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The African Court with a Criminal Jurisdiction and the ICC: A Case for Overlapping Jurisdiction?

Document Cited in Related
Vincent
DOI10.3366/ajicl.2017.0202
Pages418-429
Date01 August 2017
Published date01 August 2017
AuthorZekarias Beshah Abebe
INTRODUCTION

On 27 June 2014, the AU Assembly adopted a Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (hereafter the amendment protocol) at Malabo, Equatorial Guinea. The main purpose of the protocol is to add a criminal chamber to the African Court of Justice and Human Rights (hereafter the African Court). It accordingly extends the jurisdiction of the court to include a gamut of ‘international crimes’ such as the crime of unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, illicit exploitation of natural resources, and trafficking in persons, drugs and hazardous wastes in addition to crimes which are often dubbed ‘orthodox international crimes’, ‘core crimes’ or ‘the most serious international crimes’.1

The African Court has gone through a number of successions before taking its present shape with a criminal chamber. The first court, the African Court on Human and Peoples’ Rights (AfCHPR), went operational in 2008 after its establishing protocol entered into force on 25 January 2004.2 The court has the competence to entertain all cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and Peoples’ Rights, the establishing protocol itself and any other relevant Human Rights instrument ratified by the states concerned,3 and to provide an opinion on any legal matter relating to the Charter or any other relevant human rights instrument.4

After a protocol was adopted in 1998 to establish the first African Court and before it went operational, another Court called the Court of Justice of the African Union was established by the Constitutive Act of the AU,5 which is further elaborated in the Protocol of the Court of Justice of the AU.6 Even before its entry into force, the Assembly of Heads of State and Government began to consider the merger of the aforementioned courts. Accordingly, the Assembly adopted a Protocol on the Statute of the African Court of Justice and Human Rights in June 2008 which merged the two courts into a single court called the African Court of Justice and Human Rights (the African Court).

The merged court has two sections – the general affairs section and the human rights section.7 The first section is competent to handle all cases and disputes mentioned under Article 28 of the protocol which, inter alia, includes the interpretation and application of the Constitutive Act, treaties of the Union or other subsidiary legal instruments and any questions of international law.8 On the other hand, the second section is competent to hear ‘all cases relating to human and/or peoples’ rights’.9 However, as the required number of ratifications has not yet been achieved, the protocol has not entered into force.10

The assembly of the AU did not seem to be satisfied with all these adjustments and therefore began to consider redesigning the merged court by extending its jurisdiction to cover international crimes. Accordingly, it adopted a Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights on 27 June 2014. This latest protocol has introduced several new ideas. Most importantly, it extended the jurisdiction of the African Court11 to include ‘international crimes’. Thus the African Court will have a structure consisting of three sections: the general affairs section, a human and peoples’ rights section and an international criminal law section.12 Besides, the protocol conferred absolute immunity for the heads of state and government and other senior officials.13 This article focuses on the third section of the court and examines its relation with the International Criminal Court (ICC). To this end, the article will first discern the motives behind extending a criminal jurisdiction to the court. It then discusses whether overlapping jurisdiction between the African Court and ICC is a common occurrence and of imminent concern. The article finally offers the way forward and conclusion.

 MOTIVES FOR THE AFRICAN COURT WITH A CRIMINAL CHAMBER

There are two positions on the raison d’être of the establishment of an African Court with a criminal chamber. The first position, which is particularly supported by those involved in the drafting process of the amendment protocol, argues that the establishment of an African Court having a criminal jurisdiction has been motivated by reasons other than the AU's anti-ICC sentiment.14 The second position on the other hand contends that the decision to expand the jurisdiction of the African Court is a response to the ICC's perceived bias against Africa and the AU, by establishing its own criminal court, is trying to undermine or substitute the ICC.15

People who support the first position base their argument on the fact that the discourse on expanding the criminal jurisdiction of the African Court has been initiated long before any dispute arises between the AU and the ICC.16 Observers give three explanations to the claim that the idea of a criminal court in Africa predates the AU–ICC conflict.17

The first explanation is related with the Hissène Habré case. In January 2006, the AU Heads of State and Government decided to set up a committee of Eminent African Jurists on the Hissène Habré case.18 The committee was mandated to ‘consider all aspects and implications of the Hissène Habré case as well as the options available for his trial’19 and most importantly ‘to make concrete recommendations on ways and means of dealing with issues of a similar nature in the future’.20 The committee accordingly submitted its report in the summer of 2006 which, inter alia, recommended the following:

The African Court should be granted jurisdiction to try criminal cases. The Committee therefore recommends that the ongoing process that should lead to the establishment of a single court at the African Union level should confer criminal jurisdiction on that court. The Committee further recommends that the text should be adopted through the quickest procedures possible.21

Thus, they argue, the idea of an African Court with a criminal jurisdiction came from experts rather than African heads of state and government.22

The second explanation is based on the AU's dialogue on the principle of universal jurisdiction. The indictments made against African leaders and senior officials by...

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