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

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.

Regrettably, for the most part the drafters of the 2014 ACJHPR Amendment did not use the two intervening years to address these concerns. Rather, they have made a number of revisions that compound them and introduce new ones. Particularly concerning, is the addition of a provision granting serving AU Heads of State of Government and other senior officials, of unspecified rank, immunity from prosecution (article 46Abis, ACJHPR Amendment). This provision has drawn considerable criticism from various quarters, not just because it is retrograde insofar as combatting of impunity is concerned – which the AU itself has committed to on numerous occasions – but because it is unclear which officials are granted immunity.

We here consider the various amendments to the ACJHPR Amendment between 2012 and 2014, focusing in particular on the ‘immunity provision’. We will attempt to explicate its inclusion by discussing the broader context of African concerns about the International Criminal Court and international criminal justice generally.  Before doing so, we discuss some of the other revisions that have been made to the 2012 Draft Amendment, relating to the creation of a Defence Office (‘the good’) and the definition of crimes (‘the bad’).

II.        THE GOOD

The 2014 ACJHPR Amendment contains a few positive revisions. Chief among these is the addition of ‘The Defence Office’ as one of the four ‘organs of the court’ (article 2(4),ACJHPR Amendment) – the other organs being the Presidency, the Office of the Prosecutor and the Registry. In addition, the ACJHPR Amendment sets out a number of protections (see article 22C), which include:

• The requirement that “[t]he Defence Office shall ensure that there are adequate facilities to [sic] defence counsel and persons entitled to legal assistance in the preparation of a case”; and
• The creation of a position of a ‘Principal Defender’ – appointed by the Assembly – to manage the Defence Office, who shall “enjoy equal status with the Prosecutor in respect of rights of audience and negotiations inter partes”.

These are positive development in a number of respects. It’s worth recalling at the outset that, historically, defence counsel have been under-considered and under-capacitated insofar as international criminal trials are concerned (see generally Jarinde T. Tuinstra, ‘Defending the Defenders: The Role of Defence Counsel in International Criminal Trials’, 8 JICJ (2010), 463-486). This, to some extent, has continued with the International Criminal Court where the ‘Office of the Public Counsel for the Defence’ (OPCD) is located within the Registry, and is not an independent ‘organ’ of the ICC (see Regulation 77, ICC). In contrast, the Office of the Prosecutor is (see article 42, Rome Statute). In fact, a survey of the various international and hybrid tribunals for the prosecution of international crime reveals that only one – the Special Tribunal for Lebanon – positions the Defence Office as a separate organ of the Court (see article 7(d), Statute of the Special Tribunal for Lebanon). This division is sits uncomfortably with the principle of ‘equality of arms’.  For this reason the inclusion in the ACJHPR Amendment of the Defence Office – as a separate organ within the structure of the Court – is to be applauded.

In a similar vein, the requirement that the Defence Office ensures that Defence Counsel are adequately resourced is an important innovation. Lack of sufficient funding was an issue that plagued the ad hoc and hybrid international criminal tribunals (such as the International Criminal Tribunal for Rwanda), and has been raised by Defence Counsel at the ICC (see Kate Kerr, ‘Fair trials at international criminal tribunals: examining the parameters of the international right to counsel’, 36(4) Georgetown Journal of International Law (2005), 1227).

The establishment of a ‘Principal Defender’, on par with the Prosecutor, is thus as unprecedented as it is welcome.  The ACJHPR Amendment takes seriously the complaint made by many that the principle of equality of arms demands the creation of “an independent body to exclusively support the defence and to resolve any difficulties that individual defence teams may encounter” (Tuinstra, supra, 483-484).

Ultimately, defence counsel play a crucial role in any criminal trial, both to ensure the fairness of proceedings and the legitimacy of the outcome. International criminal trials are no different (see generally Jolyon Ford, Bringing Fairness to international justice (2009), ISS). Here, the words of Robert Jackson – a Judge at Nuremberg – are worth repeating: “If you are determined to execute a man in any case, there is no occasion for a trial. The world yields no respect to courts that are merely organized to convict”. For these reasons, the revisions of the ACJHPR that seek to entrench and support the independence and efficacy of defence counsel before that institution are most welcome.

