By Don Deya, CEO of Pan African Lawyers Union - With the dispute between the African Union (AU) and the International Criminal Court (ICC) showing no signs of abating, there are growing calls for international crimes to be tried by the African Court. It is a idea that first arose back in 2007-08 when the Group of (African) Experts, which was commissioned by the AU to advise it on the ‘merger’ of the African Court on Human and Peoples’ Rights with the African Court of Justice, recommended that due consideration should be given to expanding the jurisdiction of the African Court to cover international crimes. Their recommendation was not endorsed by AU Member States at that time but the idea is now firmly back on the agenda.
However, the genesis of the current discussion is not the contemporary debate about Africa’s relationship with the ICC or, more specifically, the furore around the arrest warrant for Sudanese President Omar Hassan al Bashir and the subsequent AU request for a deferral. In fact, the current process emanated from three contemporaneous issues: the AU Member States’ dialogue on the (possible misuse of the) Principle of Universal Jurisdiction; the challenges with Senegal’s impending prosecution of the former President of Chad, Hissene Habre; and, the need to give effect to Article 25(5) of the African Charter on Democracy, Elections and Governance (ACDEG), which requires the AU to formulate a novel international crime of ‘unconstitutional change of government’.
AU Member States have been involved in an on-going discussion over the past few years on the exercise of Universal Jurisdiction, particularly in relation to its possible misuse by low-ranking courts in Europe. A key example, and a turning point, was the arrest warrant issued by a French Magistrate’s Court against Rose Kabuye, Chief of Protocol to the President of Rwanda. As a consequence of this emerging trend, AU Member States began a dialogue at the level of the Assembly of Heads of State and Government and also at the Pan African Parliament, among other places. Following a decision by the Assembly of Heads of State and Government, the AU formally initiated a dialogue with its partner, the European Union (EU). One of the products of this dialogue was the AU-EU Expert Panel on the Principle of Universal Jurisdiction and one of the recommendations of the African Experts on this panel was a return to the idea of empowering African States to try international crimes on African soil. The Assembly of Heads of State and Government of the AU embraced this idea and in February 2009, adopted Decision 213, which provides in paragraph 9 that:
“(The Assembly …) requests the (African Union) Commission, in consultation with the African Commission on Human and Peoples’ Rights, and the African Court on Human and Peoples’ Rights, to examine the implications of the Court being empowered to try international crimes such as genocide, crimes against humanity and war crimes, and report thereon to the Assembly in 2010."
In addition, AU Member States have been frustrated by the slow pace of the proposed trial of Hissene Habre in Senegal under the principle of Universal Jurisdiction. Therefore, they have resolved to empower the African Court so that the AU can refer similar matters to its own Court rather than rely on the courts of individual Member States.
Finally, Article 25(5) of the ACDEG not only requires the AU to formulate an international crime of ‘unconstitutional change of government’ but also calls on this crime to be tried at the African Court of Justice. For this reason, the jurisdiction to try this (and other) international crimes was proposed for the African Court of Justice and Human Rights (the ‘Merger’ Court) or its successors.
The Succession of African International Courts
It is important to bear in mind that there will be a succession of Courts at the level of the AU. These are:
- The existing African Court on Human and Peoples’ Rights, which was established by the 1998 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights. This Court is operational and in 2011 – its seminal year – at least 11 cases were filed. Half of these may not meet the admissibility threshold, but the half that do may proceed to full, public hearings as early as December 2011.
- The second court is the African Court of Justice, which is the inter-State Court of the AU and was established by the Constitutive Act of the African Union, 2002, and elaborated in the Protocol of the Court of Justice of the African Union, 2003, which came into force in 2010.However, when the 1998 Protocol to the African Charter came into force in 2004, the Assembly of Heads of State and Government began discussing a merger of these two Courts and the creation of ‘successor’ Courts.However, when the 1998 Protocol to the African Charter came into force in 2004, the Assembly of Heads of State and Government began discussing a merger of these two Courts and the creation of ‘successor’ Courts.
- Therefore, the third Court is the envisaged African Court of Justice and Human Rights (the ‘Merged’ Court), whose Protocol (the ‘Merger’ Protocol) was adopted in 2008. This Court will have two sections: a general affairs section, which will handle inter-State matters (previously intended for the African Court of Justice); and a human and peoples’ rights section (which will ‘succeed’ the existing African Court on Human and Peoples’ Rights). It is envisaged that it will also handle labour matters (i.e. matters affecting the employees of AU organs and institutions) under its general affairs mandate. However, the ‘Merger’ Protocol has not yet been ratified by the necessary 15 Member States to come into force.
- The fourth Court is the proposed African Court of Justice and Human and Peoples’ Rights. The idea is to add an international criminal jurisdiction to the proposed third Court and, in so doing, to make several structural amendments to it, including adding ‘Peoples’ to the Court’s name. Therefore, the proposed fourth Court will have three core mandates: general affairs; human and peoples’ rights; and, international crimes.
