Introduction

It has been more than thirteen years since the International Criminal Court was established and started its operation on most serious crimes of international concern, namely Genocide, crime against humanity, crimes of war and aggression. The Court was established by virtue of the Rome statute as a permanent international criminal tribunal independent from other United Nations bodies. To date, all cases that have been investigated by ICC are from Africa, specifically on Uganda, the Democratic Republic of Congo, the Central African Republic, Mali, Sudan, Libya, Kenya and Cote d’Ivoire. African countries generally have cooperated in the early stages of the establishment of ICC.

Nowadays, however, it seems that the relationship between ICC and Africa is turning into a growing trend of contention. It has been a point of discussion in the academia and in the international politics as to whether the court is indeed exclusively targeting Africa regardless of their contribution and cooperation for its creation and advancement. Some commentators also argued that it is “a mechanism of neo- colonialist policy” or “post-colonial court”, especially after the issuance of arrest warrant against the current president of Sudan- Al Bashir. The former chairperson of the AU Commission, Jean Ping, expressed his displeasure on the relationship between the court and some countries in the continent as it is “unfair that all those situations referred to the ICC so far were African”, and “it seems that Africa has become a laboratory to test the new international law.” Similarly, the Benin president in 2009, the Rwandan president and the Ethiopian prime minister in 2013 have portrayed their dissatisfaction on the functioning of the court as a new form of imperialism that seeks to undermine powerless states in terms of politics and economic development. The AU has also expressed its dissatisfaction by rejecting a request to open an ICC liaison office at the head quarter of the AU, Addis Ababa.

 

As a result, in 2008 the AU in its 11^th ordinary summit at Sharm El-Sheikh, Egypt adopted a protocol on the establishment of African Court of Justice and Human Right (ACJHR). At the time of publication five countries, namely Libya, Mali, Burkina Faso, Congo and Benin have signed the protocol. After six years, on October 2014 the AU has adopted a draft protocol on the statute of the ACJHR which specifically extends immunity to heads of governments, states and other officials before the court.  While the document is still important particularly in creating regional systems for pursuing international criminal justice, it still poses a great risk on the integrity of the African court and ensuring justice for victims of serious crimes under international law. The immunity exemption clause has been criticized as it contradicts with the AU’s human rights law regime and Article 4(h) of its constitutive act which calls for intervention in case of gross human right violation.

And, now the establishment of the court seems to be inevitable. A couple of days ago, at the African Union Summit, the current president of Kenya was for urging the immediate establishment of the court. He has also expressed that Kenya is willing to contribute the necessary budgets for the establishment of the court. The protocol is being circulated and so far 11 countries have signed the document and only 4 countries consent and ratification in their domestic parliament is needed for the establishment of the court.

This paper, therefore, tries to examine whether the current Africa’s project on the establishment of ACJHR is indeed relevant in pursuing international criminal justice. In doing so, the paper will address whether the exemption of head of states, governments and other officials from being accountable before the court is justified in the context of  addressing human right violation and fighting impunity across the continent.  The paper also goes to the extent of analysing the possible relation that the upcoming court might have with respect to other international criminal tribunals, such as ICC, and the possible difficulties in it. Finally, the paper addresses briefly the possible challenges and prospects that the newly proposed court might face for establishment and operation.

2)     Major criticisms of ICC and the Raison d’être behind the project to establish the   ACJHR  

It has been a bone of contentions as to whether ICC is abusing the principle of universal jurisdiction and the rule of complementarity in the name of pursuing international criminal justice in Africa. ICC’s reaction of addressing human right atrocities in Africa has resulted in hostile stand towards it particularly from the AU. Such a reaction is from three different dimensions. Firstly, it has been argued that justice and criminality are culturally relative. Undoubtedly, the very idea for the establishment of ICC is for the prevalence of universal criminal justice at least for major crimes which are of international character. However, the contrary argument is that given the complexity of human values, traditions, and attitudes it is impossible to impose a universal notion of justice and crime. Some individuals also further argued that there should be alternative way of addressing justice no matter how it is regarded as international. To put it differently, designing alternative ways of understanding crime and justice depending the values of the society could be a solution in addressing atrocities than rushing to an international tribunal.

The second criticism forwarded against ICC is from the view point of actors involved in the manipulation and operation of the court. It has been criticized as a court of post-colonial era which tries to impose western tradition in Africa. It is unfortunate that the court was established after the end of colonialism in Africa. This might probably lead to the presumption of western imposition. At this juncture, however, it should also be noted that many African countries were urging for the establishment of ICC with the intention of pursuing international criminal justice given their prior experience, such as the Rwandan Genocide in 1994.  For example, Senegal was the first country in the world in ratifying the Rome statute.

