1. Introduction

The present enforcement system of international criminal law essentially rests on three main pillars. First, there are prosecutions of international crimes within the national courts of the territorial states where the offense occurred. This could be through the regular criminal courts of those states or so-called “hybrid” or “mixed” chambers specifically created for that purpose by the state alone, or with the help of the United Nations (UN), as was the case in Cambodia, Bosnia-Herzegovina (BiH), East Timor, Lebanon, or Kosovo.Footnote ¹

Second, there are prosecutions within international courts, whether ad hoc or permanent. The former dates back to the Nuremberg and Tokyo International Military Tribunals. Those pioneers were followed more recently by the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL), all of which were either created directly as subsidiary bodies of the UN or authorized by its Security Council under its mandate to ensure the maintenance of international peace and security.Footnote ² There is, of course, also the multilateral treaty-based International Criminal Court (ICC), which as of writing, comprises 123 States Parties from all regions of the world and is endorsed in principle by 15 other signatories.

Lastly, present international criminal law also contemplates prosecutions within the domestic courts of third states. Good examples of the latter include Australia, Belgium, Canada, France, and Senegal, all of which have in the past invoked universal or quasi-universal jurisdiction in an attempt to investigate and prosecute so-called core international crimesFootnote ³ such as genocide, war crimes, and crimes against humanity.Footnote ⁴ This has occurred despite their lack of any of the usual territorial, nationality or other traditional jurisdictional links to the offenses other than the presence of the accused. These types of prosecutions, along with those in the national courts of the territorial states, form part of what the late M. Cherif Bassiouni dubs the “indirect enforcement system,”Footnote ⁵ in contrast to international prosecutions which are part of the “direct enforcement system”Footnote ⁶ of international criminal law.

Each of these direct or indirect enforcement models has its benefits and drawbacks. Generally, national prosecutions within the territorial state are considered ideal on legal, pragmatic or legitimacy grounds. But experience teaches that municipal courts do not always prosecute international crimes for all kinds of reasons. It is often the case that, in some situations, the concerned state and its judicial system may have collapsed or lacks the willingness and/or material ability to investigate or prosecute. Though generally relatively inexpensive, when compared to international trials, national judicial processes can also sometimes be manipulated leading to biased prosecutions.

For their part, for various reasons including the prioritizing of the parochial national over the wider community interest, third party states tend to be hesitant to invoke universal jurisdiction to prosecute foreign officials, or due to immunities, may even be legally barred from doing so—at least while the most senior ranking officials of other states are still holding office. For instance, Belgium, initially exceptional for its enthusiasm in seeking the title of “European capital of universal jurisdiction,”Footnote ⁷ famously found itself in a legal and political challengeFootnote ⁸ at the International Court of Justice (ICJ) in the Arrest Warrant saga when it indicted the then incumbent Congolese foreign minister.Footnote ⁹ Belgium was reminded that, although legal steps to prosecute serious crimes is not necessarily a bad thing, any such initiatives must be scrupulously compliant with customary international law immunities. The ICJ deemed those applicable at the horizontal level as between co-equal sovereigns.Footnote ¹⁰ Other more recent cases from certain European courts, such as those of France, Spain and the United Kingdom against Rwandese officials based on the universality principle, have been no less controversial.Footnote ¹¹ The end result tends to return us to the all too familiar normalcy of impunity.

Against this backdrop, international penal courts have increasingly come to be perceived as a key if not the ultimate solution to the rampant global impunity for atrocity crimes. The few UN international penal tribunals established by states since the end of the Cold War have to date successfully dispensed justice for the specific situations in the former Yugoslavia and Rwanda that they were mandated to address. The same is true of the Sierra Leone Special Court. Nonetheless, international courts also have their own share of challenges. So international criminal lawyers and states are beginning to raise doubts on whether they could be the magic bullet against individuals who perpetrate atrocity crimes.Footnote ¹² These include issues concerning their costly nature, their generally lengthy proceedings, and their geographic distance and remoteness from the territories and populations in whose name they seek to render justice.Footnote ¹³

As to the permanent ICC, in addition to some worries about its slow start in terms of completed trials to date as well as other challenges, it may also lack jurisdiction or the resources to start investigations and to prosecute. Indeed, even where it does possess the jurisdiction and resources to prosecute, the Prosecutor may decline to proceed because the situation as a whole is of insufficient gravity to warrant international intervention. Where she decides to proceed, say against a sitting Head of State, the ICC may, due to perceptions of selectivity in application of its legal regime, fail to muster the state cooperation required to facilitate the rendering of such persons to answer crimes against humanity and genocide charges. The example of President Omar Al Bashir of Sudan comes to mind.Footnote ¹⁴

Furthermore, given the sheer number of global hotspots and the magnitude of the atrocities, the ICC was never intended nor realistically expected to be the sole institutional response to provide criminal accountability.Footnote ¹⁵ That is largely why the Court was predicated on the complementarity principle, which under Article 17 of the Rome Statute of the ICC requires states to act as the first lines of defense in the battle against impunity.Footnote ¹⁶ In so doing, states placed the responsibility of prosecutions on themselves, consistent with the principles of sovereignty and international law, while undertaking to be the primary actors to investigate or prosecute Rome Statute crimes. But failing that, given the long history of bloodied wars that leave impunity to roam freely around the world, they envisaged the ICC as a back-up system. This in practice means that wherever the jurisdiction-bearing state is “unwilling or unable genuinely to carry out the investigation or prosecution,”Footnote ¹⁷ the ICC could take up that mantle, in behalf of the “international community.”Footnote ¹⁸ This would be the case, at least in respect of a limited group of persons bearing greatest responsibility. Viewed in this wider context, it seems apparent that even in a post-ICC world the impunity gap will be left even larger whenever national court or international tribunal action is unavailable. This irrespective whether for reasons of lack of capacity, political will or other constraints.

Given the presently bifurcated direct and indirect enforcement systems, it seems to be helpful to examine whether international criminal law could benefit from the approach of its sister discipline—international human rights law—to query whether, in addition to the currently available options to prosecute, regional or perhaps even sub-regional courts could also play a useful role in the wider quest to mete out individual criminal responsibility for atrocity crimes. Regional organizations, and their courts, may well offer some of the key advantages associated with national courts and mitigate some of the key disadvantages of international tribunals.

In engaging upon this admittedly preliminary exploration, this chapter will evaluate the work of regional organizations in international peace and security. We focus in particular on ways regional tribunals could supplement the ICC’s mandate to prosecute core international and even other serious transnational offenses. An important consideration may be that there are already in place regional human rights courts in Africa, the Americas and Europe, though with varying degrees of effectiveness. Asia and the Middle East, though presently without any human rights courts, could in the future be inspired by the other regions to eventually head in that direction. When they do so, that could make global enforcement of international criminal law through regional courts a potential reality for all regions of the world. In other words, a system of regional criminal law enforcement has the prospect of a universal reach, depending on the progress made toward universalization of regional human rights courts.

