorial Guinea (June 27, 2014) [hereinafter Malabo Protocol].

20 According to the ICC, “positive complementarity refers to all activities/actions whereby national jurisdictions are strengthened and enabled to conduct genuine national investigations and trials of crimes included in the Rome Statute, without involving the Court in capacity building, financial support and technical assistance, but instead leaving these actions and activities for States, to assist each other on a voluntary basis.” See ICC, Assembly of States Parties, Report of the Bureau on Stocktaking: Complementarity: Taking Stock of the Principle of Complementarity: Bridging the Impunity Gap (March 13, 2010), para. 16. The ICC has continued to reiterate in more recent reports its commitment to the principle of positive complementarity, which can equally apply to cooperation with regional bodies. For an early look at the concept, see William Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l. L. J. 53 (2008).

21 The text of the United Nations Charter was adopted in 1945 and is a foundational document of modern international law. It can be found online (last accessed 2 February 2019) at www.un.org/en/documents/charter/chapter5.shtml. As to examples of regionalization of international law enforcement, in the areas of money laundering, international fisheries, law, intellectual property, international trade law, among others, see William Burke-White, Regionalization of International Criminal Law Enforcement: A Preliminary Exploration, 38 Tex. Int’l L. J. 725, 731–2 (2003).

22 Philip Alston and Ryan Goodman, International Human Rights: The Success to International Human Rights in Context 889 (2013); The International Dimensions of Human Rights, vol. 2, 451 (K. Vasak and P. Alston eds. 1982).

23 Dinah Shelton, The Promise of Regional Human Rights Systems, in The Future of International Human Rights 351, 356 (B. Weston and S. Marks eds. 1999).

24 On the other hand, there have been several proposals for a world court of human rights. That has not yet garnered the support of states, even though they seem willing to create a global criminal court after decades of consideration. So, in a way, we are dealing with a role reversal where we have both universal and regional enforcement mechanisms for human rights but states are more willing to create a standing international criminal tribunal court instead of a standing human rights court. Though this will not be pursued here, it may be that the lessons go the other way too, whereby international human rights law advocates could learn from the experience of international criminal law to advocate creation of an international human rights tribunal. See Manfred Nowak, It’s Time for a World Court of Human Rights, in New Challenges for the UN Human Rights Machinery: What Future for the UN Treaty Body System and the Human Rights Council Procedures (M. Cherif Bassiouni and William Schabas eds. 2011).

25 Shelton, supra note 23 at 353.

26 2 Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, Yearbook of the International Law Commission (1950).

27 See for an argument why criminal prosecutions should be part of the remedy for victims of grave violations, Raquel Aldana-Pindell, In Vindication of Justiciable Victims’ Rights to Truth and Justice for State-Sponsored Crimes, 35 Vand. J. Transnat’l L. 1399 (2002).

28 Shelton, supra note 23 at 353.

29 See ibid. at 354; for further elaboration of that history, Thomas Buergenthal and Dinah Shelton, Protecting Human Rights in the Americas 37–44 (4th edn. 1995). For the regional instrument, see American Declaration of the Rights and Duties of Man (1948), in OAS, Basic Documents Pertaining to Human Rights in the Inter-American System, OAS Res. Off. Rec., OEA/Serv. L/V/I.4 Rev. (1965), OEA/Ser.L/VII.92, doc. 31, rev. 3 para. 17, (1996).

30 Universal Declaration of Human Rights, G.A. Res. 217 (III) A, UN Doc. A/RES/217(III) (December 10, 1948).

31 Shelton, supra note 23 at 354.

32 Ibid. at 354–5.

33 For a comprehensive discussion of the African system, see Frans Viljoen, International Human Rights Law in Africa 420–21 (1st edn. 2007).

34 See ibid. at 421.

35 Alexandra Huneeus, International Criminal Law by Other Means: The Quasi Criminal Jurisdiction of the Human Rights Courts, 107 Am. J. Int’l. L. 1 (2013).

38 See, for a helpful discussion of developments in Europe, Giulia Pinzauti, The European Court of Human Rights’ Incidental Application of International Criminal Law and Humanitarian Law: A Critical Discussion of Kononov v. Latvia, 6 J. Int’l Crim. Just. 1043 (2008).

39 2 The International Dimensions of Human Rights 451 (K. Vasak and P. Alston eds.1982).

40 Shelton, supra note 23 at 355.

41 See the International Covenant on Civil and Political Rights, Dec. 19, 1966, S. Treaty Doc. No. 9S-2, 999 U.N.T.S. 171 and the International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.

42 See UN G.A. Res. 32/127 (December 16, 1977) (appealing to states in regions of the world where regional arrangements for the protection of human rights do not yet exist to consider agreements with the view to the establishment within their respective regions of suitable regional machinery for the promotion and protection of human rights).

43 Dinah Shelton et al., Regional Protection of Human Rights 12 (2013).

44 See the 1949 Geneva Conventions (I to IV) and their 1977 Additional Protocols.

45 See the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Dec. 10, 1984, 108 Stat. 382, 1465 U.N.T.S. 85.

46 See the Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277.

47 In addition to the International Bill of Rights, which forms the bedrock, a substantive number of conventions prohibit discrimination at the global as well as regional levels, and address the rights of women, children, persons with disabilities, torture, refugees, etc.

48 Trinidad and Tobago, leading a coalition of 16 Caribbean and Latin American States, moved for adoption of a UN Resolution to mandate a study. The initiative is discussed in Summary records of the meetings of the forty-second session, [1990] 1 Y.B. Int’l L. Comm’n 36, UN Doc. A/CN.4/SER.A/1990, at 39. See also UN G.A. Res. 44/39, U.N. GAOR, 44th Sess., Supp. No. 49, at 1, UN Doc. A/44/39 (1989). Many years later, upon adoption of the Rome Statute in July 1998, Trinidad welcomed the treaty but expressed disappointment over the non-inclusion of narcotics trafficking offenses and the death penalty.

49 The country had argued that the transnational drug trade had a devastating effect on its citizens and was a matter deserving international criminalization. It noted that such issues and others of concern to the Caribbean region would be taken up in the future. It resubmitted the proposal again before the Kampala Review Conference, and again failed to garner the support of other states which felt that drugs should be regulated at the national level.

50 For more on the tension between the AU and ICC, see Charles Jalloh, Regionalizing International Criminal Law? 9 Int’l Crim. L. Rev. 445, 462–463 (2009).

51 The Rule of Law and Transitional Justice in Conflict and Post Conflict Situations: Report of the Secretary-General to the Security Council, Doc. S/2004/616, para. 40 (August 23, 2004) (arguing that if security and independence can be adequately secured, there are key benefits to locating tribunals inside the countries concerned, including easier interaction with the local population, closer proximity to the evidence and witnesses, and being more accessible to victims).

52 See David Wippman, The Costs of International Justice, 100 AJIL 861 (2006); Stuart Ford, How Leadership in International Criminal Law Is Shifting from the United States to Europe and Asia: An Analysis of Spending on and Contributions to International Criminal Courts, 55 St. Louis U. L. J. 953 (2011).

53 See David Scheffer, International Judicial Intervention, 102 Foreign Policy 34, 45 (1996).

54 See, in this regard, Chacha Murungu, Towards a Criminal Chamber in the African Court of Justice and Human Rights 9 J. Int’l Crim. Jus. 1067–88 (2011); Implications of the African Court of Human and Peoples Rights Being Empowered to Try International Crimes Such as Genocide, Crimes Against Humanity, and War Crimes, An Opinion submitted by the Coalition for an Effective African Court on Human and Peoples’ Rights; Darfur Consortium; East African Law Society; International Criminal Law Center, Open University of Tanzania; Open Society Justice Initiative; Pan African Lawyers Union; Southern African Litigation Center; and West African Bar Association. Contra Pacifique Manirakiza, The Case for an African Criminal Court to Prosecute International Crimes Committed in Africa, in Africa and the Future of International Criminal Justice 375 (Vincent O. Nmehielle ed. 2012).

55 See the argument of Murungu, ibid. at 1080, and the position of African civil society groups, all of whom question the motives of the AU in creating a regional criminal chamber.

56 See Rapporteur’s Report of the Ministerial Meeting in Banjul, The Gambia, Organization of African Unity, at para. 13, OUA Doc. CAB/LEG/67/Draft. Rapt. Rpt (II) Rev. 4, reprinted in Human Rights Law in Africa 1999 (C. Heyns ed. 2002) at 65. For commentary, see Frans Viljoen, A Human Rights Court for Africa, and Africans, 30 Brook. J. Int’l. L. 1, 4–5 (2004).

57 See Christopher K. Hall, The First Proposal for a Permanent International Criminal Court, 322 Int’l Rev. Red Cross 57 (1998).

58 I note that, in this chapter, I variously refer to the African Criminal Chamber or the African Criminal Court. However, the actual nomenclature of the new court is the African Court of Justice and Human and Peoples’ Rights. The criminal chamber (i.e. International Criminal Law Section) will in fact be only one of three sections of the single, wider court. The other two are the General Affairs Section and the Human Rights Section. This merger of three types of jurisdiction into the mandate of a single court is unprecedented in international and regional law. See, in this regard, Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, as adopted by the AU Assembly of Heads of State and Government, Malabo, Equatorial Guinea, June 27, 2014. As of writing, in Janauary 2019, only eleven out of fifty-five African States have signed the treaty. None has ratified it.

59 Constitutive Act of the African Union, art. 3, July 11, 2000, 2158 U.N.T.S. 3 [hereinafter Constitutive Act].

60 Ben Kioko, The Right of Intervention under the African Union’s Constitutive Act: From Non-interference to Non-intervention, 85 Int’l Rev. Red Cross 807 (2003).

61 C. Heyns, The African Regional Human Rights System: The African Charter, 108 Penn. St. L. Rev. 679 (2004); Fatsah Ougergouz, The African Charter of Human and People’s Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (2003); Makau Mutua, The African Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties, 35 V. J. Int’l. L. 339 (1995).

62 See Rapporteur’s Report, supra note 56 at para. 116.

63 Ibid. at para. 117.

64 Ibid. at para. 13.

65 Ibid.; see also International Convention on the Suppression and Punishment of the Crime of Apartheid, Nov. 30, 1973, 1015 U.N.T.S. 244, entered into force July 18, 1976.

67 It was a proposal by Guinea and the Union of Soviet Socialist Republics that offered the first draft convention on apartheid on October 28, 1971. Other active African State participants were Nigeria and the United Republic of Tanzania.

68 See Ademola Abass, The Proposed International Criminal Jurisdiction for the African Court: Some Problematical Aspects, 60 Neth. Int’l L. Rev. 2750 (2013).

69 Ademola Abass, Prosecuting International Crimes in Africa: Rationale, Prospects, 24 EJIL 933, 937 (2013).

70 For a critique of the inadequacies of the legal structure for the new court, see Makau Mutua, The African Court Human Rights Court: A Two Legged Stool? 21 Hum Rts. Q. 342 (1999).

71 See Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, Status of Ratifications, (January 28, 2019), www.au.int/en/sites/default/files/treaties/7778-sl-protocol_to_the_african_charter_on_human_and_peoplesrights_on_the_establishment_of_an_african_court_on_human_and_peoples_rights_17.pdf.

72 See, for instance, the Protocol Relating to the Establishment of the Peace and Security Council of the African Union, AU Assembly, 1st Ordinary Sess., July 9, 2002.

73 Constitutive Act, supra note 59.

76 See supra note 72.

77 For a discussion of this “public law of Africa” and its influence on the mainstream, see Abdulqawi A. Yusuf, The Public Law of Africa and International Law: Broadening the Scope of Application of International Rules and Enriching them for Intra-Africa Purposes, in Shielding Humanity: Essays in Honor of Judge Abdul G Koroma 513 (Charles Jalloh and Femi Elias eds. 2015); see also Jeremy Levitt, Africa: A Maker of International Law, in Mapping New Boundaries in International Law (Jeremy Levitt ed. 2008).

78 African Charter on Democracy, Elections and Governance. The treaty entered into force on February 15, 2012. See for Status of Ratification the AU website: www.ipu.org/idd-E/afr_charter.pdf.

79 See, inter alia, arts. 23 to 26 of the African Charter on Democracy, Elections and Governance.

80 See art. 26(5), providing that “Perpetrators of unconstitutional change of government may also be tried before the competent court of the Union.”

81 Abass, supra note 69 at 938.

82 Details about the Habré matter are summarized in the Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 I.C.J.

83 Ibid.

84 Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, adopted by UN G.A. Resolution 30/46; entered into force June 26, 1987.

85 See Decision on the Hissène Habré Case and the African Union, Assembly/AU/Dec.103 (VI), para. 2.

86 Ibid., para. 3.

87 Ibid., paras. 4 and 5 (emphasis added).

88 Ibid.

89 See Report of the Committee of Eminent African Jurists on the Case of Hissène HABRÉ, paras. 27–33.

94 Decision of the African Union on the Hissène Habré Case, Assembly/AU/Dec.127 (VII), and in particular, Doc. Assembly/AU/3 (VII), paras. 1–3; 5(i) and (ii).

95 See Agreement between the Government of the Republic of Senegal and the African Union on the Establishment of Extraordinary African Chambers within the Senegalese Judicial System, signed August 22, 2012.

96 See Belgium v. Senegal, supra note 72.

97 See Statement of the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, Opening of Hissène Habré trial a milestone for justice in Africa–Zeid. See, for more on this, the press release (July 20, 2015), www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16250&LangID=E#sthash.YltBQlkT.dpuf. (stating that the Habré case was “a historic example of regional leadership and willingness to fight against impunity for international crimes”).

98 Thierry Cruvellier, The Trial of Hissène Habré, The New York Times (February 15, 2016), www.nytimes.com/2016/02/16/opinion/the-landmark-trial-of-hissene-habre.html.

99 Charles Jalloh, Regionalizing International Criminal Law? 9 Int’l. Crim. L. Rev. 445 (2009).

100 Arrest Warrant case, supra note 3 at paras. 58–61.

101 AU and EU Ministers agreed at their Troika Meetings in September and November 2008 to establish an ad hoc technical expert group to clarify the meaning of universal jurisdiction. It was constituted in January 2009 with three independent experts appointed by each side. For the AU, the membership was as follows: Mohammed Bedjaoui, Chaloka Beyani, Chris Maina Peter. The EU appointed Antonio Cassese, Pierre Klein, and Roger O’Keefe. The group was assisted by a secretariat of in-house counsel comprised of Ben Kioko and Fafré Camara (AU Commission) and Sonja Boelaert and Rafael de Bustamante (EU Commission). See AU-EU Technical Ad hoc Expert Group Report on the Principle of Universal Jurisdiction, Doc. 8672/1/09 REV 1, para. 7 (April 16, 2009), www.africa-eu-partnership.org/pdf/rapport_expert_ua_ue_competence_universelle_en.pdf.

102 For in-depth discussion of that case, see Jalloh, supra note 7.

103 See Assembly of the African Union, Decision on the Implementation of the Assembly Decision on the Abuse of the Principle of Universal Jurisdiction, 12th Ordinary Session, 1–3 February 2009, Assembly/AU/Dec. 213 (XII), para. 9. This decision was reiterated in a subsequent decision of July 2009.

104 Decision on the Abuse of the Principle of Universal Jurisdiction, Assembly/AU/Dec.243(XIII) Rev.1.

105 Decision on the Application by the International Criminal Court (ICC) Prosecutor for the Indictment of the President of the Republic of The Sudan (Decision on the Application of the ICC Prosecutor), Assembly/AU/ Dec.221(XII), para. 1.

106 Communiqué of the 175th Meeting of the AU Peace and Security Council, March 5, 2009, PSC/PR/Comm. (CLXXV) Rev.1, para. 6.

107 Decision on the Application of the ICC Prosecutor, supra note 42 at para 5.

108 See, for detailed assessment of this issue, Charles Jalloh, Dapo Akande, Max du Plessis, Assessing the African Union Concerns about Article 16 of the Rome Statute of the International Criminal Court, 4 Afr. J. Leg. Stud. 5 (2011).

109 See AU Assembly’s Decision on the Meeting of the African States Parties to the Rome Statute of the International Criminal Court, Assembly/AU/13(XIII) (July 1–3, 2009).

110 Decision on the Abuse of the Principle of Universal Jurisdiction, Assembly/AU/Dec.243(XIII) Rev.1 para. 5.

111 Following post-election violence which occurred in Kenya in 2007–2008 in which over 1,300 people were killed, the ICC Prosecutor sought judicial authorization to carry out investigations in Kenya for crimes against humanity. That request was granted by most of the PTC, in March 2010, which was followed by summonses to appear for six high-level Kenyans in December 2010 based on prima facie evidence tending towards crimes against humanity. Four months’ later, the judges gave a decision favorable to the Prosecution including in respect of the Deputy Kenyan Prime Minister Uhuru Kenyatta whose charges were confirmed on January 23, 2011. An admissibility challenge was filed by Kenya, which was then rejected by the judges in May 2011 and confirmed three months’ later by the Appeals Chamber. The judges committed the suspect to trial and several trial dates were fixed, and after several adjournments were eventually fixed for end of October 2014. Another prosecution request for a subsequent adjournment was rejected by the judges, following which the prosecution withdrew the charges on December 5, 2014, without prejudice. Mr. Kenyatta, running on an anti-ICC platform, had won presidential elections on 10 March 2013. Kenya has contemplated withdrawal from the ICC and is pushing African States towards the idea. See for commentary, Charles Jalloh, Kenya Should Reconsider Proposed Withdrawal from the ICC, Jurist (September 13, 2013).

112 See Pacifique Manirakiza, The Case for an African Criminal Court to Prosecute International Crimes Committed in Africa, in Africa and the Future of International Criminal Justice 375, 388 (Vincent O. Nmehielle ed. 2012).

113 See Vincent O. Nmehielle, ‘Saddling’ the New African Regional Human Rights Court with International Criminal Jurisdiction: Innovative, Obstructive, Expedient? 7 Afr. J. Leg. Stud. 7, 30–31 (2014).

114 Malabo Protocol, art. 46H.

115 The proposal read, as follows, with the bracketed portion being the new text: “Emphasizing that the International Criminal Court established under this Statute shall be complementary to national [and regional criminal] jurisdictions.” See Kenya: Proposal of Amendments, UN Doc. C/N/1026/2013/TREATIES/XVIII/10 (Depositary Notification).

116 See Manirakiza, supra note 113 at 399.

117 See, for concerns about the wisdom of that provision from a policy level for the stability of African States, Charles Jalloh, Reflections on the Indictment of Sitting Heads of State and Its Consequences for Peace, Stability and Reconciliation in Africa, 7 Afr. J. Leg. Stud. 43 (2014). For a detailed argument, finding that the provision is often wrongly assumed to be inconsistent with international law which is not necessarily the case, see Chapter 29 of this volume, and also Dire Tladi, The Immunity Provisions in the AU Amendment Protocol: Separating the (Doctrinal) Wheat from the (Normative) Chaff, 13 J. Int’l. Crim. Just. 3 (2015); Adejoké Babington-Ashaye, International Crimes, Immunities and the Protocol on Amendments to the Protocol of the Merged African Court: Some Observations, in Shielding Humanity: Essays in Honor of Judge Abdul G Koroma 406 (Charles Jalloh and Femi Elias eds. 2015).

118 The wider topic of fragmentation of international law, which is beyond our limited scope here, has generated great scholarly interest and even attracted detailed study by the International Law Commission. C.f., Martti Koskenniemi and Päivi Leino, Fragmentation of International Law. Postmodern Anxieties? 15 Leiden Journal of International Law 553 (2002). For a careful study, which also discusses the challenge of regionalism in the context of fragmentation of international law, see Fragmentation of International Law: Difficulties Arising from the Diversification of International Law Report of the Study Group of the International Law Commission, UN Doc. A/CN.4/L.682 (April 13, 2006).

3 Peace and ‘Justice’ Sequencing in Management of Violence in the Malabo Protocol for the African Court

Kamari M. Clarke
1. The Malabo Protocol: Peace and Justice Sequencing

One of the central transitional justice debates has been encapsulated by the phrase, ‘peace versus justice’.1 Today, the interplay between ‘peace and justice’ remains one of the most difficult debates, especially in Africa. Those adopting a more fundamentalist approach to prosecution typically hold the view that retributive justice prevents impunity of the perpetrators through direct punishment, and serves to deter those inclined to commit future atrocities.2 They typically articulate arguments that insist that: (1) the destabilizing effects of pressing for accountability are overstated and they may in fact prevent further atrocities; (2) the failure to prosecute reinforces a culture of impunity, which has negative long term impacts on peace; (3) international law obliges countries to prosecute war crimes, genocide, and crimes against humanity; and (4) fair trials can assist in acknowledging victims’ suffering while at the same time creating a legitimate historical record that protects against revisionism.

On the opposing side, various scholars argue that international criminal tribunals often impede peace settlements and prolong atrocities because leaders facing threats of prosecution no longer have incentives, such as immunity, to end atrocities and therefore continue to prolong conflicts to keep themselves in power.3 By calling into question the meaning of justice, they suggest that justice does not always require prosecutorial action.4 They typically argue that: (1) prosecutions are an obstacle to peace talks and do not, in fact, act as a deterrent to future atrocities; instead they escalate them; (2) they are expensive and take a long time to complete; (3) they do not necessarily serve the interests of the victims or individual states; and (4) they do not address the root causes of violence.

While these two camps seem to represent opposing ends of the debate, the reality is that there exists no binary choice between peace on one hand and justice on the other.5 The juxtaposition highlights a ‘paradox’ rather than a debate.6 This paradox is important to highlight as the debate is imbued with an artificial division between peace and justice, politics and adjudication. With such a paradox in mind, this chapter explores the way that the Malabo Protocol for the African Court for Justice and Human and People’s Rights (African Court) conceptualizes justice through a more gradual approach that is predicated on allowing time for peace building and reconciliation in African transitional justice settings.7 According to this logic, the false tension between peace and justice is collapsed into a ‘transitional justice’ strategy that requires a different logic for understanding the development of Africa’s justice strategies underway.8 Making sense of the conceptualization of peace–justice sequencing in the Malabo Protocol for the African Court involves recognizing that the authors of the protocol saw that the political stakes were higher in transitional contexts, making the conflict between peace approaches and legal justice approaches further pronounced. Yet, this development in the crafting of the Malabo Protocol has also unfolded alongside the profound rise in prominence of international prosecutorial approaches to violence that have led to the re-emergence of the debate concerning whether the interest of justice should yield to the need to secure peace in situations of conflict or transition periods.9

The duty in international law to prosecute serious international crimes was first established in a series of treaties recognizing specific atrocities as international crimes that states had a duty to prosecute under international law. The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) recognizes genocide as an international crime, imposes individual responsibility, and requires States Parties to try and punish perpetrators of genocide.10 The Conventions require States to ‘search for persons alleged to have committed, or have ordered to be committed … grave breaches [of the Geneva Conventions] … and bring such persons, regardless of their nationality, before [their] own courts.’11 ‘Grave breaches’ include, inter alia, wilful killing, torture or inhuman treatment, biological experiments, and making civilian populations or individual civilians the object of attack.12 Similarly, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment emphasizes the ‘grave nature’ of the crime of torture requiring States Parties to prosecute or extradite its perpetrators.13

In addition, the duty to investigate and prosecute has been reaffirmed on several occasions by the United Nations Security Council and other UN bodies, as well as international, regional, and national courts in finding amnesties for war crimes and crimes against humanity unlawful.14 This duty has coalesced in the Rome Statute of the International Court, which defines international crimes and emphasizes ‘the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.’15 The duty has been recognized with such a high degree of prevalence that the International Committee of the Red Cross asserts that there is an obligation under customary international law for states to investigate and prosecute international crimes.16

The Malabo Protocol, and the eventual effort to extend the criminal jurisdiction of the African Court and bring it into force has raised a new set of issues related to how to address the interplay between various peace–justice dilemmas in post-violence contexts. This debate has been clarified with an articulated framework for Transitional Justice in Africa advocated by the Panel of the Wise and promoted by the African Union. Its relevance is critical in Africa,17 where a number of states have protested the Prosecutor of the International Criminal Court’s (ICC) decision to investigate and issue arrest warrants in the midst of peace talks. However, as developed in the operationalization of the ICC, though the drafters of the Rome Statute envisaged the need for the ICC to yield to peace processes through Article 53(2)(c), which requires the Prosecutor to consider whether pursuing a case would be ‘in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims, and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime,’18 article 53(2)(c) provides an opportunity for the ICC Prosecutor to consider political matters in the pursuit of justice – especially in relation to ongoing peace negotiations.19

However, the ICC Prosecutor has moved away from such an interpretation, taking the position in a 2007 policy paper that the interest of justice ‘should not be conceived of so broadly as to embrace all issues related to peace and security’ and stating that the ‘Office will seek to work constructively with and respect the mandates of those engaged in other areas but will pursue its own judicial mandate independently.’20 A decade later, it does not appear that the Office of the Prosecutor plans on broadening its position on ‘interests of justice.’21

However, the emerging African system being led by the AU is distinguishing itself in this regard. There is a vocal insistence that a premature emphasis on prosecutions can frustrate the search for a peaceful resolution, leading to continued conflict that prolongs the misery of affected communities.22 There is a recognition that a leader – even one compromised by complicity in the perpetration of abuses – may be necessary to bring a faction to the negotiating table, maintain unity, and convince the faction to accept the negotiated resolution to the conflict.23 The second position is that criminal indictments may undermine the will of such leaders to pursue peace and entrench warring factions in their positions, complicating peace processes.24 And third, premature prosecutions may exacerbate atrocities.25

A recent study by Michael Broache found that that rumours that a rebel leader in the Democratic Republic of Congo was about to be arrested pursuant to an ICC arrest warrant motivated the leader to foment a new revolt that resulted in ‘serious atrocities,’ including murder, pillage, and sexual violence.26 And in Uganda, the issuance of ICC indictments against leaders of the Lord’s Resistance Army not only caused a temporary halt to peace negotiations, but was also cited, along with arrest warrants, as the reason a final peace agreement was never signed.27

The conflict in Northern Uganda initially began as a rebellion of the Ugandan People’s Democratic Army (UPDA), a group of army officers who fled Uganda Kampala in 1986 when President Yoweri Museveni took power after a five-year war.28 The rebellion eventually transformed into a cult-like rebel group known as the Lord’s Resistance Army (LRA), led by Joseph Kony.29 With financial and military support from the Sudanese government, the LRA increasingly began targeting civilians in Northern Uganda, many of whom were from the Acholi tribe, who they perceived to be government supporters.30 The LRA crimes have been widely documented and include murders, abductions, rapes, forced marriage, and mutilations. In December 2003, the government of Uganda referred the situation to the ICC because it could not arrest the LRA, which was operating from bases in South Sudan.31 The prosecutor opened an investigation on 29 July 2004, and on 8 July 2005, the ICC issued arrest warrants for five senior members of the LRA.32

At the same time, ongoing peace negotiations were also taking place through meetings between Betty Bigombe, an Acholi member and government minister, and the LRA.33 In 2005, the LRA moved its base to the DRC, pursuant to the signing of the Comprehensive Peace Agreement (CPA) between northern and southern Sudan.34 In 2006, the LRA and the Ugandan government signed the first Cessation of Hostilities (CoH) Agreement.35

The subsequent negotiations lasted two and a half years and were fraught with setbacks. The CoH was continuously breached, the LRA did not honour timelines to meet and disarm, and Kony refused to sign any peace agreement until arrest warrants of the ICC were withdrawn.36 In response, the Ugandan government provided a variety of alternatives to all of the perpetrators, ranging from blanket amnesties to punishment for only those who committed the most serious crimes.37 As part of this strategy, the government also raised the issue of a deferral under Article 16. The government promised that it would approach the UNSC to ask for a deferral of the proceedings if and when the LRA signed the final peace agreement.38 Finally, on 29 June 2007, the government and the LRA signed the Agreement on Accountability and Reconciliation, with an annex to the agreement signed in February 2008. A final peace agreement was due to be concluded in late November 2008. It was not signed because Kony did not show up at the final signing ceremony.39

Based on this and other evidence, scholars have concluded that although judicial action may sometimes have preventive effects on atrocities, it may also ‘backfire, generating perverse incentives for leaders to escalate violence.’40

By contrast, countries such as Argentina and Guatemala demonstrate the potentially positive power of sequencing. During the transition from military dictatorship in Argentina, for example, the government worked to build a solid foundation for peace by strengthening democratic institutions.41 Once that foundation was in place, the country’s amnesty laws were annulled, permitting victims to seek justice before the courts.42 Similarly in Guatemala, the 1996 peace accords were accompanied by a national reconciliation law that provided amnesty for most crimes.43 Instead of prosecutions, the country invested in truth commission, officially known as the Historical Clarification Commission.44 It was not until 2009 that the Inter-American Commission on Human Rights observed that, under international law, the 1996 amnesty law could not be applied to serious human rights violations.45 Four years later, the Guatemalan Constitutional Court, considering a different but similar amnesty law, held that amnesty decrees do not apply to genocide, crimes against the duties of humanity, and forced disappearances,46 opening the door to prosecutions.47

In keeping with the prioritization of peace and the sustenance of life, the African Union’s (AU) Panel of the Wise issued a statement in 2013 that declared that:

Africa has legitimate concerns and reservations about the modalities of implementing some provisions of the international criminal justice system today, but improving these mechanisms requires adherence to the core principles that undergird international law. In the increasingly fragmented and divisive atmosphere that characterizes the current debates on impunity, striking an appropriate balance between the demands of international law and those of national sovereignty will be one of the hallmarks of African statesmanship.48

The Panel recommended the establishment of an ‘African Transitional Justice Framework’ (ATJF) which, inter alia would include a declaration that

peace, justice, and reconciliation are interconnected, mutually interdependent, and equally desirable. However, it is also equally self-evident that in an on-going conflict the most urgent desire to the affected population is to cease hostilities, restore peace and security. Nevertheless, when stability is restored and victims protected, there is need for concerted action to strengthen institutions, including creating new ones to deliver justice and hold certain categories of perpetrators accountable to consolidate the pursuit of sustainable peace.49

The resultant ATJF recognizes that states have a ‘positive duty’ to satisfy the goals of transitional justice: truth, justice, reparations, institutional reform, and public accountability.50 However, the ATJF acknowledges that these goals may be difficult for states to fulfil simultaneously, and recommends that

states should seek to develop complementary mechanisms sequencing them when appropriate rather than fulfilling certain legal obligations at the expense of others. Fulfilling these positive obligations should take account of broader policy objectives to achieve justice, such as ending the conflict or repression; restoring public order and stability; establishing democratic structures and the rule of law; dealing with the underlying causes of the conflict or repression; ending exclusion and discrimination, achieving equality, repairing broken relationships, obtaining compensation and restitution, rehabilitation, promoting reconciliation and sustainable peace as well as other similar objectives.51

According to the ATJF, ‘Justice and peace’ … should not be seen as conflicting or contradictory forces. Rather, properly pursued, they promote and sustain one another. The question should not be: whether to pursue justice and accountability, but when and how. In reality, this emerging approach to the management of violence in Africa could be seen as being about keeping alive the possibility of justice and accountability and finding the right combination and right sequence in each specific context.’52 By highlighting the importance of an inter-related justice architecture that includes economic justice, political justice (entailed in constitutional and other legal reforms) and justice for crimes committed from the perspective of criminal and reparative justice,53 peace is seen as the first measure for the management of violence and the sustenance of life and is understood as establishing the pre-conditions for justice in Africa.

As outlined in page two of the report by the Panel, ‘Justice, peace, good governance, and reconciliation…thrive where sturdy and stable democratic values and impulses prevail, and where there is a culture of constitutionalism to constrain arbitrariness and abuse of power.’ From the violence of traditional empires, to colonial imperial rule, to new domains of territorial, legal, and social reordering, to contemporary postcolonial struggles, this pronouncement highlights a resolve to using politically relevant solutions to addressing violence in Africa. The Malabo Protocol for the African Court is seen as operating within this point of departure in which justice includes peace and is not separate from it. Such a formulation for addressing post-violence justice is emerging within an AU Transitional Justice framework and represents an intertwined conceptualization of justice with its commitments to life as a key locus through which peace–justice sequencing is taking shape.