Thirdly, ICC has also been accused of being politically motivated.  It is working as if it has only African problems while similar human right violations have been committed in other parts of the world, such as Afghanistan, Iraq, Georgia, Chechnya, Kosovo, Israel, Syria, palestine, Colombia and so on. Still, however, self-referrals to the ICC upon personal initiation of states should not be forgotten.

Therefore, the combined effect of the above major criticisms triggers an initiation for the establishment of the ACJHR so as to address human rights violations within the region. The court is believed to be a solution for the perceived unfairness of ICC against Africans though a lot of challenges are imbedded in it.

 

3)     The ACJHR at a glance

1. a) The birth/conception  of ACJHR

The constitutive act of AU calls for the establishment of a court of justice with the ambition of fulfilling the objectives and principles of the union.However, the constitutive act does not say anything about the details of the court. Rather it only empowers the adoption of a protocol with a view to determine the power, composition and structure of the intended court.  On such basis, the AU established the African Court on Human and Peoples Right on May 2008. It is the first court in the history of Africa established with the purpose of adjudicating disputes referred to it claiming violations under the African Charter on Human and Peoples Right, its protocol and other human right instruments ratified by states. It has both contentious and advisory jurisdiction.

Correspondingly, in 2003 the AU has also adopted a protocol for the establishment of the African Court of Justice. In its early conception, the court was empowered generally on interpretation of AU’s act and any question of international law.However, this protocol was suspended until the adoption of a protocol for the establishment of African Court of Justice and Human Right in 2008. The 2008 protocol basically merged the African Court of Justice and the African Court on Human and Peoples’ Right. This brings to the conception of ACJHR with the mandate of adjudicating human right, criminal and other related issues. The move towards the establishment of the ACJHR would be a major advancement in international criminal justice. The adoption of the protocol is also a great step forward in the march towards protection of human rights and rule of law in Africa. It would also be an opportunity to set out a new code of regional criminal law. Thus, the adoption of the protocol is considered as an important development in international criminal law. 

1. b) Structure and composition of the court

The ACJHR is structurally part of the AU, and the main judicial organ to the union. In the protocol it is also further elaborated that the reference made to the “court of justice” in the constitutive act of the AU should be read as the ACJHR.

The court is composed of a judicial, prosecutorial and administrative (registry) branch. The judicial division has three sections, namely a general affairs section, a human and people’s rights section and an international criminal law section. The international criminal law section is again divided in to three chambers: a pre-trial chamber, a trial chamber and an appellate chamber. Generally, all sections is believed to have 16 judges who are national of member states to the protocol. The judges should be competent and experienced in the field of international law, international human rights law, international criminal law or international humanitarian law.  At a single time a member state will have only one representative in the judgeship. The east, north, central and southern part of Africa will have only 3 judges of each before the court.The western part of Africa will have a representative of 4 judges. Such disparity on the number of judges based on region is from the perspective of the size of population and number countries involved in it. The office of the prosecutor is allowed to initiate investigation on basis of information’s within the jurisdiction of the court. The registry of the court is mainly in charge of non-judicial administration and serving of the court.

 

1. c) Jurisdiction of the court

Article 28 of the statute has granted the court jurisdiction, among others, over interpretation of the different treaties in the AU and on issues related to international law. However, the mandate of the court has been amended by the draft protocol to the statute of the ACJHR in 2012. According to this draft protocol the court is explicitly mandated to adjudicate crimes of genocide, crimes against humanity, war crimes, the crime of unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, illicit exploitation of natural resources and the crime of aggression in its international criminal jurisdiction. Except for the first three grounds, the rest are new developments in assuming jurisdiction under the international criminal law by an international tribunal.

The court is also designed to complement the national as well as sub-regional economic community judicial systems.  It is not of a court of first instance. It is only when the national or sub regional courts are unwilling or unable to adjudicate the matter that the ACJHR will have a jurisdiction over the case.

4)     Immunity of officials before the court vis-a-vis fighting against impunity.

4.1)  the concept of diplomatic immunity and the current practice under international law

Before looking at notion of state official’s immunity it has a paramount importance to look at the principle of state immunity under international law. State sovereignty is one of the basic principles under the UN charter. And, it has also been recognized as rule of customary international law backed by consistent state practice and opino juris.  To this effect, the International Law Commission also approved the adoption of state immunity “….as a general rule of customary international law solidly rooted in the current practice of States.”