Unfortunately, as we shall now see, these provisions are the high watermark of the ACJHPR Amendment.  For the rest, the tide pulls back upon itself.

III.       THE BAD

In a previous Comment, concerns were raised regarding the ‘rushed drafting process’ that has typified the drafting process in respect of the African Court amendments (Du plessis, supra, 288-289). Unseemly haste is yet again a hallmark of the drafters’ work in respect of the ACJHPR Amendment. The most recent (publicly available) draft contains numbering errors (article 28C(1)(a), (b), (a), (b), and article 28L(3)) and typographical anomalies (see article 28L, dealing with ‘Trafficking in Hazardous Wastes’, which imports the definition of “hazardous wastes’ from the Bamako Convention On The Ban Of The Import Into Africa And The Control Of Transboundary Movement And Management Of Hazardous Wastes Within Africa (1991), but does not modify the language accordingly).

Similarly, concerns were raised regarding the “legal and practical complexities” involved in the expansion of the African Court’s jurisdiction to include a number of new, sometimes previously undefined, crimes (Ibid.). These concerns remain, and have been compounded in at least one instance by the most recent revisions.

In the 2010 Draft Amendment, the definition of the novel ‘Crime of Unconstitutional Change of Government’ was “bracketed” – indicating that it remained the subject of some dispute amongst the drafters and African states. In the previous version, the Crime of Unconstitutional Change of Government’ was defined in broad terms, but made subject to the following proviso:

“Any act of a sovereign people peacefully exercising their inherent right [sic] which results in a change of government shall not constitute an offence under this article.”

This proviso is by no means perfect, but it at least had the benefit of narrowing down a crime which is otherwise so broadly defined as to cast doubt on the legal validity of the provision and the competence of the drafters (for example, the crime includes as an actus reus “[a]ny amendment or revision of the Constitution or legal instruments, which isan infringement on the principles of democratic change of government or is inconsistent with the constitution”).

In the 2014 ACJHPR Amendment, this proviso is removed altogether. As a result, this crime no longer has a ‘democratic protest’ exception. This revision is difficult to reconcile with the definition of ‘Terrorism’ in the ACJHPR Amendment (article 28G), in terms of which an exception is created for “struggle waged by peoples according to the principles of international law for their liberation or self-determination”. Under this exception, such individuals are ‘excused’ from committing conduct that would otherwise amount to terrorist acts. This includes violent conduct that results in “serious injury or death to, any person, any number or group of persons or causes or may cause damage to public private property, natural resources, environmental or cultural heritage”, that “is calculated or intended to …create general insurrection in a State” (article 28G(A)).

The perverse result of these two provisions read together, is that any person peacefully exercising his or her rights which results in an “unconstitutional change of government” may be guilty of a crime, but a person who commits violent acts – including those which cause “death to…any number of persons” – and does so with the purpose of causing “general insurrection” in a State, may be excused from criminal liability.

IV. THE UGLY

Undoubtedly the most controversial provision of the recent ACJHPR Amendment is article 46Abis, which deals with immunities. This provision states:

“No charges shall be commenced or continued before the court against any serving AU Head of State of 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.”

Leaving aside the broader concerns regarding the inclusion of this provision for now, questions must be raised at the outset about precisely how to interpret this enigmatic provision – again confirming haste in drafting, and raising questions about the legal merit and force of the provision.

It appears to grant certain serving officials immunity ratione personae (also known as personal or procedural immunity amongst international criminal lawyers). Simply put, this form of immunity “provides complete immunity of the person of certain officeholders while they carry out important representative functions” (Cryer et al, An Introduction to International Criminal Law and Procedure, 2007, p. 422). It is said to be absolute (i.e. it covers both private and public acts committed by officials), but temporary (i.e. it only applies insofar as the person holds the office in question) and can be waived by the State concerned. The wording of this provision suggests it is absolute (“no charges”) but temporary (“serving Head of State”, “during their tenure of office”).

Notably, this form of immunity does not automatically lead to impunity. As the International Court of Justice stressed in the Arrest Warrant case – albeit in the context of immunity before domestic courts:

“The immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdiction immunity is procedural in nature, criminal responsibility is a question of substantive law.” (ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), (ICJ). 14 February 2002, para. 60).