Thus, the criminal jurisdiction of the Malabo Protocol is seen as one of many components of the AU transitional justice framework. This means that seeing the work of an African court with extended criminal jurisdiction to prosecute a small number of perpetrators deemed most responsible for mass atrocity violence must be seen as one of a range of tools available to intervene in conflict situations and re-establish peace, stability and reconciliation in regions recovering from mass atrocity violence. This approach compares with the debates related to peace–justice sequencing in relation to the rise of the international criminal accountability, especially in the context of the International Criminal Court (ICC), a court established to prosecute crimes committed by those deemed most criminally responsible. However, in contrast, as we shall see in Section two, the second half of the chapter will explore how justice explored through the myriad approaches to managing violence in Africa can be understood both as the application of various peace strategies embedded in larger socio-political architectures.

In examining the nature of the debates related to peace–justice strategies and reflecting on the predominant anti-impunity model being articulated by various prosecutorial mechanisms, this chapter will focus on the design of the African Court infrastructure underway. What we shall see is that the Malabo Protocol is structured to allow for significant nationally driven post-violence forms of closure toward the establishment of peace while also making available of diplomatic processes. One might say that the Protocol for the African Court allows for the frontloading of “political” action through peace–justice sequencing and includes two provisions in the Protocol – Article 34A(1) and Article 29 – that have their own internal mechanisms for the management of violence. Beyond these provisions, the AU transitional justice architecture privileges sequencing as an important way to conceptualize legal justice within the larger AU Transitional Justice strategy.

The legal issues related to Article 34A(1), 29 are worth highlighting because they underscore the Court’s position in the larger African Union framework and set the tone for the ways in which the African Union is likely to relate to the Court more generally. First, the Malabo Protocol amends article 29 of the Statute of the African Court of Justice and Human and Peoples’ Rights to permit two additional entities – the Peace and Security Council and the Office of the Prosecutor – to submit cases to the Court on any issue or dispute within the Court’s jurisdiction.54 When combined with the pre-existing provisions in article 29 of the Statute, this would enable three types of entities to have broad access to the African Court on any matter within its jurisdiction: The State Parties to the Protocol, Certain organs of the African Union, namely the Assembly, the Peace and Security Council, the Parliament and Other organs of the Union authorized by the Assembly; and the Office of the Prosecutor.55

Second, in Article 34A (1), the revised Statute of the African Court of Justice and Human and Peoples’ Rights requires the Registrar of the African Court to notify the Chairperson of the Commission of all criminal cases instituted before it.56 When combined with article 49 of the Statute, such notice will enable the African Union, a continental intergovernmental body, and its various organs, to submit a request to intervene in a case if the organ believes it has an interest of a legal nature that may be affected by the decision in that case.57

What we shall see is that The Malabo Protocol solidifies the status of the African Court of Justice and Human and People’s Rights as a key institution in the African Union’s larger peace and security architecture. By granting the Peace and Security Council, along with the Assembly and Parliament, the authority to bring, and the possibility of intervening in, a case before any chamber of the African Court, the Malabo Protocol helps to ensure that decisions about whether and when to bring cases before the Court are informed by the African Union’s wider efforts to prevent, manage, and resolve conflicts on the Continent.58 These efforts recognize that criminal prosecutions, though important, are just one of many interventions that must be coordinated and carefully sequenced if there is to be a lasting transformation in countries emerging from mass atrocities. The Malabo Protocol facilitates that coordination and sequencing by providing the chief peace and security institutions of the African Union – the Assembly, the Parliament, and the Peace and Security Council – with a vital role in the initiation and continuation of cases.

The third section works through a number of examples to highlight successful representations of sequencing. What we see in the final section is that there is no single ‘one-size-fits-all’ approach to sequencing. Rather, a number of considerations should be reflected on that will affect the success of transitional justice/sequencing measures.

2. A Differentiated Approach to the Management of Violence

The African continent has experienced some of the worst atrocities of the modern era,59 forcing its leaders to develop innovative and comprehensive institutions and strategies to prevent, manage and resolve conflicts.60 Historically, the Organization of African Unity (OAU) held a policy of non-interference with the political affairs of other Africa states. However, this left the African continent without resources for managing mass violence crises (citation).

Shaped by constitutive act, the African Union of the post 2004 period has been engaged in shaping a new justice model for Africa that involves ways to operationalize peace and justice interests that directly contravene this model.61 The African Union’s Constitutive Act that transformed the AU from the OAU outlines the existence of seven organs of the Union: The Assembly; Executive Council; Pan-African Parliament (PAP;62) The Court of Justice; The Commission; Permanent Representatives Committee; Specialized Technical Committees63; the Economic, Social and Cultural Council and Financial Institutions.64 Article 6 of the Constitutive Act, identifies the Assembly, composed of Heads of States and Government and their representatives, as the apex decision-making body of the Union. It is seen as the de facto executive of the Union. Its functions and powers are often identified as making and monitoring the implementation of the common policies of the Union. The Executive Council is the alternate to the Assembly65 and both organs are served by the Commission and constitute the AU’s executive bureaucracy. The Assembly works closely with the Peace and Security Council (PSC), a fifteen (15) member body elected on a regional basis, which serves as the AU’s standing decision-making organ responsible for the maintenance of continental peace and security.66

The AU’s PSC, established in 2002, was established as a ‘decision-making organ for the prevention, management and resolution of conflicts.’67 To achieve these objectives, the PSC has a wide mandate to promote peace, security and stability; anticipate and prevent conflicts; promote and implement peace-building and post-conflict reconstruction activities; combat terrorism; and encourage democratic practices, good government, the rule of law, and the protection of human rights.68 The PSC may also recommend that intervention in a Member State where there are war crimes, crimes against humanity, or genocide,69 consistent with the Constitutive Act of the African Union.70 To pursue these objectives, the PSC works closely with other AU and African entities, including the Parliament, Commission, Panel of the Wise, Continental Early Warning System, African Standby Force, and regional mechanisms.71

The PSC was established before the creation of the African Court, and well before the proposal to extend its jurisdiction to international crimes, therefore, the PSC does not have an explicit mandate with respect to the African Court or international criminal processes. Nonetheless, combating impunity and ensuring justice for international crimes would certainly fall within the PSC’s mandates to encourage the rule of law, protect human rights, and promote respect for the sanctity of human life and international humanitarian law.72 From its first intervention in Burundi, to recent ones in Kenya73 Sudan, South Sudan, Mali and Central African Republic, some of the activities undertaken by the AU have attempted to de-escalate conflicts, monitor ceasefires, or negotiate power-sharing agreements following the cessation of hostilities.74 Since its first peace-keeping mission in Burundi with the African Mission in Burundi (AMIB),75 in 2002 the practice has although with challenges become a staple of AU responses in situations of ongoing conflict. After the deployment in Burundi, the AU has fielded a number of missions including African Union Mission in Sudan (AMIS); AU Mission for Support to the Elections in the Comoros (AMISEC); African Union Mission in Somalia (AMISOM); AU Electoral and Security Assistance Mission to the Comoros (MAES); AU Military Observer Mission in the Comoros (MIOC); United Nations African Union Mission in Darfur (UNAMID Hybrid force); African-led International Support Mission to Mali (AFISMA) and; Africa-led International Support Mission to the Central African Republic (MISCA) which transformed into the UN Multidimensional Integrated Stabilization Mission76 to the Central African Republic (MINUSCA).77

The PSC and the associated institutions that support its work, together with the Regional Economic Communities (RECs), jointly constitute what is commonly referred to as the African Union’s Peace and Security Architecture (APSA).78 They range from implementing various actions, mechanisms, and approaches entailed in the functioning of the PSC and by which relevant AU actors engage in the resolving of conflict, including violent conflicts.

Relatedly, the African Governance Architecture (AGA) is the AU’s institutional framework established to coordinate action undertaken by AU organs, institutions and the regional economic communities (RECs) to support member states in strengthening democracy, governance and human rights. AGA was mandated by the AU Assembly in July 2010 at its 14th Ordinary session79 and arose out of a series of deliberations within the AU (between the DPA and AUC) driven by the desire to ‘facilitate policy and programme convergence on Governance amongst AU Member States as a means to accelerate deeper integration.’80

The African Union’s PSC is at the centrepiece of the effort to manage African violence and the AGA complements the African Peace and Security Architecture (APSA), which addresses the AU’s peace and security agenda. The AGA and APSA were designed to bring together principles of democratic governance, peace, and security as interrelated and mutually reinforcing.81

In 2004, then Secretary-General Kofi Annan asserted in 2004 that ‘[j]ustice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives. Advancing all three in fragile post-conflict settings requires strategic planning, careful integration and sensible sequencing of activities.’82 This statement has paved the way for the development of ‘a range of judicial and non-judicial processes to meet the complex challenges facing many countries in varying types of transition.’83 It is also reflected in the ATJF, which recognizes that

[t]ransitional justice does not require or advocate a ‘one-size-fits-all’ formula but recognizes the need for mechanisms and processes to be defined in accordance with national assessments involving broad citizen participation and which are therefore responsible to their needs and aspirations and which are also compliant with international standards. Processes should incorporate the right to know, the right to justice, the right to reparations and the guarantee of non-recurrence.84

This approach was reinforced in the Report of the African Union High-Level Panel on Darfur (AUPD), which stated that, in the context of Sudan,

[c]riminal justice will play an important role, but not an exclusive one, and must be underpinned by procedures that allow for meaningful participation of victims, as well as reparations and other acts of conciliation. Within the criminal justice system, the investigations, prosecutions, defence and judiciary must work in tandem, or in smooth sequence. Weaknesses in any one element of a criminal justice process would undermine the prospects of a successful outcome. Thus, inadequate investigations will not result in effective prosecutions; an under-resourced judiciary on the other hand would be unable to cope with the work generated by effective investigations. In order to respond effectively to the violations in Darfur, the system will need to draw upon Sudan’s rich legal heritage, including Sharia (Islamic) law and practice, to the extent that Sharia emphasizes the participation of victims in proceedings and the making of reparations. Traditional justice models with their focus on conciliation and wider participation of the community also provide viable mechanisms for dealing with the past. Truth-telling and an independent and informed analysis of the past, in order to draw out the lessons of Darfur for Sudan, should be given priority, as an investment in the stability of Sudan. All these components, as well as any additional justice and reconciliation mechanisms, need to work together to achieve effective response to the situation in Darfur.85

To guide the work of the AU organs and the PSC, the African Union’s Transitional Justice Policy assists African societies emerging from violent conflicts or authoritarianism in pursuing peace, justice, and accountability.86 At the heart of this policy is the understanding that in ‘fragile post-conflict setting[s], a … balance … must be struck between peace and reconciliation on the one hand and responsibility and accountability on the other.’87 In contrast to other approaches, the AU’s transitional justice policy recognizes that societies emerging from conflict often have multiple needs, including ensuring peace, catalyzing democratic transformation, and pursuing reconciliation and accountability, and that it is ultimately the people of the affected society who must determine the appropriate combination of transitional justice mechanisms based on their unique circumstances.88 By focusing on the larger range of measures open to societies in transition, the AU’s Transitional Justice Policy allows affected societies and the AU to determine how and when to fit prosecutions into a larger, holistic transitional justice program. Such an approach does not negate the importance of accountability measures, but acknowledges that peace and reconciliation are equally important and desirable goals.89

Indeed, for countries still in the midst of conflict, ‘the most urgent desire of the affected population is to cease hostilities, restore peace and security.’90 In the eyes of many of these affected communities, peace itself ‘constitute[s] a first measure of justice in Africa.’91 An exclusive focus on prosecutions, as is often the case in the West, detracts from this broader understanding of justice, reducing the idea of justice to the prosecution of a handful of individuals rather than addressing the root causes of mass atrocity crimes.92 But ensuring that such atrocities are not repeated requires much more than prosecutions; it requires changes in the political, economic, and cultural structures of society that contributed to the atrocities in the first place.93

The AU’s Transitional Justice Policy recognizes advancing peace, reconciliation, and accountability requires careful planning and strategic sequencing of transitional justice measures.94 Particularly for countries still engaged in or just emerging out from conflict, this sequencing approach recognizes that it is not always possible to achieve peace and justice at the same time.95 As Thabo Mbeki and Mahmood Mamdani have written, ‘[t]here is a time and a place for courts, as in Germany after Nazism, but it is not in the midst of conflict or a nonfunctioning political system.’96 Where mass atrocities are ongoing, the initial focus must be to stop the fighting, implement a ceasefire, and negotiate a solution to the crisis.97 This does not mean that all accountability measures are suspended, but that they may be more limited until a political settlement has concluded.98

3. Legal Interests in Peace: Justice Sequencing

As established, since its transformation from the Organization of African Unity, the African Union, has demonstrated a renewed energy and growing capacity to resolve conflicts around the continent using particular peace–justice sequencing strategies. While on one hand, in March 2009, the AUC commissioned the Pan African Lawyers’ Union (PALU) to prepare a draft protocol to expand the criminal jurisdiction of the African Court which resulted in the production of the Malabo Protocol for the African Court whose innovations are in the introduction of new international crimes, on the other hand, central to its justice emphasis was the incorporation of that structure in a larger transitional justice architecture.

The emergence of an African Court of Justice and Human Rights, therefore, is not to be mistaken as another example of a blind move toward criminal accountability in the twenty-first century in which court proceedings are deemed the only venue for addressing violence. Rather, the emergence of the African Court should be seen in relation to Africa’s unfolding transitional justice domain underway. The assumption is that in mass atrocity violence situations, if peace and a functioning government cannot be achieved, the very effort to create a new state will suffer. In such situations (especially when compared to a specific crisis in a consolidated democracy), the political stakes are also higher, making the conflict between the peace-versus-justice dilemmas even more acute. This highlights the importance of understanding the way that the Malabo is part of a larger African transitional justice infrastructure that sees peace–justice sequencing as central to the relevance of political settlements in deeply unequal social fields.

Articles 29 and 34A of the revised Protocol provide a mechanism for assimilating the African Union’s peace and justice sequencing strategy by providing the African Union’s key peace and security organs an important role in the initiation and continuation of cases. In situations where criminal prosecutions may encourage peace by bringing all parties to the table, the Assembly, the Parliament, or the Peace and Security Council would have the authority to make an early referral of a case to the African Court under article 29 to pressure the relevant parties to negotiate. By contrast, where prosecutions risk derailing peace processes by removing key actors critical to the negotiations or by encouraging parties to dig into the fighting in order to win at all costs, these institutions could delay referral of a case to the Court, thereby facilitating the search for a mediated political solution.99

A. Article 29 and 34A: Sequencing

Articles 29 and 34A of the revised Protocol provide a mechanism for assimilating the African Union’s peace and justice sequencing strategy by providing the African Union’s key peace and security organs an important role in the initiation and continuation of cases. In situations where criminal prosecutions may encourage peace by bringing all parties to the table, the Assembly, the Parliament, or the Peace and Security Council would have the authority to make an early referral of a case to the African Court under article 29 to pressure the relevant parties to negotiate. By contrast, where prosecutions risk derailing peace processes by removing key actors critical to the negotiations or by encouraging parties to dig into the fighting in order to win at all costs, these institutions could delay referral of a case to the Court, thereby facilitating the search for a mediated political solution.100

Once a case has been referred to the African Court under any of the referral mechanisms, articles 33, 34, and 34A would provide the AU’s peace and security organs – via notification to the Chairperson of the African Union – with the information necessary to assess whether those bodies should intervene in the case. This is particularly crucial with respect to the expanded criminal jurisdiction since criminal prosecutions, as described above, have the potential to impact ongoing peace processes. By receiving notification of the initiation of a case under article 34A, the Assembly, Parliament, and Peace and Security Council, among other bodies, would be able to assess whether to submit a request for intervention under article 49. A right of intervention is not guaranteed, but rather is left to the discretion of the Court.101

B. Articles 33, 34, 44A: Registrar’s Notification of Chair of AU: Article 34A(1)

Article 34A(1) obliges the registrar of the court to notify the Chairperson of the African Union of proceedings initiated before the criminal section and through which one of the triggers of jurisdiction could anchor considerations of sequencing of peace and justice by the African court and the AU. By obliging the registrar of the court to notify the Chairperson of the African Union of proceedings initiated before the criminal section, Provision 34A(1) also provides an opening to allow an AU agent to intervene in a prosecution or situation in the interests of peace.

It is possible that Art 34A(1), as basis for AU intervention in the work of the Court, could be seen as controversial in that it could be seen as having the potential to undermine the perceived independence of the prosecutor. Once a case has been referred to the African Court under any of the referral mechanisms, Articles 33, 34, and 34A would provide the AU’s peace and security organs – via notification to the Chairperson of the African Union – with the information necessary to assess whether those bodies should intervene in the case. Thus, Article 34A(1) could be read as providing a conscious desire to distinguish between investigation and prosecution, both of which form part of the judicial process (interests of justice) and a political process (interests of peace) – as in the case of the OTP’s interests of justice policy.102 That is – distinguishing between the investigation and prosecution processes which form part of the judicial process (interests of justice) and a political process (interests of peace) – as we will see in the ICC’s OTP Position Paper. This is particularly crucial with respect to the expanded criminal jurisdiction since criminal prosecutions, as described above, have the potential to impact ongoing peace processes. By receiving notification of the initiation of a case under article 34A, the Assembly, Parliament, and Peace and Security Council, among other bodies, would be able to assess whether to submit a request for intervention under article 49.

Unlike the ICC, however, there is no provision in the Malabo Protocol that permits the AU to automatically defer a criminal investigation or prosecution. Instead, the AU would have to submit a request for intervention under Article 49, and the decision as to whether to permit such intervention would rest with the African Court.

Article 49 permits interventions only where the requesting party has an ‘interest of a legal nature.’ That phrase is identical to that in the intervention provision of the Statute of the International Court of Justice,103 and it is therefore logical to examine how that court has interpreted that phrase in assessing how the African Court might interpret article 49. To date, the ICJ has never held that promoting peace constitutes an interest of a legal nature. Indeed, out of fifteen requests for intervention, the ICJ has permitted only two, both of which were related to territorial disputes.104 The ICJ has routinely declined requests for intervention based on more humanitarian interests, such as the interest in combating apartheid.105 It has also rejected the similar request to decline jurisdiction due to an ongoing peace process.106 In light of this consistent jurisprudence, it is unlikely that the African Court would come to a different conclusion. A State that opposes such deferral could likewise seek to intervene under Article 49 with the reasons against deferral.

Affected States already have the ability to express their opinions on a potential deferral under the intervention provision in article 49. The key peace and security organs of the African Union may request a deferral through the intervention provision in article 49. Nonetheless, as a means of clarification, the Rules of the Court could be written so as to explicitly confirm that where the AU submits a request for intervention seeking a deferral, the Court will (1) seek the opinion of the affected State(s) and (2) consider those opinions before rendering a judgment on the request.

Ultimately, the right of intervention is not guaranteed, but rather is left to the discretion of the Court.107 In exercising its discretion on whether to permit an AU organ to intervene in a criminal case, the African Court would have to determine whether a request to intervene in order to propose a deferral of the criminal case or some other subordination of the criminal proceedings to the peace process constitutes ‘an interest of a legal nature which may be affected by the decision in the case.’108 This issue is not straightforward and there is no definitive caselaw on this issue. Nonetheless, there is substantial support for such a position.

It is well established that legal interests are not limited to borders and contracts but also extend to matters of peace, security, and human rights. The International Court of Justice, for example, has held that ‘all States can be held to have a legal interest’ in ensuring observance of the prohibition on acts of aggression, genocide, and other ‘obligations of a State towards the international community as a whole.’109 Such obligations extend to the protection of human rights,110 which include the right to ‘national and international peace and security’ under both regional African treaties and international declarations.111

Consistent with this understanding, judges of the International Court of Justice have explicitly recognized that a ‘legal interest’ exists in ‘preserv[ing] the internal stability of [a] country’112 and ‘humanitarian causes.’113 A progressive African Court could, consistent with this jurisprudence, hold that issues of peace and security are ‘interests of a legal nature’ that would permit the Court to defer consideration of a case for a period of time. As noted, the final decision would be left to the Court’s discretion.

There is no automatic ability of the AU or its organs to defer a criminal matter under the Malabo Protocol. Moreover, because any request for a deferral would have to be made through a request for intervention, the parties to the criminal matter, as well as the State where the crimes occurred, would have an opportunity to comment upon the request and present any supporting or countervailing considerations. By leaving the discretion for a deferral with the Court, the Malabo Protocol takes a different approach than the Rome Statute of the ICC which, under the United Nations Security Council, has the authority to require the ICC to defer an investigation or prosecution for up to a year.114 The Malabo Protocol therefore ensures a less politicized process than that which has bedeviled the ICC.

Similarly, the AU’s referral authority to the African Court under the Malabo Protocol is more constrained than that of the UN Security Council vis-à-vis the ICC. Unlike the UN Security Council, which may refer a case to the ICC related to any country, even if it is not a party to the Rome Statute,115 the African Union may only refer cases related to matters in States that have ratified the Protocol.116 There is thus no danger that the AU could request that the African Court overreach its authority by prosecuting a case related to a state that has not ratified the Protocol, as the ICC has done with Sudan – shown in the next section. Nevertheless, in order to explicitly confirm the possibility of deferrals for reasons of peace and security, the Rules of the Court could be written so as to explicitly confirm that a request for intervention in order to defer a case in favor of ongoing peace processes. For example, the rules could include a definition of ‘interest of a legal nature’ that specifies that matters of peace and security are included.

4. Prioritizing Peace: Sequencing as Key to Justice Reconceived in the African Region

Recognizing that international criminal law prohibits amnesties for war crimes and crimes against humanity, those who approach the international legal terrain through this lens often argue that in several situations where peace agreements initially included amnesties for warring parties, domestic, regional, and international courts have annulled those amnesties and permitted prosecutions to proceed. For example, they suggest that in October 1992, the Inter-American Commission on Human Rights found that Argentina’s ‘Full Stop Law’ and other laws granting amnesty for human rights violations committed during Argentina’s ‘dirty war’ deprived victims of their right to justice under the American Convention on Human Rights.117

In March 2001, The Inter-American Court of Human Rights invalidated Peru’s Law No. 26479, which granted amnesty to perpetrators of human rights violations during its period of armed conflict from 1980 to 1995.118 Here the argument made was that the Court held that ‘all amnesty provisions … are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearances, all of them prohibited because they violate non-derogable rights recognized by international human rights law.’119 These regional precedents led to the judicial invalidation of Argentinian amnesty laws in domestic courts, and eventual legislative annulment.120

Some also argue that the issuance of an international indictment sends a message of condemnation that delegitimizes the accused warring party, and triggers States’ duties of arrest which isolate the individual and lead to retreat.121 Human Rights Watch points to the situations of both the Former Yugoslavia and Liberia as successful examples of marginalization and isolation through issuance of arrest warrants:

In Bosnia and Herzegonina the indictment of Radovan Karadzic by the ICTY marginalized him and prevented his participation in the peace talks leading to the success of the Dayton negotiations to end the Bosnian war. Similarly, the unsealing of the arrest warrant for Liberian President Charles Taylor at the opening of talks to end the Liberian civil war was ultimately viewed as helpful in moving negotiations forward. By delegitimizing Taylor both domestically and internationally, the indictment helped make clear that he would have to leave office, an issue that had been a potential sticking point in negotiations. He left Liberia’s capital, Monrovia, a few months later.122

Similarly, some of those advocating this position in African contexts have suggested that although Article IX of the 1999 Lomé Peace Agreement between the government of Sierra Leone and the Revolutionary United Front granted ‘absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives,’123 it came with an express reservation by the UN that it did not accept immunity for war crimes and crimes against humanity. As such, the Peace Agreement was not an impediment to the establishment of the Special Court for Sierra Leone and trying rebel leaders.124

While some view the annulment or invalidation of various amnesties as a positive approach to achieving peace, there is also a more regionally relevant approach to the management of violence on the African continent that is underway that points to a fresh and new set of possibilities that focuses on the preservation of human life first through the cessation of hostilities.

A. Prioritizing Peace

Seeking justice ‘at all costs’ while conflict situations are ongoing can significantly undermine peace processes.125 Indicted leaders may be incentivized to continue or incentivize conflict to avoid capture, extradition, and trial.126 By contrast, offering amnesties may persuade combatants to enter into negotiations and lay down their arms. As noted earlier, A prominent example is the situation in Uganda, where the ICC Prosecutor had issued arrest warrants against Joseph Kony, leader of the Lord’s Resistance Army (LRA), as well as other high-ranking LRA commanders, as the government of Uganda was attempting to negotiate a peace agreement with the LRA. The threat of capture and arrest, and the ICC’s refusals to drop the indictments, kept Kony and other LRA members from coming to the negotiation table and ultimately signing the peace agreement.127

Further, indicted heads of states are also incentivized to retain power as, ‘[s]overeignty norms … provide some protection to sitting state leaders: while venturing outside sovereign borders puts state leaders at risk, remaining entrenched at home leaves them relatively secure against ICC prosecution. … Further, domestic actors often lack the ability to remove a sitting leader who enjoys the protection of the state’s security apparatus.’128

The most cited example is the Sudan’s Omar Al-Bashir, who ‘cancelled plans to step down from power in 2009, reversing course after the ICC issued an arrest warrant[.]’129 The ICC arrest warrant has been criticized by experts on Sudan, who, arguing that justice should wait until perpetrators of atrocity are no longer in positions of authority and capable of retaliation, have stated, ‘[a]ttempts to deploy UNAMID [the AU/UN peacekeeping mission in Sudan] in Darfur are at a critical point. At this sensitive time, to lay charges against senior government officials, and to criminalise the entire government, will derail attempts to pull Sudan from the brink.’130

In this case, on 31 March 2005, the UNSC adopted Resolution 1593 in which it referred the conflict in Darfur to the ICC.131 This marked the first time that the UNSC had invoked its power under Article 13(b) of the Rome Statute to refer a particular situation to the ICC prosecutor for investigation and possible prosecution.132 The referral was predicated on the UNSC’s determination that the situation in Sudan constituted a threat to international peace and security under Article 39 of the UN Charter, and that the prosecution of the perpetrators of the human rights violations in Darfur would help to restore peace and stability in the region.133

On 27 April 2007, the ICC issued arrest warrants against Janjaweed militia leader Ali Kushayb and Sudan’s Minister of Humanitarian Affairs, Ahmed Harun.134 On 14 July 2008, the ICC Prosecutor requested an arrest warrant against Sudanese President, Omar al-Bashir, which was issued on 4 March 2009.135 The government of Sudan objected to the exercise of this jurisdiction in relation to Sudan, arguing that both the UNSC and ICC violated the country’s sovereignty.136 As an immediate reaction to the arrest warrant against Bashir, the Sudanese government expelled more than a dozen humanitarian aid organizations, leaving more than one million people without access to food, water, and healthcare services.137 In addition to the Sudanese government, the African Union (AU), the Arab League, and the Organisation for Islamic Conference also objected to the arrest warrant on the grounds that such an action by the ICC was destabilizing for peace talks which were to be revived in Doha, Qatar.138 Several African and Arab members of the UNSC, supported by the permanent members, China and Russia, proposed a resolution to renew the United Nations–African Union Mission in Darfur (UNAMID), the joint AU-UN peacekeeping mission formally approved by United Nations Security Council Resolution 1769 on July 31, 2007, to bring stability to the war-torn Darfur region of Sudan while peace talks on a final settlement continued139

In response to the ICC’s arrest warrant against Bashir, Sudan began aggressively mobilizing AU member states in support of its position, seeking to weaken the support for the ICC in Africa. The AU called upon the UNSC to invoke Article 16 of the Rome Statute to defer the processes initiated against Bashir on the grounds that a prosecution of the president could impede the prospects for peace in the region.140 The UNSC showed minimal response to the AU request, considering it only briefly and failing to act on it.141 In response, in its July 2009 summit in Sirte, Libya, the AU directed all of its member states to withhold their cooperation from the ICC in respect of the arrest and surrender of Bashir.142 This message has been reiterated at subsequent summits and in the most recent event held in June 2015, South Africa declined/failed to turn over Bashir to the ICC.143

To contain the broad backlash against the ICC in Africa, the AU established a High-Level Panel for Darfur (AUPD) in March 2009, headed by Thabo Mbeki, with a mandate to recommend approaches for reconciling the demands of peace, justice, and reconciliation.144 The report, released in October 2009, recommended balancing these demands by establishing a hybrid court composed of Sudanese and non-Sudanese judges and legal experts; the introduction of legislation to remove immunities for state actors suspected of crimes in Darfur; and a ‘Trust, Justice and Reconciliation Commission’.145 The report did not challenge the ICC’s independent jurisdiction in the Darfur situation. Increasing tensions between the AU and the UNSC and ICC prompted the AU to present a proposal at the November 2009 session of the ICC Assembly of States Parties (ASP) that called for Article 16 to be amended to allow for the UN General Assembly to act should the UNSC fail to decide on a deferral request within six months.146 The AU called upon the UNSC to invoke Article 16 of the Rome Statute to defer the processes initiated against him on the grounds that a prosecution of the president could impede the prospects for peace in the region.147 The UNSC showed minimal response to the AU request, considering it only briefly and failing to act on it.148 In response, in its July 2009 summit in Sirte, Libya, the AU directed all of its member states to withhold their cooperation from the ICC in respect of the arrest and surrender of Bashir.149 This message has been reiterated at subsequent summits and in the most recent event held in June 2015, South Africa declined/failed to turn over Bashir to the ICC.150

Increasing tensions between the AU and the UNSC and ICC prompted the AU to present a proposal at the November 2009 session of the ICC Assembly of States Parties (ASP) that called for Article 16 to be amended to allow for the UN General Assembly to act should the UNSC fail to decide on a deferral request within six months.151 A working group of the ASP has since been established to consider this and other proposed amendments to the Rome Statute. As per the most recent report, the proposed amendment is still under review.152

The attempt to apply Article 16 of the ICC in the case of Sudan has been highly controversial. Proponents of an Article 16 deferral cite a number of advantages. First, the deferral of investigation and prosecution may prevent an aggressive reaction from Sudan’s ruling party, which could further jeopardize peace and security in Darfur. Second, it could allow more time to assess the merits and drawbacks of prosecuting Bashir. Third, it may place pressure on Sudan’s ruling party to cooperate with the UN and its peacekeeping force to respect human rights and to protect civilians. Non-cooperation with such objectives could be sanctioned by a refusal to renew the Article 16 deferral. Finally, the use of Article 16 could be used by the international community as leverage in negotiations towards a peace agreement.153

On the other hand, opponents of issuing a deferral under Article 16 argue that deferring the investigation or prosecution of Bashir would deny justice to victims in Darfur and make the UN Security Council appear indecisive, as it was the organ that made the initial referral.154 Some scholars have also been skeptical as to whether or not any peace negotiations are even taking place that would warrant such a deferral.155 Various other scholars are more optimistic and insist that the ICC strategy to issue the arrest warrant against al-Bashir has been successful to a certain extent because the looming threat of ICC arrest warrants has created an incentive to at least feign a willingness to end the war. They note that in November 2008, Bashir announced a ceasefire with the Darfur rebels and that this was prompted by the pressure of the looming arrest warrant.156

A working group of the ASP has since been established to consider this and other proposed amendments to the Rome Statute. As per the most recent report, the proposed amendment is still under review.157 In May 2011, the Doha Document for Peace in Darfur (DDPD) was finalized at the All Darfur Stakeholders Conference.158 On 14 July, the Government of Sudan and the Liberation and Justice Movement signed a protocol agreement committing themselves to the Document, which is now the framework for the comprehensive peace process in Darfur. The DDPD was the culmination of two and half years of negotiations, dialogue and consultations with the major parties to the Darfur conflict, all relevant stakeholders and international partners. UNAMID lent technical expertise to the process and continues to support the dissemination of the Document as well as to urge non-signatory movements to sign up to the DDPD.159 As recently as June 2015, the UNSC has expressed concern regarding the continuous serious delays in the overall implementation of the accord and the lack of permanent ceasefire.160

What the Sudan example shows us is that rushing to adjudication too quickly impedes democratic consolidation and that the move to trials may perpetuate more instability.161 This argument holds that in addition to securing peace, other issues may be more crucial to a country’s survival post-conflict, such as economic reconstruction, transition to a market economy, provision of healthcare, infrastructure, and employment – all leading to the strengthening of stable democracies.162 Following a path of legal punishment can serve to maintain rather than reconcile differences between groups in society.’163

B. Accountability is Not Possible Without Stability

Argentina and Chile have been the most prominently-used examples of successful peace–justice sequencing. The Panel of the Wise has pointed to Argentina as an example revealing

that while political realities complicated the search for accountability, multiple truth-seeking initiatives continually exposed perpetrators, and a vigilant array of victims’ groups and civil society organizations kept the demand for justice alive. In addition, Argentina’s victims’ groups used international and regional instruments at critical moments to pressure their government to act.164

In Argentina, the military dictatorship in place since 1976 collapsed in 1982 when Argentina’s military defeat in the Falklands War with the United Kingdom led to the calling of elections.165 The outgoing military regime implemented a blanket self-amnesty in September 1983, which was overturned by Argentina’s Supreme Court three months later, allowing the trials of members of the armed forces for serious human rights violations committed during the dictatorship.166 The overturning of the amnesty, however, provoked backlash among the military, ‘leading the government to change course and design measures to contain, and eventually halt, trials.’167 These included the ‘Full Stop Law’ of 1986, which established a 60-day deadline after which Argentine courts would no longer admit new criminal complaints against military perpetrators. According to Balardini, the Full Stop Law:

produced results opposite to its intentions, sparking ‘frenetic activity’ in the courts … As hundreds of claims were presented nationwide, the number of cases in court tripled during the allowed period. Tensions between the government and the military increased as a result. After military revolts that threatened democracy, [Argentinian President] Alfonsin submitted to Congress the Due Obedience Law … Approved in 1987, it limited the criminal liability of subordinates based on the presumption that they were following orders. The immediate effect of these two laws was the withdrawal of charges against 431 existing defendants, bringing most ongoing investigations to a definitive halt.168

These measures held for approximately the next decade, where a series of ‘unprecedented political and economic cris[es] … shifted the focus of public and policy attention to social problems such as violent public order policing, poverty, and unemployment.’169 However, slowly, with the help of human rights activists bringing challenges to the courts resulting in jurisprudence from the Inter-American system, the international duty to prosecute was upheld and amnesties voided by the courts, and ultimately annulled by the Argentine legislature in 2003.170 As a result, ‘the combination of political and legal strategizing pursued by [human rights organizations], both nationally and internationally, plus clear political will in the various branches of state, led eventually to a full reopening of trials against perpetrators.’171 Previous truth commission findings also served as evidence to bolster the later prosecutions.