There are two points to make with regard to the succession of Courts. The first is that the second and third Courts might never be practically established. There could very easily be a ‘transition’ from the existing Court to the fourth Court. The second point is that future phases of the Court do not hinder operationalisation of the current phases of the Court. Thus, the existing African Court on Human and Peoples’ Rights – based in Arusha, Tanzania – will continue to function according to its founding Protocol until the envisaged ‘Merged’ Court comes into being. But if the ‘Merger’ Protocol never comes into force, then the Human and Peoples’ Rights Court will continue to operate as it does now.
Similarly, the ‘Merged’ Court would – once established – continue to function according to its founding Protocol until the eventual tri-mandate, African Court of Justice and Human and Peoples’ Rights comes into being. But if this fourth Court is never created, then the third Court would continue as is. This is a pragmatic compromise.
The lengthy process so far
It has been a slow process to date but it is critically important to ensure maximum input and buy-in from across the continent. So far, the long path to expanding the jurisdiction of the African Court to cover international crimes has involved the following steps:
- At the February 2009 summit, the Assembly of Heads of State and Government of the AU requested ‘the (African Union) Commission, in consultation with the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights, to examine the implications of the Court being empowered to try international crimes such as genocide, crimes against humanity and war crimes and report thereon to the Assembly in 2010’;
- Pursuant to the follow-up decision at the January 2010 Summit, the AU Commission (AUC) contracted the Pan African Lawyers Union (PALU) to produce a detailed study with comprehensive recommendations and a draft legal instrument amending the Protocol on the Statute of the African Court of Justice and Human Rights;
- In June 2010, PALU submitted its first draft report and draft legal instrument to the Office of the Legal Counsel (OLC) of the AUC, proposing amendments to the existing Protocol as well as its Statute;
- In August 2010, PALU submitted the second draft report and draft legal instrument, incorporating the directives and suggestions of the OLC;
- Two validation workshops were then held in South Africa in August and in October–November 2010 bringing together the AUC and the legal counsels or advisors of all relevant AU organs and institutions, as well as the legal counsels or advisors of the Regional Economic Communities (RECs), to consider the draft report and draft legal instrument. Subsequently, both the draft report and draft legal instrument were amended, incorporating directives and suggestions from the workshops;
- Three meetings of government experts were then held at the AUC in Addis Ababa to formally consider the draft report and draft legal instrument. These were in March, May and October–November 2011. Both the draft report and draft legal instrument were amended at each stage based on directives and suggestions from the meetings;
- By the end of the third meeting, the government delegations provisionally adopted the draft Protocol and Statute.
The draft Protocol and Statute, and its accompanying report, will now be placed before a meeting of Ministers of Justice and Attorneys General for approval, with or without amendments. Then they will be placed before the Executive Council for forwarding to the Assembly of Heads of State and Government and finally before the Assembly for formal adoption and signature. After this, the work of procuring ratifications will begin. When 15 ratifications are secured, the Protocol and Statute will come into force, binding the first 15 States. Other States will begin to be bound on the dates on which they accede to the Protocol and Statute.
Overview of the proposed international criminal jurisdiction
It is very important to bear in mind that the existing draft is yet to be negotiated and, hopefully, adopted at the level of Ministers of Justice and Attorneys General. It could still be amended. Indeed, many things could change. But at the moment, the key proposals include:
- The AU and its Member States complete negotiation and adoption of a lean legal instrument by way of a Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, which will grant a new international criminal jurisdiction to the proposed African Court of Justice and Human and Peoples’ Rights;
- This (Amendment) Protocol provides for jurisdiction for the serious international crimes of genocide, crimes against humanity and war crimes in a manner that is complementary to AU Member States, the Regional Economic Communities (RECs) and also the Rome Statute of the ICC, in which African States Parties form the largest bloc. The definitions of these crimes incorporate all the elements contained in the Rome Statute, as it represents the consensus of the international community;
- This (Amendment) Protocol gives effect to the requirement of the ACDEG for the speedy formulation of a new crime of ‘unconstitutional change of government’ in Africa;
- This (Amendment) Protocol provides for other serious crimes of concern to African States and the international community, especially those already addressed in Treaties and Protocols of the African Union and of the RECs. These currently include crimes of aggression, corruption, illegal exploitation of natural resources, mercenariism, piracy, terrorism and trafficking in drugs, people or hazardous wastes (illegal trans-boundary movement);
- This (Amendment) Protocol also provides for corporate criminal liability;
- The proposed African Court of Justice and Human and Peoples’ Rights should be structured as follows:There will be three sections within the Court – general affairs, human and peoples’ rights, and international criminal law (the first two sections already existed in the ‘Merger’ Protocol).Within the international criminal law section of the Court, there will be three chambers: pre-trial chamber, trial chamber and appellate chamber. The appellate chamber exists only within the international criminal law section and will hear appeals from that section only. There shall be no appeals within the general affairs, or human and peoples’ rights sections. For these two sections, only review may apply.
- Provision be made for:Retention of the current number of 16 judges, with the further provision that the judges themselves will determine how they will serve the three sections of the Court, and the three chambers within the international criminal law section, through their rules.The AU Assembly to be able to easily increase the numbers of judges, as and when need arises.