The chapter will turn the spotlight on the emerging attempt to regionalize international criminal law enforcement in Africa, the world’s second largest continent. This appears fitting for many reasons. Here, we might mention two that immediately come to mind. First, that region has been the source of all but one of the ICC’s current situational caseload. Since the States of Africa are presently the main users of the ICC, we might reasonably presume that they are the ones more likely to explore additional institutional mechanisms for the prosecution of atrocity crimes. This appears to be borne out by the practice.

Second, African States have gone furthest in developing their own court with the African Union (AU)’s recently adopted protocol that would create a criminal chamber with jurisdiction over ICC crimes almost as part of the African government pushback against the permanent ICC.Footnote ¹⁹ The continent’s effort, which is the focus of this volume, appears to have been greeted with general skepticism. In such an environment, where the agenda driving the regional criminal court project has been cast into some doubt by the context in which it emerged, what can and should The Hague-based court do to ensure that its work is actually complementary, instead of competitive, with the future African court and others like it that may be established in other regions?

Structurally, the chapter proceeds as follows. Section B will draw from the early experience of the international human rights system to assess whether there could be a place for regional courts in prosecuting international crimes. It will be argued that the ICC should assume a leadership role by cooperating with states and entities wishing to design courts consistent with its own statute. This would be in line with the object and purpose of the ICC and the policy of “positive complementarity”Footnote ²⁰ which the Court itself has advanced over the past few years.

Section C of the chapter will assess the form and shape that the AU effort has taken, regrettably without any ICC engagement, partly because of the unfortunate current tension in the relationship between the Court and some of its African States Parties. In section D, we will examine some of the more innovative aspects of the regional treaty that AU States adopted in June 2014 for their proposed regional criminal court. It will be shown that the particularities of the African context have led to the inclusion of new offenses and even corporate criminal liability in the Malabo Protocol and that these go beyond what is presently contained in the ICC Statute. The idea seemed to be to address, in addition to the core crimes, pressing governance and transnational concerns facing the Africa region but which the Rome Statute framework did not address. These novel elements seem to strengthen the case for the serious consideration of regional court involvement in prosecuting international crimes.

Finally, just before the conclusion and recommendations, section E takes up some questions that may arise about the legal compatibility of regional prosecution mechanisms with prosecutions carried out by the world criminal court. In particular, I suggest that the complementarity principle, though initially conceptualized vis-à-vis the obligations of States Parties to the ICC, appears flexible enough to successfully regulate the jurisdictional relationship with regional criminal courts. Thus no amendment to the Rome Statute is necessarily required. In the main, my overarching argument is that, much as in the international human rights system which is composed of a multilayered national, regional, and international enforcement system, international criminal law would likely in the future benefit from a similar multilevel system of accountability. Africa’s opening of this additional approach to tackle impunity seems to suggest that this development may be hard to resist and perhaps even be inevitable. The last part of the chapter focuses on some of the key challenges that the future court might face.

2. The Evolution of Universal and Regional Enforcement of Human Rights Law and Possible Lessons for International Criminal Law

3. The Legal Duty of African States to Strengthen Regional Cooperation to Enhance Human Security in Africa, Including through Prosecution of International Crimes

At the broadest level, the first factor that made near inevitable the notion of a regional criminal court in Africa is a much wider one that speaks to the current positioning of the African continent in global affairs. Here, we are referring to the fateful decision after the end of the Cold War by African States to transform Africa’s primary regional organization, formerly known as the OAU which had been in existence since May 1963, into what might be termed a human security-centered organization through adoption of the Constitutive Act of the African Union in July 2001.Footnote ⁵⁹

The decision to establish the AU was motivated by several complex considerations. These included a desire to shift from the logic of the principle of non-interventionFootnote ⁶⁰ in the domestic affairs of its Member States, which underpinned OAU policy and action, along with an understandable concern about preserving the territorial integrity of African States. That policy stance, which showed great deference to national sovereignty and rather limited regional level concern about gross human rights abuses within some post-colonial African States, was largely a function of history and where Africa found itself in the aftermath of the defeat of colonialism.

Despite the creation of the OAU, civil wars, bad governance, rampant public corruption, and a weak rule of law continued to plague the continent. This resulted in many countries degenerating into ethnic divisionism and fratricidal wars, and the commission of gross human rights and humanitarian law violations. Much as Europe had suffered the brunt of conflict in the early part of the twentieth century, Africa, as the world’s second largest continent with many unstable states seeking to find their own place in the world, became the scene of some of the worst atrocities toward the end of that same century.

The creation of the AU signaled a new type of continental body, legally, politically, and practically. It was to be more proactive in anticipating and addressing the scourge of conflict and commission of gross human rights violations in the region. Indeed, the OAU stance had, though preserving the integrity of the African States effectively, squandered the promising dividends of independence for ordinary people and served as a rather thorny source of insecurity for the continent for several decades. Following the footsteps of Europe and the Americas, African States did start thinking about the need to establish their own regional human rights system in the 1960s. But this idea only matured to governmental endorsement in the late 1970s. This eventually paved the way for discussions and adoption of an African human rights charter, which was heralded for its innovative approach to civil and political alongside economic rights, individual rights, and collective duties.Footnote ⁶¹

But the same regional treaty that was greeted with enthusiasm entailed a key difference with other regional systems in that it opted for a quasi-judicial instead of judicial enforcement system. Specifically, instead of creating a regional rights court as had been done in the Americas and Europe, the main enforcement system was to be the African Commission on Human and Peoples’ Rights, which would be based in Banjul, The Gambia. Interestingly, the drafters of the African Charter were uncertain that African governments were ready for a binding judicial system that would give effect to human rights as had been the case in the other regions. They nonetheless suggested that a court to complement the commission should be revisited in the future.Footnote ⁶² This occurred almost two decades later. Interestingly, for our purposes here, the Committee of Legal Experts charged with drafting the African human rights charter did briefly consider a proposal by the Republic of Guinea to establish a regional court that would also have criminal jurisdiction to judge crimes against humanity in addition to adjudicating claims relating to human rights violations.Footnote ⁶³ Nonetheless, despite the Guinean proposal to include crimes against humanity jurisdiction, it was felt that to do so would be premature for two reasons.Footnote ⁶⁴

First, one of the main concerns that had influenced the proposal for criminal jurisdiction was to address the South African apartheid policy as a crime against humanity. To this proposal, the principal drafter, Kéba M’baye from Senegal, pointed out that “an international penal court” had already been anticipated as an option in the International Convention on the Suppression and Punishment of the Crime of Apartheid even though states could also prosecute such crimes within their national courts.Footnote ⁶⁵ Second, and seemingly more importantly, the UN was already considering the establishment of “an international court to repress crime against mankind.”Footnote ⁶⁶ These two factors, according to the main drafter of the charter, militated in favor of shelving the criminal jurisdiction idea for the African human rights court.

In essence, African States had been active in leading the charge to develop a global treaty to criminalize apartheid due to their concern about the racism rampant in South Africa and its pernicious effect on that country’s majority black population.Footnote ⁶⁷ They thus put on hold the inclusion of a criminal chamber that would address a crime of particular concern to Africa because of the hope for international regulation through a permanent international penal court, which idea was then under consideration at the International Law Commission (ILC). As it would happen, neither the special court to prosecute apartheid as a crime against humanity nor the standing world criminal court they had expected were created for a while. It would take until the adoption of the ICC Statute on July 1, 1998 (i.e. 19 years later) and its entry into force on the same date in 2002 (23 years after the fact), that an international criminal tribunal with jurisdiction over apartheid as a crime against humanity would come into being.