 

State official’s immunity is an extension of state sovereignty. Under public international law state officials are as a matter of principle exempted from being accountable for their acts done in official capacity. Such protection under international law precludes municipal and international tribunals from prosecuting officials in their jurisdiction. This principle, however, has been compromised due to the adoption of universal jurisdiction under international law as far as the crime committed by the alleged officials in question is of an international crime, namely genocide, crime against humanity and war crime. The Rome statute which establishes ICC also explicitly provides that diplomatic immunity cannot be a bar for the court to exercise its jurisdiction entrusted to it. This is the effect of the substantive development of international human rights and criminal law which primarily relies on the need of addressing human right atrocities and fighting against impunity.

In the case between Congo Vs Belgium (arrest warrant case) ICJ finds out that “the issuance and circulation of the arrest warrant violated Belgium’s international obligations towards Congo. Belgium failed to respect, and infringed, Yerodia’s immunity and the inviolability enjoyed by him under international law.”  In this case ICJ also noted that “…the incumbent foreign minister could have prosecuted before an international criminal body, with a necessary jurisdiction, such as ICC.” The second reasoning could be taken as one ground under which diplomatic immunity could be waived as Yerodia was charged for crime against humanity. In addition, the Pinochet case also demonstrates that state officials could be held liable in account of their acts after the cessation of their official responsibility. In addition, the ICC has been adjudicating different cases in Africa, from Côte d’Ivoire to Kenya, regardless of the status of officials.

Therefore, by looking at the principle of universal jurisdiction, the provision of the Rome statute and the two land mark court decisions one can draw a conclusion that individual criminal responsibility has gained a considerable emphasis under international law. There is a move towards a systematic abolition of defence of diplomatic immunity in international criminal proceeding for core crimes at least.

          

4.2) the position of the Draft protocol to ACJHR on state immunity

Despite the liberal stand of international law with regards to diplomatic immunity, the draft protocol which calls for the establishment of the ACJHR explicitly exempted Head of State or Government, Minister or other responsible government official from being accountable before the court. It reads as: “no charges shall be commenced or continued before the court against any serving AU head of state or government or anybody acting or entitled to act in such capacity or other senior state officials based on their official functions, during their tenure in office.” It should also be noted that the AU was urging for the amendment of Article 27 of the Rome Statute which explicitly outlawed diplomatic.

The immunity clause under the draft protocol and the intention of the AU to the amendment of Article 27 of the Rome statute has been seen as a strategy to relive oneself from being criminally liable. One commentator argued that the immunity clause is “a step backward in ending impunity in Africa.” It will create a doubt as to who exactly is liable before the court if there is such kind of restriction. It will also defeat the very idea of establishing the court and granting criminal jurisdiction. Some also argue that “The clause not only completely weakens the jurisdiction and ultimate purpose of the ACJHR, but makes an utter mockery of the entire reason for expansion of the court to include prosecution of individuals for war crimes and crimes against humanity.”

The constitutive act under Article 4(h) provides that the Union has the 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.” It also requires the AU to respect human rights, and to ensure the sanctity of human life and reject impunity. One of the objectives of the AU is promoting and protecting human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments. However, the immunity clause adopted in the draft protocol contradicts with the objectives and principles of the AU. It is the opinion of the writer that the immunity clause should be reconsidered given the current African governance where by majority of human right atrocities are usually associated with state officials.

5)     The ACJHR as a solution for Africa’s Anti- ICC sentiment

5.1) AU’s position on ICC

On 12^th of October 2013, the AU in its extraordinary summit passed a decision on the relationship between ICC and Africa. In the decision one major thing that the assembly noted is that ‘no charges shall be commenced or continued before any International Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled to act in such capacity during their term of office.’To this end, the summit also calls for the trial against the serving officials of Kenya (President Uhuru Kenyatta and Deputy President William Samoei Ruto) to be suspended until they complete their term of office. It is clear that the above two decisions of the summit are related to immunity of head of state and government. Legally speaking, however, the decision of the assembly will still remain impractical. It will have, however, the effect of developing internal jurisprudence within Africa for future regional criminal courts as they did it on the draft protocol of the ACJHR. But from the Rome statute point of view it is null and void unless states have followed the necessary amendment procedure to it or withdrawal from the statute in accordance with the Vienna Treaty on the Law of Convention (VCLT).