Chile’s transitional justice process has been described as ‘painstaking’ and lacking state commitment.172 However, Collins and Hau describe that ‘[t]he excessive caution of its early transitional justice trajectory gradually gave way to what some now consider to be a success story of incrementalism.’173 Transition from General Augusto Pinochet’s 17 years of brutal military dictatorship ended following a democratic election in 1989. Like in Argentina, the military regime implemented a self-imposed, wide-ranging amnesty before ceding power. However, unlike Argentina, and fearful of potential backlash from the military, still commanded by Pinochet, Chile’s new government opted to pursue a ‘low-key transitional justice process focused on truth and reparations, which did not encroach unduly on entrenched military and right-wing interests.’174

As of mid-2015, the amnesty law was still in place. However, through advocacy and litigation, human rights organizations and victims have managed to limit its application through ‘creative circumvention’175 using judicial means, opening up domestic criminal justice procedures to victims of atrocities committed during the military dictatorship. According to Randeny and Lassee, ‘Pinochet’s arrest on a Spanish arrest warrant, the Inter-American Court’s jurisprudence on amnesty laws, as well as public pressure on the basis of truth commissions’ reports finally created the conditions necessary to initiate trials.’176 In particular, as described above, jurisprudence from the Inter-American system invalidated amnesties for war crimes and crimes against humanity. In relation to Chile, the Inter-American Court of Human Rights re-affirmed in 2006 that ‘States cannot neglect their duty to investigate, identify, and punish those persons responsible for crimes against humanity by enforcing amnesty laws or any other similar domestic provisions. Consequently, crimes against humanity are crimes which cannot be susceptible of amnesty.’177

Uruguay provides another example of successful sequencing, although the path to justice has occurred far slower and in a context where judicial and political will has been lacking. Following a negotiated peace in 1985, victims and their relatives of the civil-military regime from 1973 to 1985 immediately presented claims to the courts regarding human rights violations. In response the Uruguayan government passed the ‘Expiry Law’ which terminated all judicial proceedings involving military forces and transferring investigations for human rights abuses to the executive branch of government. The Expiry Law was repeatedly challenged in Uruguayan Courts and held to be invalid in 2011 by the Inter-American Court of Human Rights. That same year, the government’s legislature annulled the amnesty law, opening the door to new criminal action. However, Lessa and Skaar have pointed out that achieving justice has nevertheless been an ‘uphill battle’, with the Uruguayan Supreme Court reluctant to recognize the former regime’s crimes as crimes against humanity.178 Further, the executive has limited access to archives and other types of documentation, impeding truth-finding efforts. Despite these obstacles, Lessa and Skaar point out that ‘the culture of fear that dominated Uruguayan society for so long is arguably no longer present. The fact that the military no longer constitutes a threat to democracy makes the political context very different from that of 1985, allowing more space in which to choose a pro-human rights stance.’179 As such, the find that ‘[o]n balance … we can say that Uruguay’s progress along the scale from impunity towards accountability has been significant, especially during the past decade, a period that has seen the most positive developments.’180

Mozambique is another example of successful peace–justice sequencing where, although ‘there has been no justice for horrendous crimes committed during a lengthy civil war, … it has remained stable since the peace agreement was signed in 1992.’181 The Panel of the Wise has observed that despite the amnesties, ‘informal mechanisms to deal with issues of reconciliation have flourished in Mozambique. Civil society organizations have engaged in peacebuilding activities that have reintegrated former combatants and trained rural communities in dispute resolution and various methods of reconciliation and healing.’182 However, conflict resumed in Mozambique between 2013 and 2014.183 Igreja argues that the ‘amnesty law in Mozambique fell short of creating a political environment conducive to a process of democratic participation that could consolidate a new political space where former war foes would repress … memories of political violence and work together, expressing mutual tolerance and respect and striving for reconciliation.’184 In addition to providing vows of reconciliation, inclusion, and democracy as part of the 2014 peace accord, Igreja argues that ‘a nationwide programme is needed to determine degrees of responsibility for serious human rights violations and crimes and, more specifically, regarding the composition and role of security and defence forces in the country.’185

Scholars have also pointed to Namibia as an example where ‘amnesty has directly led to the consolidation of peace and healing of society in the wake of mass crimes.’186 However, Höhn has pointed out that a decade after Namibia’s transition, the Namibian National Society for Human Rights filed a submission in 2006 requesting an investigation by the International Criminal Court into grave human rights violations committed during Namibia’s independence struggle from 1966 to 1990 by a number of alleged perpetrators, including former President Sam Nujoma.187 This effort by civil society emphasizes that achievement of reconciliation also requires justice and accountability.

Others may question the placing of burden on rights by holding survivors accountable for pursuing justice. However these examples also raise the question of how long becomes too long to wait for justice. In some situations, when the door to prosecutions opens decades after a conflict, those victimized by violence may not live enough to see witness its results. Although there is no one approach fits all in sequencing histories, the common thread in all of these examples is the persistent efforts of human rights and victims’ organizations, and civil society in pressing for justice using various judicial and advocacy means. For some the success of these actors may signify the consolidation of democratic institutions and the rule of law, and a successful demonstration of sequencing. These are key consideration for the future application of the African Court.

Thank you to several reviewers of this chapter, including Kristina Weaver and Sara Kendall. Also thank you to Alysson Ford Ouoba, Andrea Sobko, Ania Kwadrans, Irene Thomas, Godfrey Musila and participants in the FIU-ACRI Symposium in March 2014. Special thanks to Duke University Press for permission to reprint excerpts from Affective Justice Kamari Clarke (2019).

1 The debate has also been characterized as retributive vs. restorative justice, judicial romantics vs. political realists, etc.

2 T. Muthiri, ‘The African Union and the International Criminal Court: An Embattled Relationship?’, Policy Brief, Institute for Justice and Reconciliation (IRC) (2013), at 2.

3 P. Akhavan, ‘Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism’, 31 Human Rights Quarterly (2009) 624, at 625.

4 H. Cobban, ‘Think Again: International Courts’ (Foreign Policy), 20 October 2009, available online at: http://foreignpolicy.com/2009/10/20/think-again-international-courts/; E.B. Ludwin King, ‘Does Justice Always Require Prosecution? The International Criminal Court and Transitional Justice Measures’, 45 The George Washington International Law Review (2013) 85; O. Oko, ‘The Limits of Prosecutions’, (Oxford Transitional Justice Research Working Paper Series), 19 March 2010, available online at: http://otjr.crim.ox.ac.uk/materials/papers/122/Justice_in_Africa.pdf.

5 See for example, L. Mallinder, ‘Beyond the Courts? The Complex Relationship of Trials and Amnesties’, SSRN Electronic Journal (2011), available online at: www.researchgate.net/profile/Louise_Mallinder/publication/228157753_Beyond_the_Courts_The_Complex_Relationship_of_Trials_and_Amnesties/links/00b7d5333f758b8931000000.pdf; R.H. Mnookin, ‘Rethinking the Tension between Peace and Justice: The International Criminal Prosecutor as Diplomat’, 18 Harvard Negotiation Law Review (2013) 145; T.D. Olsen, L.A. Payne and A.G. Reiter, ‘The Justice Balance: When Transitional Justice Improves Human Rights and Democracy’, 32 Human Rights Quarterly (2010) 980.

6 N. Eisikovits, ‘Peace versus Justice in Transitional Settings’, 32 Quinnipiac Law Review (2013) 707, at 715.

7 T. Muthiri, supra note 2, at 2–3.

8 Ibid. at 717.

9 I. Bantekas, ‘Sequencing Peace and Justice in Post-Conflict Africa’, in C. Jalloh and I. Bantekas eds., The International Criminal Court and Africa (Oxford University Press, 2017) Chapter 4 91, at 91 [Bantekas].

10 UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277.

11 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, Art. 49; See also Geneva Convention II for the Amelioration of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 August 1949, Art. 50; Geneva Convention III relative to the Treatment of Prisoners of War, 12 August 1949, Art. 129; Geneva Convention IV relative to the Protection of Civilian Persons in Time of War, 12 August 1949.

12 For full list, see International Committee of the Red Cross, ‘Grave breaches specified in the 1949 Geneva Conventions and in additional Protocol I of 1977’ online at: www.icrc.org/eng/resources/documents/misc/57jp2a.htm.

13 UN General Assembly, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85, Arts. 4–8.

14 See International Committee of the Red Cross, ‘Rule 158. Prosecution of War Crimes‘ online at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule158 [ICRC Rule 158]; See also I. Bantekas, supra note 10 at 96, footnotes 21–22 for some examples.

15 Rome Statute of the International Criminal Court, preamble, Arts. 5–8.

16 ICRC Rule 158, supra note 15,

17 See, e.g., International Peace Institute, Peace, Justice and Reconciliation in Africa: Opportunities and Challenges in the Fight against Impunity (Report of the AU Panel of the Wise, February 2013) at 10–11 [Panel of the Wise]: ‘The question of whether peace should take precedence over justice where human rights violations and war crimes have taken place constitutes the core of the debates in the growing field of ‘transitional justice,’ which includes the complex ethical, legal, and political choices that various actors confront to end conflict, restore peace, and prevent the recurrence of conflict. Africa’s multiple conflicts have underscored the dilemma between peace and justice, and have challenged local and international actors to craft solutions that sometimes compromise these values. In recent years, the ability of mediators and other interveners in conflicts to grant immunity has been curtailed by the evolving international legal obligations and the international justice architecture, including the Rome Statute, which prohibits amnesty for crimes against humanity, war crimes, and genocide. Despite these international norms, African states confront difficult choices in the task of balancing the imperatives of justice and reconciliation with the political realities of managing impunity.‘ Online at: https://reliefweb.int/sites/reliefweb.int/files/resources/ipi_e_pub_peacejusticeafrica.pdf.

18 Art. 53(2)(c); I. Bantekas, supra note 10 at 94.

19 Ibid. at 94.

20 Policy Paper, ‘The Interests of Justice’ (September 2007) at 8 online: www.icc-cpi.int/NR/rdonlyres/772C95C9-F54D-4321-BF09-73422BB23528/143640/ICCOTPInterestsOfJustice.pdf.

21 B. Sander, ‘Is the ICC Reconsidering its Policy on the “Interests of Justice”?’ (29 September 2016) online: https://justiceinconflict.org/2016/09/29/is-the-icc-reconsidering-its-policy-on-the-interests-of-justice/ [Sander].

22 See Panel of the Wise, Peace, Justice, and Reconciliation in Africa, at 72; see also Mbeki and Mamdani, Courts Can’t End Civil Wars (‘To call simply for victims’ justice, as the I.C.C. does, is to risk a continuation of civil war’).

23 For example, South Sudan’s President Salva Kiir Mayardit has said that to reach peace with Sudan, he needs Sudanese President Omar al-Bashir at the negotiating table, not in a court room at the ICC. T. Mbeki, ‘Justice Cannot Trump Peace’, Al Jazeera, 4 May 2017, available online at www.aljazeera.com/programmes/talktojazeera/2013/11/thabo-mbeki-justice-cannot-trump-peace-2013112210658783286.html. Speaking about his own country, Mbeki also stated that the idea of prosecuting former President FW de Klerk for apartheid in the 1990s would have been anathema to a peaceful resolution because de Klerk was necessary to lead the white population of the country into a democratic agreement. Id.

24 For example, the joint AU-UN mediator on Darfur stated that ‘the process to find a political solution to the crisis in Darfur has been significantly slowed and even compromised‘ by the ICC’s issuance of arrest warrant for Sudan’s President. P. Worsnip, ‘Darfur Mediator Says Bashir Warrant Imperils Talks’, Reuters, 26 March 2009, available online at www.reuters.com/article/us-sudan-darfur-un/darfur-mediator-says-bashir-warrant-imperils-talks-idUSTRE52P7FO20090326. The African Union likewise has expressed ‘grave concern‘ about the effect of premature prosecutions ‘on the delicate peace processes underway in The Sudan,‘ which are ‘undermin[ing] the ongoing efforts aimed at facilitating the early resolution of the conflict in Darfur.‘ Decision on the meeting of African States Parties to the Rome Statute of the International Criminal Court, Doc. Assembly/AU/13(XIII) (2009), available online at https://au.int/sites/default/files/decisions/9560-assembly_en_1_3_july_2009_auc_thirteenth_ordinary_session_decisions_declarations_message_congratulations_motion_0.pdf; see also Assembly of the African Union, Decision on the Application by the International Criminal Court (ICC) Prosecutor for the Indictment of the President of the Republic of The Sudan, Doc. Assembly/AU/Dec.221(XII) (2009), available online at https://au.int/sites/default/files/decisions/9559-assembly_en_1_3_february_2009_auc_twelfth_ordinary_session_decisions_declarations_message_congratulations_motion.pdf.

25 M. Broache, ‘Beyond Deterrence: The ICC Effect in the DRC’, Open Democracy, 19 February 2015, available online at www.opendemocracy.net/openglobalrights/michael-broache/beyond-deterrence-icc-effect-in-drc; A. Vines, ‘Does the International Criminal Court End Conflict or Exacerbate It?’, The Guardian, 22 February 2016 (observing that ‘the ICC can prolong conflict as indicted individuals see no incentive to compromise‘ and describing the indictment of Charles Taylor as having undermined Liberian peace talks), available online at www.theguardian.com/global-development/2016/feb/22/international-criminal-court-help-to-end-conflict-or-exacerbate-it.

26 M, Broache, supra, note 26.

27 Panel of the Wise, Peace, Justice, and Reconciliation in Africa, 48–9; Sarah Nouwen, ‘The International Criminal Court: A Peacebuilder in Africa?’, in D. Curtis and G. Dzinesa, Peacebuilding, Power, and Politics and Africa, 171, 181 (Ohio University Press, 2012) (explaining how ICC arrest warrants in Uganda were ‘an apparently insurmountable obstacle to the conclusion of a[ peace] agreement’).

28 M. Otim and M. Wierda, ‘Uganda: Impact of the Rome Statute and the International Criminal Court’, International Centre for Transitional Justice (ICTJ), May 2010, available online at: www.ictj.org/Uganda-Impact-ICC-2010.

31 Ibid. at 2.

36 Ibid. at 5; Rashid, supra note 5, at 65.

37 Rashid, supra note 5, at 65.

38 Otim and Wierda, supra note 29, at 5.

40 Broache, Beyond deterrence; see also Snyder and Vinjamuri, at 5 (concluding, based on a study of 32 civil wars, that ‘the prosecution of perpetrators of atrocities … risks causing more atrocities than it would prevent‘); H. Carey and S. Mitchell, ‘Trials and Tribulations of International Prosecution’ 130 (Martinus Nijhoff Publishers, 2013) (noting that indictments by the ICC led to further conflict by emboldening the rebels and inducing Gaddafi to ‘fight on’), 312 (violence in the Great Lakes region was ‘aggravated and prolonged … by international prosecution’ while indictments of Sudanese officials led to ‘deepen[ed] ethnic cleansing’); Nouwen, The International Criminal Court: A Peacebuilder in Africa?, at 182 (describing how ICC charges against individuals in Sudan increased the reluctance of certain rebel movements to engage in peace talks), 187 (‘the ICC, operating in ongoing conflicts, is used as an instrument of war, with which to delegitimize and incapacitate enemies, thereby intesnsifying conflict’); D. Rothe and V. Collins, ‘The International Criminal Court: A Pipe Dream to End Impunity?’ in D. Rothe et al., The Realities of International Criminal Justice, 191, 203 (The African Union Series, New York: International Peace Institute, 2013) (‘prosecution offers no incentive to end hostilities rather it may well be a major factor in the continuation of and displacement of the conflict’).

41 Panel of the Wise, Peace, Justice, and Reconciliation in Africa, at 12.

42 Human Rights Watch, World Report, Argentina (2006) (Argentina’s legislature voted to annul the law in 2003), available online at www.hrw.org/world-report/2006/country-chapters/argentina.

43 C. Evans, ‘The Right to Reparation in International Law for Victims of Armed Conflict’ 155 (Cambridge University Press, 2012). The national reconciliation law was in addition to an earlier 1986 law that granted amnesty for crimes committed during the administrations of General Óscar Humberto Mejía Victores and his predecessor Ríos Montt. Guatemala, Decree No. 8–86, 10 January, 1986.

44 Ibid. at 149.

45 Case of the ‘Las Dos Erres’ Massacre v. Guatemala, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 211, ¶ 129 (24 November 2009), available online at www.corteidh.or.cr/docs/casos/articulos/seriec_211_ing.pdf.

46 Guatemala, Constitutional Court, Expediente 1933–2012, Apelación de Sentencia de Amparo, at 5 (2013), available online at https://app.vlex.com/#vid/470258858.

47 For example, in 2016, a Guatemalan court found two former military officers guilty of crimes against humanity for acts of rape, sexual slavery, and murder. See ‘Sepur Zarco: In Pursuit of Truth, Justice, and Now Reparations’, UN Women (22 October 2017), available online at www.unwomen.org/en/news/stories/2017/10/feature-guatemala-sepur-zarco-in-pursuit-of-truth-justice-and-now-reparations.

48 Ibid. at 3.

49 Ibid. at 80.

50 African Union Transitional Justice Framework (ATJF) at E.1.1, E.2 available online at: www.legal-tools.org/doc/bcdc97/pdf/ [ATJF].

51 Ibid. at E.2.

52 Ibid. at E.3.

53 See T. Smith, ‘Moral Hazard and Humanitarian Law: The International Criminal Court and the Limits of Legality’, (2002) 39 International Politics 2, 175–92 (making a case for humanitarian intervention in Darfur, noting that legal (judicial) responses have limits and their role should be contextualized); G Musila, ‘The role of the African Regional and Sub-Regional Organizations in International Criminal Justice’ at 15–17 available at www.ssrn.com (on responses to the Darfur conflict and the role of the AU); see also N. Grono, ‘Briefing: The International Community’s Failure to Protect’, (2006) 105 African Affairs 421, 621–31; On humanitarian intervention, see N. Udombana, ‘Still Playing Dice with Lives: Darfur and Security Council Resolution 1706Third World Quarterly, Vol. 28 No. 1 (2007) 97116; D. Kuwali, ‘The end of humanitarian intervention: an evaluation of the African Union’s right of intervention’ Carr Center for Human Rights Policy, Harvard University, www.operationspaix.net/DATA/DOCUMENT/5163~v~The_End_of_Humanitarian_Intervention__Evaluation_of_the_African_Union__8217s_Right_of_Intervention.pdf.

54 Malabo Protocol, Annex art. 15 (amending article 29 of the Statute of the African Court of Justice and Human Rights).

55 Ibid.; African Union Protocol on the Statute of the African Court of Justice and Human Rights, art. 29, July 1 2008 [hereinafter Merger Protocol], available online at https://au.int/en/treaties/protocol-statute-african-court-justice-and-human-rights. In addition to these three types of entities, article 29 of the Merger Protocol permits staff members of the African Union to submit appeals of disputes to the Court provided the dispute is within the limits and under the terms and conditions laid down in the Staff Rules and Regulations of the Union. Merger Protocol, art. 29(1)©. These will generally be limited to the terms and conditions of employment of African Union staff.

56 Malabo Protocol, Annex art. 17 (adding article 34(A)(2) to require the Registrar to give notice to the Chairperson of the Commission of the institution of proceedings before the International Criminal Law Section); Merger Protocol, art. 33(3) (pre-existing provision requiring the Registrar to give notice to the Chairperson of the Commission of the institution of proceedings before the General Affairs section), 34(2) (same with respect to the Human Rights Section). In cases brought before the General Affairs Section, the Chairperson must also ensure that all Member States are notified. Merger Protocol, art. 33(3).

57 Merger Protocol, art. 49. Member States of the African Union are granted the same right of intervention. Id.

58 See African Union, Protocol Relating to the Establishment of the Peace and Security Council of the African Union, art. 2(1), 9 July 2002 (establishing the Peace and Security Council as the ‘standing decision-making organ for the prevention, management and resolution of conflicts‘), available online at https://au.int/en/treaties/protocol-relating-establishment-peace-and-security-council-african-union.

59 See Kofi Annan, Address to the Security Council on The Situation in Africa: the impact of AIDS on peace and security (10 January 2000) (‘Out of two dozen or more conflicts raging around the world, roughly half are in Africa.‘), www.un.org/sg/en/content/sg/speeches/2000-01-10/address-kofi-annan-security-council-situation-africa-impact-aids; C. Jalloh, ‘Regionalizing International Criminal Law’, 9 Int’l Crim. L. Rev. 445 (2009) (‘The [African] continent has thus become the most conflict affected and conflict prone region in the world.’); Protocol Relating to the Establishment of the Peace and Security Council of the African Union, preamble (expressing ‘concern[] about the continued prevalence of armed conflicts in Africa‘).

60 African Union, Panel of the Wise, Peace, Justice, and Reconciliation in Africa: Opportunities and Challenges in the Fight against Impunity 27 (2013) (‘Since the early 1990s, Africa has served as a vast testing ground for new policies to address impunity, seek truth and justice, and enable reconciliation in fractured societies’), available online at https://reliefweb.int/sites/reliefweb.int/files/resources/ipi_e_pub_peacejusticeafrica.pdf.

62 Article 17 and the Protocol to the treaty establishing the African Economic Community relating to the Pan-African Parliament. On PAP generally, see G. Musila, ‘United States of Africa: Positioning the Pan-African Parliament and Court in the Political Union Debate’ ISS Paper 142 (2007) [Download].

63 Arts 14, 15 and16 Constitutive Act

64 The African Commission on Human and Peoples Rights, though established by a separate instrument, is regarded an organ of the Union, while the African Court on Human and Peoples Rights is to be subsumed in the proposed African Court of Justice and Human and Peoples Rights established by the Malabo Protocol. The Peace and Security Council, another organ of the union was established by a separate instrument, the Protocol Relating to the establishment of the Peace and Security Council of the African Union.

65 Arts 10–13 Constitutive Act

66 AU, ‘PSC’ available online at www.peaceau.org

67 Protocol Relating to the Establishment of the Peace and Security Council of the African Union, art. 2(1).

68 Ibid. art. 3.

69 Ibid. art. 7(1)(e).

70 Constitutive Act of the African Union, art. 4(h).

71 Protocol Relating to the Establishment of the Peace and Security Council of the African Union, art. 2(2), 16, 18.

72 Ibid. art. 3(f).

73 On the AU mediation in Kenya, see G. Musila, ‘Learning on the Job: The Role of the AU in Transitional Justice in Kenya’ available at www.ssrn.com. See also E. Lindenmayer and J. Kaye, ‘A Choice for Peace? A Story of Forty-One Days of Mediation in Kenya’, International Peace Institute, August 2009.

74 Two key features of these AU peacekeeping missions are worthy highlighting. The first feature of AU peacekeeping missions is that unlike the United Nations, which typically deploys following the signing of peace agreements, African Union peace operations have tended to be enforcement missions that are fielded to enforce ceasefire agreements and peace agreements. Second, AU peace keeping missions tend to deploy troops in situations of ongoing hostilities. This differs from UN missions, which for the most part (with few exceptions) operate under more stringent rules on the use of offensive force.

75 On the AU’s earliest peace missions, see generally F. Aboagye, ‘The African Union in Burundi: Lessons from the AU’s first peacekeeping operation’ and T. Murithi, ‘The African Union’s Evolving Role in Peace Operations: The African Union Mission in Burundi, the African Union Mission in Sudan and the African Union Mission in Somalia’, African Security Review 17.1 Institute for Security Studies 70–82.

76 On the AFISMA, MINUSCA and on UN-AU cooperation in peacekeeping in general, see generally P. Williams and S. Dersso, ‘Saving Strangers and Saviours: Advancing UN-AU Cooperation on Peace Operations’, International Peace Institute (2015).

77 On features of AU peacekeeping missions, see Norwegian Institute of International Relations, ‘Strategic Options for the Future of African Peace Operations 2015–2025’ NUPI Seminar Report (2015) 11–13.

78 On APSA, see generally K. Powell, ‘The African Union?s Emerging Peace and Security Regime’, ISS Monograph 119 (May 2005);

79 See AU, ‘Decisions’ 14th Ordinary session of the AU Assembly; see also ‘Decision on the Theme, Date and Venue of the Sixteenth Ordinary Session of the Assembly of the African Union’ adopted during its 15th Ordinary Session held between 25–7 July in Kampala, Uganda, Assembly/AU/Dec.304(XV).

80 On AGA the history and structure of AGA, see AU ‘Framework of the African Governance Architecture’ available online at www.iag-agi.org/IMG/pdf/aga-framewor9183.pdf

81 G. Mukundi, ‘Consolidating the African Governance Architecture’, SAIIA Policy Brief 96, June 2014

82 The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary General, UN Doc. S/2004/616, 23 August 2004, summary.

83 Panel of the Wise, supra note 61, at 13.

84 ATJF, supra note 51 at E.2.

85 AU Peace and Security Council, Report of the African Union High-Level Panel on Darfur (AUPD) (29 October 2009) PSC/AHG/2(CVII) at § 205.

86 African Union, Draft Transitional Justice Policy, §§ 1, 5 (on file with the author).

87 Ibid. § 22.

88 Ibid. §§3, 27–9.

89 Ibid. §§ 23–4; see also Panel of the Wise, Peace, Justice, and Reconciliation in Africa, at 72; see also African Union, Report of the African Union High-Level Panel on Darfur iv, 3 (2009), online at www.refworld.org/docid/4ccfde402.html.

90 Panel of the Wise, Peace, Justice, and Reconciliation in Africa, at 80; see also ibid. at 80.

91 Ibid. at 83. For example, when asked what factors would facilitate justice and reconciliation, affected community members in Darfur included ‘peace, a secure environment free of weapons, demobilization and reintegration of combatants, [and] stability‘ in their list. Report of the African Union High-Level Panel on Darfur, at 48.

92 S. Dersso, ‘The ICC’s Africa Problem’ in K. Clarke, A. Knottnerus, and E. de Volder (eds), Africa and the ICC: Perceptions of Justice 61, 68–9 (2016).

93 See ibid.; see also A. Sachs, The Strange Alchemy of Life and Law 84 (2009).

94 AU Draft Transitional Justice Policy, at §§ 22–3; see also Panel of the Wise, Peace, Justice, and Reconciliation in Africa, at 13 (observing that ‘[j]ustice, peace, and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives‘ and that ‘[a]dvancing all three in fragile post-conflict settings requires strategic planning, careful integration and sensible sequencing of activities‘).

95 Panel of the Wise, Peace, Justice, and Reconciliation in Africa, at 11, 14.

96 T. Mbeki and M. Mamdani, ‘Courts Can’t End Civil Wars’, New York Times, 5 February 2014, available online at www.nytimes.com/2014/02/06/opinion/courts-cant-end-civil-wars.html.

97 Panel of the Wise, Peace, Justice, and Reconciliation in Africa, at 11–2; AU Chairman Back’s Sudan’s Bashir Over Court, Reuters, 8 September 2008 (stating, in relation to Darfur: ‘Justice has to be done. Justice must be seen to be done. What the AU is simply saying is that what is critical, what is the priority, is peace. That is priority number one now.’), available online at www.reuters.com/article/idUSL8101824.

98 AU Draft Transitional Justice Policy, at § 23. For example, even if prosecutions are temporarily suspended, it may be possible to conduct preliminary criminal investigations and identify and preserve evidence. Ibid.

99 M. Sirleaf, ‘Regionalism, Regime Complexes, and the Crisis in International Criminal Justice’, 54 Colum. J. Transnat’l L. 699, 761 (2016) (noting that ‘the emphasis in the AU on negotiating political solutions to deeply intractable conflicts may mean that a quick resort to judicial measures is de-emphasized‘).

100 Ibid.

101 Merger Protocol, art. 49.

102 OTP Policy paper, at 1 states that: ‘that there is a difference between the concepts of the interests of justice and the interests of peace and that the latter falls within the mandate of institutions other than the Office of the Prosecutor (emphasis mine).

103 Statute of the International Court of Justice, art. 62(1).

104 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 4 May 2011, Dissenting Opinion of Judge Al-Khasawneh, § 6, available online at www.icj-cij.org/files/case-related/124/124-20110504-JUD-02-01-EN.pdf.

105 South West Africa Cases, Judgment (Second Phase), at 34 (finding that ‘humanitarian considerations‘ were insufficient to constitute a legal interest in the absence of an obligation provided by a relevant text, such as a treaty).

106 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, at §§ 52–3 (noting that there were ‘differing views‘ as to ‘what influence the Court’s opinion might have on these negotiations‘ and therefore deemed the facts not ‘compelling‘ enough to decline the exercise of jurisdiction).