- Initially, only the President and the Vice President will serve full-time. The other judges will serve on an ad hoc basis, with a provision that enables the AU Assembly to easily determine when more or all of the judges shall serve full-time, as and when the volume of work increases;
- The AU Assembly to be able to increase the list of crimes within the jurisdiction of the Court to reflect the needs of the continent and developments in international criminal law;
- The appropriate expansion and reformulation of the Registry of the Court, and creation of a new Office of the Prosecutor (OTP) of the Court;
- Specific attention should be given to creating an adequate institutional framework to appropriately address, among other things, victims and witnesses, gender and children’s issues, and a robust outreach function;
- There should be similar flexibility with regard to the resourcing of the Registry, the OTP, issues relating to victims, witnesses, gender and children, and the outreach functions of the Court. Therefore, the new Court will start with the minimum human, technical and financial resources that it needs and these will be increased as the Court grows and as its caseload increases; and,
- Similar attention, within the broad legal and policy framework of the AU, needs to be paid to appropriately address issues of international co-operation and judicial assistance.
The drafters and negotiators are acutely aware of the fact that the proposed Court will be complementary to national courts and will co-exist with other international courts, which will have similar mandates and jurisdictions to it. For instance, part of its general affairs mandate will be shared with the International Court of Justice (ICJ), and also the Courts of the African RECs. Similarly, its human and peoples’ rights mandates will be shared with some (if not all) of the Courts of the RECs. Furthermore, its international criminal law mandate (at least in respect of the crimes of genocide, crimes against humanity and war crimes at the moment, and the crime of aggression in the future) will be shared with the ICC. This international criminal law mandate may eventually be shared with the Courts of the RECs as well, if some of the current discussions on the continent come to fruition. Therefore, the drafters and negotiators have made provision in the draft instrument so 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 and may conclude Agreements for that purpose."
The drafters and negotiators clearly envisage that, since multiple courts will share jurisdiction, these courts may opt to negotiate among themselves on how best to handle this shared jurisdiction so that the ends of justice are met in an effective, efficient, credible and fair manner. In this regard, it is left to the Courts themselves, once fully constituted, to negotiate how they will work together. The aim is to reduce the possibility of ‘politics’ or ‘political considerations’ playing a part in what should essentially be a judicial task. This, in my view, is another positive and pragmatic position.
An African Court with international criminal jurisdiction is a long-term project. It cannot, and will not, offer relief to any of the people currently indicted or under investigation by the ICC. That Court will not come into force until its Protocol is concluded and at least 15 of the AU’s 54 Member States have ratified it. Even if it were adopted in the course of 2012, it may be a number of years before the Protocol enters into force so it will not be able to affect any of the current ICC cases emanating from the Central African Republic, Ivory Coast, the Democratic Republic of Congo, Libya, Kenya, Sudan (Darfur) or Uganda.
The draft legal instrument enables a complementary and harmonious relationship with the ICJ, the ICC and other courts, in the same manner that the African Commission on Human and Peoples’ Rights co-exists harmoniously with the UN Human Rights Council, the UN Human Rights Committee and the Rapporteur System. This is also similar to how the AU Peace and Security Council co-exists with the UN Security Council.
International Criminal Justice and Positive Complementarity: With regard to what is frequently referred to as ‘international criminal justice’, we ought to bear in mind that the prime arena for investigating and prosecuting all crimes (even those of serious international concern) is the State. The ICC, an African Court with an expanded jurisdiction and any other international mechanisms should only come in when the State is unable or unwilling to genuinely investigate and prosecute. We should always emphasise ‘positive complementarity’, including building the capacity of national judicial, prosecutorial and investigative mechanisms in Africa to handle crimes, including those of serious international concern.
The Protocol under discussion proposes a wider range of crimes than the ICC currently covers. It also proposes to introduce corporate criminal liability for these crimes. If passed, these crimes would introduce to the world of international law several innovations that were either ‘shot down’ during the Rome Statute negotiations or were not envisaged at that time. Potentially, it would expand the scope and reach of international law, and possibly trigger similar efforts in other regions or even at the ICC.
In the past, Africa has innovated in new areas of international law, with the rest of the international community ‘catching up’ later. This happened with the African Charter on Human and Peoples’ Right (1981), which – for the first time in the history of the world – combined all three ‘generations’ of human rights in one legally binding instrument, and also introduced concepts such as the right to development, peoples rights, the duties of individuals, etc. The Organisation of African Unity Convention on the Elimination of Mercenariism in Africa (1977) was similarly a pioneering event, preceding the UN Mercenary Convention by 12 years.
Africa has the chance to lead the world once again. African lawyers, human rights activists and civil society should now be engaging their own governments with any ideas, proposals and constructive suggestions that they have to improve the process and the draft legal instrument. Thereafter, they should be planning ratification campaigns so that there is a comprehensive and complementary ‘safety net’ against mass atrocity crimes at the national, continental and global levels – and advocacy campaigns to highlight the benefits of these different levels. Since there is absolutely no reason - despite the current bitter divide between Africa and the ICC – why these three levels cannot work harmoniously together to help end impunity for international crimes in Africa.