In that particular decision the summit also calls for the establishment of Contact Group of the Executive Council to discuss with the UN Security Council particularly with the permanent members on the relationship between ICC and Africa including deferral of the Sudan and Kenya case.

The former chairperson of the African Union has also expressed his dissatisfaction as it is unfair that all cases so far are only from Africa. Therefore, taking in to account the position of leaders in the union coupled with its decision in 2013, it could be argued that anti –ICC sentiment has been developed in the region. The union is urging for consideration of state sovereignty principles in the process of addressing human right atrocities. This has been followed by initiations for the establishment of once own regional court system as a substitute for ICC. But it seems that the AU is abusing its regional autonomy by developing the idea of extending immunity to head of states and governments from being prosecuted.

 

       5.2. Some countries experience: Kenya, Sudan and Botswana.      

From AU member countries, Kenya and Sudan were playing a leading role in lobbying other member state to withdraw from the Rome statute in the 2013 AU Assembly summit at Addis Ababa. This is not surprising as the ICC has two high profile cases from the two countries. Especially the current acting president of Kenya was trying to convince other leaders that the biggest threat to Africa in the future is not the rise of militant groups like Boko Haram in Nigeria or internal and tribal conflict in countries like South Sudan and Central African Republic. Rather he describes ICC as a “grave risk to peace and security” in Africa. The Kenyan parliament has decided to withdraw from the Rome statute by invoking state sovereignty principle though a bill to this effect in not yet introduced.

Similarly, Sudan has become increasingly hostile towards ICC after the UN Security Council’s decision to refer the situation in Darfur to the court and the subsequent attempt by the prosecutor to seek an arrest warrant for Omar Al-Bashir.

To the contrary, Botswana, a country with a relatively stable governance and democracy in Africa, strongly opposes AU’s slavish adherence to state sovereignty and its boycott strategy towards ICC. It has also made a full reservation to the AU assembly decision on the relationship between Africa and ICC in 2013.  

 

6)     Challenges and opportunities of the newly proposed court

Notwithstanding the current uncertainty about the fate of the Draft Protocol and thereby the establishment of the ACJHR, it is worthwhile to examine some of the challenges and opportunities that the court might face and the future of international criminal justice in Africa.

6.1 Challenges

1. a) The inclusion of unaccustomed crimes

From the draft protocol it is clear that the newly proposed court has the jurisdiction to adjudicate crimes such as, Mercenarism, unconstitutional change of government, corruption and other inchoate offences. These crimes are new developments under international criminal law as crime against humanity, genocide and war crimes have taken the legitimacy of international crimes so far. Therefore, the inclusion of these unorthodox international crimes under the jurisdiction of the ACJHR would affect state leader’s disposition towards the court. The fact that the court has a jurisdiction to investigate crime of corruption or unconstitutional change of government or any other minor inchoate offences as stipulated in the draft protocol will likely embrace them as this crimes are mostly happen in the region. Even the fact that the Rome statute does not cover such crimes will have a significant effect on the possible legitimacy of the court to adjudicate the crimes in question. For a crime to be prosecuted by an international tribunal it should be recognized as serious and international by customary international law.According to Abbas, there has to be element of ‘international’ and ‘seriousness’ for a crime to be adjudicated by an international tribunal. So far, there is no clear answer as to whether those unaccustomed crimes under Article 28 of the draft protocol have got international crime status. It could also be argued that in order to adjudicate crimes related with unconstitutional change of government and popular uprising, we need to take in to consideration the political and internal situation of the state in question.

1. b) The court has been regarded as a protest court

The initiation to establish the ACJHR is mainly a response of a perceived unfairness at the ICC and other domestic courts in Europe. Domestically, the former Libyan president, Muammar Qaddafi, was indicted in France for torture and conspiracy to commit torture and terrorist acts although the court finally rendered it decision in favour of Gaddafi.The court in Paris has also issued indictments against, Denis Sassou Nguesso of Congo, Obiang Nguema of Equatorial Guinea, Omar Bongo of Gabon, Blaise Compaore of Burkina Faso and Eduardo Dos Santos of Angola for crime of corruption in 2009. The Belgium courts have also issued arrest warrant and indictments to the former foreign minister of Congo, Abdulaye Yerodia Ndombasi. And recently, the fact that all case that have been adjudicated by ICC are from Africa necessitated the move towards the establishment of a new regional court.   