Nevertheless, it does mean however, insofar as the ACJHPR is concerned, that it will not be open to the Court to prosecute such individuals whilst they remain in office. (Ironically, the ICJ in the Arrest Warrant went on to note that criminal proceedings could nevertheless proceed in certain circumstances, including before international courts. (ibid)). This form of immunity is to be distinguished from immunity ratione materiae (also known as functional or subject-matter immunity), which attaches to certain conductcarried out on behalf of the state and is permanent (that is, immunity does not lapse when the official ceases to hold office). (See generally Dapo Akande, ‘International Law Immunities and the International Criminal Court’ (2003) 98(3) AJIL 407).

What is not clear from this insertion in the ACJHPR Amendment, is precisely who benefits from personal immunity, whilst in office. The reference to “AU Head of State or Government” presumably refers to persons occupying such office in a state that is party to the AU Constitutive Act. So far, so clear. However, the circumstances in which someone might be “acting or entitled to act” in a Head of State capacity are unclear. Furthermore, the catch-all phrase – “or other senior state officials based on their functions” – gives little to no guidance about which functions are likely to result in immunity being granted.

To be fair, this uncertainty is not a problem the AU created. In fact, there is considerable debate in international law on this point. The ICJ didn’t help matters in the Arrest Warrant case where it found that “diplomatic and consular agents, [and] certain holders of high ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs” enjoy immunity ratione personae (Arrest Warrant, supra, para. 51).  That said, the current formulation in the ACJHPR Amendment does little to solve this problem; if anything it amplifies it.

This provision is also difficult to square with the rest of the ACJHPR Protocol, and in particular, a number of the new crimes established thereunder which either by definition or by inference are committed, or most likely to be committed, by incumbent Heads of State and senior officials (see, for example, the definitions of the crime of unconstitutional changes of government, corruption, the crime of aggression). At a general level, experience confirms that in certain circumstances immunity that attaches to an office-bearer can create an incentive to stay in office to avoid prosecution. The simultaneous expansion of the ACJHPR’s criminal jurisdiction, as well as the extent of office bearer-based immunities, exponentially increases the chances of such stalemates taking place.

Just think about the crime of unconstitutional change of government, where the potential now exists that the incumbent commits such a crime – by refusing “to relinquish power to the winning party or candidate after free, fair and regular elections” (article 28E(1)(d)) or revising “the Constitution or legal instruments” (article 28E(1)(e)) or modifying “the electoral laws…without the consent of the majority of the political actors” (article 28E(1)(f)) – but then cannot be prosecuted because of the provisions of article 46Abis which secures his or her immunity before the Court. The immunity provision has therefore rendered this crime – whatever its merits – pro non scripto.

The question to be asked then, in attempting to make sense of this legal imbroglio, is why was this provision included at all?

Two related issues cast long shadows over the drafting of the ACJHPR Amendment, and within the shadows lies the reasons for the inclusion of this provision.

The first is the ongoing fracas between the African Union and the International Criminal Court over the ICC’s efforts to ensure the prosecution of senior African leaders. This matter has a long history, which begins with the ICC Arrest Warrant issued for President al-Bashir of Sudan in 2009, and has been brought to its peak by the ongoing proceedings against the President of Kenya, Mr Kenyatta. Various objections have been raised by the AU against these proceedings, one of which was that under customary international law as well as the Rome Statute of the ICC (article 98), these leaders were entitled to immunity.

The second is the related, but distinct, response from African states (and taken up formally by the African Union) to the perceived targeting of its leaders by European prosecutors and judges, said to be often along colonial lines. While these complaints have largely been directed at the perceived “abuse of the principal of universal jurisdiction”, they also raise the question of whether the assertion of jurisdiction by Europeans was an affront to the immunity (under international law) that attached to African leaders by dint of their elevated official status. An example of such an AU complaint was in respect of the indictment by a French Judge of nine senior Rwandese officials, three of whom Rwanda claimed were entitled to personal immunity as senior Rwandan government officials (see Charles C Jalloh, ‘Universal Jurisdiction, Universal Prescription? A Preliminary Assessment of the African Union Perspective on Universal Jurisdiction’, 21(2)  (2010), pp. 1-65). As a result of this perceived affront to its sovereignty, Rwanda severed diplomatic relations with France and filed a case against France at the International Court of Justice for violating its diplomats’ immunities (ICJ Press Release, ‘The Republic of Rwanda applies to the International Court of Justice in a dispute with France’, 18 April 2007, available at http://www.icj-cij.org/presscom/index.php?pr=1909&p1=6&p2=1 ).