The irony of the present suspicions about the motives of the African States in adopting a legal instrument for a regional criminal court, including among local scholars who are divided over the wisdom of the project,Footnote ⁶⁸ is that a reason why African countries held back on that initial proposal at the time related to a preference for international cooperation for an enduring world criminal court. Yet, from another perspective, this historical experience demonstrated to African States that particular crimes of interest to their continent (e.g. apartheid) would not necessarily generate the same interest in legal prohibition for the rest of the international community of states. The thought that they should instead wait for the global penal court meant that they forewent regional action in favor of international coordination, leading one commentator to speculate that this was a “dupe,” and that for African States, the experience was “significant” in affirming lack of global attention to Africa’s specific concerns.Footnote ⁶⁹

But besides the African States’ preoccupation with addressing apartheid, which took on renewed urgency after the Soweto Uprising of June 1976, the African human rights system established in the early 1980s has in its application through the commission based in Banjul generally fallen short of the achievement of its counterparts in Europe and the Americas. There have, of course, been many significant advances under difficult conditions. But the impact on the realization of the human rights of ordinary Africans as guaranteed under well crafted regional instruments has been far from ideal. The lackluster performance, partly due to the non-binding nature of the commission’s legal decisions, inadequate resources, and the lack of political will on the part of African States to actually comply with human rights standards, among other factors, would later resuscitate calls for the establishment of an African Court on Human and People’s Rights.

The protocol for a court, aimed at supplementing the protective mandate of the commission, was eventually adopted in Burkina Faso on June 9, 1998. It entered into force on January 25, 2004.Footnote ⁷⁰ The regional human rights court is presently based in Arusha, Tanzania. But even that institution has, besides the usual start-up problems, failed to receive the strong endorsement of African States. Proof of this can arguably be found in the fact that only over half of African States have ratified its treaty (30 out of 55 states), and of those, an even smaller number of States Parties have, to date, filed the special declarations permitting the court to hear human rights complaints brought by individuals against them (a total of 7 out of the 30 states that already ratified as of this writing).Footnote ⁷¹

With this general backdrop in mind, and the explosion of several internecine conflicts on the continent including the 1994 Rwandan genocide and the notoriously brutal conflicts in Liberia and Sierra Leone, it should be no surprise that African States have over the past two decades increasingly turned their minds toward more robust action against those who perpetrate gross human rights violations on the continent. In this regard, the establishment of the AU as a replacement of the OAU had already given rise to the inauguration of various and interlocking institutional mechanisms, forming part of the African Peace and Security Architecture that are all aimed at addressing the prevention and management of conflicts in Africa.Footnote ⁷²

In fact, as part of the growing regional sensitivity against impunity, there was an explicit legal duty in the Constitutive Act of the African Union to take concrete steps against impunity. Under Article 4(o), the AU reaffirmed its commitment to “respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities.”Footnote ⁷³ The AU further recommitted its members to “respect for democratic principles, human rights, the rule of law and good governance,” and the “promotion of gender equality” and “of social justice to ensure balanced economic development.”Footnote ⁷⁴ Article 4(h) of the Constitutive Act, which preceded the entry into force of the ICC Statute by a year, goes even further and confers on the AU the legal “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.”Footnote ⁷⁵ The logic of all the above provisions, and the various legal instruments and decisions adopted by the AU since it was founded, is that the continental African body can now act, including through the use of military force but also through other measures, in the defense of civilians in the African territory.Footnote ⁷⁶

It is notable that the protocol establishing the Peace and Security Council of the AU entrusted with the responsibility of preventing and managing conflicts on the continent was adopted in the same month as the Rome Statute entered into force in July 2002. In other words, taken together, whether as specified in the AU’s founding treaty from 2000 or the additional instruments adopted since then, the core principles contained in the Constitutive Act have supplied a legal framework, at the regional level, for the operationalization of the Responsibility to Protect in Africa. This norm has also been endorsed by the international community, including through resolutions of the UN General Assembly. But the inclusion of Article 4(h) in the AU’s Constitutive Act appears unique as the first serious attempt to ram down the barriers of state sovereignty in a significant way. It creates a regional carveout of a narrow exception to the non-intervention principle and the prohibition on the use of force against other states articulated in Article 2 of the Charter of the United Nations. All in the name of protecting civilians from war crimes, crimes against humanity and genocide.

In addition, since the days of the OAU and now accelerated under the AU, there has been steadily developing a solid body of African human rights treaties and a web of regional obligations that address the specific human rights needs of women and children, prohibition of mercenarism, corruption, dumping of hazardous wastes on the continent, trafficking in drugs and persons, etc.Footnote ⁷⁷ These regional instruments, forming part of African State practice, highlight greater preoccupation with public regulation on the continent to address particular problems afflicting the Africa region.

One more specific example might suffice to make the point. This relates to the African Charter on Democracy, Elections and Governance, which was adopted on January 30, 2007 at Addis Ababa, and thereafter obligated the AU and its Member States to take several measures to promote democracy on the continent.Footnote ⁷⁸ First, it not only deemed unacceptable any undemocratic means of acquiring power reflecting the preoccupation with coup d’états that have stunted the growth of democracy on the continent, it also anticipated that the perpetrators of unconstitutional changes of government would be barred from participating in the ensuing election.Footnote ⁷⁹

Second, and going even further, the AU was under this regional treaty empowered by its Member States to prosecute the perpetrators and also provided for their trial at the regional (Africa) level.Footnote ⁸⁰ This, if only implicitly, suggested that there would eventually be a need to adopt new criminal prohibitions that penalize “unconstitutional change of government” and that there would be some kind of competent regional tribunal to try the offenders. For that reason, the decision to include that offense naturally followed when it was proposed to merge the African Court of Justice and the African Court of Human Rights.

In sum, there is nothing in the text of the Constitutive Act and other AU instruments to make the creation of a regional criminal tribunal incompatible with the objects and purposes for which African States created their regional organization. Indeed, far from being only tied to pushback on the ICC, the AU’s legal instruments, starting with its founding treaty and several other treaties developed since then, implied there was already emerging a regional legal sensibility and even obligation that the AU States must take robust measures to address gross rights violations and international crimes committed on the continent. This is further than, at least in terms of the normative architecture, any other region has to date accomplished. Indeed, as Ademola Abass has argued, it cannot be the case that the AU would legislate on crimes that it does not intend for its own court to prosecute.Footnote ⁸¹ That would simply not make any sense. In any event, action at an Africa-wide level to create a judicial mechanism becomes even more justified considering the unavailability of appropriate national or international judicial forums to prosecute some of the crimes of special concern to Africans.

4. The Hissène Habré Affair and the Committee of Eminent Persons’ Recommendation for an African Criminal Jurisdiction

The second more immediate factor that gave rise, at the regional level, to the proposal for a standing African Criminal Court (ACC) comes from the AU’s initially unplanned role and involvement in the resolution of the issue relating to the trial of former Chadian president Hissène Habré. Contrary to popular belief, the recommendation to create such a regional criminal court originates in a formal proposal that stemmed from the deliberations about the best forum to try him instead of the ICC–Africa problem.