107 Merger Protocol, art. 49.

108 Merger Protocol, art. 49. The language of the intervention provision is nearly identical to that contained in the Statute of the International Court of Justice. United Nations, Statute of the International Court of Justice, art. 62 (18 April 1946) (providing that a State may submit a request to the Court to be permitted to intervene where the State has ‘an interest of a legal nature which may be affected by the decision in the case‘), available online at www.icj-cij.org/en/statute.

109 Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment of 5 February 1970, §§ 33–4, available online at www.icj-cij.org/files/case-related/50/050-19700205-JUD-01-00-EN.pdf; see also Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, § 68, available online at www.icj-cij.org/files/case-related/144/144-20120720-JUD-01-00-EN.pdf. Although the ICJ referred to States, it is beyond dispute that an international organization may enforce a legal interest, even more so when specifically authorized to do so under a relevant treaty or protocol. See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,, Advisory Opinion of 9 July 2004, §§ 15–17, available online at www.legal-tools.org/doc/e5231b/pdf/.

110 International Law Institute, The Protection of Human Rights and the Principle of Non-Intervention in Internal Affairs of States (13 September 1989) (declaring that ‘every State has a legal interest in the protection of human rights‘), available online at http://hrlibrary.umn.edu/instree/1989b.htm.

111 Organization of African Unity, African Charter on Human and Peoples’ Rights, art. 23(1) (June 1, 1981), available online at https://au.int/sites/default/files/treaties/7770-treaty-0011_-_african_charter_on_human_and_peoples_rights_e.pdf; General Assembly Res. 39/11, Declaration on the Right of Peoples to Peace (12 November 1984), available online at www.ohchr.org/EN/ProfessionalInterest/Pages/RightOfPeoplesToPeace.aspx; Human Rights Council Declaration on the Right to Peace, UN Doc. A/HRC/32/L.18, 24 June 2016, available online at http://unipd-centrodirittiumani.it/public/docs/Declaration_RightToPeace_24062016.pdf (adopted on 1 July 2016).

112 Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v. France), , Order of 17 June 2003, (dissenting opinion of Judge de Cara), available online at www.icj-cij.org/files/case-related/129/129-20030617-ORD-01-02-EN.pdf. The majority did not appear to contest that internal security may constitute a legal interest, which it described as a ‘right,‘ and instead concluded that there was no risk of irreparable prejudice to that right. See Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v. France), Order of 17 June 2003, §§ 27–9, available online at www.icj-cij.org/files/case-related/129/129-20030617-ORD-01-00-EN.pdf.

113 See, e.g., South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Judgment (Preliminary Objections) of 21 December 1962, 425 (separate opinion of Judge Jessup), available online at www.icj-cij.org/files/case-related/46/046-19621221-JUD-01-03-EN.pdf; South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Judgment (Second Phase) of 18 July 1966, 252–53 (dissenting opinion of Judge Tanaka), available online at www.legal-tools.org/doc/3ed45e/pdf/. In the 1966 decision, the majority did not dispute that a State may have a legal interest in such issues, but rather held that the legal interest must be clearly vested in the particular petitioner in order to permit a claim. South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Judgment (Second Phase) of 18 July 1966, § 44, available online at www.icj-cij.org/files/case-related/46/046-19660718-JUD-01-00-EN.pdf.

114 Rome Statute of the International Criminal Court, art. 16 (17 July 1998), available online at www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf

115 Rome Statute of the ICC, art. 13(b); ibid. art. 12(2) (exempting UNSC referrals from the requirement that the relevant State be a party to the Statute).

116 Merger Protocol, art. 29(2) (providing that ‘[t]he Court shall also have no jurisdiction to deal with a dispute involving a Member State that has not ratified the Protocol’).

117 Inter-American Commission on Human Rights, Report No. 28.92: Argentina, 2 October 1992, available online at: www.cidh.oas.org/annualrep/92eng/Argentina10.147.htm.

118 Inter-American Court of Human Rights, Case of Barrios Altos v. Peru, Judgment of 14 March 2011, available online at: www.corteidh.or.cr/docs/casos/articulos/seriec_75_ing.pdf [Barrios Altos]; see also Amnesty International, ‘Peru: Amnesty laws consolidate impunity for human rights violations‘ online: www.amnesty.org/download/Documents/168000/amr460031996en.pdf.

119 Barrios Altos, supra note 119 at § 41.

120 See Lorena Balardini, ‘Argentina: Regional Protagonist of Transitional Justice’ in Elin Skaar Jemima Garcia-Godos and Cath Collins, eds., Transitional Justice in Latin America: The Uneven Road from Impunity Towards Accountability (Routledge: 2016) Chapter 3, 50 at 5760 [Balardini].

121 Bantekas, supra note 10 at 92; See also Human Rights Watch, Settling Justice Short: Why Accountability Matters for Peace (7 July 2009): ‘Indictments of abusive leaders and the resulting stigmatization can lead to marginalizing a suspected war criminal and may ultimately facilitate peace and stability.‘ Available online at: www.hrw.org/report/2009/07/07/selling-justice-short/why-accountability-matters-peace [Human Rights Watch]

122 Ibid.; The Former Yugoslavia was also cited by the Panel of the Wise at 11 as an example where indictments and prosecutions may help secure peace by removing spoilers from the peace process; On the other hand, Prorok, supra note at 220 argues that the ‘threat of prosecution by the international tribunal in The Hague made it practically impossible for NATO to reach an early deal with Milosevic, thereby lengthening the war and suffering in the Balkans in the summer of 1999.‘ In terms of Liberia, others have argued that Charles Taylors’ surrender and arrest was only possible because he had lost power and authority over his government to rebel forces, forcing him into exile (see below).

123 Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (12 July 1999) UN Doc S/1999/777 available online at: https://peacemaker.un.org/sites/peacemaker.un.org/files/SL_990707_LomePeaceAgreement.pdf.

124 See Bantekas, supra note 10 at 105; See also Special Court for Sierra Leone, Prosecutor v. Allieu Kondewa, Decision on Lack of Jurisdiction/Abuse of Process: Amnesty Provided by the Lomé Accord (25 May 2004).

125 See, e.g. Human Rights Watch, supra note 122: ‘At the same time, some diplomats tasked with negotiating peace agreements have argued that the prospect of prosecution by the ICC has made achieving their objectives more difficult. Those negotiating peace have tended to view the possibility of prosecution as a dangerous and unfortunate obstacle to their work. Some fear that merely raising the specter of prosecution will bring an end to fragile peace talks. Facing understandable pressure to resolve an armed conflict, negotiators and others often feel pressured to push justice to the side.’; Prorok, supra note at 214.

126 Ibid. at 214; L. Gissel, ‘Justice Tides: How and When Levels of ICC Involvement Affect Peace Processes’, 9 International Journal of Transitional Justice (2015) 428 at 429 [Gissel].

127 Ibid. at 220.

128 Ibid. at 221.

129 Ibid. at 85.

130 As cited in Human Rights Watch, supra note 122.

131 Akande, du Plessis and Jalloh, supra note 69, at 5.

132 Ibid.

133 Ibid.

134 Decision on the Prosecution Application Under Article 58(7) of the Statute, Harun (ICC-02/05–01/07–1), Pre-Trial Chamber I, 27 April 2007.

135 Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Al Bashir 9ICC-02/05–01/09–1), Pre-Trial Chamber I, 4 March 2009.

136 Akande, du Plessis and Jalloh, supra note 69, at 5.

137 Akhavan, supra note 14, at 648.

138 S. Baldo, ‘Sudan: Impact of the Rome Statute and the International Criminal Court’, International Centre for Transitional Justice, May 2010, available online at: www.ictj.org/publication/sudan-impact-rome-statute-and-international-criminal-court.

139 M. Phoebe, ‘10 Years of the International Criminal Court: The Court, Africa, the United Nations Security Council (UNSC) and Article 16 of the Rome Statute’, (2012), available online at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2169819.

140 Akande, du Plessis and Jalloh, supra note 92, at 5. See also Decision of the Meeting of African States Parties to the Rome Statute of the International Criminal Court, Doc Assembly/AU/13 (XIII), Addis Ababa, 1–3 July 2009, 8; Communiqué of the 207th Meeting of the Peace and Security Council at the Level of the Heads of State and Government, Doc PSC/AHG/COMM.1(CCVII), 29 October 2009, 5.

141 Akhavan, supra note 14, at 648.

Akande, du Plessis and Jalloh, supra note 92, at 6.

142 Ibid.

143 See M. Taddele Maru, ‘Why South Africa let Bashir Get Away’, Al Jazeera, 15 June 2015, available online at: www.aljazeera.com/indepth/opinion/2015/06/south-africa-bashir-150615102211840.html

144 S. Baldo, ‘Sudan: Impact of the Rome Statute and the International Criminal Court’, International Centre for Transitional Justice, May 2010, available online at: www.ictj.org/publication/sudan-impact-rome-statute-and-international-criminal-court.

145 C. Ero, ‘Understanding Africa’s Position on the International Criminal Court’ (Oxford Transitional Justice Research Working Paper Series), 10 March 2010, available online at: http://otjr.crim.ox.ac.uk/materials/papers/122/Justice_in_Africa.pdf.

146 Akande, du Plessis and Jalloh, supra note 92, at 6.

147 Akande, du Plessis and Jalloh, supra note 69, at 5.See also Decision of the Meeting of African States Parties to the Rome Statute of the International Criminal Court, Doc Assembly/AU/13 (XIII), Addis Ababa, 1–3 July 2009, 8; Communiqué of the 207th Meeting of the Peace and Security Council at the Level of the Heads of State and Government, Doc PSC/AHG/COMM.1(CCVII), 29 October 2009, 5.

148 Akhavan, supra note 5, at 648.

Akande, du Plessis and Jalloh, supra note 69, at 6.

149 Ibid.

150 See M. Taddele Maru, ‘Why South Africa let Bashir Get Away’, Al Jazeera, 15 June 2015, available online at: www.aljazeera.com/indepth/opinion/2015/06/south-africa-bashir-150615102211840.html

151 Akande, du Plessis and Jalloh, supra note 69, at 6.

152 For a review of all ASP working group reports, see: www.icc-cpi.int/en_menus/asp/WGA/Pages/default.aspx.

153 International Refugee Rights Initiative, supra note 68, at 32.

154 Ibid.

155 See R. Goldstone, ‘Catching a War Criminal in the Act’, New York Times, 15 July 2008, available online at: www.nytimes.com/2008/07/15/opinion/15goldstone.html?_r=0.

156 Akhavan, supra note 5, at 650.

157 For a review of all ASP working group reports, see: www.icc-cpi.int/en_menus/asp/WGA/Pages/default.aspx.

159 Ibid.

161 Ibid.; See also Olsen et al., supra note 24.

162 Olsen et al., supra note 24 at 987.

163 Ibid at 986.

164 Panel of the Wise, supra note 18 at 12–13.

165 Balardini, supra note 121 at 51.

166 Ibid. at 57.

167 Ibid.

168 Ibid. at 58.

169 Ibid. at 58.

170 Ibid. at 59–60.

171 Ibid. at 60.

172 C. Collins and B. Hau, ‘Chile: Incremental Truth, Late Justice‘ in E, Skaar, J. Garcia-Godos and C. Collins, eds., Transitional Justice in Latin America: The Uneven Road from Impunity towards Accountability (Routledge: 2016) Chapter 6 126 at 143 [Collins and Hau].

173 Ibid. at 126.

174 Ibid. at 143.

175 Ibid. at 327.

176 Randeny and Lassee, supra note 36 at 10.

177 Inter-American Court of Human Rights, Case of Almonacid-Arellano et al. v. Chile, Judgment of 26 September 2006 (Preliminary Objections, Merits, Reparations and Costs) at para 114 online: www.corteidh.or.cr/docs/casos/articulos/seriec_154_ing.pdf.

178 F. Lessa and E. Skaar, ‘Uruguay: Halfway Towards Accountability’ in E. Skaar, J. Garcia-Godos and C. Collins, eds., Transitional Justice in Latin America: The Uneven Road from Impunity towards Accountability (Routledge: 2016) Chapter 4, 77 [Lessa and Skaar].

179 Ibid. at 94.

180 Ibid. at 96.

181 Human Rights Watch, supra note 122; See also Olsen et al., supra note 24 at 986.

182 Panel of the Wise, supra note 18 at 32.

183 A. Jarstad et al., ‘Peace Agreements in the 1990s – What are the Outcomes 20 Years Later?’ (2015) Umea Working Papers in Peace and Conflict Studies, No. 8 at 6–10 online: www.diva-portal.org/smash/get/diva2:887947/FULLTEXT02 [Jarstad et al.].

184 V. Igreja, ‘Amnesty Law, Political Struggles for Legitimacy and Violence in Mozambique’, (2015) 9 International Journal of Transitional Justice 239 at 257 [Igreja].

185 Ibid. at 258.

186 Olsen et al., supra note 24 at 986; See also Jarstad et al., supra note 91 at 6–10.

187 S. Höhn, ‘International Justice and Reconciliation in Namibia: the ICC Submission and Public Memory’, 109 African Affairs (2010) 471.

4 The African Union Transitional Justice Policy Framework and How it Fits into the African Governance Architecture (AGA) Promise and Prospects for the African Court of Justice and Human Rights

George Mukundi Wachira
1. Introduction

The Africa rising narrative has gained traction within and beyond the continent.1 Endowed with significant human and natural resources, Africa’s promise and potential is unparalleled in modern history. The continent’s growth and development has undoubtedly transformed over the last decade, buoyed by a youthful demographic. However, Africa’s rise is measured in terms of economic growth.2 In the midst of the celebrated macro-economic growth lie deep inequality, fragility, unemployment and exacerbating poverty of African peoples.3 Despite marked socio-economic progress in Africa, significant challenges continue to stand in the way of reaping the full potential of the continent’s abundance in resources. Democratic governance deficit is identified as one of the structural root causes of Africa’s conflicts and under development.4 The African Union (AU) acknowledges that ‘the scourge of conflicts in Africa is a major impediment to the socio-economic development of the continent’.5 To redress conflicts in Africa, the AU commits ‘to promote peace and security, human rights and ending impunity.’6

In a remarkable departure from its predecessor – the Organization of African Unity – which relied on strict interpretation of the principle of state sovereignty (non-interference) – the AU’s principle of non-indifference, marked a significant paradigm shift.7 In an unprecedented affirmation of the right of the Union to intervene in a Member State where grave crimes have been committed, the AU further condemns and rejects impunity.8 Indeed, conscious of the high cost of impunity to Africa’s socio-economic development, the AU’s Peace and Security Council in 2009 – through one of its pillars, the Panel of the Wise – recommended the adoption of an African Transitional Justice Policy Framework.9

While sufficient credit goes to the AU Panel of the Wise for the formal recommendation to the AU to consider developing and adopting a Transitional Justice Policy Framework, the original thought and idea about consolidating comparable transitional justice practices in Africa is traceable to the 2009 African Union High Level Panel Report on Darfur (Mbeki Panel Report).10 The Mbeki Report made an unprecedented attempt to confront the ‘challenge of finding an effective and comprehensive approach to the issues of accountability and impunity on the one hand, and to peace, healing, and reconciliation on the other.’11 The Mbeki Panel Report recommendations were instrumental and likely guided the AU Panel of the Wise on the possible ‘contours’ of an AU Transitional Justice Policy Framework’.12 While the Mbeki Report was only focused on the situation in Darfur, its recommendations are applicable to other situations and include: ‘the utility of comprehensive national processes and principles for the establishment of hybrid courts in parallel with truth seeking and reconciliation processes’.13 This paper examines the draft AU Transitional Justice Policy Framework. The paper is structured into three broad sections. Section 1 begins by tracing the objectives of the AU TJ Policy Framework. Section 2 reviews the Policy Framework’s focus and contents. Section 3 is a forecast of the promise and prospects of the Framework in addressing impunity and post conflict reconstruction and development in Africa.

2. Objectives of the AU Transitional Justice Policy Framework

South Africa’s transition from apartheid to a democracy is hailed as nothing short of a miracle.14 When Nelson Mandela took over from FW de Klerk as President of South Africa in 1994 – after spending 27 years in prison – the world sighed in amazement as once arch-foes formed a government of national unity. De Klerk was appointed as Mandela’s deputy until 1996. Inspired and motivated by pragmatism or perhaps a symbolic gesture of reconciliation, it was a game changer in South Africa’s pursuit for national unity among diametrically opposed sides. To deal with past injustices of apartheid, South Africa formed a Truth and Reconciliation Commission in 1995 with a mandate to examine human rights violations and atrocities from 1960 to 1994.15 The mandate was set out in the Promotion of National Unity and Reconciliation Act, South Africa, 19 July 1995. While other African countries16 had previously attempted reconciliation processes including through truth commissions, South Africa’s iconic experiment is heralded as inspiring replication across the continent on dealing with past atrocities.17 Rwanda, Sierra Leone, Liberia, Kenya, Ivory Coast, Mali, Zimbabwe, and South Sudan are some of the other African countries that have since attempted various transitional justice initiatives.

Although several AU Member States have since attempted different versions of transitional justice, there is lack of a coherent continental approach or guide towards effective and legitimate transitional justice processes and mechanisms. Indeed, the AU Panel of the Wise acknowledges that ‘since the early 1990s, Africa has served as a vast testing ground for new policies to address impunity, seek truth and justice, and enable reconciliation in fractured societies’.18 The impact of those experiments in meeting the objectives to which they were established is mixed. Several lessons can be teased out from comparable experiences of countries in Africa and beyond that have adopted and undertaken transitional justice. Besides examining effective practices – in light of differences in contextual realities of AU Member States – some of the lessons are on what not to replicate and copy, rather than what to do.

The AU TJ Policy Framework therefore seeks to consolidate lessons, practices and emerging norms on credible and legitimate transitional justice mechanisms and processes in Africa and raises questions about the new locus of justice being fomented through the African Court for Justice and Human Rights. The objectives of the Framework ‘is to assist African Union (AU) Member States emerging from violent conflicts and repression in their pursuit of accountability, sustainable peace, justice and reconciliation. The AUTJF reflects contemporary issues in the area of transitional justice and aims to be a guide that can be adapted by countries in the design and implementation of transitional justice mechanisms.’19

The Framework makes it clear that it does not to seek to create any ‘new obligations for AU Member States’, but rather complements and provides clarity to AU instruments and policies that ‘deepen the links between justice, governance, human rights, peace and security and development’.20 Acknowledging the gap between what transpires in practice and in various AU normative instruments, the Framework seeks to ‘improve the timeliness, effectiveness and coordination of efforts by States emerging from conflict and oppressive rule.’21

3. Focus and Content of the AU TJ Policy Framework

The scope and focus of the AU TJ Policy Framework is largely inspired by the AU Shared Values instruments and policies relative to democratic governance, human rights, peace and security and post conflict reconstruction and development.22 The Framework places emphasis on an imperative for synergy, complementarity and coherence between the African Governance Architecture and the African Peace and Security Architecture.23 Effective implementation of AU Share Values at national level is critical for addressing impunity and post conflict reconstruction and development. The Framework is conceptualized and designed as an imperative to ‘end violent conflicts and repressive rule, and nurture sustainable development, social justice, human and peoples’ rights, democratic rule, and good governance, consolidate peace, reconciliation and justice in Africa, and prevent impunity’.24

The Framework is structured along four broad areas. It begins by acknowledging the principles and values that underpin the Framework. It then highlights the guiding normative framework which includes the AU Shared Values on democratic governance, human rights, constitutionalism, rule of law, peace and security. While not purporting to be exhaustive, the Framework outlines some of the constitutive elements of transitional justice largely based on comparable lessons and experiences of AU Member States that have undertaken transitional justice in Africa. Finally, the Framework identifies the key actors and governance mechanisms for implementation. The next section examines the four broad areas in turn.

A. Principles and Values

The principles and values that guide the AU TJ Policy Framework emanate from AU Shared Values on ‘peace, justice, accountability and reconciliation, which are interrelated, interdependent and mutually reinforcing’.25 The Framework is hinged on four main principles: entrenchment of African shared values; promotion of national and local ownership and inclusive participation in transitional justice processes; promotion of reconciliation with accountability and responsibility; and cooperation, coherence and coordination of transitional justice initiatives.26

1. Entrenchment of African Shared Values

The principle of entrenchment of African shared values in the AU TJ Policy Framework broadens the transitional justice discourse and application in Africa beyond conventional understanding thus far. According to the International Centre for Transitional Justice (ICTJ) – globally recognized as one of the pioneer transitional justice institutions – ‘Transitional justice refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses. These measures include criminal prosecutions, truth commissions, reparations programs, and various kinds of institutional reforms’.27 Emerging largely from the experiences in Nuremberg, Latin America and South Africa, transitional justice until the very late 1990s, was focused on addressing repression in the civil, political rights realm and related human rights atrocities by States.28

While repression and human rights atrocities continue to be the bedrock of pursuit for transitional justice in most African countries, there is emerging consensus that ‘effective realization of socio-economic justice, gender justice, and right to development’ are equally critical if not central to redressing past injustices.29 Entrenchment of AU Shared Values in the Framework reflects and captures Africa’s ‘particular contexts, cultural nuances and priorities’ that place emphasis on African solidarity, socio-economic rights, traditional justice, reconciliation, national cohesion, and transformative development.30

(a) Promotion of National and Local Ownership and Inclusive Participation in Transitional Justice Processes

Transitional Justice thus far has been driven and implemented by States with marginal if any inclusion and participation of the beneficiaries of those initiatives. However, limited ownership, lack of engagement and participation of beneficiaries of transitional justice entrenches disenfranchisement of victims and survivors of human rights atrocities. The AU TJ Policy Framework in recognition of that trend sought to cure that deficit by underlining the primacy and centrality of victims and citizens in conceptualization, design, implementation, monitoring and evaluation of transitional justice processes in Africa.31

The Framework promotes local and national ownership and inclusive participation of beneficiaries in transitional justice processes. While acknowledging that funding and technical support to transitional justice initiatives can be external, it seeks to promote local and national resourcing of transitional justice processes and mechanism to ensure sustainability of initiatives and comprehensively address structural root causes of conflict rather than its symptoms.

The Framework makes a case for respect for the principle of ‘effective consultation, participation and informed consent in all engagements with affected groups in deciding on priority areas in transitional justice processes’.32 Such consultations and engagements are based on human rights principles of ‘equality, non-discrimination, justice, equity and fairness’ which are the overarching basis for transitional justice in Africa.33

(b) Promotion of Reconciliation with Accountability and Responsibility

The AU TJ Policy Framework embraces the AU Panel on Darfur’s triple ‘objectives of peace, reconciliation and justice as interconnected, mutually dependent and equally desirable’34 as underlying pillars of transitional justice in Africa.35 The Framework thus broadens the understanding of justice as going beyond pursuit for retribution. It links ‘reconciliation, accountability and responsibility’ as interrelated imperatives in the pursuit for sustainable peace in Africa.36

To prevent recurrence of conflict which is an overarching goal of credible and legitimate transitional justice, it is important to ensure real ownership of justice models through appropriate consultations and consensus building among all stakeholders including protagonists. The Framework acknowledges and recognizes that victims and perpetrators are part of the same society and are likely to continue living together post the conflict. The Framework calls for respect and protection of the dignity and rights of victims, witnesses and intermediaries as well as the fair trial rights of alleged perpetrators.37

Women, youth and children bear the brunt of most conflicts. The Framework therefore urges, for their inclusion in the design and implementation of transitional justice initiatives including protection of their vulnerabilities and special needs. In promoting reconciliation with accountability and responsibility, the Framework seeks to promote a comprehensive understanding of justice, which goes beyond criminal trials to one whose overarching goal is to pursue accountability while achieving reconciliation.38

i) Cooperation, Coherence and Coordination of Transitional Justice Initiatives

One of the major gaps in the promotion and consolidation of African shared values is limited cooperation and coordination of AU Organs, Institutions, Regional Economic Communities (RECs) and Member States in their implementation at national level.39 The AU TJ Policy Framework seeks to cure this deficit by urging for clear definition, identification and assignment of roles and responsibilities of all actors and resources at continental and national level.40 Actors are not limited to the state and include victims, civil society and international actors.

Early identification and roles assignment ensures coherence, effectiveness, efficiency, timeliness and sustainability of transitional justice initiatives in order to comprehensively address the structural root cause of conflicts. The Framework calls for transparency and exchange of information of local, national and international actors including share of comparable practices and experiences as a means of enhancing trust and learning.41

(c) Normative Framework

The AU Transitional Justice Policy Framework revolves around four key normative issues: link between transitional justice and accountability; goals of transitional justice; balancing competing transitional justice goals; and sequencing.42

(i) Link Between Transitional Justice and Accountability

International human rights and international criminal law standards that include regional standards provide guidance and normative framework on transitional justice in Africa. Although the Framework does not expressly stipulate which standards apply, most AU Member States are party to several international and regional instruments against impunity and protection of human rights which is indicative of the scope of applicability of these norms in addressing accountability and transitional justice.

i. Goals of Transitional Justice

The overall goal of transitional justice is to address past atrocities and human rights abuses towards sustainable peace, justice and reconciliation. The key elements identified by the Framework as critical for achieving that imperative include: truth seeking; justice; reparations and guarantees of non-recurrence.43 Various international, regional and national norms as well as institutions and tribunals including the African Court on Human and Peoples’ Rights and the African Commission on Human and Peoples’ Rights have addressed some of these elements.44 Their interpretations and jurisprudence constitute a body of norms and standards that could guide the implementation of the Framework in Africa.

The Rwanda experiment on the nexus between justice and reconciliation as exemplified by gacaca45 courts affirms the importance of looking beyond conventional norms on criminal justice to include ‘restorative and redistributive justice’.46 Symbolic and practical reparations as part of transitional justice are equally highlighted by the Framework as critical and in consonance with international standards and norms.47 To ensure non-repetition and recurrence, the Framework identifies implementing structural reforms on democratic governance and accountability that include legal and institutional reforms, vetting and lustration and security sector reforms in order to restore trust by citizens to the broken institutions of state.48

ii. Balancing Competing Transitional Justice Goals

The Framework is clear that there is no one size fits all formula of what transitional justice policies and mechanism a country should adopt.49 In fact in a continent as diverse as her people, countries have the discretion to undertake transitional justice processes that respond and are in alignment with the peoples’ needs towards finding lasting peace. What is critically important is ensuring that the models adopted consider the triple objectives of peace, reconciliation and justice without compromising either.

Certainly not an easy task, the Framework recognizes that transitional justice is not a perfect alternative to justice during peace times and is therefore an outcome of negotiations and compromises. As such it may yield to some imperfect solutions. The norms that should guide such an undertaking should therefore be defined by broad citizen consultations and participation to ensure ownership by citizens and compliance with regional and international norms and standards.

iii. Sequencing

One of the unique but controversial propositions of the AU TJ Policy Framework is the imperative – if need be – of sequencing various transitional justice initiatives. Based on pragmatism and a desire to ensure that adopted transitional justice initiatives are not compromised by political considerations, the Framework acknowledges the need to sequence certain transitional justice initiatives.50 The Framework emphasizes that the question is not a choice of whether to pursue justice or peace but rather of when to pursue either.51 Peace and justice are therefore not necessarily conflictual but in fact if ‘properly pursued, they promote and sustain one another’.52

B. Constitutive Elements

Traditionally, transitional justice identified five core elements: criminal prosecutions; reparations; legal and institutional reforms; truth commissions and memorialization.53 Besides the five core elements, the AU TJ Policy Framework included three more elements: peacemaking processes; traditional justice; and gender and children justice.54 The additional elements reflect the particular realities and context within which comprehensive transitional justice is understood in Africa.

C. Peacemaking Process

Most transitional justice initiatives in Africa have emerged because of compromise, negotiation, mediation and peace agreements. Peacemaking processes in Africa thus constitute the point of departure for negotiating inclusion of transitional justice processes and initiatives in peace agreements. The legal basis for the AU’s engagement in peacemaking processes in Member States is the Constitutive Act55 and the Protocol to the Peace and Security Council.56

The AU and its building blocks – the RECs –are therefore actively engaged in facilitating and at times act as guarantors of peace processes as was exemplified in Kenya, Zimbabwe, Ivory Coast, Mali, South Sudan, Burundi, Lesotho and Central Africa Republic. Some of these peacemaking processes have resulted in transitional justice initiatives notably in Kenya, South Sudan, Ivory Coast, Central Africa Republic and Mali.

The Framework provides guidance to Member States on the importance of ensuring that peace agreements take into account the following core issues among others:

  1. a) The interconnectedness and interdependence of the imperatives of peace, justice, and reconciliation.

  2. b) Political, economic, and social drivers of conflicts.

  3. c) The regional and external dimensions of these conflicts.

  4. d) Inclusion and participation of all stakeholders including women, youth, civil society and victims.

  5. e) Conformity to international legal obligations.

  6. f) Implementation and monitoring mechanisms.57

In order to give peace a chance, the Framework calls on Member States to ensure that parties ‘enter into negotiations for a permanent cease fire, including comprehensive security arrangements’.58 Such arrangements should include disarmament, demobilization and reintegration of former combatants as well as repatriation, resettlement, reintegration and rehabilitation of refugees, internally displaced people and in particular women and children.59

D. Traditional Justice and Reconciliation Mechanisms

African traditional justice systems embrace accountability mechanisms that go beyond retribution.60 The AU TJ Policy Framework adopts that approach in recognition that traditional justice in Africa has duo objectives of justice and reconciliation. The Framework calls on AU Member States ‘to broaden their understanding of justice beyond retributive justice to encompass restorative, redistributive and transformative measures found in traditional African systems’.61 However, it cautions that traditional justice should not be employed to trample upon fundamental human and peoples’ rights as codified in regional human rights instruments.62

The Framework promotes ‘support and respect for communal based accountability mechanisms that seek to foster integration and reconciliation’.63 In acknowledgement of the role transitional justice plays towards reconciliation, the Framework seeks integration of ‘generic African practices into international norms and standards that would enhance international commitment to end impunity and promote peace, justice and reconciliation’.

1. Truth Commissions and Archives

Truth Commissions have become synonymous with transitional justice. They are often the transitional justice processes of choice or default after periods of conflict to investigate past human rights atrocities. The Framework identifies truth commissions as pivotal for transitional justice in Africa and elaborates their scope, mandates and factors which impact upon successful truth commissions.

The Framework provides guidance on possible mandates of truth commissions depending on their contexts and circumstances that prompted their establishment. These range from fact finding, investigations, public consultations, hearings and recommending for accountability, legal and institutional reforms, lustration and reparations. One of the important contributions of truth commission is to establish the truth and provide an account of what happened which is useful for documentation and immortalizing history through archives and records.

