Building vibrant and tolerant democracies
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:
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:
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 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.