Habré, by way of quick background, was leader of the Central African State of Chad.Footnote ⁸² After he was deposed from power, he fled to Senegal to seek asylum, following a brief stay in Cameroon. He is alleged to have ordered the torture and deaths of many people during his time in power.Footnote ⁸³ While in Senegal, which is a party to the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment,Footnote ⁸⁴ some alleged victims of torture under Habré’s regime initiated a criminal complaint in 2000 before an investigative judge at the Dakar high court, claiming that he had committed various offenses including crimes against humanity and torture. An indictment was subsequently issued by the Senegalese authorities against Habré. But it was quashed by the Dakar Court of Appeal based on a finding of lack of jurisdiction. A similar complaint against Habré was subsequently filed in Belgium by a different group of victims. Belgium thereafter issued a warrant and request for his surrender for the purposes of trial on charges of torture and crimes against humanity. Instead of turning him over, Senegal approached the AU for assistance after Belgium sought Habré’s extradition.

The Assembly, the highest decision-making organ of the AU comprising the sitting Presidents and Heads of Government, adopted a decision in January 2006 in Khartoum in which they tasked the AU Chairperson to constitute a committee of eminent African jurists to study and present options on what to do with former President Habré.Footnote ⁸⁵ The specific mandate of the Committee of Eminent Persons was to “consider all aspects and implications of the Hissène Habré case as well as the options available for his trial.”Footnote ⁸⁶ Additionally, the Committee was to make “concrete recommendations on ways and means of dealing with issues of a similar nature in the future.”Footnote ⁸⁷ In discharging its duties, the experts were to account for various issues, including jurisdiction over the alleged crimes for which Habré should be tried; need for adherence to international fair trial standards; accessibility of the trial to alleged victims as well as witnesses; the independence and impartiality of the proceedings; efficiency in terms of cost and time of trial; and the prioritization of utilization of an African mechanism.Footnote ⁸⁸

The Committee examined the specific Habré case as well as the wider question regarding the future should such cases arise again. In relation to the former element, it considered that Senegal was best placed to try the former Chadian president because of its international law obligations under the Convention Against Torture. Or, if Senegal was not able to do so, it pointed out that any other African State party to the Torture Convention could also assert jurisdiction to do so. As a last resort, even an ad hoc tribunal sitting in any African State could be established to prosecute him.Footnote ⁸⁹ On the latter more forward-looking aspect, which is of particular interest here, the legal experts recommended a standing mechanism to deal with the impunity problem in Africa. They observed that the African Court on Human and Peoples’ Rights, whose protocol had already entered into force, and the Court of Justice of the AU whose treaty was still under the ratification process, did not provide jurisdiction to hear criminal matters at that time. Therefore, neither of those two institutions could prosecute the Habré case.Footnote ⁹⁰

The Committee thereafter considered the prospects for the creation of the African Court of Justice and Human Rights based on the project to merge the African Court of Human and Peoples’ Rights and the African Court of Justice.Footnote ⁹¹ The Committee proposed that this new body could be granted jurisdiction to undertake criminal trials for crimes against humanity, war crimes, and violations of the Torture Convention in Africa.Footnote ⁹² It also observed that there was room for such a development in the Rome Statute, and considered that this would not be a duplication of the work of the ICC. It emphasized that the text of such a treaty should be adopted through the quickest procedures possible.Footnote ⁹³

At the Assembly’s summit in July 2006, at the same meeting in Banjul where the Committee’s report had been presented, the AU decided that Senegal should try Habré “on behalf of Africa” with all the guarantees of a fair trial.Footnote ⁹⁴ The AU leadership urged all African States to cooperate with Senegal. It further directed the Chairperson to provide the support necessary to enable the effective conduct of the trial. They also pleaded to the international community to assist with resources, especially those of a financial nature. Senegal thereafter proceeded to make amendments to its law, in July 2008, in which it gave effect to this AU decision by including in its penal code certain international crimes including genocide, war crimes, and crimes against humanity, and providing for their retroactive application. This constituted the domestic legal framework that was intended to enable Habré’s trial.

But Senegal, which did not receive the financial support of the AU that had been promised and seemed to be dragging its feet for other more political reasons, did not pursue Habré for trial. It was to take two years more, and a new president in Senegal, for the AU to enter into a bilateral treaty with Senegal to create the Extraordinary Chambers in the Courts of Senegal.Footnote ⁹⁵ In the meantime, planning for the trial had been hastened by Belgium’s initiation of proceedings against Senegal at the ICJ in February 2009. Belgium alleged that there had been a failure on Senegal’s part to carry out its obligations under the Torture Convention either to prosecute Habré or render him over for trial. The ICJ held that the country was in breach of its obligations to properly investigate and prosecute alleged torture committed by Habré.Footnote ⁹⁶

The Extraordinary African Chamber, which sat in Dakar and was funded by a mix of African and Western donors, was conferred the jurisdiction to prosecute and try the person(s) most responsible for torture and serious violations of international law committed on the territory of Chad from June 7, 1982 to December 1, 1990. President Habré has since faced charges before the tribunal with his trial having opened on July 19, 2015.Footnote ⁹⁷ His case closed on February 12, 2016.Footnote ⁹⁸ The trial judgment was rendered on May 31, 2016. The former Chadian leader was convicted, while charges against up to 27 other alleged accomplices associated with his regime have already been issued by the domestic criminal courts of Chad in N’djamena. Habré’s conviction was largely upheld on appeal in April 2017.

To conclude this section, it seems notable that the AU did not immediately endorse the expert committee recommendation to add criminal jurisdiction to the African regional court. Nonetheless, it should by now be uncontroversial that the modern origin of the idea for such extension of jurisdiction was born out of the Habré affair. It can be said to be part of that Chadian case’s legacy. No explanation was given by the AU Heads of State for accepting the recommendation relating to the specific case of Habré but not the longer term proposal to create a regional criminal court. It is anecdotally reported that funding constraints played a key role. Yet, as will be seen in the next subsection, developments relating to a separate issue which raised concerns about foreign-administered justice in Africa and against Africans did encourage AU States to revisit the recommendation for a regional criminal jurisdiction.

5. The “Abuse” and “Misuse” of Universal Jurisdiction

The third factor was not the source of, but did catalyze, AU interest in creating a criminal chamber. This was the indictment of African State officials by the national courts of various European states. These included France, Spain, and Belgium, all of which raised legal and practical concerns for African States with respect to, for example, whether those foreign jurisdictions were complying with customary international law immunities. The practice in this area and how it appears to have even given rise to regional African concerns about the ICC itself has been analyzed elsewhere, so will only be briefly summarized here.Footnote ⁹⁹ A key thing to note about the controversial doctrine of universal jurisdiction is that this issue predated the establishment of the Committee of Eminent Persons, which had examined the Habré matter and that then recommended the expansion of the jurisdiction of the African Court to include international crimes.