The Framework provides indicators for successful truth commissions that include: independence of commissioners; sufficient but realistic mandate; publication and dissemination of reports; implementation of recommendations; and dealing with denial and acknowledgement.64

(a) Justice and Accountability

Besides national and international criminal prosecutions, the AU TJ Policy Framework acknowledges the purpose served by informal and indigenous justice systems – accountability and reconciliation. It notes that national and international prosecutions are an important component of addressing impunity. The Framework reaffirms that the purpose for justice in the African context has five principal objectives: accountability, deterrence, retribution, rehabilitation and reconciliation.65

The Framework underscores the importance of the complementarity principle in prosecuting international crimes. Victims’ rights, protection of witnesses and fair trial rights are equally emphasized as is the importance of exploring regional criminal accountability mechanisms once they become operational.66

The AU TJ Policy Framework recognizes the role that amnesties can play to bring combatants and opposing camps to the negotiating table. However, it reaffirms that amnesties are not permissible if they:

  1. 1. Prevent prosecution of individuals who may be criminally responsible for war crimes, genocide, crimes against humanity or gross violations of human rights;

  2. 2. Interfere with victims’ right to an effective remedy; or

  3. 3. Restrict victims’ or societies’ right to know the truth about violations of human rights and humanitarian law.67

(b) Reparation and Memorialization

The AU TJ Policy Framework endorses international norms and standards on reparations as the point of reference on reparations in transitional justice processes in Africa.68 The guidelines reassert the ‘state to individual responsibility for reparations.’69 According to the UN Guidelines, reparations include: restitution, compensation, rehabilitation, satisfaction and guarantees of non‐repetition.70

The Framework reaffirms the principle that ‘reparations are both individual and collective, and are a public acknowledgement by a new or reconstructed society of the harms suffered; and provide recognition for a victim as well as redress’.71 For reparations to be meaningful they must be accompanied by a public acknowledgement and must be ‘adequate, effective and prompt.’72 While reparations can be individual they can also be collective and could also include symbolic gestures such as memorialization.73 The Framework outlines benchmarks and indicators for successful reparation programmes. Such indicators include: transparency; effective participation of victims; fair and just processes; gender sensitive; prompt and adequate and linked to development agenda for sustainability.74

Memorialization is identified as an important component of reparations and transitional justice given its symbolism as a tool for reconciliation, healing, justice and conflict prevention.75 The AU’s unprecedented establishment of a continental human rights memorial is commended and highlighted as an important contribution to ongoing peace and reconciliation efforts among Member States.76 The Framework identifies benchmarks and indicators for successful memorialization programmes. These could include: Effective participation and consultation of all stakeholders to ensure ownership; complementarity with other transitional justice processes; gender sensitive; incorporates official acknowledgement of atrocities and responsibility; comprehensive and respectful of diversity of victims.77

2. Institutional and Legal Reforms

To guarantee non-recurrence, societal transformation and legal and institutional reforms are necessary especially if the institutions and laws failed to prevent atrocities. One of the sustainable and transformative transitional justice guarantees for non-repetition is an overhaul and reforms of laws and institutions that failed to prevent human rights atrocities. The Framework identifies legal and institutional reforms as the bedrock of guaranteeing non-recurrence.78 Strengthening democratic governance, protection and respect for human rights, constitutionalism and rule of law is regarded as crucial components of comprehensive transitional justice.

Accompanying legal reforms is the need for removal and lustration of public officials who may have been complicit, implicit and perpetrated human rights violations and atrocities. That entails vetting of public officials and if need be their removal from public office. Such a process should be undertaken in compliance with fair due processes and international human rights standards.

E. Gender and Children

Women and children often bear the brunt of conflict as victims and survivors. The Framework in recognition of the effect and impact of conflict on women and children provides guidance on the imperative to adopt and take special measures to address their vulnerability, needs and concerns in transitional justice processes. The Frameworks calls for ‘inclusion of child specific or child friendly mechanisms to address the experiences of children in conflict’.79 Such measures could include prioritizing anonymity, best interests of the child, and psychosocial support.80 International and regional human rights standards on children should always apply especially relative to international and local criminal prosecutions of child soldiers.81

Protecting the rights of women in Africa have gained significant momentum since the adoption of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.82 However, challenges remain in implementation of AU standards and norms on the rights of women especially during conflict. The Framework ‘cognizant of the disproportionate effect of conflict on women and girls, requires that transitional justice measures should transform the lives of women and girls particularly those vulnerable to conflict‐related human rights abuses, including systematic sexual violence that often continues unabated even after conflict ends’.83

The Framework calls for prosecution of sexual and gender-based violence and inclusion and participation of women in peacemaking and transitional justice processes. It also includes factoring gender considerations towards effective realization of socio-economic rights and full and equal participation in state rebuilding especially political leadership.84

F. Actors and Governance Mechanisms

Implementation of the AU TJ Policy Framework is hinged on effective coordination and identification of actors, resources and mechanisms to bring its propositions to action. State and non-state actors including partners are identified as crucial for implementation of not only the Framework but national transitional justice processes. The Framework calls on state actors to develop legal and institutional frameworks, strategies and appoint focal persons for coordinating implementation.85

The AU and RECs’ role include guiding implementation, facilitating harmonization of policy instruments, providing technical support and monitoring implementation in Member States.86 The AU’s judicial and quasi-judicial organs are envisaged to provide investigative, prosecutorial and protection of human rights violations as well as monitoring compliance of AU human rights shared values. Given the importance attached to peacemaking processes by the Framework, the AU’s Panel of the Wise is identified as an important actor for mediation and facilitating political negotiations.87 International actors and partners are acknowledged as crucial in providing comparable lessons as well as technical and additional financial resources.

4. Promise and Prospects

The development of an AU TJ Policy Framework marks a turning point for the AU in the fight against impunity. Beyond reaffirming its condemnation and rejection of impunity in its founding instrument – the Constitutive Act88 – the AU through the Framework elaborates specific measures and practical steps to enhance accountability and realize human and peoples’ rights in Africa. The Framework’s significant promise is its offer to Member States crucial guidance on dealing with past atrocities. The Framework reasserts the idea that ‘peace, justice, accountability and reconciliation, are interrelated, interdependent and mutually reinforcing’.89

Although it acknowledges that it might be necessary to sequence these processes based on appropriate timing and seizing the right moment, the Framework notes that the none of the four imperatives of peace, justice, accountability and reconciliation can be sacrificed for the other.

The Framework elaborates the mandates, provisions and relevant principles of AU Shared Values instruments in addressing impunity whose implementation would guarantee non-recurrence. One of the Framework’s value propositions beyond affirming that its legal basis is the AU Shared Values instruments is the identification of comparable lessons and practices in Member States on dealing with impunity and addressing historical injustices. The Framework reasserts the fact that AU Shared Values are not in contradiction with international human rights and humanitarian standards.

Unlike any other transitional justice instruments globally, the AU TJ Policy Framework’s point of departure is the imperative of peacemaking processes in shaping and informing transitional justice. Political negotiations and mediation in Africa offer perhaps the best platform for inclusion of transitional justice processes. The role of the AU Panel of the Wise and Regional Economic Communities as well as the African Governance Architecture and Peace and Security Architecture in undertaking, coordinating and guaranteeing peacemaking processes has significant potential and promise to yield sustainable peace in Africa.

The Framework places emphasis on examining structural root causes of conflict in the design and conceptualization of transitional justice processes and mechanism among countries emerging from conflict, rather than only looking at the symptoms of conflict. Democratic governance, deficit, and in particular human rights violations and lack of respect for the rule of law and constitutionalism are identified as critical drivers and triggers of conflict. The Framework suggests not only reforming laws and institutions but also building state capacity to promote and uphold principles of democratic governance as essential in facilitating reconciliation and ensuring socio-economic and political justice.

The Framework’s potential in changing the paradigm of state-society relations is marked by its according primacy to citizens and beneficiaries of transitional justice processes. Responding to heightened demands by citizens that ‘nothing about us, without us’ which has reverberated across the continent, the Framework calls on Member States to ensure that ownership of transitional justice processes resides with its beneficiaries. Through appropriate and genuine participation and consultations with citizens, victims and civil society the Framework goes beyond rhetoric to insist on inclusion of all actors from design, implementation and evaluation of transitional justice initiatives.

One of the unique contributions of the Framework in post conflict reconstruction and development in Africa is its broadening of the notion of justice beyond retributive justice to encompass restorative, redistributive and transformative justice. The Framework embraces traditional and alternative justice systems whose twin objectives of ensuring accountability and reconciliation is the hallmark of African understanding of justice.

The importance of socio-economic justice in transitional justice in Africa finds adequate emphasis in the Framework. Through promotion of effective reparations programmes that are designed to ensure that victims’ losses are acknowledged publicly, symbolically through memorialization and where need be materially, the Framework finds significant resonance in Africa.

Another unique and important contribution of the AU TJ Policy Framework is its acknowledgement of the gender dimensions of transitional justice. Besides appropriately calling on Member States to address the special needs and vulnerabilities of women victims in conflict, it identifies women as peace makers, mediators and actors who have great promise and capacity to ensure transitional justice processes are effective, legitimate and credible. The Framework equally addresses the special vulnerabilities of children in conflict as victims and also as perpetrators – child soldiers – and how to deal with such children based on the overriding principle of the best interest of the child.

Conscious of the imperative for synergy, harmony, coherence and importantly the fact that its promise and potential hinges on the extent to which it is implemented at national level, the Framework identifies critical actors and mechanisms for that purpose. The AU, RECs, Member States, and non-state actors including civil society and development partners are crucial for the effective implementation of the AU TJ Policy Framework. As efforts continue to ensure that the Framework is adopted by the AU, one can only wait with bated breath for what promises to be a game changer in Africa’s fight against impunity and the push for accountability and post conflict reconstruction and development.

1 The Economist, ‘Africa rising: A hopeful continent’ (3 March 2013).

3 African Common Position on the Post 2015 development Agenda, (2015), at ¶ 17.

4 Ibid. at ¶ 66.

5 AU Constitutive Act, at Preamble.

7 Constitutive Act, Art. 4(h) – Principles of the AU provides for the ‘the right of the Union 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.

8 Ibid., at Art. (o) calls for: respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities.

9 See African Union Panel of the Wise, ‘Peace, Justice, and Reconciliation in Africa: Opportunities and Challenges in the Fight Against Impunity,’ The African Union Series, New York: International Peace Institute, (February 2013), Annex, 72. See also Protocol Relating to the Establishment of the Peace and Security Council Articles, 6 and 14 relative to peacemaking and peace building in the restoration of the rule of law and post‐conflict reconstruction of societies. At the time of writing this paper (July 2016) the draft framework was being reviewed by a 15 Member States Reference Group constituted by the AU Specialized Technical Committee on Justice and Legal Affairs in November 2015. The draft had been submitted to the STC on Justice and Legal Affairs in November 2016 for consideration and adoption – but was shelved and referred to the 15 Member States Reference Group for further refinement. The Draft is the culmination of efforts by the Department of Political Affairs and the Legal Counsel, African Union Commission with technical support from the Centre for the Study of Violence and Reconciliation, South Africa to consolidate and fine tune the original draft that was annexed to the Report of the Panel of the Wise.

10 Report of the African Union High‐Level Panel on Darfur (AUPD Report), Peace and Security Council 207th Meeting at the Level of the Heads of State and Government, 29 October 2009, Abuja, Nigeria,

PSC/AHG/2(CCVII).

11 See African Union Panel of the Wise, ‘Peace, Justice, and Reconciliation in Africa: Opportunities and Challenges in the Fight Against Impunity,’ The African Union Series, New York: International Peace Institute, February 2013, at 5.

13 AU Draft TJ Policy Framework, at 5.

14 See J. Dugard. 2001. ‘Retrospective Justice: International Law and the South African Model’ in A James McAdams (ed) Transitional Justice and the Rule of Law in New Democracies, (University of Notre Dame Press. Notre Dame, 2001); See also ‘South Africa: beyond the miracle‘ accessed at www.sahistory.org.za/collection/27414.

15 Promotion of National Unity and Reconciliation Act, South Africa, 19 July 1995.

16 Uganda (1974), Zimbabwe (1985) and Nigeria (1999) See African Union Panel of the Wise, ‘Peace, Justice, and Reconciliation in Africa: Opportunities and Challenges in the Fight Against Impunity,’ The African Union Series’, New York: International Peace Institute, February 2013, at 21, 27.

17 See Editorial Note, 7 International Journal of Transitional Justice (March 2013), at 1, 2.

18 Ibid. at 27.

19 AU Draft TJ Policy Framework, at 2.

22 AU Constitutive Act articles 3 and 4; African Charter on Democracy, Elections and Governance, articles 2, 3, 16, 28 and 39; African Charter on Human and Peoples Rights, articles 1–26; Protocol Relating to the Establishment of the Peace and Security Council articles 6 and 14; Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa; The African Charter on the Rights and Welfare of the Child; and AU Policy Framework on Post Conflict Reconstruction and Development, articles 31, 32 and 33.

23 See Decision of the AU Assembly on the Declaration of the Assembly of the African Union on the Theme of the January 2011 Summit:

Towards Greater Unity and Integration through Shared Values,” (Assembly/AU/Decl.1 (XVI),) 4, 11 (as adopted during the Sixteenth Ordinary Session of the African Union, 30–31 January 2011).

24 Ibid., at 3

25 Ibid., at 7.

26 Ibid., at 7, 8.

27 See International Centre for Transitional Justice, ‘What is Transitional Justice?’ www.ictj.org/about/transitional-justice accessed 04 July 2016.

28 See M. C. Okello et al. ed., Where Law Meets Reality: Forging African Transitional Justice’ (Pambazuka Press, 2012); See also Editorial Note, supra note 17, at 1–7.

29 AU TJ Policy Framework, at 7. See also Editorial Note, supra note 17, at 1–7.

33 Ibid., at 8.

34 AUPD Report, at 5.

35 AU TJ Policy Framework, at 8.

38 See T. Murithi, ‘Towards African Models of Transitional Justice’ in M. Ch. Okello et al. (eds.), Where Law Meets Reality: Forging African Transitional Justice (Pambazuka Press, 2012) at 200.

39 G. M. Wachira, ‘Consolidating the African Governance Architecture’ in Y. Turianskyi & S. Gruzd (eds.), African Accountability: What Works and What Doesn’t? (South African Institute for International Affairs, Johannesburg, 2015).

40 Ibid., at 9.

42 Ibid., at 9–10

43 Ibid., 10.

44 See Generally various decisions of the African Commission on Human and Peoples Rights, Heyns and Killander (ed). 2013. Compendium of Key Human Rights Documents of the African Union, Pretoria University Press, 222–356. Provide further references of Case Law emerging from the ACtHPR.

45 See, Hollie et al., ‘Genocide, Justice and Rwanda’s Gacaca Courts’, 30 Journal of Contemporary

Criminal Justice, at 333–52.

46 AU TJ Policy Framework, at 10.

47 Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, United Nations General Assembly resolution 60/147, 16 December 2005; Ibid., at 10

48 AU TJ Policy Framework, at 10.

50 Ibid., at 10

53 International Centre for Transitional Justice, ‘The Elements of a Comprehensive Transitional Justice Policy’ sourced at www.ictj.org/about/transitional-justice.

54 AU TJ Policy Framework, at 11.

55 Constitutive Act of the AU, Art. 3 (f), 4(e).

56 Protocol to the Peace and Security Council, Art. 6, 13 and 14.

57 AU TJ Policy Framework, at pg. 11.

58 Ibid., at 13

60 See Murithi, supra note 38, at 200–17.

61 AU TJ Policy Framework, at 14.

64 Ibid., at 18

65 Ibid., at 18.

67 Ibid., at 21.

68 United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, General Assembly Resolution 60/147, 16 December 2005; See also the Hague Convention on the Laws and Customs of International Humanitarian Law IHL and Customs of Land Warfare of 1907; International Covenant on Civil and Political Rights; African Charter on Human and Peoples Rights articles ; Resolution on the Right to a Remedy and Reparation for Women and Girls Victims of Sexual Violence, The African Commission on Human and Peoples’ Rights (the African Commission or ACHPR), meeting at its 42nd Ordinary Session held in Brazzaville, Republic of Congo, 15–28 November 2007; Ibid., at 26.

69 AU TJ Policy Framework, at 26.

70 Ibid., at 26.

72 Ibid., at 27.

74 Ibid., at 28.

75 Ibid., at 30.

76 Ibid., at 30.

78 Ibid., at 31.

79 Ibid., at 32.

80 Ibid., at 33.

82 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol).

83 AU TJ Policy Framework, at 34.

85 Ibid., at 38.

87 Ibid., at 39.

88 Constitutive Act, Art. (o) calls for: respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities.

89 Ibid., at 7.

5 The Advent of a Differentiated Accountability System The African Court of Justice and Human Rights and the AU Transitional Justice Architecture

Tim Murithi
1. Introduction

This chapter will assess how the move towards enabling the African Court of Justice and Human Rights (ACJHR) to prosecute the most serious crimes of international concern, could impact on the African Union’s evolving transitional justice architecture. The chapter will argue the emergence of alternative sources and ways of framing international criminal law, as evidenced in the Malabo Protocol, will broaden the spectrum of options available to African Union (AU) member states in their attempts to implement transitional justice processes. The chapter will further argue that what I call a differentiated accountability system is at the core of the African Union’s evolving transitional justice architecture. The chapter will assess how the African continent is emerging as a theatre of innovation in terms of advancing our understanding the nexus between international criminal law, transitional justice and peacebuilding. This development will enable the continent to extricate itself from the puerile and interminable false debate as to whether one is ‘for’ or ‘against’ impunity depending if one advocate for the interventions of the international criminal tribunals in Africa. The chapter concludes by arguing that it is always vital to learn what African transitional justice, and specifically judicial, strategies or responses might be appropriate in different country contexts, which should be the foundation for a differentiated accountability system. As we shall see, understanding the operationalisation of the Malabo Protocol as a judicial instrument requires considering its application in relation to political commitments to African transitional justice.

2. Transitional Justice in Context

Though the formation of the African Court for Justice and Human Rights presupposes judicial solutions to violence and inequality to Africa, it is important to understand how it is conceived as working in relation to larger structures of violence management, such as African transitional justice. What we see is that the processes that the field of transitional justice embodies have been implemented for as long as there have been conflicts and efforts to deal with the past. However, as a field of academic study and sphere of practical intervention, transitional justice began being systematically analysed during the transitions from authoritarian regimes in Latin America in the 1980s.1 The genocide in Rwanda, in 1994, and in Srebenica, in 1995, further crystallised the quest and need to understand how societies that had endured mass atrocities could establish processes and mechanisms to deal with such a brutal past and enable a society to move forward. Concurrently, in 1994, South Africa’s liberation from the yoke of a white supremacist apartheid regime to a system of democratic governance, also generated a broad range of insights and experiences that could be analysed and documented, on how to operationalise transitional justice. There are still perplexing challenges such as the issue of whether transitional justice processes can be implemented in the absence of a ‘transition’ or regime change. There is no definitive satisfactory response to this conundrum and often it is necessary to begin laying the foundations for transitional justice even in the absence of a transition or during a violent conflict.

3. A Working Definition of Transitional Justice

Alex Boraine notes that ‘transitional justice seeks to address challenges that confront societies as they move from an authoritarian state to a form of democracy’.2 More often than not such societies are emerging from a past of brutality, exploitation and victimisation. In this context, transitional justice does not seek to replace criminal justice; rather, it strives to promote ‘a deeper, richer and broader vision of justice which seeks to confront perpetrators, address the needs of victims and start a process of reconciliation and transformation towards a more just and humane society’.3

The broadly accepted purpose of a process of transitional justice is to establish a quasi-judicial framework to undo the continuing effects of the past. It is also necessary not to lose sight of the fact that transitional justice is just that, a ‘transitional process’ and it should not be viewed as a permanent solution to addressing the atrocities of the past. It is a transient process that will have to give way to the rule of law and the restoration of a constitutional order that will manage and resolve the social, political and economic tensions within society. The institutional vehicles through which transitional justice is implemented, bodies such as truth and reconciliation commissions and special courts are temporary and time-bound institutions and should not be considered as a permanent solution.

Boraine argues that there are at least five components of a transitional justice process including:

  • ensuring accountability in the fair administration of justice and restoring the rule of law;

  • the use of non-judicial mechanisms to recover the truth, such as truth and reconciliation commissions;

  • reconciliation in which a commonly agreed memory of the past atrocities is acknowledged by those who created and implemented the unjust system as a prerequisite to promoting forgiveness and healing;

  • the reform of institutions including the executive, judiciary and legislative branches of government as well as the security sector to ensure that a degree of trust is restored and bridges between members of society can be re-built;

  • the issuing of reparations to victims who had suffered human rights violations, as a way to remedy the harm suffered in the past.

Transitional justice is complicated by a number of dilemmas including how to balance the ‘competing legitimate interests in redressing the harms of victims and ensuring the democratic stability of the state’.4 It requires the balancing of two imperatives ‘on the one hand, there is the need to return to the rule of law and the prosecution of offenders: on the other, there is a need for rebuilding societies and embarking on the process of reconciliation’.5

A. The Relationship between Transitional Justice and Reconciliation

Reconciliation is understood as the cumulative outcome of the broad-based application of transitional justice processes. Concretely, reconciliation processes require that the affected parties:

  1. (i) recognise their interdependence as a prerequisite for consolidating peace;

  2. (ii) engage in genuine dialogue about questions that have caused deep divisions in the past;

  3. (iii) embrace a democratic attitude to creating spaces where they can disagree; and

  4. (iv) work jointly to implement processes to address the legacies of socio-economic exploitation and injustices.6

At the heart of reconciliation is the achievement of the principles of justice and equity.7 Consequently, transitional justice is viewed as an intermediary set of process within a differentiated accountability system that gradually and over-time lead towards the promotion of reconciliation.

B. The Evolution of Transitional Justice

Transitional justice ideas initially originated from the legal tradition, with a biased focus on the judicial processes to address civil and political violations, during transitions to and lay the foundations for the post-transition rule of law. Africa’s experiences demonstrated that traditional notions of transitional justice needed to be re-thought and re-framed. Specifically, to effectively address the real concerns of victims of past violations, transitional justice norms had expanded beyond their narrow civil and political focus, to include socio-economic and psycho-social issues. Consequently, transitional justice is now understood as involving a broad spectrum of interventions that are embedded in peacebuilding and developmental processes. The differentiated accountability system is informed by the understanding that uniform approaches to addressing the violations of the past are misconceived, and that in practice a broad spectrum of processes, mechanisms and institutions can be deployed at different points in time to advance the interests of pursuing redress for historical injustice.

4. International Criminal Law within the Transitional Justice Framework

International criminal justice falls within the rubric of retributive justice. Consequently, international criminal law (ICL) is only one element of a broad range of transitional justice processes. The dominant view among legal practitioners, scholars, jurists and lawyers is to view transitional justice as a ‘spin-off’ of ICL. This view also perpetuates a myth that transitional justice is a soft version of ‘justice’ that seeks out avenues to punish perpetrators and consequently it denies the ‘duty to punish’ and it undermines the ‘morally superior’ pursuit of the rule of law based on legal criteria. Regrettably, such views are the result of a myopic approach to the ‘law’ which begins in the law schools, where through a process of indoctrination legal scholars are erroneously taught that their sphere of activity is immune from the contamination of political, social and economic forces. This is a counter-intuitive position when one considers that all law is created through political negotiation, or more precisely through political manipulation. Consequently, the idea that ‘law’ somehow operates above politics is derisory and self-deluding which can lead to disastrous outcomes, particularly in post-conflict contexts which evade easy categorisations, and which due to their extremely volatile nature can lead to the loss of life by the actions of over-zealous prosecutorial fundamentalists.

5. The Eurocentric Origins of International Law

International law emerged from the domestic political, cultural and legal norms of European societies. Subsequently, international law and ICL has been projected onto the world stage as a universally applicable system of norms and rules, which should frame and guide the way societies should live. If Eurocentric domestic norms can inform international law, the question arises as to whether other non-European societies can also extract, distil and proffer certain norms which can inform the reconstruction and redefinition of international law (IL) and ICL? The response is self-evidently in the affirmative the modern regime of international law is to a large extent a work-in-progress as a normative framework. The current corpus of IL and ICL does not foreclose the possibility that other sources of influence can be drawn upon to reorient this IL and ICL normative framework. The way forward will not be to continue to pretend that its origins were culturally inclusive and to embrace the possibility of new ways of conceptualising and framing international law and international criminal law, by drawing from other cultures around the world.

6. The African Union’s Evolving Transitional Justice Architecture

The Constitutive Act of the African Union, of 2000, empowers the body ‘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 … upon the recommendation of the Peace and Security Council’.8 In contradiction of some of the dominant narratives about the continental body, the African Union was two-years ahead of the operationalisation of the Rome Statute in formally adopting a legal position on the importance of confronting mass atrocities through rejecting impunity for international crimes. Consequently, from the outset the AU’s policy documents sought to internalise the organisation’s commitment to confront impunity. Along these lines the AU Constitutive Act identified the need to create an AU Court of Justice and recognised the continued functioning of the African Court on Human and Peoples’ Rights.

The cyclical nature of conflict in Africa, points to the critical need to move beyond temporary stalemates and ceasefires, peacekeeping deployments and military operations, that are so common in this era, towards a regional policy informed by intentionally confronting the underlying grievances that have fuelled decades of animosity and violence on the continent. This means that the continent’s peace and security institutions need to interface more effectively with the African Union’s evolving post-conflict reconstruction and transitional justice mechanisms.

A. Truth Seeking

The African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights are the key institutions which are primarily engaged in an establishment of the ‘truth’ in the context of the specific cases that they engage with.

B. Retributive Justice

In addition, the African Court on Human and Peoples’ Rights has historically been the primary instrument through which victims could pursue redress for past violations. On 30 May 2016, the African Union-mandated Extraordinary Chambers in Senegal, issued a conviction against the former dictator of Chad, former President Hissène Habré for his individual culpability in the commission of mass atrocities including killings, rape and torture of more than 40,000 victims. Consequently, through these Extraordinary Chambers, the African Union ushered in an alternative model for pursuing retributive justice, which can be replicated in the future if there are sufficient grounds and the political incentive to do so.

Once it is operational the ACJHR will address the retributive justice component of the AU’s transitional justice architecture.

C. Restorative Justice

The African Union does not have a dedicated framework for operationalising restorative justice, though it does engage with national restorative justice processes and institutions such as the truth and reconciliation commissions that have been convened in Liberia, Sierra Leone, Ghana, South Africa, Kenya, Mauritius, Tunisia, Côte d’Ivoire and Burundi. It continues to engage ongoing processes in South Sudan and Central African Republic.

D. Reparation

The African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights are currently the two institutions which can provide redress for past violations, within which reparation could be included as part of a restitution ruling. This aspect of the AU’s transitional justice architecture needs to be further developed.

E. Institutional Reform

The Principles of the Protocol establishing the Peace and Security Council (PSC) of the AU, of 2002, stipulate a commitment towards promoting the ‘peaceful settlement of disputes and conflicts’ as well as ensuring the ‘respect for the rule of law, fundamental human rights and freedoms’. Subsequently, the AU PSC was established in 2004, through the Protocol Relating to the Peace and Security Council of the African Union, of 2002 (African Union, 2002). The PSC Protocol provides a normative framing of activities that fall under the rubric of the core business of transitional justice interventions. Specifically, the Council’s role is to coordinate the peacemaking, peacekeeping, peacebuilding and by extension transitional justice efforts on the continent. There is a natural overlap between peacebuilding and transitional justice processes on the ground.

F. African Governance Architecture

The African Union Commission Strategic Plan 2009–2012, which was approved by the Heads of State and Government, provided the AU Commission with a mandate ‘to achieve good governance, democracy, [and] human rights’.9 In February 2010, at the 14th Ordinary Session of the AU Assembly of Heads of State and Government committed the Union towards establishing a Pan-African Architecture on Governance. The intention was not to create a new institution but to enhance coordination among AU organs and institutions with the formal mandate for governance, democracy and human rights. However, the emphasis in creating this architecture was that Member States would continue to ‘have the primary responsibility of building and consolidating governance’ based on the recognition that ‘a strong and effective AGA requires solid, functioning and accountable national structures’.10

The African Governance Architecture and Platform’s Implementation Strategy and Action Plan: 2013–2017 stipulates that the main institutions that comprise the AGA include the:

  • AU Commission;

  • African Court on Human and Peoples’ Rights;

  • African Commission on Human and People’s Rights;

  • Pan-African Parliament;

  • African Peer Review Mechanism;

  • The Economic, Social and Cultural Council;

  • The AU Advisory Board on Corruption;

  • NEPAD Planning and Coordinating Agency;

  • Regional Economic Communities.11

In June 2012, the African Governance Architecture Platform was launched in Lusaka, Zambia. The Platform ‘is the coordinating arm of the African Governance Architecture’.12 The AGA Platform was envisaged ‘as an interactive and non-decision-making mechanism’.13 The Secretariat of the AGA Platform is situated within the AU Department of Political Affairs and its function is ‘to facilitate information flow, exchanges, dialogue, synergies and joint action between the various African governance actors’.14

G. Constitutionalism and Governance Reform

In effect, the AGA Platform ‘is the central coordinating mechanism for monitoring compliance and implementation of agreed governance standards as embodied in the African Charter on Democracy, Elections and Governance’.15 This is also the Platform through which the issue of constitutionalism will be monitored and engaged with across the continent. As indicated above this will also implicate the ongoing work of the Regional Economic Communities (RECs), some of which have developed their own governance standards and infrastructure.

H. Judicial Reform

The AU’s Office of Legal Counsel has oversight for legal issues and in collaboration with the Department for Political Affairs, the different courts within the AU system and national judicial institutions and ministers of justice, it engages with issues of judicial reform across the continent. However, the focus on judicial reform can also be developed further.

I. Security sector reform

The AU Peace and Security Department working closely with national ministries of defence and Chiefs of Defence Staff have elaborated a Security Sector Reform Policy Framework, which can guide the national processes, particularly in the aftermath of conflict or authoritarian rule.

J. Reconciliation

The AU Post-Conflict Reconstruction and Development Policy Framework (PCRD), of 2006, outlined the pillars of a post-conflict reconstruction and reconciliation system. Specifically, the AU PCRD Policy Framework comprises six constitutive elements, namely:

  1. (i) Security;

  2. (ii) political governance and transition;

  3. (iii) human rights, justice and reconciliation;

  4. (iv) humanitarian assistance;

  5. (v) reconstruction and socio-economic development;

  6. (vi) gender.16

Through the enumeration of these six constitutive elements the AU was one of the first inter-governmental organisations to recognise the importance of a multi-dimensional response to complex emergencies, to social and political transition following conflict and to long-term development. Through its AU PCRD Policy Framework, the AU articulated the nexus between transitional justice norms and the normative promotion of security, governance and development.

Between 2011 and 2016, the African Union became the first regional organisation to actively work on developing a specific policy relating to transitional justice. In 2016, the prospective African Union Transitional Justice Framework (AUTJF), which is still in draft form, was further elaborated set up with the objective of encouraging ‘member states to broaden their understanding of justice beyond retributive justice to encompass restorative and transformative measures found in traditional African systems’.17 The prospective AUTJF further recommends that ‘states enacting transitional justice measures incorporate economic and social rights’18and encourages ‘states to design reparations programmes that would address the structural nature of economic and social rights violations’ and that ‘non-state actors and beneficiaries should be encouraged to participate in such programmes’.19 The prospective AUTJF recommends the promotion of ‘reconciliation as a profound process which entails finding a way to live that permits a vision of the future, the rebuilding of relationships, coming to terms with the past acts and enemies, and involves societies in a long-term process of deep change’.20

The efforts by the African Union to push the boundaries of the way in which transitional justice has been conceived to include social and economic rights, rectifies an oversight which was internalised by the dominant ICL legal framework which defined the field. The economic and social dimension of transitional justice processes is now emerging as a key driver of sustainable transformation for societies that have experienced violations. This innovation by the AU is further laying the foundation for a differentiated accountability system.

7. The Implications of the Malabo Protocol on the AU Transitional Justice Architecture

The emergence of alternative sources and ways of framing international criminal law, as evidenced in the Malabo Protocol, will broaden the spectrum of options available to AU member states in their attempts to implement transitional justice processes. This will enhance the differentiated accountability system which is at the core of the African Union’s evolving transitional justice architecture.

On 1 July 2008, member states of the AU adopted the Protocol on the Statute of the African Court of Justice and Human Rights, which in effect ‘merged the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union into a single Court’.21 Subsequently, the AU adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (hereafter Malabo Protocol). The Malabo Protocol will enter into force upon the ratification of the Protocol by 15 member states of the African Union, with instruments of ratification being deposited with the Chairperson of the AU Commission. The AU also intends to register the entry into force of the Court with the secretariat of the United Nations.

The organs of the African Court include the: (i) Presidency; (ii) Office of the Prosecutor; (iii) Registry; (iv) Defence Office. This is indicative of the intentions to create an institution to adjudicate international crimes. Article 3(1) of the Protocol stipulates that ‘the Court is vested with an original and appellate jurisdiction, including international criminal jurisdiction’.22

The African Court has the ‘jurisdiction to hear matters or appeals as may be referred to it in any other agreements that the member states or the regional economic communities or other international organisation recognized by the African Union’.23 The word ‘recognition’ is significant in this instance since it gives the AU the means not to engage with international organisations that it is not prepared to recognise.