This is of course a very broad overview of these two complex developments, which raise both political and legal questions that lie beyond the scope of this Note. That being said, the question of immunity of senior officials from (international) criminal jurisdiction is central to both. And there can be little doubt that a correlation exists between these developments and article 46Abis of the ACJHPR Amendment.  Indeed, it seems likely that article 46Abis is largely motivated by these broader concerns and is an attempt to instrumentalise the ACJHPR to advance an African position - either legally or politically, or both - regarding the continued relevance of immunity for African leaders.  What is more, this in-principle posturing by African states has little to do (yet) with the operation of the ACJHPR – which may or may not come into force at some future point in time.

Assuming this assessment to be correct of the AU’s motivation for reclaiming immunity for Africa’s powerful, what is immediately troubling is that article 46Abis in the ACJHPR Amendment is transparently at odds with the AU’s own Constitutive Act, as well as the various official justifications by the AU in previous statements made relating to the expansion of the African Court – to the effect that impunity for international crimes is intolerable and that the perpetrators of such crimes must be held accountable.

At the political level, the inclusion through article 46Abis of immunity before the African Court sends a firm message that, for one or other reason, African leaders reject trials of sitting heads of state – so long as they are African. A variety of reasons might be advanced to explain this position, some more palatable than others. One explanation that has been raised in the past is that there is something ‘neocolonial’ about African leaders being put on trial in The Hague before the International Criminal Court, worse still, by their former ‘colonial masters’. This is a powerful critique, which will find much sympathy in Africa and beyond, but it is one that has no application in the present situation. That is because article 46Abis would only serve to shield African leaders from being tried by an African Court. Another explanation that has been raised in the past is that prosecuting sitting heads of state can complicate or even derail delicate peace processes, and that peace must come before justice. However, even if this claim might prove attractive in certain conflict-ridden situations, any concerns about prosecutions disrupting peace efforts could have been accommodated by including a provision in theACJHPR Amendment granting the AU Assembly, or the AU’s Peace and Security Council, the power to defer such criminal trials in such circumstances (along the same lines as article 16 of the Rome Statute of the ICC). Granting blanket immunity for all sitting heads of state and senior government officials is accordingly an exercise in overreaching: the cannon has been hauled out to kill a fly. Furthermore, any political advantage gained by the inclusion of this provision would have to be weighed against the obvious political cost that it has already and will continue to incur for the African Union.

At a legal level, the inclusion of article 46Abis might have assisted in advancing the argument that, as a matter of customary international law (at least insofar as African states are concerned) heads of state continue to enjoy immunity from prosecution while in office irrespective of the nature of the crime in question. Attempts could be made to advance this retrograde step by the AU (retrograde, certainly, as far as the fight against impunity is concerned) as evidence of both state practice and opinio juris – the co-determinants of customary international law – on the part of African states. However, even if one accepts this possibility, its force would be limited. First of all, the internal inconsistencies wrought by the ACJHPR Amendment (as already discussed above) would weaken the legal force of article 46Abis – an article moored uneasily within an Amendment suffering from obvious hasty drafting and whose legal logic and drafting integrity is open to doubt, at best, and ridicule at worst.   Second, the Amendment’s weight, to the extent that it is meant to be a reflection of state practice by African states, is further lightened by the countervailing African state practice (reflected within the AU’s previous statements around the need to ensure accountability for international crimes, the now 34 African states parties to the ICC who through their membership have accepted that immunity is not a bar to prosecution of the powerful), and the growing body of African states that have domestically incorporated the ICC statute into their domestic law and in the process – as a matter of home-grown law – have scrapped immunities for such crimes.  Thirdly, the AU’s Amendment would in any event only serve to advance the proposition that, under customary international law, such immunities continue to apply before international courts. That is because the rationales for immunities before domestic and international courts are different, and the presence/absence of immunity before one does not necessarily correlate with the other (this has been implicitly endorsed by the ICJ in the Arrest Warrant case). As such, the AU’s move with article 46Abis would not assist in shoring up the argument for immunities to operate beforedomestic courts.