The point here is that the establishment of the court is fuelled by temporary desire rather than a thorough appreciation and genuine desire for it. The court is just proposed as a solution for the leader’s perceived emotion of unfair treatment under ICC and other domestic foreign courts in the past. This will be a challenge for the draft protocol which calls for the establishment of the court to be ratified by states in Africa as they “will wither away as soon as the currency of emotions that fuels them thaws.”

1. c) The issue of independence

Pursuant to Article 22(2) of the draft protocol the assembly of AU is empowered to elect the Prosecutor and Deputy Prosecutors of the proposed court. It is undeniable that member of the Assembly of the AU are persons of high political profile who are representing the will of their respective state including their head of state and governments. One may wonder the prospect of the independence of the office of the prosecutor not only by looking at the manner of appointment but also by taking in to account the overall functioning of the office with respect to the assembly. Because it is provided that “the remuneration and conditions of service of the Prosecutor and Deputy Prosecutors shall be determined by the Assembly on the recommendation of the Court made through the Executive Council.”

1. d) Expensive, time consuming and complex.

International individual criminal trial in the normal standards requires more budget and a full-fledged justice machinery. Among other things, it requires finding and preservation of evidence; security and support for victims and witnesses; outreach to victims and affected communities; pre-trial detention services; protection of defense rights; investigations and prosecutions; trials and imprisonment; and state cooperation.It is also important to hire and recruit justice professional, judges and other staffs. Doing all this things is expensive, complex and time consuming. For example, the ICC has taken for about 10 years to establish all the necessary machineries above and start its first criminal trial. 

The proponents of the newly proposed court were claiming that it should be fully driven and financed by Africa. It is also true that there are still states in Africa where their annual budget is covered by foreign loan and aid. In addition, countries with a relatively growing economy in Africa (Nigeria, South Africa, Egypt and Algeria) are reluctant towards the establishment of the court. The complexity and the budgetary implications in establishing the court could delay the delivery of international criminal justice and addressing human right violations.

 

1. e) Double/ competing obligation on states.

It is true that African states will still have commitments and continues engagements with ICC in different aspects. If the newly proposed court came in to reality, states will face double or probably competing duty between ICC and ACJHR. In the draft protocol noting is stated as to the future relationship between the two courts. One may wonder as to whether the ICC’s complementary rule would still be applicable in regional criminal prosecution.

 

6.2 Opportunities

1. a) In diversification of international criminal justice

The newly proposed court is the first court of its kind at regional level with the objective of addressing both human rights and international criminal law. Therefore, it will definitely complement the work of the ICC in delivering criminal justice. This will, however, be true as long as they complement each other rather than competing. The new court has also came up with new crimes under international law, such as piracy, aggression, mercinarism, corruption and so on. This could be seen as a new development in international criminal law.

1. b) Accessibility

The invention of new criminal body offers a relative advantage of accessibility in delivering justice. Accessing victims, evidences and information will not be a serious problem. Apart from the geographical proximity issues accessibility should also be seen in terms language and other cultural homogeneity advantages in rendering justice as well.

1. c) Compliance and enforceability

The establishment of a new court in Africa will have a relative advantage in the implementation of international criminal justice system. Regions are relatively homogenous in terms of culture, norm, religion, psychological makeup and perception of justice. To put it differently there is “high level of convergence and coherence between states.” At the regional level states have better political will, economic and social ties. This will be an opportunity for immediate response and improved implementation of international criminal justice.

 

7)     Conclusion

 

It is clear that the ACJHR is not yet came in to existence. However, the current anti-ICC sentiment particularly from Kenya, Sudan and from the AU (the highest regional political organ) could probably make the project real. So far, 11 states have signed the draft protocol. It is also obvious that regionalism provides a possibility for local responsibility and ultimately ownership of norms adopted. In addition, it will also have an advantage in the implementation of international criminal justice that the global system cannot hope to do so due to different reasons. The proliferation of regional systems in criminal justice is an opportunity for the development of international criminal law. Yet, the proposal for the establishment of the ACJHR is definitely the result of the ongoing effort by ICC in addressing human right violations in Africa. It is a court designed to shield leaders from being accountable under ICC. States leaders are negotiating not to subject themselves accountable for human right atrocities. This is particularly problematic given the fact that most human right violation in Africa is associated with political interests of leaders. It is an escaping mechanism and will definitely lower the quality of criminal justice to be delivered. Therefore, the proposal should be revisited and needs further discussion and research. States should not submit themselves to lesser standard of treatment at regional level.