A (New) New Regional International Criminal Court For Africa?

by Max du Plessis

Advocate of the High Court, Durban and Sandton; Associate Tenant, Doughty Street Chambers, London; Associate Professor, University of KwaZulu-Natal

and

Nicole Fritz

Executive Director, Southern Africa Litigation Centre

I.       INTRODUCTION

Malabo Summit 2014

African Heads of State at the Malabo Summit last June

On June 2014, African Heads of State and Governments meeting in Malabo, Equatorial Guinea, adopted a Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the ACJHPR Amendment). The ACJHPR Amendment revises the (not yet in force) Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR Protocol) – which was adopted in 2008 to merge the African Court on Human and Peoples’ Rights with the proposed African Court of Justice. The aim of the 2014 ACJHPR Amendment is to grant the resultant Court ‘International Criminal Law’ jurisdiction, adding to the ‘Human Rights’ jurisdiction it presently exercises and the ‘General International Law’ jurisdiction it is expected to exercise when the 2008 ACJHR Protocol comes into effect (whenever that may be). To make matters worse (or better), the ACJHPR Amendment also introduces a change in nomenclature: the new amended, revised African Court will be called the ‘African Court of Justice and Human and Peoples Rights’ (the ACJHPR) (article 8, ACJHPR Amendment).

To give effect to its aims, the 2014 ACJHPR Amendment contains a number of revisions to both the 2008 ACJHR Protocol and the Statute of the Court attached thereto. However, if matters were not already confusing and time-warped, the 2014 ACJHPR Amendment is itself a revised version of an earlier draft, approved by African Ministers of Justice and Attorney General and recommended to the AU Assembly in May 2012 (the ‘2012 Draft Amendment’). The 2012 Draft Amendment was the subject of considerable criticism, including a Comment in this journal by the author (du Plessis, ‘A new regional International Criminal Court for Africa?’, 2 SACJ (2012) 286). In short, general concerns were raised regarding the rushed drafting process and the lack of consultation, and specific concerns were raised as to difficulties surrounding jurisdiction, the definition of crimes, immunities, institutional design and the practicality of administration and enforcement of an expanded jurisdiction, amongst others. Continue reading

The Day AU Leaders Justified the Existence of the ICC!

by Arnold Tsunga and Wayne Jordash QC

African leaders

African Union Summit, July 2014

There is a general notion that the law is like a spider’s web. It only catches the weak.

The decision adopted by the AU heads in Malabo, Equatorial Guinea, to grant immunity from prosecution for serious human rights violations to heads of state and senior government officials at the African Court of Justice and Human and Peoples Rights only serves to reinforce this perception.

Heads who faced justice

Few African heads of state have been tried for serious human rights violations of their own people. Those that come to mind are Charles Taylor (Liberia) and Hosni Mubarak (Egypt).  Charles Taylor was tried by a hybrid tribunal set up under the auspices of the UN in Sierra Leone (sitting in The Hague, a city that has become the seat of international justice). After being overthrown in a revolution, Mubarak was tried by domestic courts in what some view as flawed victor’s justice. The AU was not involved in either of these proceedings.

Others await or are going through trial. These are Laurent Gbagbo (Cote D’Ivoire), Omar Hassan Ahmad Al-Bashir (Sudan), Uhuru Kenyatta and his deputy, William Ruto (Kenya) at the ICC, and Hissène Habré (Chad) at an AU sponsored tribunal in Senegal. The Hissène Habré case has been awaiting trial since shortly after the millennium. Legitimate concerns have been raised about the willingness of the AU leaders to see Hissène Habré face justice and the completion of the trial. Omar Hassan Ahmad Al-Bashir has been largely protected by the AU heads that have refused to cooperate with the ICC to effect his warrant of arrest. Continue reading

Launch of an Online Forum on the Extraordinary African Chambers

Chambres Africaines ExtraordinairesAn interactive forum on the Extraordinary African Chambers (CAE) has been launched online.

This forum was chosen to bring information on the proceedings following the agreement between the African Union and Senegal to prosecute “those primarily responsible for international crimes committed in Chad between 1982 and 1990” to the attention of people in Senegal, Chad, Africa and throughout the world.

Since the beginning of 2014, an outreach campaign has made it easier for people in Chad and Senegal to access information through meetings, public debates and information workshops taking place in the capital and in the provinces. These events involve the general public, CAE members, administrative and judicial authorities of Chad and Senegal, lawyers, victims, researchers, the media and civil society. The campaign also aims to encourage debate around the contribution of the CAE in the framework of international criminal justice. Continue reading

African Union Votes in Favour of Immunity for Senior Officials

African leaders

African Leaders at the African Union Summit last week

At a summit of the African Union held last Friday in Equatorial Guinea, African leaders present voted in favour of an amendment that would grant them and “senior officials” immunity from prosecution for war crimes, crimes against humanity, and genocide before the African Court of Justice and Human Rights.

The text of the amendment, which was passed was as follows:

“No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”

It is unclear who will be entitled to immunity as a “senior state official.” Amnesty International have called the move

“a step backwards in the fight against impunity and a betrayal of the victims who suffered serious human rights abuses.”

Ahead of the meeting on Friday, 42 African and international civil society rights groups objected to the proposed amendment noting in an open letter that the resulting impunity violates international and domestic laws as well as the constitution of the African Union.

The vote was part of a larger discussion on the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. The African Court of Justice and Human Rights is the result of the decision of the African Union to amalgamate the African Court of Human and Peoples’ Rights and the Court of Justice of the African Union.