Perhaps most obviously, though, is that even if article 46Abis could potentially have been used to advance the argument that under customary international law personal immunities continue to apply before international courts (contra to the ICJ’s findings in Arrest Warrant), its current formulation does not do so. This is because, by providing that only “AU Head of State and Government” shall enjoy immunity whilst in office, and not Heads of State and Government generally, the AU has effectively, even if unwittingly, abandoned the customary international law immunity argument, in favour of a ‘treaty-based’ immunity argument. This is a significant concession. Throughout its engagement with the ICC, the AU has premised its immunity argument on customary international law.  Now it will be difficult for the AU to raise that argument in future given that article 46Abis effectively ‘removes’ the general customary international law immunity afforded to Heads of State and other senior officials, and replaces it with a regional ‘treaty-based’ immunity afforded only to African leaders.

V.      CONCLUDING REMARKS

The entry into force of the ACJHPR Amendment – and the expansion of the African Court’s jurisdiction to international criminal law matters – would appear to be a long way off.  Necessarily, before that can take place, the 2008 Protocol must first come into force. To date, only five states have ratified that Protocol – fifteen states must do so in order for it to become operational. Until that takes place, many of the concerns raised above remain hypothetical and, although it would be a difficult task, the ACJHPR could be further amended to address them.

That said, the effect of article 46Abis was immediate, and negative. It has been roundly condemned by civil society in both Africa and abroad, because it obviously raises serious questions about Africa’s commitment to the fight against impunity. It is difficult to dissociate this provision from the ongoing disputations between Africa states and the International Criminal Court (and international criminal justice more broadly). It is also difficult to discount that, at least some, African states are dragging the African Court into that melee for reasons that are self-serving and which ultimately risk the integrity of the Court. This is particularly so because of the haste with which this process has been undertaken when, for the foreseeable future, there is no African Court of Justice and Human Rights to speak of. If this is the case, the benefits of the latest escalation are illusory.  The costs, however, are witheringly evident for the clear-sighted to see.

Just an ordinary piece of business then – an announcement at the end of another AU Summit of Heads of State and Government that it had voted to adopt the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. And with a title like that, the average observer would reckon it wasn’t worth further thought: a document likely filled with tedious procedural stuff.

Now the subterfuge starts making a little more sense. Most of Africa’s inhabitants, with the exception perhaps of Swaziland’s citizens, are not much accustomed nowadays to having their leaders legislate one rule for them, an entirely different one for themselves. Equality before the law is a principle central not only to our present day legal systems, but has also served as motivation for liberation. So AU leaders likely calculated, reasonably, that the general public would not be best pleased to learn that they were now liable for such crimes, just not their leaders.

That is especially so when it is these leaders, and not the general public, who are most likely to commit these crimes. Crimes such as genocide and crimes against humanity are generally perpetrated on a massive scale and have a systematic nature. They take root where a lack of accountability prevails. Those who have the means to perpetrate these crimes, who see themselves as above the law, are generally those who wield greatest power. Yet the Protocol gives them greatest protection from prosecution.

It is as if a company CEO introduced stiff new penalties for abuse of the company credit card, when only he has access to it, and then exempts himself from such penalties. Except that abuse of a credit card hardly squares with the devastation wrought by genocide and war crimes.

Article 46A bis of the Protocol places the AU in direct conflict with the Rome Statute of the International Criminal Court, which provides that the ICC rules “shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility.”

AU leaders will likely defend the inclusion of immunity on the basis that it is intended to ensure the smooth, efficient workings of state, allowing state officials to go about their work undisturbed by looming court proceedings. They will likely argue that accountability is not denied, merely delayed; that state officials can be prosecuted when they retire from office. This however ignores the perverse incentives that are generated: abusive leaders will seek to remain in power in perpetuity so that they are forever shielded from prosecution.

Far from contributing to a culture of accountability and protection, the AU, by legislating for immunity for leaders, places Africa’s citizens at greater risk. For those who will suffer the terror of a genocidal ruler there is now the further tragedy: that ruler will now have every incentive to stay and stay and stay.

Not for nothing is the AU called the continent’s most elite trade union. Never before though have Africa’s leaders so explicitly sought to negotiate better working conditions for themselves at the expense of their citizens.