Let us illustrate with reference to the two most well-known controversies regarding “universal jurisdiction” and African States. The first was the Belgian indictment and the issuance of an arrest warrant for the Congolese foreign minister, Abdulayae Yerodia Ndombasi. This famously led the Democratic Republic of Congo (DRC) to initiate proceedings against Belgium at the ICJ in which the DRC alleged that Belgium had violated its obligations under customary international law. In a much-criticized decision, at least among some commentators who lament the majority’s decision not to engage with the universality principle, the ICJ ruled in favor of DRC on February 14, 2002, finding that certain immunities are unopposable before the national courts of states even if they are not available to block prosecutions before certain international criminal courts.Footnote ¹⁰⁰

What is significant about the Yerodia case, from the perspective of our argument here, is that the African government concern about the possible abuse of the principle of universal jurisdiction by foreign courts had predated even the entry into force of the Rome Statute of the ICC. This of course was the case in relation to individual African States on their own, such as the Congo, not necessarily as part of the regional body we now know as the AU. That said, there is of course much interplay in the two. Once Member States have concerns about certain policy matters, including on foreign policy questions, they raise those issues bilaterally with the other states and at the same time pursue action within regional or international clubs that they are part of as a way of mustering political support. They could thus better identify collective solutions to initially individual problems. We have seen that phenomenon with other African States bringing up issues in Addis Ababa and New York, including on topics of international criminal justice. This, of course, is not unique in international relations.

The perfect example of this is the second round of universal jurisdiction-based indictments. These were against Rwandan leaders and led to a strong reaction from the AU that this constituted a blatant “abuse” of the principle of universal jurisdiction.Footnote ¹⁰¹ Certain French and Spanish courts had indicted several high-level Rwandese officials. In the case of the former, this did not include President Paul Kagame, and in the case of the latter, it did. The judges sought warrants for him and 43 others including the Chief of Protocol to the President, Madame Rose Kabuye.Footnote ¹⁰² This would later lead to a major diplomatic row between Kigali and Paris, especially after Madame Kabuye was arrested in Germany, on a European arrest warrant. The AU subsequently adopted strongly worded resolutions that may have far-reaching implications for the development of state practice respecting universal jurisdiction. Those decisions most notably called for a moratorium on the issuance of arrest warrants against African leaders by European courts; decided to constitute an AU–EU expert group on universal jurisdiction with both African and European experts; and ultimately as of September 2010, seized the UN General Assembly’s Sixth Committee of the matter. The Sixth Committee is now undertaking a global study on universal jurisdiction. The study continues as of this writing. In 2018, due in part to the politicization of the topic in the General Assembly and the call of many States for it to assist in bringing greater legal clarity, the International Law Commission added the topic to its long-term program of work based on a proposal of this author.

More pertinent for our purposes tracing the genesis of the criminal jurisdiction for the African Court of Justice and Human and Peoples’ Rights, in several later decisions on universal jurisdiction the AU, because of the use of universal jurisdiction against Rwandese officials, directed its commission to explore, in consultation with the Banjul Commission and the African Court, the “implications” of empowering the regional court with jurisdiction “to try international crimes such as genocide, crimes against humanity and war crimes.”Footnote ¹⁰³ This decision was further reiterated during their annual 2009 summit in Sirte, Libya.Footnote ¹⁰⁴ In other words, the African government concern about alleged abuse of universal jurisdiction seemingly returned the AU to more serious consideration of the proposal to endow the African Court, which had been initially proposed by the Committee of Eminent Persons, with criminal jurisdiction. Needless to say, the recommendation had essentially been initially put on the shelf. The concern about foreign-imposed justice from universal jurisdiction therefore resuscitated it and later bore other implications for the ICC’s work on the continent.

The point I wish to make here is that the recent rounds of universal jurisdiction indictments against African leaders in Europe, most of which seemed to have ultimately been withdrawn, sped up urgency in the AU for an African mechanism that will try African crimes on African soil. Again, the fraught ICC–Africa relationship, which is important and will be considered next, played into this. But, by now, it should be apparent that this additional factor was only one of several aspects that seemed to strengthen the African government resolve to add a regional criminal jurisdiction in the AU’s future regional court.

6. The Africa–ICC Relationship

The final and perhaps most important single concern that led African States to start fast-tracking their plans for the creation of a criminal jurisdiction stemmed from the African government dissatisfaction with the work of the ICC on the continent, and in particular, the activities of the Office of the Prosecutor (OTP) in the Sudan situation. It is widely known that the decision of the ICC Prosecutor to seek an indictment against the Sudanese Omar President Al Bashir in March 2008 provoked a strong reaction from the AU. In its first decision on the matter, the AU expressed grave concern that the delicate regional efforts to make peace in the Sudan may be impeded if not entirely jeopardized by such a move.Footnote ¹⁰⁵ This same type of stance was taken by the AU Peace and Security Council when the ICC Pre-Trial Chamber (PTC) finally approved the proposed indictment for the Sudanese leader on charges of crimes against humanity.Footnote ¹⁰⁶ The AU insisted that it was not against prosecution of anyone, but made clear that in light of the then humanitarian catastrophe that was taking place in Darfur, it was opposed to the timing of the prosecution. It felt that this would render it difficult to find a political solution to the conflict in Sudan. An interesting element of this decision was the direction that the AU Commission convene a meeting of African States Parties to the Rome Statute so that they could exchange views and develop recommendations on the ICC’s work in Africa, especially its action “against African personalities.”Footnote ¹⁰⁷

From the point of view of escalation of concern in the ICC–Africa relationship, the follow-on step was the AU’s request for a deferral of the Sudan situation under Article 16 of the Rome Statute. This request was forwarded to New York. It was later reiterated. The repeated deferral request was implicitly rejected.Footnote ¹⁰⁸ African States thereafter decided, collectively, that in view of the Security Council’s implicit refusal to act to address the African government concern, none of them shall cooperate with the ICC in respect of the arrest and surrender of President Al Bashir.Footnote ¹⁰⁹ This problematic decision, taken on July 3, 2009 at Sirte, Libya, remains on the AU books to this day. It underscored the African government conclusion that the timing of the indictment was wrong and had resulted in what the AU considered to be negative consequences for peace. However, from the perspective of ICC law, this decision arguably puts individual African States-Parties to the Rome Statute in violation of their obligations under the Rome Statute which imposes a general duty on all ICC States-Parties to cooperate with the ICC.

Besides this far-reaching decision framing the future of ICC–Africa relations in relation to non-cooperation in the Sudan situation, which has frustrated the attempts to have Al Bashir arrested to answer charges, the AU leaders also took another less well-known but equally important step in July 2009. It decided that the jurisdiction of the regional court of the continent should be enlarged to entrust it with the mandate “to try serious crimes of international concern such as genocide, crimes against humanity and war crimes, which would be complementary to national jurisdiction and processes for fighting impunity.”Footnote ¹¹⁰ Subsequent developments since then, including the issuance of indictments arising from the Kenya Situation, have all fueled the political posturing of African countries, insisting that the continent should develop its own regional criminal justice system to prosecute serious crimes of concern to the continent as a whole.Footnote ¹¹¹

The upshot of all this for us was that the AU Commission contracted a non-governmental organization, the Pan African Lawyers Union (PALU) located in Arusha, Tanzania, to prepare a detailed study and a draft treaty that would amend the protocol of the Statute of the African Court of Justice and Human Rights. In June 2010, PALU issued its first report and draft legal instrument to the AU Legal Counsel’s Office which then requested certain changes. A revised version of the draft treaty was submitted in August 2010 to two validation workshops held in October and November 2010. Legal advisers of African States then held several meetings to consider the draft instrument in March, May, and October/November of 2011, which in turn led to further amendments and adoption of the draft protocol.