8. Africa as a Theatre of Innovation in International Criminal Law

The AU has subsequently embarked on the elaboration of its own international criminal law through the prospective operationalisation of the Malabo Protocol.

A. The Statute of the African Court of Justice and Human Rights

According to the merged Statute of the ACJHR the structures of the institution will include three sections, namely: (i) a General Affairs Section; (ii) a Human and Peoples’ Rights Section; and (iii) an ICL Section.24 Furthermore, the ICL Section will have three Chambers, including: a Pre-Trial Chamber; a Trial Chamber and an Appellate Chamber, highlighting again the parallel structures when contrasted to the Rome Statute. According to Article 7, the ICL Section is ‘competent to hear all cases relating to the crimes specified in the Statute’. These include the international crimes stipulated in the Constitutive Act of the AU. They are further elaborated in Article 28A, which states that ‘the International Criminal Law Section of the Court shall have the power to try persons for the crimes’ of: genocide; crimes against humanity; war crimes; the crime of unconstitutional change of government; piracy; terrorism; mercenarism; corruption; money laundering; trafficking of persons; trafficking of drugs; trafficking of hazardous wastes; illicit exploitation of natural resources; and the crime of aggression.25 These crimes will not be subject to any statute of limitations.

This panoply of crimes introduces some interesting departures from the crimes framed in the Rome Statute, and are reflective of the current challenges that the African continent is confronting. Interestingly, some crimes will apply directly to external non-African actors who engage in these crimes either as planners or willing executioners, notably of the crimes relating to mercenarism, money laundering, trafficking of persons, drugs and hazardous wastes, as well as illicit extraction and aggression. These commission of these crimes by non-African actors intervening across the continent, could theoretically lead to a situation in which western operatives end up on the docket of the African Court in Arusha, in what would be a reciprocal outcome when contrasted to the ICC’s current prosecutorial case load which includes only Africans. This is particularly relevant when it relates to the crime of aggression, given the proclivity of western powers notably the US and France to intervene military across Africa, as though the colonial era was still a going concern. Article 28A of Statute stipulates that the ‘crime of aggression means the planning preparation, initiation or execution, by a person … state or organisation [sic] … of a manifest violation of the Charter of the United Nations or the Constitutive Act of the African Union’.26 More specifically, Article 28M notes that ‘regardless of a declaration of war by a state, group of states, organisations of states or non-state actors or by a foreign entity’, the crime of aggression shall include, ‘the use of armed forces against the sovereignty, territorial integrity and political independence of any state’. These will include invasions, bombardment, blockades, air, land or sea attacks, harbouring armed militia. The AU Assembly of Heads of State and Government can also incorporate additional crimes to keep up with the developments of IL.

Through the prospective operationalisation of the Malabo Protocol, African countries have politically ‘birthed’ their own version of a regional court to adjudicate international crimes. Consequently, the African continent is now a theatre of innovation in terms of advancing a differentiated accountability system and providing vital insights into the nexus between international criminal law, transitional justice and peacebuilding.

9. Beyond the Puerile False Debate on Impunity and the Support for the ICC in Africa

The articulation and operationalisation of a differentiated accountability system will enable the continent to extricate itself from the puerile, facile and interminable false debate as to whether you are ‘for’ or ‘against’ impunity depending if you advocate for the interventions of the International Criminal Court (ICC) in Africa. Rather than viewing the emergence of alternative sources and framings of international criminal law as a threat to the ICC or as an attempt by regional actors to evade justice, they should be viewed for their potential to create differentiated jurisdictions to address the violations in situations of conflict. It is necessary to make judicial processes more responsive to the victims, by drawing them into the processes of pursuing redress for the violations that they have endured. Consequently, ICC interventions will not necessary be the most appropriate framework to deploy in every situation in which there has been mass atrocities. The fact remains the Rome Statute stipulates a relationship between the ICC and nation-states, but it does not elaborate on the prospects for a relationship between the ICC and regional or continental courts. This is a lacuna in ICL which needs to be urgently addressed given the prospective operationalisation of the African Court of Justice and Human Rights. Ultimately, the existence of a differentiated accountability system provides the African continent a broad range of options, through which to address impunity, and complements the AU’s objection to the abuse of the principle of universal jurisdiction, particular in instances in which African statesmen and women are disproportionately subject to IL, when compared to other regions of the world.

10. Conclusion

Given the historical and imperial origins of European international law, non-African governments and societies as well as international organisations will need to reflect on how they can collaborate more closely with traditional justice and reconciliation processes to promote genuine ownership of the processes of post-conflict justice and peacebuilding. External actors must be willing to learn and not blindly or patronizingly transpose or impose systems that are not immediately translatable or understandable to their host populations. We should question attempts to impose a universal conception of justice or assume that so-called ‘international law’ is devoid of any imperial pretentions as far as disciplining and controlling target countries is concerned. Instead, we should draw lessons from African thinking relating to ICL, evidenced in the Malabo Protocol, which is a riposte to the tendency to privilege euro-centric notions of justice, particular its over-emphasis on individual culpability. It is always vital to learn what African transitional justice, and specifically judicial, strategies or responses might be appropriate in different country contexts, which should be the foundation for a differentiated accountability system. Africa in this sense has challenged the artificial normative strictures of the global discourse of ICL and is advancing its own home-grown norms to dealing with the violations of the past. On this basis, Africa has become an innovator in the development of ICL and transitional justice norms. The fact that a number of countries on the continent will be emerging from conflict in the next decade and beyond, Africa will continue to be a thought-leader, norm-setter and norm entrepreneur in terms of ICL and transitional justice processes and institutions and the perplexing challenge of addressing the violations of the past. The question that faces us today in the context of our globalised world is whether we are prepared to draw from the lessons of African models of justice and reconciliation.

1 P. Arthur, ‘How Transitions Reshaped Human Rights: A Conceptual History of Transitional Justice’, Human Rights Quarterly 31(2009), at 321–67.

2 A. Boraine, ‘Transitional justice’, in Charles Villa-Vicencio and Erik Doxtader, eds., Pieces of the Ppuzzle: Keywords on Reconciliation and Transitional Justice (Cape Town: Institute for Justice and Reconciliation, 2004), at 67.

4 Ibid., at 71.

5 Ibid., at 72.

6 T. Murithi and L. McClain Opiyo, ‘Policy Brief No. 14: Regional Reconciliation in Africa: Policy Recommendations for Cross-border Transitional Justice’, Institute for Justice and Reconciliation, Cape Town, (March 2014), www.ijr.org.za.

7 T. Murithi, The Ethics of Peacebuilding, (Edinburgh: Edinburgh University Press, 2009), at 136–59.

8 African Union, Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, (Addis Ababa: African Union, 2014), at Preamble.

9 African Union, The African Governance Platform – Draft Implementation Strategy and Action Plan: 2013–2017, (Addis Ababa: African Union, 2013), at 2.

10 African Union, AGA Draft Implementation Strategy and Action Plan: 2013–2017, at 7.

11 Ibid., at 5.

12 African Union, Department of Political Affairs, Retreat to Fine Tune the 2013–2017 Strategy and Action Plan of the African Governance Architecture and Platform, Kuriftu Resort, Debre Zeit, Ethiopia, (26–28 March 2013), at 1.

15 Draft Implementation Strategy and Action Plan, supra note 11, at 5.

16 African Union, Post-Conflict Reconstruction and Development Policy Framework, (Addis Ababa: African Union, 2006).

17 African Union, Draft African Union Transitional Justice Framework, (Addis Ababa: African Union, 2015), at 19.

18 Ibid., at 20.

19 Ibid., at 21.

20 Ibid., at 40.

21 African Union, Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, 23rd Ordinary Session of the Assembly, Malabo, Equatorial Guinea, (27 June 2014), at Preamble.

22 Ibid., at Art. 3(1).

23 Ibid., at Art. 3(2).

24 African Union, Statute of the African Court of Justice and Human and Peoples Rights, (Addis Ababa: African Union, 2014).

25 Ibid., at Art. 28A.

26 Ibid., at Art. 28M.

6 Concurrent Jurisdiction of the International Criminal Court and the African Criminal Chamber in the Case of Concurrent Referrals

Erika de Wet
1. Introduction

In accordance with article 24(2) of the Charter of the United Nations (Charter), the United Nations Security Council (UNSC) has the primary responsibility for the maintenance of international peace and security.1 Chapter VII of the Charter further provides the UNSC with extensive powers to take binding decisions for member states to maintain or restore international peace and security. Articles 25 and 103 of the Charter respectively oblige member states to give effect to binding decisions under the Charter and to give precedence to these decisions in cases of conflict with other obligations under international law.2 In this context, it is important to keep in mind that while the African Union (AU) is not a party to the Charter, all its member states are. This implies that in case of a conflict between a binding UNSC decision and a decision of the AU, member states will have to give precedence to those obligations following from the UNSC decision.3

The question arises as to whether conflicting AU and UNSC decisions are likely, in light of the fact that the African Union Peace and Security Council for its part is charged with the primary responsibility for the prevention, management and resolution of conflicts in Africa. Article 16 of the African Union Protocol Relating to the Establishment of the Peace and Security Council of the AU of 9 July 2002 (AUPSP) determines that, insofar as the AU’s relationship with sub-regional organizations is concerned, the AU has the primary role in relation to the maintenance of peace and security on the continent.4 One can read this statement as running counter to the primacy conferred upon the UNSC, unless it was intended as an implicit reminder that article 53(1) of the Charter calls on the UNSC to utilize regional arrangements or agencies for enforcement action under Chapter VII of the Charter. This point will be taken up again below, when discussing article 17 of the AUPSP.5 However, despite the possibility of interpreting article 16 of the AUPSP harmoniously with the Charter, the question arises as to how these two security councils will interact on issues of peace and security.

This contribution focuses in particular on the legal implications where both the UNSC and the AU Peace and Security Council refer the same situation in which international crimes have potentially been committed respectively to the International Criminal Court (ICC) and the yet to be established Criminal Chamber of the African Court of Justice and Human Rights (African Criminal Chamber – ACC), for the purpose of investigation and possible individual prosecution of the perpetrators. The ICC Statute provides for referrals of such situations in article 13(b) of its Statute.6 The purpose of this article was to enable the ICC to undertake investigations and prosecutions in states not party to the ICC Statute.7 In this context, one has to keep in mind that the UNSC has the competence under Chapter VII of the Charter to create international criminal tribunals, such as the International Criminal Tribunals for the Former Yugoslavia8 and Rwanda as sub-organs of the UNSC,9 as well as to request a treaty-based international criminal court such as the ICC to investigate whether international crimes have been committed in a particular territory.10 However, the ICC, for its part, is not obliged to accept such a referral as it is – unlike all its member states – not a party to the Charter and therefore not bound by it. However, through article 13(b) the ICC is vested with the power to receive referrals from the UNSC.11 Thus far, the UNSC has referred two situations to the ICC, namely, that of Darfur (Sudan)12 and Libya.13

According to the amended article 29(1)(b) of the Protocol on the Statute of the African Court of Justice and Human Rights of 1 July 2008 (Statute of the African Court),14 the AU Peace and Security Council will for its part also have the competence to refer cases to the African Criminal Chamber. Article 46F(2) further confirms that the ACC will have jurisdiction in instances where the AU Peace and Security Council refers a situation to it, where it appears that crimes have been committed over which the ACC has jurisdiction.15 The use of ‘case’ in article 29(1)(b) and ‘situation’ in article 46F(2) of the Statute mirrors the terminology used in the ICC Statute, where the term ‘case’ has been interpreted more narrowly than ‘situation’, since it only includes specific individual investigations or prosecutions. If the identical terms used in the Statute of the African Court were given a meaning identical to these terms in the ICC Statute, it would seem that the AU Peace and Security Council would not be able to refer conflict situations in which potential international crimes have been committed. However, since article 46F(2) authorizes the ACC to refer situations referred by the AU Peace and Security Council, one could argue that article 29(1)(b) implicitly also covers ‘situations’ and not merely individual cases.

Furthermore, it is not clear whether the AU Peace and Security Council can refer a situation to the ACC only where it concerns an AU member state that is also a party to the Statute of the African Court, or whether it can in addition refer situations in AU member states that have not yet ratified the Statute of the African Court. The organizational practice has not yet confirmed whether the AU Peace and Security Council’s primary role in matters of peace and security on the continent implies that it has powers analogous to that of the UNSC under Chapter VII (albeit on a regional level). Either way, the inclusion of these articles in the Statute of the African Court gives rise to the possibility of a conflict between the ICC and the ACC. It is possible that a situation or a case resulting from a referral of a situation from the UNSC to the ICC has also been referred to the ACC by the AU Peace and Security Council. While these are not the only situations in which jurisdictional conflicts between the ICC and ACC can arise,16 the central role of the UNSC in the maintenance of international peace and security, as personified by article 103 of the Charter, merits an analysis of how conflicts resulting from simultaneous referrals can be resolved and preferably be prevented from happening in the first place.

This contribution will examine these questions. In doing so, it departs from the premise that – despite tensions between the AU and the ICC - Africa remains committed to supporting the prosecution of international crimes committed on the continent, while continuing a cooperative relationship with the ICC.17 Such a premise may come across as surprising in light of the increasing discontent of African governments with the ICC, which is perceived as biased towards Africa.18 In fact, a series of events in recent years suggest that the AU and its member states are in practice are increasingly rejecting the ICC (and for that matter the UNSC). For example, at the time of writing one of the former 34 African state parties to the ICC has definitely withdrawn from the ICC in accordance with article 127(1) of the ICC Statute.19 Other acts of rebellion included the refusal by Chad, Malawi, the Democratic Republic of the Congo and South Africa to surrender President Bashir of Sudan to the ICC when he visited these countries,20 as well as the decision by the AU that its member states do not cooperate with the ICC in relation to the surrender of sitting heads of state.21 Similarly, the creation of the ACC at first sight comes across as an act of rebellion, since the Statute of the African Court remains silent on the relationship between the ACC and the ICC, despite the fact that 33 African AU member states are parties to the ICC Statute.22

However, the author is of the opinion that, while many AU member states may indeed, at the time of writing, have little political enthusiasm for cooperation with the ICC, the creation of the ACC does not legally prevent them from doing so, neither does it release them from their obligations under the Charter or the ICC statute, as long as they remain parties to these treaties. The potential for cooperation between the AU Peace and Security Council and the UNSC is acknowledged by the Charter as well as the AUPSP. Part VIII of the Charter, notably article 53(1), allows the UNSC to delegate enforcement measures to regional organizations such as the AU.23 Article 17 of the AUPSP for its part acknowledges the primacy of the UNSC in the maintenance of international peace and security and pledges close cooperation with the UNSC in promoting and maintaining peace, security and stability in Africa and in keeping with Chapter VIII of the UN Charter. This commitment to cooperation with the United Nations is further affirmed in article 3(e) of the Constitutive Act of the AU, which ‘takes due account’ of the Charter and the Universal Declaration of Human Rights.24 These references in the Charter, the AU Constitutive Act and the AUPSP support the development of a symbiotic, cooperative relationship between the AU (including its Peace and Security Council) and the UN (including the UNSC) in matters of peace and security. This would include cooperation in relation to the prosecution of international crimes as a mechanism for restoring international peace and security in situations where an international (including regional) threat to peace exists.

2. Conflicting Obligations Pertaining to State Cooperation with the ICC and the ACC

Before elaborating on the conflicts that may result from concurrent jurisdiction of the ICC and the ACC,25 it is necessary to briefly outline the extent to which there can be overlaps in substantive, personal and temporal jurisdiction between the two courts. It is only when there is a simultaneous overlap in relation to all three areas of jurisdiction that a jurisdictional conflict can arise. While the ACC has much broader substantive jurisdiction than the ICC, both have jurisdiction in relation to genocide, crimes against humanity, war crimes and the crime of aggression.26 The personal jurisdiction over natural persons of the ICC and ACC is limited to individuals who were over the age of 18 at the time the crime was committed.27 Both courts can exercise jurisdiction over crimes that occurred on the territory of state parties and crimes that are committed by nationals of a state party, while the ACC also provides for jurisdiction where the victim of the crime is a national of a member state, as well as in relation to extraterritorial acts by non-nationals that threaten a vital interest of a member state.28

The statutes of both the ICC and the ACC limit the overall temporal jurisdiction in respect of crimes committed after the entry into force of the respective treaties.29 In the case of the ICC this was 1 July 2002, while in the case of the ACC it will be 30 days after the Amendment Protocol had entered into force.30 In addition, both the ICC and the ACC have only temporal jurisdiction over crimes committed in the member state in question after its ratification of the respective Statute.31 As the Amendment Protocol has not yet entered into force,32 any jurisdictional conflict between the ICC and ACC for the time being remains hypothetical. Even so, future conflicts cannot be excluded once the Amendment Protocol enters into force.

In the context of this contribution, it is the potential overlap in substantive, personal and temporal jurisdiction resulting from simultaneous referrals by the UNSC and the ACC that is of interest. In cases of such overlap, member states of these respective courts may find themselves confronted with conflicting obligations to cooperate in relation to investigations and prosecutions. As mentioned above, a UNSC referral combined with article 13(b) of the ICC Statute enables the ICC to undertake investigations and prosecutions in states not party to the ICC Statute. Once a situation in a non-state party is brought within the jurisdiction of the ICC by means of a UNSC referral, the ICC statutory framework determines the way in which investigations, prosecutions and cooperation by member states are to take place.33 For example, in accordance with article 86 of the ICC Statute, state parties will have to fully cooperate with the ICC in its investigation and prosecution of crimes within the ICC’s jurisdiction.34 In addition, they will have to comply with requests for arrest and surrender in accordance with the ICC Statute.35

As far as ICC non-member states are concerned, it is worth recalling that they are all members of the UN and, therefore, bound by UNSC decisions, including the precedence clause in article 103 of the Charter. These states, therefore, are bound to give effect to obligations in the referring UNSC resolutions that are directed at them. Thus far the UNSC, when referring situations to the ICC, has obliged the respective state to fully cooperate with the ICC.36 This reference to ‘full cooperation’ in UNSC Resolution 1593 (2005) concerning Darfur, and UNSC Resolution 1970 (2011) concerning Libya established a textual link with the ICC Statute that triggers all articles in the ICC Statute concerning cooperation.37 Therefore, the states in question (Sudan and Libya) had to take all measures required by international and national law necessary to facilitate investigations and eventual prosecutions by the ICC in relation to those individuals against whom the ICC issued arrest warrants. It further meant that indicted state officials could not invoke immunities to prevent their arrest and surrender.38

Moreover, ICC member states can assume or presume that in response to UNSC Resolutions 1593 (2005) and 1970 (2011), Sudan and Libya respectively have removed any international or domestic legal obligations that prevented their cooperation within the ICC statutory framework – despite the fact that these resolutions did not explicitly state as much. This conclusion is supported by the 1970 Namibia advisory opinion of the International Court of Justice (ICJ).39 The decision concerned the UNSC resolution that declared the South African presence in Namibia illegal,40 without, however, imposing any explicit obligations on third states. The ICJ gave a purposive interpretation to the resolution and determined that the UNSC resolution required all states to recognize the illegality of South Africa’s presence and to refrain from any acts that would imply the recognition of the legality of South Africa’s presence.41 All states thus had to accept the legal situation resulting from the UNSC binding decision and act in accordance with such acceptance, as anything less would undermine the efficacy of the principal organ entrusted with the primary responsibility for international peace and security.42

As far as the ACC is concerned, article 46L of the Statute of the African Court provides for a comprehensive cooperation framework with the ACC for state parties to the Statute of the African Court. If the AU Peace and Security Council were to refer situations occurring in parties to the Statute of the African Court to the ACC, clearly the latter’s statutory framework would be applicable to investigations and prosecutions. Moreover, if one assumes for the sake of argument that the AU Peace and Security Council can also refer situations in states that are not party to the Statute of the African Court to the ACC, then it is likely that the effect of such a referral would be comparable to that of a UNSC referral to the ICC. The statutory framework of the ACC would become applicable and determine the obligations of member states in relation to the investigations and prosecutions by the ACC in the territory of a non-state party.

In cases of a simultaneous referral by the UNSC to the ICC and the AU Peace and Security Council to the ACC, states will have to give preference to the obligations stemming from the UNSC referral in cases of conflict. In light of article 103 of the Charter, all UN member states (which include all AU member states) will have to give precedence to obligations to cooperate with investigations and prosecutions resulting from a UNSC referral. The overriding effect attached to Chapter VII obligations extends to investigations and prosecutions resulting from a UNSC referral in accordance with Chapter VII of the Charter. In line with the reasoning if the Namibia advisory opinion, such an interpretation is necessary to ensure the efficacy of binding UNSC decisions in the interests of international peace and security.

3. A Symbiotic Existence Through Complementarity?

An existing avenue for resolving or even preventing conflicts that can result from simultaneous referrals to the ICC and ACC respectively is the complementarity principle provided for in article 17 ICC Statute, as well as article 46H of the Statute of the African Court, as amended. Similarly, the ne bis in idem principle in article 20(3) of the ICC Statute and article 46I of the Statute of the African Court can provide a form of complementarity. The principle of complementarity implies that prosecutions should first and foremost be undertaken by the national courts of state parties who have jurisdiction over the crime.43 As far as article 17 of the ICC Statute is concerned, articles 17(1)(a) and 17(1)(b) respectively determine that a case is inadmissible if it is being investigated or prosecuted by a state which has jurisdiction over it, or where such a state has decided not to prosecute the person concerned, unless the state is genuinely unwilling or unable to carry out the investigation or prosecution.44 In order for a case to be inadmissible before the ICC in terms of article 17 of the ICC Statute, the same person must be investigated or prosecuted for what is substantially the same conduct by the respective national court.45 Article 46H of the Statute of the African Court contains a similar clause with one noticeable difference, namely, that it also provides for complementarity in relation to the courts of the African regional economic communities, where those are specifically provided for. This suggests that the Statute of the African Court provides for prosecutions by regional courts as an alternative to its own jurisdiction where member states are unwilling or unable to carry out prosecutions.46

The question thus arises whether and to what extent the investigation or prosecution undertaken by an international court created by treaty such as the ACC could qualify as a national investigation or prosecution in terms of articles 17(1)(a) and 17(1)(b) of the ICC Statute, namely, one undertaken by a ‘state’. Similarly, the question arises as to whether an investigation or prosecution undertaken by the ICC can qualify as a regional investigation or prosecution in terms of article 46H(1) of the Statute of the African Court. If ACC investigations or prosecutions were to qualify as national investigations or prosecutions, that is, those undertaken by a ‘state’, they would be covered by the principle of complementarity embodied in articles 17(1)(a) and 17(1)(b) of the ICC Statute – to the extent that they indeed concern the same individuals being investigated for what amounts to substantially the same conduct. Similarly, if ICC investigations or prosecutions (relating to the same person for the same conduct) were to qualify as one undertaken by a regional court, they would be covered by article 46H of the Statute of the African Court.47

In such instances, the overriding quality of the obligation on states to cooperate with ICC investigations and prosecutions that resulted from a UNSC referral under Chapter VII would only be triggered if the respective investigations and/or prosecutions by the ACC were tainted by unwillingness and inability as defined in article 17 of the ICC Statute. However, if the ACC were engaging in a genuine investigation or prosecution,48 there would be no need for the ICC to insist on exercising its jurisdiction in the same case. After all, as already indicated, while a UNSC referral of a situation to the ICC does oblige ICC member states to cooperate with subsequent investigations and prosecutions initiated by the ICC, such cooperation has to take place in accordance with the ICC Statute.49 This, in turn, implies that it remains up to the ICC to decide which specific investigations and prosecutions to pursue, inter alia taking account of article 17 of the ICC Statute.

In accordance with the above reasoning, the ACC for its part would also have a legal basis to refrain from continuing with an investigation or prosecution which is also being undertaken by the ICC, or from initiating such an investigation or prosecution in the first place. The reason for this is that if the ICC were to qualify as a regional court in terms of the Statute of the African Court, article 46H(1) could be read as relating to a prosecution by the ICC as an alternative to the ACC’s own jurisdiction where a state is unwilling or unable to investigate or prosecute a particular case. Such a formal legal basis is important, since the ACC (or rather the African Court as a whole) is not party to the Charter and, therefore, not legally bound to UNSC decisions under Chapter VII of the Charter. Therefore, even while member states to the ACC will have to give precedence to obligations to cooperate with the ICC where prosecutions result from a UNSC referral under Chapter VII of the Charter, the ACC itself would still need a formal legal basis for coordinating investigations and prosecutions with the ICC. A reading of article 46H of the Statute of the African Court providing for the complementarity principle to apply to investigations and prosecutions by the ICC does give the ACC a formal legal basis for such co-ordination.

As indicated at the outset of this section, the above legal interpretation turns on whether investigations and prosecutions by the ACC can qualify as those undertaken by ‘a state’ under article 17 of the ICC Statute, as well as whether those undertaken by the ICC can be regarded as the equivalent of investigations and prosecutions undertaken by courts of the regional economic communities in terms of article 46H(1) of the Statute of the African Court. The answer to this question would depend on whether one takes a textual or purposive approach to interpreting these two articles. As to whether the ACC can qualify as a ‘state’ court for the purpose of articles 17(1)(a) and 17(1)(b) of the ICC Statute, their text clearly refers to national (domestic) jurisdictions. Both mention an investigation and prosecution ‘by a state’ which has jurisdiction over a case. Similarly, article 17(2)(a) refers to a ‘national decision’ and article 17(3) to a ‘national judicial system’.50

This seems to imply that the court in question has to be controlled by a particular state in relation to its creation, status, staff appointments (including judges and prosecutors), applicable law and also financing.51 For example, the court in question needs to be imbedded in the national judiciary of a state, staffed by a majority of national judges and funded by its own government. Also, the applicable law (including the extent to which the court applies international law) is determined first and foremost by the domestic legal order.52 However, the fact remains that the statutes of both the African Court and the ICC were created through international treaties. They do not constitute part of the legal system of any state; the appointment of their staff members (notably those who play the most prominent roles in the criminal prosecution, such as the judges and prosecutors) is determined by processes provided for in their respective statutes; their applicable law is also regulated by their statutes; while their funding stems from international sources such as the assessed or voluntary contributions by state parties.53

A textual interpretation of article 17 of the ICC Statute, therefore, would not support an interpretation according to which the ACC would qualify as the court of a ‘state’. Similarly, a textual interpretation of article 46H(1) does not support an interpretation in accordance with which the ICC qualifies as a court of one of the regional economic communities. These concern courts within African sub-regional communities to which the ICC clearly does not belong.54 Even so, these difficulties in classification resulting from a textual interpretation can perhaps be avoided if one resorts to a teleological (purposive) interpretation of article 17 of the ICC Statute and article 46H(1) of the Statute of the African Court. In accordance with a teleological interpretation, the purpose of both these articles is to ensure that the ICC and the ACC act as residual institutions. They should only intervene where other competent courts have proven to be ineffective in prosecuting international crimes.

If the ACC indeed proves itself to be willing and able to engage in genuine investigations and prosecutions, it is reasonable to conclude that investigations and prosecutions by the ACC would in principle qualify as those undertaken ‘by a state’ for the purpose of article 17 of the ICC Statute.55 These investigations and prosecutions, therefore, would be covered by the complementarity principle enshrined in article 17 of the ICC Statute. As a result, the ICC would only have to insist on exercising jurisdiction over cases resulting from UNSC referrals where, in a particular case concerning the same person for substantially the same conduct, the ACC investigation or prosecution did not live up to the standards outlined in article 17.56 Similarly, a purposive interpretation of article 46H of the Statute of the African Court would provide the ACC with a legal basis to defer certain cases to the ICC. It would allow the ACC to refrain from initiating investigations or prosecutions (of the same person for what amounts to the same conduct), where the ICC has already done so in response to a UNSC referral under Chapter VII. Alternatively, the ACC can defer the case to the ICC where the latter insists on proceeding with a particular investigation or prosecution resulting from a UNSC referral.

As indicated above, the ne bis in idem principle may also provide for a form of complementarity. This principle is guaranteed in article 20(3) of the ICC Statute57 and article 46I of the Statute of the African Court.58 In both statutes, the principle is articulated in a way which aims at preventing a person from being tried for the same conduct by different courts, unless the trial by the other court was aimed at shielding the accused or was not conducted in accordance with the principles of independence or impartiality under international law. Interestingly, both articles 20(3) of the ICC Statute and 46I of the Statute of the African Court refer to a trial by ‘another court’ as opposed to one by ‘a state’. These articles, therefore, do not specify that the other prosecution has to take place in a domestic court. This in turn implies that article 20(3) of the ICC Statute would allow for the application of the ne bis in idem principle to also cover cases where a person has been tried by the ACC for the same conduct, without contradicting the wording of the article (as is the case with article 17 of the ICC Statute). The almost identical provision in article 46I of the Statute of the African Court would further provide the ACC with the legal basis to refrain from prosecution where a person has been tried for the same conduct by the ICC. Stated differently, if either the ICC or the ACC were simply to wait until the other court has tried a case, articles 20(3) of the ICC Statute and 46I of the Statute of the African Court would provide a clear legal basis (or even an obligation) not to try the same case. The only exception would be where the proceedings in the other court (whether the ACC or ICC) were fundamentally flawed, so as to satisfy the criteria stipulated in articles 20(3)(a) and (b) of the ICC Statute or articles 46I(a) and (b) of the Statute of the African Court.

4. Conclusion

African states do not as yet face the risk of conflicting obligations to cooperate with the ACC and ICC, due to simultaneous or overlapping referrals by the AU Peace and Security Council and the UNSC respectively. However, such conflicts may come into existence in the future if the ACC comes off the ground and there is overlapping substantive, personal and temporal jurisdiction between the ICC and the ACC. The fulfilment of these conditions for jurisdictional overlap will, amongst other things, depend on whether the Amendment Protocol will receive the required 15 ratifications and whether the current 33 African states that are party to the ICC Statute do not withdraw from it. If (more) African states indeed were to withdraw from the ICC, as many in recent times have threatened to do, they will no longer be bound by the duty to cooperate with the ICC under inter alia articles 86 and 89 of the ICC Statute. The UNSC of course can still refer situations arising in any state (including those that have withdrawn from the ICC) to the ICC in accordance with its Chapter VII powers, as well as oblige that state (and any other state) to cooperate with the ICC. However, such referrals will remain few and far between, especially while the prospects for cooperation between the AU and the UNSC in matters of ICC referrals remain bleak.

There is also the issue of the financing of the ACC, which is bound to be very expensive and may in practice prevent African states from ratifying the Amendment Protocol. As a result, it is possible, if not likely, that the ACC does not get off the ground for years to come. Therefore, the real concern from the perspective of those who want to prevent impunity for international crimes is not so much jurisdictional conflicts between the ACC and the ICC, as the lack of any (residual) international jurisdiction for the prosecution of international core crimes on the continent. This would be the logical result if there were a mass withdrawal of African states from the ICC, without the ACC being in place.

However, if the current African members of the ICC remained parties to the ICC Statute and the ACC indeed came off the ground, it is possible for the ACC and ICC to develop a cooperative relationship in cases of jurisdictional overlap. The above analysis has attempted to explain how a purposive interpretation of the complementarity principle in articles 17 and 20(3) of the ICC Statute and articles 46H(1) and 46I of the Statute of the African Court could provide a legal basis for such cooperation. Both the ACC and the ICC would have much to gain from such cooperation. The ICC for its part has limited capacity and can only engage in a limited number of investigations and prosecutions.59 An effective ACC would relieve the case load of the ICC and result in the availability of more resources for ICC investigations and prosecutions in other regions. Stronger involvement in other regions would strengthen the legitimacy of the ICC, which is currently perceived by many on the African continent as biased towards Africa.