Upon approval at the ministerial level, the treaty was then submitted to the AU Assembly in July 2012, and contrary to general expectations that it would be adopted, the Heads of State requested further study of the “financial implications” of the expanded jurisdiction. They also sought clarification of the definition of the novel crime of unconstitutional change of government. A report was subsequently prepared on which further consideration was required, although it glossed over the huge financial costs of international criminal jurisdiction. In the final step, in a May 2014 meeting, the legal advisers of AU States met in the inaugural meeting of the Specialized Technical Committee on Legal Affairs in Addis Ababa where additional amendments to the protocol were made. These were thereafter endorsed by the ministers of justice and then forwarded to the Assembly of Heads of State which adopted the protocol and opened it for signature on June 27, 2014. As of writing, nine African States have signed the treaty. None has yet ratified it.

7. The Legal Relationship Between the African Court and The International Criminal Court

In this section of this chapter, we consider a question which tends to lurk in the background of the ongoing debates among ICC supporters about the AU’s proposed criminal chamber with jurisdiction to prosecute Rome Statute crimes. That is, the nature of the legal relationship that we can begin to expect between The Hague-based court and its African counterpart if and when the latter’s treaty comes into force. The answer to this issue is important, not just for the Africa region but also for the argument made here that regional courts from all parts of the world could potentially become integral to an interlocking web of future enforcement regimes for international criminal law.

8. Key Challenges for The Future African Court

In as much as the preceding sections have suggested that there are good reasons favoring the prosecution of international and other crimes within regional courts such as the proposed African Court, this is only one part of the picture that we must assess. The other half of the story is the fear that such a regional project could undermine, if not imperil, the hard-won achievement of a permanent international penal court. So, while due to space I will not consider all the issues, let us now discuss five major concerns that could give cause for pause in terms of the establishment of a criminal chamber within the African Court of Justice and Human Rights. I will attempt to offer some preliminary reflections that could help alleviate some of these concerns.

9. Concluding Remarks and Recommendations

This chapter has examined whether there could be a viable place for regional courts in the global struggle against impunity. In this view, much as in the international human rights system that has developed over the last half century, international criminal law—which is still trying to find the best ways to dispense justice on behalf of the victims of atrocity crimes—would likely benefit from regionalization of some of its enforcement of its prohibitions. Each part of that mutually reinforcing enforcement system can play its own role in the fight toward the same goal of combating impunity for serious international crimes. I have suggested in this chapter that, as in the global human rights system, international criminal law could also have at least three layers.

First, consistent with the principles of sovereignty and international law, national courts would continue to act as the first responders to the impunity crisis that we presently face in the international community. In the Africa region, whose overwhelming number are supporters of the Rome Statute for example, the regionalization of the duty to prosecute through an institutional mechanism will help bolster the capacity for countries in the continent to prosecute war crimes, crimes against humanity, genocide, and aggression. Those same national courts would also have jurisdiction over the transnational and other economic offenses that are of particular concern to the African region and that are codified in the Malabo Protocol. By pooling their resources, they would likely be better able to give effect to the fundamental precepts of complementarity and discharge their legal obligations to prosecute.

Second, at the regional level, again as we can tell from the Africa illustration, we could have regional courts endowed with jurisdiction to prosecute the crimes prohibited in the Rome Statute and possibly additional others that have also been condemned by the international community such as torture and terrorism. There is even the possibility, once the regional court door is opened, that we might also see the capacitation of courts embedded in sub-regional bodies such as the East African Court of Justice or the ECOWAS Court of Justice to prosecute such crimes. Other regions and sub-regions of the world might explore this model over time, both for efficiency and other practical reasons. Such a development would seem consistent with the experience of human rights courts, allowing each region of the world the opportunity to give its own unique stamp to the development of a global anti-impunity architecture. There are already strong indications of such potential developments in the Americas region.

Finally, at the international level, we would have an additional back-up system for whenever national courts are unable and or unwilling to prosecute. Here, the ICC will continue in its role as the permanent and premier world criminal court. Its place would be reserved to step in when states, including the ones in the African region, prove to be inactive, unwilling, and/or unable to prosecute the heinous crimes of most serious concern to the international community as a whole, consistent with the complementarity principle contained in the Rome Statute. This role will be crucial when it comes to investigating, trying, and punishing sitting Heads of States, their deputies or other senior government officials that are, for one reason or the other, not easily prosecutable at the national or regional court level.

A few preliminary recommendations can be developed from the discussion in this chapter. For the ICC, as its current president Judge Chile Eboe-Osuji (Nigeria) seems to have argued in Chapter 28 of this volume, an important one is that the court should keep an open mind toward working with not just states but also regional organizations, as it develops proactive or positive complementarity. This implies a willingness to engage, whether at the organ or ICC level, with initiatives that might be in development in different regions of the world. Such engagement would help to ensure that whatever regional systems are designed will be compatible with the goals of the Rome Statute and the regime that it is developing. The ICC, which will continue to be at the center of that system wherever national or regional action falls short of the expectations of the international community, must recognize that this will be in its long-term interest. It certainly seems obvious that the Court will in any event be unable to fulfill all the hyper expectations created for it in the minds of victims of atrocity crimes around the world.

The type of engagement with African concerns we saw through the 2013 Assembly of States Parties (ASP) debate or the 2017 hosting of joint seminars with the AU, for instance, are all important in creating mutual trust. In turn, that could lead to deeper conversations about how the Court, without transforming itself into a development agency, could work with African States to turn over a new leaf. On the side of the AU, it could continue to encourage its African States Parties and possibly take decisions in that regard to push for a closer dialogue within the ICC States Parties on positive complementarity and an assessment of the implications of regional court jurisdiction. Consideration should also be given to the role the ICC and other international partners, such as the UN, could play in offering technical assistance in anticipation of more signatures and further ratifications of the Malabo Protocol.

To national jurisdictions that are part of the 123 States Parties of the ICC regime, especially those that are struggling to come out of conflict, consideration should be given to collaborating with other states at the regional or even sub-regional level in order to explore the implications of cooperating to give effect to their duties to prosecute war crimes, genocide, crimes against humanity, and the crime of aggression. In a new spirit of mutual accommodation, the ICC could work out how to meaningfully assist its members to put in place things like the proposed criminal chamber to prosecute ICC offenses. As part of that, The Hague court could, whether through its organs or perhaps more appropriate its ASP, convene a discussion with the judges of regional human rights courts and the States Parties to consider options under which regionalization could be used to help reinforce the difficult mandate it has to fight impunity at the secondary level under the Rome Statute.

For regional organizations and human rights court systems, including those in Europe and the Americas, some consideration could begin to take place on whether and how criminal jurisdiction could be incorporated into their mandates, at least for certain types of core international offenses. To the extent that transnational crimes are of interest, in a particular region, the feasibility and desirability of considering those should be part of that discussion. As would the implications. A key lesson, based on the African experience, is that greater effort must be made to spell out how to resolve conflicts of jurisdictions. This should provide a framework whereby complementarity, rather than competition, is fostered as a central goal. Such is the way we might ensure that there is a unified global regime that works toward the same principal objective of tackling impunity.

To African and global civil society, which as discussed in another chapter have played an important role in advancing international criminal justice through advocacy, recognition should be given to the reality that the ICC was neither designed nor ever intended to be the panacea to the global scourge of atrocity. In that context, while the world criminal court should continue to receive all our support, it is not inconsistent with that support to appreciate that national and regional mechanisms could be other ways to advance the cause of individual criminal accountability and justice for victims of gross human rights violations around the world.

1. The Malabo Protocol: Peace and Justice Sequencing

One of the central transitional justice debates has been encapsulated by the phrase, ‘peace versus justice’.Footnote ¹ Today, the interplay between ‘peace and justice’ remains one of the most difficult debates, especially in Africa. Those adopting a more fundamentalist approach to prosecution typically hold the view that retributive justice prevents impunity of the perpetrators through direct punishment, and serves to deter those inclined to commit future atrocities.Footnote ² They typically articulate arguments that insist that: (1) the destabilizing effects of pressing for accountability are overstated and they may in fact prevent further atrocities; (2) the failure to prosecute reinforces a culture of impunity, which has negative long term impacts on peace; (3) international law obliges countries to prosecute war crimes, genocide, and crimes against humanity; and (4) fair trials can assist in acknowledging victims’ suffering while at the same time creating a legitimate historical record that protects against revisionism.

On the opposing side, various scholars argue that international criminal tribunals often impede peace settlements and prolong atrocities because leaders facing threats of prosecution no longer have incentives, such as immunity, to end atrocities and therefore continue to prolong conflicts to keep themselves in power.Footnote ³ By calling into question the meaning of justice, they suggest that justice does not always require prosecutorial action.Footnote ⁴ They typically argue that: (1) prosecutions are an obstacle to peace talks and do not, in fact, act as a deterrent to future atrocities; instead they escalate them; (2) they are expensive and take a long time to complete; (3) they do not necessarily serve the interests of the victims or individual states; and (4) they do not address the root causes of violence.

While these two camps seem to represent opposing ends of the debate, the reality is that there exists no binary choice between peace on one hand and justice on the other.Footnote ⁵ The juxtaposition highlights a ‘paradox’ rather than a debate.Footnote ⁶ This paradox is important to highlight as the debate is imbued with an artificial division between peace and justice, politics and adjudication. With such a paradox in mind, this chapter explores the way that the Malabo Protocol for the African Court for Justice and Human and People’s Rights (African Court) conceptualizes justice through a more gradual approach that is predicated on allowing time for peace building and reconciliation in African transitional justice settings.Footnote ⁷ According to this logic, the false tension between peace and justice is collapsed into a ‘transitional justice’ strategy that requires a different logic for understanding the development of Africa’s justice strategies underway.Footnote ⁸ Making sense of the conceptualization of peace–justice sequencing in the Malabo Protocol for the African Court involves recognizing that the authors of the protocol saw that the political stakes were higher in transitional contexts, making the conflict between peace approaches and legal justice approaches further pronounced. Yet, this development in the crafting of the Malabo Protocol has also unfolded alongside the profound rise in prominence of international prosecutorial approaches to violence that have led to the re-emergence of the debate concerning whether the interest of justice should yield to the need to secure peace in situations of conflict or transition periods.Footnote ⁹

The duty in international law to prosecute serious international crimes was first established in a series of treaties recognizing specific atrocities as international crimes that states had a duty to prosecute under international law. The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) recognizes genocide as an international crime, imposes individual responsibility, and requires States Parties to try and punish perpetrators of genocide.Footnote ¹⁰ The Conventions require States to ‘search for persons alleged to have committed, or have ordered to be committed … grave breaches [of the Geneva Conventions] … and bring such persons, regardless of their nationality, before [their] own courts.’Footnote ¹¹ ‘Grave breaches’ include, inter alia, wilful killing, torture or inhuman treatment, biological experiments, and making civilian populations or individual civilians the object of attack.Footnote ¹² Similarly, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment emphasizes the ‘grave nature’ of the crime of torture requiring States Parties to prosecute or extradite its perpetrators.Footnote ¹³

In addition, the duty to investigate and prosecute has been reaffirmed on several occasions by the United Nations Security Council and other UN bodies, as well as international, regional, and national courts in finding amnesties for war crimes and crimes against humanity unlawful.Footnote ¹⁴ This duty has coalesced in the Rome Statute of the International Court, which defines international crimes and emphasizes ‘the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.’Footnote ¹⁵ The duty has been recognized with such a high degree of prevalence that the International Committee of the Red Cross asserts that there is an obligation under customary international law for states to investigate and prosecute international crimes.Footnote ¹⁶

The Malabo Protocol, and the eventual effort to extend the criminal jurisdiction of the African Court and bring it into force has raised a new set of issues related to how to address the interplay between various peace–justice dilemmas in post-violence contexts. This debate has been clarified with an articulated framework for Transitional Justice in Africa advocated by the Panel of the Wise and promoted by the African Union. Its relevance is critical in Africa,Footnote ¹⁷ where a number of states have protested the Prosecutor of the International Criminal Court’s (ICC) decision to investigate and issue arrest warrants in the midst of peace talks. However, as developed in the operationalization of the ICC, though the drafters of the Rome Statute envisaged the need for the ICC to yield to peace processes through Article 53(2)(c), which requires the Prosecutor to consider whether pursuing a case would be ‘in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims, and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime,’Footnote ¹⁸ article 53(2)(c) provides an opportunity for the ICC Prosecutor to consider political matters in the pursuit of justice – especially in relation to ongoing peace negotiations.Footnote ¹⁹

However, the ICC Prosecutor has moved away from such an interpretation, taking the position in a 2007 policy paper that the interest of justice ‘should not be conceived of so broadly as to embrace all issues related to peace and security’ and stating that the ‘Office will seek to work constructively with and respect the mandates of those engaged in other areas but will pursue its own judicial mandate independently.’Footnote ²⁰ A decade later, it does not appear that the Office of the Prosecutor plans on broadening its position on ‘interests of justice.’Footnote ²¹

However, the emerging African system being led by the AU is distinguishing itself in this regard. There is a vocal insistence that a premature emphasis on prosecutions can frustrate the search for a peaceful resolution, leading to continued conflict that prolongs the misery of affected communities.Footnote ²² There is a recognition that a leader – even one compromised by complicity in the perpetration of abuses – may be necessary to bring a faction to the negotiating table, maintain unity, and convince the faction to accept the negotiated resolution to the conflict.Footnote ²³ The second position is that criminal indictments may undermine the will of such leaders to pursue peace and entrench warring factions in their positions, complicating peace processes.Footnote ²⁴ And third, premature prosecutions may exacerbate atrocities.Footnote ²⁵