The ACC and the AU Peace and Security Council for its part would also have an interest in preventing a jurisdictional conflict with the ICC, in particular where the conflict concerns investigations and prosecutions resulting from a UNSC referral under Chapter VII of the Charter. Most peace-keeping and peace-enforcement operations in Africa, whether under the auspices of the AU or the UN, are dependent on the financial and logistical support of Western states. This included Western members of the ICC and the permanent Western members of the UNSC. If a jurisdictional conflict between the ACC and ICC were perceived as an attempt to undermine binding treaty obligations vis-à-vis the UN and the ICC, this may have a negative impact on the willingness of Western states to support African peace-keeping and peace-enforcement initiatives. A cooperative relationship between the ICC and ACC in matters of jurisdictional overlap could prevent this from happening, while simultaneously carving out a strong role for the ACC in preventing impunity for international crimes on the continent.

BIur, LLB, LLD (University of the Free State), LLM (Harvard), Habilitationsschrift (Zurich); SARChI Professor of International Constitutional Law, Faculty of Law, University of Pretoria (South Africa); Honorary Professor, Faculty of Law, University of Bonn (Germany).

1 The text of the UN Charter is available online at www.un.org/en/sections/un-charter/un-charter-full-text/ (last accessed 10 March 2018). Art. 24(1) determines: ‘In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.’

2 The Charter supra note 1, at Art. 103 of the Charter (n 1) states: ‘In the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’

3 Even though the wording of Art. 103 only refers to treaty obligations, states over time have accepted in practice that the UNSC can also oblige states to deviate from customary international law. A concrete example includes the UNSC resolutions addressing piracy before the coast of Somalia and which were adopted under Chapter VII of the Charter. These resolutions inter alia permit states to pursue suspected pirates in the territorial waters of Somalia. This is a clear deviation from both treaty and customary norms pertaining to the law of the sea. See e.g. SC Res. 1846, 2 December 2008, at § 10 which has since been regularly extended. See also A. Paulus & J. Leiss, ‘Article 103’, in B. Simma, D.E. Khan, G. Nolte and A. Paulus (eds), The Charter of the United Nations. A Commentary, Vol I (Oxford University Press, 3rd edn, 2012), 2133. Contra A. Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (Oxford University Press, 2011), who argues that the UNSC cannot permit states to deviate from customary international law.

4 The Text of the AUPSP is available at www.peaceau.org/uploads/psc-protocol-en.pdf (last accessed 10 March 2018). The first sentence of Art. 16(1) reads: ‘The Regional Mechanisms are part of the overall security architecture of the Union, which has the primary responsibility for promoting peace, security and stability in Africa.’

5 It is also possible to interpret Art. 16 of the AUPSP, supra note 4, as merely implying that AU decisions take primacy over those of sub-regional organizations such as the Economic Community of West African States (ECOWAS) and the Southern African Development Community (SADC). See E. de Wet, ‘Regional Organizations and Arrangements: Authorization, Ratification or Independent Action’, in M. Weller (ed), The Oxford Handbook on the Use of Force (Oxford University Press, 2015), 320.

6 The Rome Statute of the International Criminal Court of 17 July 1998 (ICCSt.) is available at www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf (last accessed 10 March 2018). Art. 13(b) determines that the ICC may exercise jurisdiction if ‘a situation in which one or more of [the crimes in Art 5.] appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations’.

7 D. Akande, ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bahir’s Immunities’, JICJ 7 (2009), 340; D. Akande, ‘The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Co-operate with the ICC’, JICJ 10 (2012) 299, 304. This is because the main purpose of allowing UNSC referrals is to extend the jurisdiction of the ICC to situations in which it would otherwise not have jurisdiction, due to the fact that those situations occur in non-states parties.

8 SC Res. 817, 25 May 1991 (International Criminal Tribunal for the Former Yugoslavia).

9 SC Res. 955, 8 November 1994 (International Criminal Tribunal for Rwanda/ ICTR).

10 The ICC is currently the only inter-state treaty-based body that facilitates referrals from the UNSC. The unanimous referral by the UNSC of the situation in Libya to the ICC in SC Res. 1970, 26 February 2011, in accordance with Chapter VII of the Charter suggests that there is acceptance or at least acquiescence by states that the UNSC has the power to make referrals to the ICC under Chapter VI of the Charter.

11 The cooperation between the UNSC and ICC in matters of referrals is further regulated by the Negotiated Relationship Agreement between the International Criminal Court and the United Nations of 4 October 2004, Art. 17, available at https://treaties.un.org/doc/Publication/UNTS/Volume%202283/II-1272.pdf (last accessed 10 March 2018). See also Akande (Effects of Security Council Resolutions), supra note 7, 308.

12 In SC Res. 1593, 31 March 2005, the UNSC determined: ‘Acting under Chapter VII of the Charter of the United Nations, 1. Decides to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court; 2. Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall co-operate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that states not party to the Rome Statute have no obligation under the Statute, urges all states and concerned regional and other international organizations to co-operate fully …’

13 In SC Res. 1970, 26 February 2011, the UNSC determined: ‘Acting under Chapter VII of the Charter of the United Nations, and taking measures under its Article 41 … 4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court; 5. Decides that the Libyan authorities shall co-operate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognising that states not party to the Rome Statute have no obligation under the Statute, urges all states and concerned regional and other international organisations to co-operate fully with the Court and the Prosecutor …’

14 The Protocol on the Statute of the African Court of Justice and Human Rights of 1 July 2008 (before amendment) is available at https://au.int/en/treaties/protocol-statute-african-court-justice-and-human-rights (last accessed 10 March 2018). It was amended by the Protocol on the Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights of 27 June 2014 (Amendment Protocol), available at www.au.int/en/treaties/protocol-amendments-protocol-statute-african-court-justice-and-human-rights (last accessed 10 March 2018).

15 Amendment Protocol, supra note 14, at Art. 46F, determines: ‘The Court may exercise its jurisdiction with respect to a crime referred to in article 28A in accordance with the provisions of this Statute if … 2. A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Assembly of Heads of State and Government of the African Union or the Peace and Security Council of the African Union.’

16 For example, it is possible for the ICC Prosecutor to initiate investigations proprio motu in accordance with Art. 15(1) of the ICC Statute (supra note 6), while an investigation is already underway at the ACC.

17 It is worth noting that African states have supported the creation of the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone, while the AU is supporting the Extraordinary African Chambers within the courts of Senegal for the trying of international crimes during the Habré regime in Chad. The Rwandan courts have also engaged in domestic prosecutions of international crimes subsequent to the genocide in 1994, while several African states that are party to the ICC have undertaken self-referrals to the ICC (i.e. Central African Republic, the Democratic Republic of the Congo and Uganda).

18 See inter alia H.G. van der Wilt, ‘Universal Jurisdiction under Attack. An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States’, JICJ 9 (2011), 1043, 1043 ff; H.G. van der Wilt, ‘Complementarity Jurisdiction (Article 46H)’, in G. Werle & M. Vormbaum (eds), The African Criminal Court: A Commentary on the Malabo Protocol (TMC Asser Press, 2017), 187 ff. 2; L. Oette, ‘Peace and Justice, or Neither? The Repercussions of the Al-Bashir Case for International Criminal Justice in Africa and Beyond’, JICJ 8 (2010) 345, 345 ff.

19 ICCSt. supra note 6, Art 127(1) determines: ‘A state party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.’ On 27 October 2017 Burundi‘s withdrawal from the ICC Statute took effect. See AFP, ‘Burundi becomes first nation to leave international criminal court’, The Guardian (28 October 2017), available at www.theguardian.com/law/2017/oct/28/burundi-becomes-first-nation-to-leave-international-criminal-court (last accessed 15 January 2018).

20 In two decisions of 12 and 13 December 2011, Pre-Trial Chamber I rebuked Malawi and Chad for failing to comply with the cooperation requests issued by the ICC to arrest and surrender Omar Al-Bashir during his visits to their territories (ICC-02/05–01/09–139; and ICC-02/05–01/09–1). Pre-Trial Chamber II also issued a second decision on non-compliance in relation to Chad on 26 March 2013 (ICC-02/05–01/09). See also Decision on the Co-operation of the Democratic Republic of the Congo regarding Omar Al-Bashir’s Arrest and Surrender to the Court, The Prosecutor v Omar Hassan Ahmad Al Bashir (ICC-02/05–01/09–195), Pre-Trial Chamber II, 9 April 2014, § 29 (Al Bashir (DRC) decision); Decision following the Prosecutor’s Request for an Order further clarifying that the Republic of South Africa is under the Obligation to Immediately Arrest and Surrender Omar Al Bashir, The Prosecutor v Omar Hassan Ahmad Al Bashir (ICC-02/0501/09), Pre-Trial Chamber II, 13 June 2015 (Al Bashir (South Africa) decision), and Request by the Court for the Arrest and Surrender of Omar Al-Bashir, The Prosecutor v Omar Hassan Ahmad Al-Bashir (ICC-02/05–01/09), Pre-Trial Chamber II, 6 July 2017 (Al Bashir (South Africa II) decision).

21 Assembly of the African Union, Decision on Africa’s Relationship with the International Criminal Court (ICC), Ext/Assembly/AU/Dec/1, 12 October 2013, § .2.3, available at www.iccnow.org/documents/Ext_Assembly_AU_Dec_Decl_12Oct2013.pdf (last accessed 10 March 2018). In January 2018 the Assembly also expressed its support for requesting the UNGA to request and advisory opinion from the ICJ ‘on the question of immunities of a Head of State and Government and other Senior Officials as it relates to the relationship between Articles 27 and 98 and the obligations of States Parties under International Law’. See Assembly of the African Union, Decision on the International Criminal Court, Assembly/AU/Dec.672(XXX), 28–29 January 2017, paras 5(ii), available at https://au.int/en/decisions/decisions-declarations-and-resolution-assembly-union-thirtieth-ordinary-session (last accessed 10 March 2018).

22 Van der Wilt (Complementarity), supra note 18, at 190.

23 According to the first sentence of Art. 53(1) of the Charter, supra note 1: ‘The Security Council shall, where appropriate, utilise such regional arrangements or agencies for enforcement action under its authority.’

24 The Constitutive Act of the African Union of 11 July 2000 is available at https://au.int/en/treaties/constitutive-act-african-union (last accessed 10 March 2018). According to Art. 3(e), one of the objectives of the AU is to ‘encourage international co-operation, taking due account of the Charter of the United Nations and the Universal Declaration of Human Rights …’ Similarly, AUPSP, supra note 4, at Art. 7(1)(k) promotes the development of a ‘a strong “partnership for peace and security” between the Union and the United Nations and its agencies …’

25 Concurrent jurisdiction exists when more than one court has the legal competence to entertain the same case. See Legal Dictionary, available at http://legaldictionary.net/concurrent-jurisdiction/ (last accessed 10 March 2018).

26 ICCSt., supra note 6, at Art. 5; Statute of the African Court (as amended), supra note 14 at Art. 28A(1).

27 ICCSt., supra note 6, at Art. 26; Statute of the African Court (as amended), supra note 14, at Art. 46D. While Art. 25(1) ICCSt. limits the personal jurisdiction of the ICC to natural persons, the ACC has jurisdiction over natural persons and legal persons (with the exception of states), in accordance with Art. 46B(1) and Art. 46C (1)of the Statute of the African Court (as amended).

28 ICCSt., supra note 6, at Arts. 12(2)(a) & (b); Statute of the African Court (as amended), supra note 14, at Art. 46E(2).

29 ICCSt., supra note 6, at Art. 11(1); Statute of the African Court (as amended), supra note 14, at Art. 46E(1).

30 Statute of the African Court (as amended), supra note 14, at Art. 11.

31 ICCSt., supra note 6, at Art. 11(2) ICC; Statute of the African Court (as amended), supra note 14, Art. 46E(2). States that have acceded to the ICCSt, after its entry into force can extend the ICC’s jurisdiction retroactively until 1 July 2002. This is possible when a state party makes a declaration to that effect under Art. 11(2) of ICCSt. in conjunction with Art. 12(3).

32 While the Statute of the African Court (supra note 14) has only been ratified by six states, the Amendment Protocol, supra note 14, has not been yet been ratified by any state. Both treaties requir(ed) 15 ratifications for entry into force. Ratification information is available at www.au.int/en/treaties (last accessed 10 March 2018).

33 ICCSt., supra note 6, at Art. 1, determines that the ‘jurisdiction and functioning of the Court shall be governed by the provisions of the Statute’. See also Akande, supra note 7, at 340; P. Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?JICJ 7 (2009) 315, 324; G. Sluiter, ‘Obtaining Co-operation from Sudan – Where is the Law?JICJ 6 (2008) 871, 381.

34 ICCSt., supra note 6, at Art. 86(1), determines: ‘States Parties shall, in accordance with the provisions of this Statute, co-operate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.’

35 ICCSt., supra note 6, Art. 89(1), stipulates: ‘The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any state on the territory of which that person may be found and shall request the co-operation of that state in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.’ See also D. Akande, ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bahir’s Immunities’, JICJ 7 (2009), 334.

36 See supra notes 12, 13.

37 See also Al Bashir (DRC) decision, supra note 20, at § 29; Al Bashir (South Africa) decision, supra note 20, at § 9; Al Bashir (South Africa II) decision, supra note 20, at § 87.

38 Al Bashir (DRC) decision, supra note 20, at § 29; Al Bashir (South Africa) decision, supra note 20, at §§ 6, 7; Al Bashir (South Africa II) decision, supra note 20, at § 89.

39 Advisory Opinion, Legal Consequences for States of the Continental Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports, 16; Akande, supra note 7, at 347.

40 SC Res. 276, 30 January 1970, § 2.

41 Namibia Advisory Opinion, supra note 37, at §§ 114–6; Akande, supra note 7, at 347.

42 Akande, supra note 7, at 347; N. Boschiero, ‘The ICC Judicial Finding on Non-Co-Operation Against the DRC and No Immunity for Al-Bashir Based on UNSC Resolution 1593’, JICJ 13 (2015), 646–7.

43 Jann K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford University Press, 2008).

44 ICCSt., supra note 6, at Art. 17(1), determines: ‘Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) the case is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution; (b) the case has been investigated by a state which has jurisdiction over it and the state has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the state genuinely to prosecute; (c) the person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3 …’

45 This has been confirmed by the ICC Appeals Chamber when confronted with challenges to admissibility in accordance with Art. 19 of the ICCSt., supra note 6. See Judgment on the Appeal of the Republic of Kenya against the Decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’, The Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (ICC-01/09–02/11 OA), Appeals Chamber, 30 August 2011, §§ 36, 39–40 (Kenya admissibility judgment). According to the Appeals Chamber the phrase ‘is being investigated’ in this context signifies the taking of concrete steps to determine whether a particular suspect is responsible for particular conduct, for instance by interviewing witnesses or suspects, collecting documentary evidence, or carrying out forensic analyses. See also Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled ‘Decision on the admissibility of the case against Saif Al-Islam Gaddafi’, Gaddafi and Al-Senussi (CC-01/11–01/11), Appeals Chamber, 21 May 2014 (Gaddafi Appeal Judgment), § 72. According to the Appeals Chamber, investigations for ‘substantially the same conduct’ hinges on the extent of the overlap between the incidents investigated by the state and the ICC respectively. In an earlier judgment the Appeals Chamber concluded that charges for ordinary domestic crimes were not based on ‘substantially the same conduct’ as charges for crimes against humanity. See Judgment on the appeal of Côte d’Ivoire against the decision of Pre-Trial Chamber I of 11 December 2014 entitled ‘Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo’, Simone Gbagbo (ICC-02/11–01/12 OA) Appeals Chamber, 27 May 2015 (Gbagbo Appeal Judgment), §§ 2, 14. See generally K.J. Heller, ‘Radical Complementarity’, JICJ 14 (2016), 637 ff.

46 Statute of the African Court (as amended), supra note 14, at Art. 46 H reads: ‘1. The jurisdiction of the Court shall be complementary to that of the National Courts, and to the Courts of the Regional Economic Communities where specifically provided for by the Communities’.

2. The Court shall determine that a case is inadmissible where (a) the case is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is unwilling or unable to carry out the investigation or prosecution; (b) the case has been investigated by a state which has jurisdiction over it and the state has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the state to prosecute; (c) the person concerned has already been tried for conduct which is the subject of the complaint …’

47 Kenya has proposed to the Working Group on Amendments of the International Criminal Court Assembly of State Parties that the Preamble to the ICC Statute be amended. The words ‘and regional’ should be added in the sentence pertaining to complementarity to read: ‘Emphasising that the International Criminal Court established under this Statute shall be complementary to national and regional criminal jurisdictions’ (emphasis added). See Report of the Working Group on Amendments, ICC-ASP/13/31 (7 October 2014), at 17; E. de Wet, ‘The Relationship Between the International Criminal Court and Ad Hoc Criminal Tribunals: Competition or Symbiosis?Journal of International Peace and Organisation 83 (2008), 46–7.

48 For an analysis of the term ‘genuinely’ in ICCSt., supra note 6, at Art. 17, and its relationship with ‘willing’ and ‘unable’, see Van der Wilt (Complementarity), supra note 18, at 192 ff. See also the Kenya admissibility judgment, supra note 45, at § 40. The Appeals Chamber underscored that the determination of the existence of an investigation must be distinguished from assessing whether the state is ‘unwilling or unable genuinely to carry out the investigation or prosecution’. This is a separate, additional consideration when determining the admissibility of a case. Interestingly, the Statute of the African Court, supra note 14 ,at Art. 46H (as amended), does not contain the term ‘genuinely’.

49 See text leading up to note 33.

50 De Wet, supra note 47, at 47.

53 De Wet, supra note 47, at 35.

54 See for example the Treaty for the Establishment of the East African Community of 30 November 1999, which established the East African Court of Justice in Art. 9. The text is available at http://eacj.org/wp-content/uploads/2012/08/EACJ-Treaty.pdf (last accessed 10 March 2018).

55 De Wet, supra note 47, at 49.

57 ICCSt., supra note 6, at Art. 20(3), determines: ‘No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court (a) were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.’

58 Statute of the African Court, supra note 14, at Art. 46I(2,) determines: ‘Except in exceptional circumstances, no person who has been tried by another court for conduct proscribed under Article 28A of this Statute shall be tried by the Court with respect to the same conduct unless the proceedings in the other Court (a) were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; (b) otherwise were not conducted independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.’

59 Van der Wilt, supra note 18, at 198.

7 The African Criminal Court Towards an Emancipatory Politics

Adam Branch

The relation between law and politics is a difficult question for every international criminal tribunal; for the proposed African Criminal Court (ACC), it is already subject to heated debate. But it is also a crucial question, for whether the proposed new African court will be legitimate and effective will in large part depend upon whether a viable relationship between law and politics can be negotiated in its establishment and future operation. In this chapter, I will argue that the dominant positions in the debate over the politics of the proposed ACC, while presenting a broad set of possibilities for the court, tend to sidestep what may be the most important aspect of the question: not whether politics will shape the proposed court, but, because politics will inevitably shape its operation, what political agenda and orientation should determine the court’s functioning. Only if the proposed ACC is moulded by progressive, democratic political agency – a possibility enabled by the court’s location within the African Union (AU) as well as certain provisions of the Malabo Protocol – will it be able to contribute to an emancipatory politics. To realize this possibility will require effectively addressing the dilemmas revealed by interventions of the other major international criminal tribunal involved in Africa – the International Criminal Court (ICC) – which have tended to entrench the violence of powerful states, both African and Western, and to undermine possibilities for peace and justice. In charting this course for the proposed ACC, the dominant understanding of the relation between politics and law needs to be re-thought and the foundation of the political vision guiding the ACC needs to be critically examined. Otherwise, the proposed African court may be subject to counterproductive instrumentalization by states and may end up replicating the problems seen with the ICC.

This chapter will locate the emancipatory potential of the ACC in specific elements of the Malabo Protocol, in particular in its expanded slate of international crimes and the expanded set of persons and organizations over whom it claims jurisdiction. It will also locate this potential in the fact that the proposed court is embedded within a regional peace and security architecture, a fact with institutional political importance in terms of allowing broader continental policies and commitments to shape the court, but also with symbolic importance in terms of the kinds of political claims that can be made upon it. Together, these may allow the ACC to respond to and be accountable to African peoples, movements and organizations, representing a significant advance for international criminal tribunals. However, I emphasize that this kind of responsiveness and accountability, and ultimately the court’s emancipatory political possibilities, are just that – possibilities – and there is no guarantee that the ACC will realize these progressive dimensions. Indeed, whether or not it can do so depends not so much on the technical legal and institutional developments leading to the future operation of the court – although these are certainly important – but, centrally, on whether democratic movements and struggles can effectively engage with and steer the court’s development and operation now and into the future, so that international criminal law becomes a tool of progressive continental politics.

1. Legalism and the ACC

The idea that politics should guide international criminal tribunals is anathema to the dominant legalist approach, which declares that politics can have no place in determining the operation of international criminal tribunals, which are legitimate and effective only when they are insulated from politics.1 Legalist arguments have been made on both sides of the debate over the ACC, pitting those who see the proposed court as an important piece in an apolitical global legal architecture against those who see it as a significant threat to that architecture because of its inescapable politicization. Exploring this debate can help illuminate the possibilities faced by the ACC.

For legalist proponents of the ACC, the court can effectively fill in gaps within the existing international criminal law architecture, a structure that reaches from national courts, up through regional mechanisms, to the ICC at its pinnacle. Based on an expansive notion of complementarity, international criminal law is envisioned as most effective when there is a multiplicity of mechanisms with specific geographical or subject-matter competences, providing a comprehensive web of courts to ensure that no case escapes prosecution under international criminal law. Most strongly voiced by the AU itself, this position presents the ACC as a good-faith effort by Africa to carry forward the fight against impunity. The proposed ACC brings certain advantages to the existing legal architecture, it is argued, in particular the expansion of the crimes within its jurisdiction to include those particularly relevant to Africa, and the commitment to hold corporations, as well as individuals, legally accountable, both of which will be discussed further later. In this view, there is no politics to the ACC beyond closing the ‘impunity gap’ more effectively and providing justice to victims – fundamentally moral-legal objectives. In Don Deya’s words, the ACC will be in a ‘complementary and harmonious relationship with the ICJ, the ICC and other courts,’ ‘the aim,’ he explains, being ‘to reduce the possibility of “politics” or “political considerations” playing a part in what should essentially be a judicial task’.2 This legalist argument identifies significant practical hurdles in the way of an effective, legitimate ACC – ranging from funding gaps, to an overly expansive jurisdiction, to the need for legal development of newly included crimes, to a lack of clarity concerning relations with the ICC and with national courts.3 However, with proper legal design and state support, it is maintained, the ACC will be able to overcome these hurdles and contribute towards the global rule of law.

For the ACC’s legalist critics, however, the court will necessarily be subject to intense and counterproductive politicization by African states, and so its insulation from politics will be impossible. The ACC will be inescapably politicized by African political elites and an AU that represents their interests, critics argue, and so the ACC will undermine the global rule of law, not contribute to it. The most commonly cited evidence for this is the Malabo protocol’s controversial immunity provision, as well as the fact that the most immediate impetus for the development of the court seems to have been the ICC’s prosecution of presidents Omar al-Bashir and Uhuru Kenyatta. The argument against the ACC is thus often paired with a defence of the ICC, as those supporting the former are accused of doing so in order to undermine the latter and, in so doing, the fight against impunity. Critics have, implicitly or explicitly, denounced the proposed ACC as a ploy by African leaders to guarantee themselves immunity from prosecution through an ineffective, compromised institution that will be under their control in a cynical instrumentalization of international criminal law. This understanding often appears based upon a fundamental distrust of any politics in Africa and an assumption that African sovereignty is little more than a shield for abusive leaders against international human rights. As Murungu argues, the AU may not have ‘any genuine purpose in establishing a Criminal Chamber’ other than ‘trying to protect some of its leaders who are well known for a culture of impunity and the commission of serious international crimes against their own citizens.’4 According to Kurt Mills, the proposal for the ACC is ‘designed as [an] attempt to put the brakes on globally based prosecutions of Africans—or at least African heads of state,’5 and Max Du Plessis has asked if the ACC is a case of ‘negative complementarity,’ possibly setting the stage for show trials and entrenching impunity.6 The ACC is a threat to the ICC and there can be no principled opposition by African states, organizations or intellectuals to the ICC and its actions, according to this position: Richard Dicker of Human Rights Watch asserts that the AU’s challenge to ICC prosecutions of African heads of state reveals that ‘the AU leadership’s objective was to…roll back the fight against the most serious crimes under international law’; African states’ opposition to the ICC is thus ‘a rejection of the fight against impunity’.7

Against these critics of the ACC, AU Legal Counsel and Director of Legal Affairs Vincent Nmehielle points out that categorical condemnation of the ACC takes the AU’s effort as being necessarily in bad faith and the proposed court as being entirely subjugated to the will of putatively criminal, corrupt African leaders.8 Instead, he argues, the diversity of positions on international criminal accountability among African leaders, and even within the AU on the prosecution of African heads of state, must be recognized. Thus, the practice of the ACC is by no means politically predetermined. Du Plessis similarly agrees that, while there are some countries who seek to use the ACC as a way of undermining the ICC, ‘it is too simplistic to claim that the proposal for such a mechanism is simply or purely motivated by a desire to undermine the ICC,’ in particular since moves towards an ACC predated the ICC’s indictment of al-Bashir.9 Thus, the ACC’s possibility of being a key piece in a global legal architecture cannot be dismissed out of hand.10

The legalist critics of the ACC prejudge the counterproductive politicization of the proposed court; the legalist supporters of the ACC tend to assume that politics can be eliminated from the functioning of the court, thus guaranteeing its legitimacy and efficacy. Both, however, ignore the lessons about the relation between politics and law offered by the immediate history of the ICC, which tends to be held up by the critics of the ACC as a model international court. A brief look at the relation between law and politics in the ICC’s operation in Africa suggests that politics are an inescapable dimension of international criminal tribunals in Africa and, thus, that instead of the legalist pretence that politics can be eliminated from the workings of international criminal law, the centrality of politics to law should be accepted. Admitting this inevitable politicization would then allow for open debate over what those politics are and should be and how courts can be held accountable by those in whose name they act.

The discussion of the ICC will set the stage for my argument, namely, that although the ACC shares the fundamental limitations revealed by the ICC’s work in Africa, the African court is within a sufficiently different context that it has the possibility of contributing towards an emancipatory politics. However, as suggested already, this possibility requires a re-thinking of the relation between the ACC and the political beyond the legalists’ false dichotomy of international law either being part of a non-political ‘fight against impunity’ or being corrupted by politicization.

2. Lessons from the ICC in Africa

The irony of the legalist critique of the ACC is that many of the arguments being made against the proposed court – that it will be politically instrumentalized by powerful states to the detriment of legality and justice, that it will uphold authoritarian rule instead of challenging it – are precisely the accusations that have been made against the ICC, often by African critics.

Today, fifteen years after the Rome Statute entered into force, there remain few observers who would deny that the ICC’s practice in Africa has been guided by pragmatic decisions on the part of the prosecution, shaped by global politics. The ICC’s exclusive focus on Africa is fundamentally a product of the global War on Terror: The US was actively opposed to the ICC when it was founded, and so the ICC, under threat before it had even started its first case, decided it would have to conform to US interests if it was to have a chance to survive. As David Bosco has described in detail, the ICC responded to US opposition by making clear that it would target putatively politically meaningless African violence, not the violence of the US or its allies. And so the first, defining case for the ICC, launched at the very moment when US invasions were raging, was the DRC.11 The ICC’s turn to Africa represented a strategic response to the changed political landscape after 9/11, but it also drew on a long history of Africa being represented as a terrain of humanity, of incorrigible savages committing atrocities against helpless victims in need of a Western saviour.12 The ICC’s exclusive intervention in Africa was thus a product of international power relations that made Africa the only region weak enough so that international intervention could take place there without accountability and unimportant enough so that the West would allow the ICC to intervene there, and also the historical legacy of the Western civilizing mission in the continent. The result was that there has been a substantive politics behind the ICC’s supposedly apolitical legal engagement with Africa: the ICC has reinforced the relation of subordination between Africa and the West by declaring African sovereignty to be subject to disqualification by a ‘global’ court that appears structurally unable to intervene anywhere but in Africa.

But avoiding US censure was not enough; the court also had to seek enforcement power – the fundamental dilemma faced by any international criminal tribunal built upon a domestic model of criminal law enforcement. The history of the ICC in Africa has thus been a history of the ICC’s constant effort to align itself with Western, in particular US, support in a desperate quest for enforcement capacity.13 Constructive relations have emerged between the ICC and Western violence: the crowning moment was in Libya, when the ICC was a partner in regime destruction, but such alignments have also been seen in Uganda, Mali and Ivory Coast. The recent capture of LRA commander Dominic Ongwen, for instance, was enabled by the presence of the US military in Central African Republic as part of the expansion of AFRICOM.

The ICC’s decisions as to where to intervene within Africa, its tendency to target certain situations to the exclusion of others and pursue certain parties within those conflicts while ignoring others, have been shaped also by its need for powerful allies within the continent as well. Frequently, the ICC allies itself with African states who will facilitate prosecutions and, in exchange, provides those states with effective immunity. The ICC takes sides with the victors or the stronger party to a conflict, even though violence by all sides could fall under the ICC’s jurisdiction. In practice, the ICC’s capacity appears limited to prosecuting minor warlords who have fallen out with state sponsors and former African leaders who have been overthrown by Western military intervention. The result is that, in every case in which the ICC has become involved, the court has either aligned itself with the interests of the powerful or, when it has tried to prosecute those with power, faced disaster – most notably with the collapse of the cases against Uhuru Kenyatta and William Ruto and the constant disregard of the arrest warrant against Omar Al-Bashir, which have thrown the court into crisis. Thus, the ICC has made it clear that the best way to avoid prosecution is not to abide by the law but to win on the battlefield, to sign up to the War on Terror or to offer up suspects to the ICC.

African states have realized the ICC’s dire straits and taken advantage of the situation themselves.14 The ICC has been instrumentalized by states or, sometimes, non-state actors who seek to appropriate for themselves the mantle of ‘saviour’ so as to legitimize their violence, often through the strategic use of self-referrals. African states can, through ICC intervention, obtain justification for their use of force against those whom the ICC has declared international criminals. This ability to assume the role of human rights enforcer is typically the prerogative of African states with the requisite international patronage, and so global law enforcement can provide a link between the West and its allies, justifying militarized state-building in the name of building the capacity to enforce international justice. Thus, the ICC’s practice has conformed most closely not to the liberal rule of law but to international lines of force, ushering in not a post-Westphalian order but a new geography of de facto impunity. Again, the substantive politics behind the court’s putative apolitical legality are revealed: to entrench the power of authoritarian African rulers and violent state actors.

The final political dimension to the ICC’s operations in Africa stems from its exclusive jurisdiction over atrocity crimes. Because the crimes the ICC has jurisdiction over – war crimes, crimes against humanity and genocide – are so extreme and morally charged, the ICC’s practice cannot help but be endowed with a polarizing logic of friend-enemy.15 That is, perpetrators of atrocity crimes are more than criminals – they are the inhuman enemy, the hostis humani generis. At the same time, the crimes are considered so atrocious, so morally evil, that the ‘friend’ is anyone who will effectively deploy violence in the name of enforcing international law, who will bring such inhuman perpetrators to justice. The result is that, as the ICC gets involved in contexts of widespread, extreme violence, it provides a tempting instrument for those who would seek to criminalize and dehumanize their enemies through international law and would seek to sanctify their own violence as enforcing human rights. This has meant that the ICC intervenes into situations of significant political violence, which it can end up polarizing and intensifying, raising the stakes in dangerous ways. When this tendency is combined with the ICC’s political selectivity in terms of where it intervenes, as just discussed, the danger is obvious: in the very pursuit of international legal justice, international courts can become accessories to the violence of the powerful and entrench violence in conformity with existing lines of power.

These negative repercussions of ICC intervention have produced significant resistance to the ICC from within Africa from a broad set of social and political actors who have accused the ICC of ruining peace processes and amnesties. ICC involvement, particularly in Northern Uganda, has led to intense controversies over the supposedly universal applicability of the ICC’s model of justice, as activists there have mobilized for ‘traditional’ forms of local justice declared to be more relevant to the victims.16 In Kenya, activists were divided on whether the ICC had the capacity to deliver justice or whether it would prove ineffective and derail domestic efforts at building peace and reconciliation. And there have been accusations that the ICC ignores local voices and is ignorant of the contexts into which it intervenes.

At heart, these problems stem from the ICC’s lack of accountability towards those in whose name it acts. The ICC’s practice makes clear the fundamental problem facing any tribunal that attempts to enforce international criminal law on the global level in the absence of a global sovereign or global political community, that is, any court that tries to scale up a domestic criminal legal system to the global level with the assumption that the benefits of a domestic legal system – justice for victims, the enforcement of peaceful social order, deterrence – will be replicated globally. Most obviously, the attempt to enforce international criminal law without a sovereign global state leads to the selective application of the law due to the lack of central enforcement capacity. Equally important are the problems that stem from the lack of a political community at the global level that can be the source of the law and to whom the law is accountable. Without a global political community, any court that purports to enforce international law will suffer from a lack of political accountability and democratic legitimacy. It will be subject to politicization by the powerful, often by the very international actors who most need their impunity to be challenged by a global court. And so, although there is much talk of victims’ participation at international tribunals, that participation is restricted to being in the limited spaces allowed by the tribunals; the legal process is in no way accountable to those victims in whose name it acts. Similarly, while the involvement of NGOs and civil society organizations is often proclaimed, those organizations with a voice are exclusively those that are focused on the anti-impunity agenda and the demand for expanding criminal accountability for certain atrocity crimes. As the consequences of the ICC’s lack of accountability have become increasingly obvious, so has the ICC’s legitimacy faced increasing challenge.

Denunciations of ICC intervention, primarily from Africa, have become too loud for the court and its publicists to ignore.17 Many of the court’s legalist supporters admit that the ICC has been politicized; however, they also insist that politicization can be dealt with within the Rome Statute regime of international criminal law. According to Keppler, for instance, ‘Efforts should include pressing for the investigation of relevant crimes wherever they are committed, and broader ratification of the Rome Statute.’18 Thus, the legalist solution to politicization is typically found in insulating the ICC from external political forces, in particular the Security Council, by giving the ICC more autonomy, fostering state cooperation and providing more resources.19

This supposed solution, however, ignores the fundamental character of the ICC’s politicization and treats the court as if it had the possibility to escape political pressure and become a genuinely non-political tool of global law. As I have argued, the politicization of the ICC, its focus on Africa and its subservience to the United Nations Security Council and to Western interests are not simply minor hurdles for the ICC, to be overcome through adjustments in its practice. Instead, given its lack of enforcement capacity, lack of downward accountability and exclusive jurisdiction over atrocity crimes, politicization is the condition of possibility for the ICC to function at all. In the words of William Schabas, international prosecution ‘is both selective and political by nature.’20 The proposed ACC will face this same dilemma as an inevitable consequence of its work – but with two key differences that may enable it to have a different relation with the political, as I argue in the next section.

To realize this possibility, however, the very idea of international criminal law as operating effectively and legitimately only when it is insulated from politics, when it is non-political, must be abandoned. We have seen that this idea cannot survive the scaling-up of international criminal law from the domestic to the global level, where the proclamation of apolitical legality only hides the actual political determination of law enforcement.21 Better to admit the inevitable politicization of international criminal law so that it can be held accountable and an emancipatory politics can be put at its centre.

3. The Politics of the African Criminal Court: Old Dilemmas, New Possibilities
A. The ACC and the African Peace and Security Architecture

Can the ACC avoid the destructive repercussions evident in the ICC’s problematic relation to politics? The ACC seems to replicate the conditions that led the ICC into difficulties: it is an international court on a domestic model that lacks an enforcement mechanism; it has jurisdiction over atrocity crimes; it has no formalized mechanisms for accountability to the people to whom it is supposed to bring justice. I will argue that, while there is a significant danger that the proposed African court could very well be afflicted by the problems revealed by the ICC’s interventions in Africa, the new court has at least the possibility of serving more emancipatory ends. This possibility stems from a different relation between the ACC and the political and thus the opportunity for a different politics to inform its work.

Legalism provides one paradigm through which the origins and the future operation of the proposed ACC can be envisaged. In this paradigm, the African court is to bring justice in accordance with international criminal law and function within a coherent global legal architecture; this global legal structure is primary and the ACC’s legitimacy and efficacy are grounded in its insulation from politics. But there is a second paradigm that has helped inform and motivate the development of the African court and that provides a vision for its future functioning: a peace and security paradigm, in which the ultimate value underlying African continental institutions, including the ACC, is to ensure lasting peace and overcome Africa’s legacy of political violence. Justice has a place in this peace and security framework, but it is not the narrow criminal justice for mass atrocity of the ICC and other international criminal tribunals. Rather, a broader transitional justice is valued, in which trials may play a role determined by concerns of securing a lasting peace instead of by a declared uncompromising commitment to ‘ending impunity.’ Thus, the proposed court, while remaining a fundamentally legal body, is informed by a continental political agenda and integrated into continental structures for achieving peace.

The integration of the proposed court into broader continental structures of peace has been made possible by the rapid development of the African Peace and Security Architecture over the last decade, by the foregrounding of transitional justice in the AU, as well as by a broad commitment to a more interventionist peace agenda, which has become a prominent aspect of the AU’s operations and rhetoric, most notably, perhaps, in Article 4(h) of the AU Constitutive Act.22 Most immediately, the ACC’s conformity to broader goals of continental peace is enabled by specific provisions in the Malabo Protocol: Article 46F on the Exercise of Jurisdiction gives the power to refer situations to the ACC to the AU Assembly of Heads of State and Government and to the AU Peace and Security Council. The Protocol also, in Article 46H, explicitly declares the ACC to be complementary not only to national courts but also to courts of the regional economic communities, further entrenching the ACC in the multi-layered continental peace and security architecture. Also notable is the absence of explicit reference in the Malabo Protocol to the ICC or to the UN Security Council; although what the relation between these bodies and the ACC will be in practice remains to be worked out, the lack of reference to them further emphasizes the new court’s primarily continental commitment. Furthermore, the fact that the ACC, with its international criminal law mandate, will be one of the three sections of the proposed African Court of Justice and Human Rights – the others being a General Affairs Section and a Human and People’s Rights Section – means that the daily operations of the court as well as the epistemic and professional communities of its staff may be infused with a broader legal and political vision in which criminal trials play only a part. The prosecutor and deputy prosecutors, although comprising an independent office of the prosecutor, will be appointed by the Assembly according to Article 22A (2), again presumably ensuring that they will be committed to the Assembly’s broader objectives. Together, these could enable the ACC to be integrated into what Kamari Clarke has called African ‘ecologies of justice.’

The other important way in which the ACC will be able to contribute to a continental peace agenda is through its expanded subject-matter and personal jurisdictions. First, the ACC claims jurisdiction over an expanded set of crimes,23 opening possibilities not available under the Rome Statute. Of particular note is the criminalization in Articles 28E through 28L bis of the illicit exploitation of natural resources, but also the criminalization of mercenarism, corruption and trafficking in hazardous wastes, all of which have been subject to intense political deliberation and, in some cases, legalization through treaties by the AU and the OAU. One result is that crimes of particular importance to Africa have been enshrined within the mandate of an international court, giving the ACC’s subject-matter jurisdiction a particularly African visage.24 Also, as Charles Jalloh has argued, addressing these non-atrocity crimes can play a preventive function for atrocity crimes, dealing with the often overlooked factors that go into producing mass violence.25 Furthermore, expanding the court’s remit beyond atrocity crimes will lessen the tendency towards the moralization and political polarization of situations into which the ACC intervenes. Thus, intervention by the ACC may help defuse tense political situations instead of escalating them.

Second, the ACC claims jurisdiction not only over natural persons but also over corporations and not only over Africans but, under certain circumstances, over people and corporations globally. Article 46(C) establishes jurisdiction over corporations, while Article 46E bis explains that the court may exercise its jurisdiction ‘(c) When the victim of the crime is a national of that State;’ or when faced with the commission of ‘(d) Extraterritorial acts by non-nationals which threaten a vital interest of that State’. In so doing, the ACC extends its personal jurisdiction beyond the borders of Africa.26 Those who can be designated as criminals comprise a broader set of actors, enabling a better and more comprehensive reckoning for peace.

Put together, the net effect of the expansion of jurisdiction beyond atrocity crimes and the expansion of the personal jurisdiction beyond Africa is to open a new range of political possibilities through the law. The ACC claims jurisdiction over not just atrocity crimes committed by Africans against Africans, as the ICC effectively did, but over atrocity crimes as well as the broader range of crimes that accompany violence and conflict in Africa. It claims jurisdiction over the global networks of individuals, states and corporations that are complicit in that violence. These crimes, from environmental destruction, to corruption, to illegal trafficking, are hidden when the focus is only on those Africans who are deemed ‘most responsible’ (or, in practice, most available) for the most spectacular atrocities. As opposed to the ICC, which takes violence in Africa and then singles out a handful of Africans upon whom it places full responsibility, the ACC can delineate more complex and accurate global narratives of those responsible for violence, potentially contributing more effectively to peace and to justice.

The proposed ACC thus entails a possible radical change in international criminal law’s role in mediating Africa’s relation with the rest of the world. The ICC, as argued above, often served as a tool for legitimating Western intervention and interference in African affairs, as well as for upholding the violent power of unaccountable African states. International criminal law as embodied in the ACC could instead become part of what Rowland J.V. Cole has called an ‘African agenda’ in international law, which he argues can be ‘traced back to the struggle for independence and the articulation of pan-African doctrine’ with a focus on dignity, self-determination and establishing sovereign equality for African states within the international community.27 This is the substantive politics that could be advanced by the ACC’s more immediate political focus on peace and security. The ACC thus has the potential to serve a counter-hegemonic political vision founded on self-determination and sovereign equality, a vision that, Cole and others argue, has informed Africa’s aspirations for international law since decolonization.28

However, any celebration of the ACC as an agent of progressive politics needs to be tempered by the legalist critique of the ACC and the recognition that this vision of an African court contributing to peace remains a largely state-centred agenda. As such, is open to steering or manipulation by state elites in their own interest. This is posed starkly in the contentious issue of head of state immunity, provided for by Article 46A bis. In an international context defined by major imbalances of power and resources, and in which the West arrogates to itself the authority to effect ‘regime change’ in the Global South, preventing African heads of state from being subject to politically motivated international criminal prosecution is crucial if self-determination is to have substantive meaning. This is one spirit in which to understand the AU’s declaration that it and its member states ‘reserve the right to take any further decisions or measures that may be deemed necessary in order to preserve and safeguard the dignity, sovereignty and integrity of the continent’ with regards to the ICC.29 However, providing immunity to heads of state, and even more so to an amorphous group of ‘senior state officials,’ as the Malabo Protocol does, also sets the stage for the ACC to replicate the worst of the ICC’s problems, becoming simply a tool to be wielded by regimes against political opposition. I will explore the ways that the Malabo Protocol’s state-centrism opens the door to these forms of counterproductive politicization next.

B. The ACC and Political Instrumentalization

The first obstacle in the way of a progressive African court is that, like the ICC before it, the proposed ACC lacks centralized enforcement powers and is dependent primarily upon member states for enforcement, as established in Malabo Protocol Article 46L (1) and (2). Thus, the ACC will face the same pressure to pursue politically viable cases that the ICC has faced and may end up conforming its prosecutorial practice to pragmatic considerations. Equally troubling is the fact that Article 46L (3) declares that ‘The Court shall be entitled to seek the co-operation or assistance of regional or international courts, non-States Parties or co-operating partners of the African Union.’ This provision raises the spectre of the ACC serving as a subcontractor for Western security interests in the continent, a trend that has been seen with some AU peacekeeping missions in recent years. The fact that the protocol allows for state referrals in 46F (1) also opens the ACC to the kind of politically motivated self-referrals that have plagued the ICC and proven deeply controversial for that court. In the case of the ACC, the problem of self-referrals is even more exaggerated because head of state immunity guarantees that states can make referrals without even the possibility that the ACC might prosecute the referring state’s own crimes. This makes self-referral to the ACC a very attractive strategy for any state involved in violent political conflict since there is almost nothing for the state to lose and a great deal to gain.

Second, the Malabo Protocol’s expansion of crimes also has the potential to serve the interests of authoritarian states. The ACC proposes to establish jurisdiction over crimes that, according to commentators, are ‘not yet fixed in the international criminal law firmament.’30 One such crime included in the protocol which has been subject to intense critique is terrorism; the fear is that states can use the new provisions to criminalize dissent, secure power and legitimate violence.31 Another is the criminalization of unconstitutional changes of government, including a ban on constitutional amendments that are considered ‘an infringement on the principles of democratic change of government’ or a ‘substantial modification’ of the electoral laws within six months of elections ‘without the consent of the majority of the political actors.’32 These stipulations are so opaque – what comprises an ‘infringement,’ what is ‘substantial,’ who are the ‘political actors,’ when is a ‘majority’ present? – as to make the inclusion of this crime open to significant political manipulation. This is in addition to the question of whether changes of government through popular uprisings would be included under the law and the dangerous consequences of such criminalization for state repression of popular protest.

In short, the expansion of international crimes within the protocol, while representing a potentially beneficial expansion of the crimes and actors to be held accountable under international law by the African court, also represents a potentially dangerous intensification of the tendency to moralize and polarize politics seen with the ICC’s international criminal law enforcement. Indeed, the recent history of ‘democracy promotion’ and the way that a ‘right to democracy’ has been used to justify devastating military interventions, should give pause to those who seek to promote more liberal political orders through the international criminalization of unappealing domestic political developments. There is thus the danger that the inclusion of such expansive new crimes within the jurisdiction of the ACC may help reinforce African security states and serve Western security regimes.

Indeed, if the ACC actually gets off the ground, it will unavoidably face intense pressure to become incorporated into existing networks and alignments of power and violence within Africa, alignments that are integrated into the interventions and interests of global powers. The ACC may be buffeted by political manipulation while it searches for enforcement powers and may systematically ignore the abuses of the powerful while pursuing the weak. The existence of the ACC could even render the international criminal law regime more arbitrary and international order more opaque as there arises an increasingly inconsistent and incoherent set of regional and global legal institutions, producing more ambiguities that can be manipulated by those with the power to do so. Overlapping jurisdictions between the ACC and the ICC may allow forum-shopping by the powerful, or the pursuit of enforcement by the ACC could lead to ad hoc deployments of force, which could undermine the peace and security infrastructure of the AU instead of strengthening it. Finally, there is the threat that the ACC, in pursuit of enforcement and Western support, might itself sign up to the global War on Terror and become part of the developing transnational networks of unaccountable military and police violence across the continent.

C. Towards a Democratic Politics for the ACC

The Malabo Protocol thus has two major aspects; the question becomes how to ensure that the progressive possibilities are realized and the regressive are avoided. Key is the political agenda that will steer the court. This chapter has argued that the fundamental problem with international criminal courts, as witnessed with the ICC in Africa, is their lack of accountability to those in whose name they act. If the African court also comes to be characterized by a lack of downward accountability, the consequences of its politicization by states may be equally dangerous as those witnessed with the ICC. The proposed African court, however, entails novel possibilities for downward political accountability, not so much to those named as victims, but to a broader set of social movements, popular struggles and civil society organizations whose concerns go beyond the anti-impunity agenda. These possibilities may allow the progressive dimensions of the Malabo Protocol to be realized and prevent its more dangerous potentials from arising.

The most important aspect of the ACC that can enable its downward accountability is also the most obvious: its location within Africa. Being within Africa provides the context for a tenuous political community on the regional level – or, really, for multiple political actors speaking in the name of an African political community – to demand accountability from the court. This is made possible by the fact that Africa as a region has shared histories, ideas and legacies of struggle, emancipation and self-determination. It is a continent with a common experience of being subject to a violent international order and to long processes of destructive foreign interference. It has a history of efforts at continental political unity in Pan-Africanism, which bears within it emancipatory, progressive possibilities that are constantly being drawn upon to challenge more authoritarian interpretations of continental unity or national identity.

This is radically distinct from what exists on the global level, and the new possibilities of the ACC can be illuminated through a comparison to the ICC. The ICC functions within a global context that is not characterized by shared histories or common legacies, but rather by a long history of inequality and domination. There is no concrete content to concepts such as global civil society, the international community or ‘humanity’, no substantive history that can make them the basis for concrete political visions or programmes. As a result, under the cover of a common global community and identity, the ICC’s practice reflects actually existing global political order – namely, an order of inequality and violence, which it cannot admit since its legitimacy stems from its proclamation of universality and equality.

Therefore, while the proclaimed universality of the ICC on a global scale, based in an ideological ‘humanity’, serves to obscure the international inequality and violence that actually define world order and shape ICC practice, the idea of African unity that legitimates the proposed ACC is fundamentally different. It draws upon ideas of continental unity based upon internal legacies of common histories, political struggles and solidarity within Africa, as well as a legacy of unity defined against an external international political and economic system that exploits and oppresses the continent. The idea of Africa thus represents a terrain on which emancipatory political claims can be made, on which certain forms of politics are possible, based on the imagination of an African political community founded through internal organization and against external oppression.

Whereas a domestic criminal legal system has a political structure – the state – to give it efficacy, and a political community – the nation – to provide it legitimacy and hold it accountable, a global court has neither. Thus, when the ICC claims to act in the name of ‘humanity’, it politically deploys a category that can be manipulated without accountability or without reference to any specific, concrete historical community or institution. However, when the ACC invokes ‘Africa’, it will have to contend with a host of other visions of the continent embodied in existing communities, historical legacies of Pan-Africanism, internationalism and regional institutions. Legacies of popular and democratic Pan-Africanism, the AU’s progressive dimensions, the struggle for self-determination and sovereignty – all these can be drawn upon by those who seek to make the ACC accountable by calling upon it to take action or contesting its anti-democratic or abusive manipulation. Of course, African states and institutions also have a history of internal repression, the cynical manipulation of Pan-Africanism to silence democratic demands, and subservience to and collaboration with foreign political and economic interests and intervention. But with the ACC, at least the possibility exists for plural, democratic and popular claims to be made on the court. The possibility opens for the ACC to be held accountable in a way that is simply impossible with the ICC, which can dismiss anyone who disagrees with it by claiming for itself the exclusive right to speak for humanity, victims or global justice.

The ACC will not be able to reject criticism made of it as representing corrupt African political interests seeking to undermine supposedly apolitical global justice. Because the ACC is dealing with specific African victims of crimes and not universal, abstract victims, it will find it more difficult to manipulate the victims’ discourse to dodge criticism.33 And, given that African states, organizations and peoples will have to live with the consequences of the ACC’s actions – as opposed to the ICC, which can wash its hands of any particular situation without repercussions – perhaps the ACC will have to be more accountable for the outcomes of its interventions. For their part, African states will not be able to reject ACC decisions as a Western conspiracy.

While the proposed ACC certainly does not resolve the dilemmas of scaling a domestic model of international criminal law up to a level where the sovereign state is absent, the pathologies that plague the ICC due to the lack of any global community are ameliorated with the ACC given the more concrete reality of Africa as a political community. Again, this provides no guarantee that the proposed ACC will be any less arbitrary or any less subservient to the interests of powerful states. However, with the ACC, there is at least the possibility that it could be held accountable, in however attenuated a fashion, by those Africans in whose name it acts.

The expanded jurisdiction of the ACC helps enable this kind of democratic politics. As discussed, the Malabo Protocol includes a broad set of crimes, far beyond atrocities, that are of particular importance to Africa; indeed, it even leaves open the possibility of incorporating new crimes. The protocol also expands those agents who can be prosecuted far beyond the borders of the continent. This represents a radically new opportunity in terms of the kinds of claims that can be made on the court by social and political movements, struggles and organizations that speak in the name of Africa’s peoples. Whereas the anti-atrocity agenda narrowed the scope of global justice through the agency of the ICC and other tribunals, now the potential scope of the law is expanded vastly and a broad array of social, political, economic and environmental forms of violence and oppression can be brought within the remit of global justice and remedy.

It is uncertain to what degree this will prove practicable. But, even if the ACC never actually carries out prosecutions in response to demands made by popular struggles, its mere existence could have a dramatic impact. For the ACC creates a site around which these demands can be made and granted legitimacy – no longer can they be dismissed out of hand as they have been by the ICC. The ACC tells African social movements and struggles that they can decide for themselves what comprises an international crime, whom should be held accountable and what global justice means today.

4. Re-envisioning the Politics of the African Criminal Court

The ACC thus has the possibility to help articulate and advance a substantive, emancipatory politics, based on a vision of Africa as a continent with a history of violence committed against it with impunity, but also with a history of struggle to secure self-determination and justice in the face of that violence. The ACC could give legal embodiment to the demand for justice for that legacy of violence, grounded in the legacy of struggle and solidarity. In these ways, the ACC offers the possibility to be in service of a counter-hegemonic, emancipatory political project for the continent. The ACC could thus help realize a vision in which, in Antony Anghie’s words, ‘international law can be transformed into a means by which the marginalized may be empowered. In short, that law can play its ideal role in limiting and resisting power.’34

However, the ACC will be able to achieve this democratic politics only if it is open to the demands and claims made by popular movements, social struggles and civil societies in the name of Africa’s legacies of struggle for self-determination, sovereignty and democracy. This will only occur if those movements and struggles demand that the court be accountable to them – because the state elites currently deciding the shape of the ACC have no interest themselves in making the court democratically accountable. Interestingly, contemporary political developments may be laying a foundation for just such demands for accountability, found in particular in the broad uprising of new forms of protest and social struggle throughout the continent.35 These developments can ground alternative understandings of international law: indeed, there is no need for international criminal justice to be the exclusive preserve of states. State-centric models of international law have long been challenged by legal scholars and activists, primarily from the Global South, who argue that social movements and struggles can also be sources for international law.36

African lawyers, academics and activists involved in the court can thus look to social movements and popular struggles as proposing new ways of doing international criminal justice and as imagining ways to make international criminal justice responsive and accountable to those it claims to serve.37 Upon that basis, African discourses and institutional experiments around the ACC may be able to help reform dominant understandings of international criminal justice more generally, opening new possibilities that have been foreclosed by the restrictive state-centred international law.38 The ACC may help catalyze a process by which international law comes increasingly to be understood as a fragmented, multi-centric terrain in which multiple histories weave together within a broad ethical-political framework; in Upendra Baxi’s words, these Third World understandings of international law build upon ‘histories of mentalities of self-determination and self-governance, based on the insistence of the recognition of radical cultural and civilisational plurality and diversity … They suggest constantly the need for the reinvention of our common insurgent humanness.’39

An approach to international law that looks to popular movements and democratic demands for guidance for the ACC would also ensure that the international courts do not monopolize the discourse of global justice.40 International criminal law, embodied in the ACC, will be only one part of broader political struggles, one tool among many used by progressive political forces in the service of emancipation, instead of being a new constitution to which all must conform.

Thus, the decisions and punishments meted out by the ACC may be of less importance than the symbolic value of the legal strategies it legitimates. The ACC leads to transformations in imaginations, in ideas about what is accepted as normal and what is refused, what is justiciable and what is outside of justice. The ACC shows that there are legitimate alternatives to the vision of global justice embodied in any court and opens the debates over justice to broad plural determination. This reinforces the central lesson of the ICC in Africa: that international criminal tribunals are simply unable to function in accordance with their legitimating ideology of a single, unitary court on the international level. Rather, they are always part of a political context and will always be politically determined. And as that political context, if it is democratic, will be plural and contested, so will international law be articulated differently by different political forces. Legal analysis and activism, at the ACC and more broadly, should begin from a recognition of the plurality of African popular struggles and respond to those struggles through deliberation, debate and contestation instead of rejecting the accountability of international courts through a spurious denial of international criminal law’s inescapably political nature.

1 For the classic treatment of this theme with reference to international tribunals, see J. Shklar, Legalism (Cambridge, MA: Harvard University Press, 1964).

2 D. Deya, ‘Worth the Wait: Pushing for the African Court to Exercise Jurisdiction for International Crimes’, Openspace 2 (February 2012) 22–6, at 25. See in particular the presentation of this position in V. Nmehielle, ‘“Saddling” the New African Regional Human Rights Court with International Criminal Jurisdiction: Innovative, Obstructive, Expedient?’, 7 African Journal of Legal Studies (2014) 742, at 8.

3 For a sober assessment of these practical obstacles, see A. Abass, ‘The Proposed International Criminal Jurisdiction for the African Court: Some Problematical Aspects’, 60 Netherlands International Law Review (2013) 2750.

4 C. B. Murungu, ‘Towards a Criminal Chamber in the African Court of Justice and Human Rights’, 9 Journal of International Criminal Justice (2011) 1067–88, at 1087. See also the ‘Joint Letter to the Justice Ministers and Attorneys General of the African States Parties to the International Criminal Court Regarding the Proposed Expansion of the Jurisdiction of the African Court of Justice and Human Rights’, 3 May 2012, available online at www.hrw.org/news/2012/05/03/joint-letter-justice-ministers-and-attorneys-general-african-states-parties (visited 15 September 2016).

5 K. Mills, ‘“Bashir is Dividing Us”: Africa and the International Criminal Court’, 34 Human Rights Quarterly (2012) 404–7, at 423–4. Matasi and Bröhmer conclude that it appears from the provisions discussed above that these are technical maneuvers to oust the jurisdiction of the ICC; see M. Matasi and J. Bröhmer, ‘The Proposed International Criminal Chamber Section of the African Court of Justice and Human Rights: A Legal Analysis’, SSRN Electronic Journal (2013), available online at http://ssrn.com/abstract=2236040 (visited 15 September 2016), at 16.

6 M. Du Plessis, ‘A Case of Negative Regional Complementarity?’, EJIL: Talk! Blog of the European Journal of International Law, 27 August 2012, available at www.ejiltalk.org/a-case-of-negative-regional-complementarity-giving-the-african-court-of-justice-and-human-rights-jurisdiction-over-international-crimes/ (last visited 15 September 2016). See the discussion in K. Ambos, ‘Expanding the Focus of the “African Criminal Court”’, in W. Schabas, Y. McDermott and N. Hayes (eds.), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (New York: Routledge, 2016) 499529, at 521–4.

7 R. Dicker, ‘The International Criminal Court (ICC) and Double Standards of International Justice’, in C. Stahn (ed.), The Law and Practice of the International Criminal Court (Oxford: Oxford University Press, 2015) 312, at 10.

8 Nmehielle, supra note 2, at 33–4.

9 M. du Plessis, T. Maluwa and A. O’Reilly, Africa and the International Criminal Court, Chatham House International Law, July 2013, available online at www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Law/0713pp_iccafrica.pdf (visited 15 September 2016), at 10.

10 This was the position articulated by the representatives of Human Rights Watch and Amnesty International at the African Court Research Initiative International Symposium (Arusha, Tanzania, 28–29 July 2016), although both expressed serious reservations about the practical hurdles in the way of the ACC’s being able to help address the impunity gap.

11 D. Bosco, Rough Justice: The International Criminal Court in a World of Power Politics (New York: Oxford University Press, 2014), at 8990.

12 M. Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’, 42 Harvard International Law Journal (2001) 201–45.

13 A. Branch, Displacing Human Rights: War and Intervention in Northern Uganda (New York: Oxford University Press, 2011), at 200203.

14 For more on this logic, see P. Clark, ‘Law, Politics and Pragmatism: The ICC and Case Selection in the Democratic Republic of Congo and Uganda’, in N. Waddell and P. Clark (eds), Courting Conflict? Justice, Peace and the ICC in Africa (London: Royal African Society, 2008) at 3745.

15 S. Nouwen and W. Werner, ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’, 21 European Journal of International Law (2010) at 941–65.

16 T. Allen, Trial Justice: The International Criminal Court and the Lord’s Resistance Army (London: Zed Books, 2006).

17 See, for instance, Is the International Criminal Court Targeting Africa Inapporpriately?, ICC Forum, Human Rights Project at UCLA School of Law with the support of the Office of the Prosecutor of the ICC, March 2013 – January 2014, available online at http://iccforum.com/africa (visited 15 September 2016).

18 E. Keppler, ‘Managing Setbacks for the International Criminal Court in Africa’, 56 Journal of African Law (2012) 114, at 7.

19 O. Bekou and A. Zidar, ‘The International Criminal Court at Ten: Contemporary Challenges’, in O. Bekou and A. Zidar (eds), Contemporary Challenges for the International Criminal Court (London: British Institute of International and Comparative Law, 2014) 110.

20 W. Schabas, Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (Oxford: Oxford University Press, 2012), at 97.

21 See Ibid. at 80–97 for a discussion of this dilemma.

22 T. Murithi, ‘The African Union and the International Criminal Court: An Embattled Relationship?’, Institute for Justice and Reconciliation Policy Brief, March 2013, available online at http://ijr.org.za/publications/pdfs/IJR%20Policy%20Brief%20No%208%20Tim%20Miruthi.pdf (visited 15 September 2016). Murithi further developed this idea in his comments at the African Court Research Initiative International Symposium (Arusha, Tanzania, 28–29 July 2016).

23 This is what Charles Jalloh calls the Rome Statute Plus crimes; C. Jalloh, ‘Reflections on the Indictment of Sitting Heads of State and Government and Its Consequences for Peace and Stability and Reconciliation in Africa’, 7 African Journal of Legal Studies (2014) 4359, at 56.

24 Nmehielle, supra note 2, at 29–31.

25 C. Jalloh, comments at African Court Research Initiative International Symposium (Arusha, Tanzania, 28–29 July 2016).

26 See Chapter 27, this volume.

27 R. Cole, ‘Africa’s Approach to International Law: Aspects of the Political and Economic Denominators’, African Yearbook of International Law (2013) 287–310, at 292. See also J. T. Gathii, ‘TWAIL: A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography’, 3 Trade, Law and Development (2011) 2664.

28 See, more generally, S. Pahuja, Decolonising International Law. Development, Economic Growth and the Politics of Universality (Cambridge: Cambridge University Press, 2011).

29 Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), adopted 3 July 2009, A.U. Assemb., 13th Ord. Sess., ¶ 5, A.U. Doc. Assembly/AU/13(XIII). Jalloh emphasizes the need to take the grievances of African heads of state seriously on this issue, see Jalloh, supra note 23, at 48.

30 Matasi and Bröhmer, supra note 5, at 11.

31 Amnesty International, Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded African Court (2016), available online at www.amnesty.org/en/documents/afr01/3063/2016/en/ (visited 16 September 2016), at 16–7.

32 Malabo Protocol Article 28E (1).

33 S. Kendall and S. Nouwen, ‘Representational Practices at the International Criminal Court: The Gap Between Juridified and Abstract Victimhood’, 76 Law and Contemporary Problems (2014) 235–62.

34 A. Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2007), at 318.

35 A. Branch and Z. Mampilly, Africa Uprising: Popular Protest and Political Change (London: Zed Books, 2015).

36 B. Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press, 2003).

37 L. Eslava and S. Pahuja, ‘Between Resistance and Reform: TWAIL and the Universality of International Law’, 3 Trade, Law and Development (2011) 103–30.

38 Deya emphasizes the innovative dimension of African international law; Deya, supra note 2, at 26.

39 U. Baxi, ‘What May the “Third World” Expect from International Law?’, 27 Third World Quarterly (2006) 713–25, at 714.

40 K. Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (New York: Cambridge University Press, 2009); S. Nouwen and W. Werner, ‘Monopolizing Global Justice: International Criminal Law as Challenge to Human Diversity’, 13 Journal of International Criminal Justice (2015) 157–76.