A recent study by Michael Broache found that that rumours that a rebel leader in the Democratic Republic of Congo was about to be arrested pursuant to an ICC arrest warrant motivated the leader to foment a new revolt that resulted in ‘serious atrocities,’ including murder, pillage, and sexual violence.Footnote ²⁶ And in Uganda, the issuance of ICC indictments against leaders of the Lord’s Resistance Army not only caused a temporary halt to peace negotiations, but was also cited, along with arrest warrants, as the reason a final peace agreement was never signed.Footnote ²⁷

The conflict in Northern Uganda initially began as a rebellion of the Ugandan People’s Democratic Army (UPDA), a group of army officers who fled Uganda Kampala in 1986 when President Yoweri Museveni took power after a five-year war.Footnote ²⁸ The rebellion eventually transformed into a cult-like rebel group known as the Lord’s Resistance Army (LRA), led by Joseph Kony.Footnote ²⁹ With financial and military support from the Sudanese government, the LRA increasingly began targeting civilians in Northern Uganda, many of whom were from the Acholi tribe, who they perceived to be government supporters.Footnote ³⁰ The LRA crimes have been widely documented and include murders, abductions, rapes, forced marriage, and mutilations. In December 2003, the government of Uganda referred the situation to the ICC because it could not arrest the LRA, which was operating from bases in South Sudan.Footnote ³¹ The prosecutor opened an investigation on 29 July 2004, and on 8 July 2005, the ICC issued arrest warrants for five senior members of the LRA.Footnote ³²

At the same time, ongoing peace negotiations were also taking place through meetings between Betty Bigombe, an Acholi member and government minister, and the LRA.Footnote ³³ In 2005, the LRA moved its base to the DRC, pursuant to the signing of the Comprehensive Peace Agreement (CPA) between northern and southern Sudan.Footnote ³⁴ In 2006, the LRA and the Ugandan government signed the first Cessation of Hostilities (CoH) Agreement.Footnote ³⁵

The subsequent negotiations lasted two and a half years and were fraught with setbacks. The CoH was continuously breached, the LRA did not honour timelines to meet and disarm, and Kony refused to sign any peace agreement until arrest warrants of the ICC were withdrawn.Footnote ³⁶ In response, the Ugandan government provided a variety of alternatives to all of the perpetrators, ranging from blanket amnesties to punishment for only those who committed the most serious crimes.Footnote ³⁷ As part of this strategy, the government also raised the issue of a deferral under Article 16. The government promised that it would approach the UNSC to ask for a deferral of the proceedings if and when the LRA signed the final peace agreement.Footnote ³⁸ Finally, on 29 June 2007, the government and the LRA signed the Agreement on Accountability and Reconciliation, with an annex to the agreement signed in February 2008. A final peace agreement was due to be concluded in late November 2008. It was not signed because Kony did not show up at the final signing ceremony.Footnote ³⁹

Based on this and other evidence, scholars have concluded that although judicial action may sometimes have preventive effects on atrocities, it may also ‘backfire, generating perverse incentives for leaders to escalate violence.’Footnote ⁴⁰

By contrast, countries such as Argentina and Guatemala demonstrate the potentially positive power of sequencing. During the transition from military dictatorship in Argentina, for example, the government worked to build a solid foundation for peace by strengthening democratic institutions.Footnote ⁴¹ Once that foundation was in place, the country’s amnesty laws were annulled, permitting victims to seek justice before the courts.Footnote ⁴² Similarly in Guatemala, the 1996 peace accords were accompanied by a national reconciliation law that provided amnesty for most crimes.Footnote ⁴³ Instead of prosecutions, the country invested in truth commission, officially known as the Historical Clarification Commission.Footnote ⁴⁴ It was not until 2009 that the Inter-American Commission on Human Rights observed that, under international law, the 1996 amnesty law could not be applied to serious human rights violations.Footnote ⁴⁵ Four years later, the Guatemalan Constitutional Court, considering a different but similar amnesty law, held that amnesty decrees do not apply to genocide, crimes against the duties of humanity, and forced disappearances,Footnote ⁴⁶ opening the door to prosecutions.Footnote ⁴⁷

In keeping with the prioritization of peace and the sustenance of life, the African Union’s (AU) Panel of the Wise issued a statement in 2013 that declared that:

The Panel recommended the establishment of an ‘African Transitional Justice Framework’ (ATJF) which, inter alia would include a declaration that

The resultant ATJF recognizes that states have a ‘positive duty’ to satisfy the goals of transitional justice: truth, justice, reparations, institutional reform, and public accountability.Footnote ⁵⁰ However, the ATJF acknowledges that these goals may be difficult for states to fulfil simultaneously, and recommends that

According to the ATJF, ‘Justice and peace’ … should not be seen as conflicting or contradictory forces. Rather, properly pursued, they promote and sustain one another. The question should not be: whether to pursue justice and accountability, but when and how. In reality, this emerging approach to the management of violence in Africa could be seen as being about keeping alive the possibility of justice and accountability and finding the right combination and right sequence in each specific context.’Footnote ⁵² By highlighting the importance of an inter-related justice architecture that includes economic justice, political justice (entailed in constitutional and other legal reforms) and justice for crimes committed from the perspective of criminal and reparative justice,Footnote ⁵³ peace is seen as the first measure for the management of violence and the sustenance of life and is understood as establishing the pre-conditions for justice in Africa.

As outlined in page two of the report by the Panel, ‘Justice, peace, good governance, and reconciliation…thrive where sturdy and stable democratic values and impulses prevail, and where there is a culture of constitutionalism to constrain arbitrariness and abuse of power.’ From the violence of traditional empires, to colonial imperial rule, to new domains of territorial, legal, and social reordering, to contemporary postcolonial struggles, this pronouncement highlights a resolve to using politically relevant solutions to addressing violence in Africa. The Malabo Protocol for the African Court is seen as operating within this point of departure in which justice includes peace and is not separate from it. Such a formulation for addressing post-violence justice is emerging within an AU Transitional Justice framework and represents an intertwined conceptualization of justice with its commitments to life as a key locus through which peace–justice sequencing is taking shape.

Thus, the criminal jurisdiction of the Malabo Protocol is seen as one of many components of the AU transitional justice framework. This means that seeing the work of an African court with extended criminal jurisdiction to prosecute a small number of perpetrators deemed most responsible for mass atrocity violence must be seen as one of a range of tools available to intervene in conflict situations and re-establish peace, stability and reconciliation in regions recovering from mass atrocity violence. This approach compares with the debates related to peace–justice sequencing in relation to the rise of the international criminal accountability, especially in the context of the International Criminal Court (ICC), a court established to prosecute crimes committed by those deemed most criminally responsible. However, in contrast, as we shall see in Section two, the second half of the chapter will explore how justice explored through the myriad approaches to managing violence in Africa can be understood both as the application of various peace strategies embedded in larger socio-political architectures.

In examining the nature of the debates related to peace–justice strategies and reflecting on the predominant anti-impunity model being articulated by various prosecutorial mechanisms, this chapter will focus on the design of the African Court infrastructure underway. What we shall see is that the Malabo Protocol is structured to allow for significant nationally driven post-violence forms of closure toward the establishment of peace while also making available of diplomatic processes. One might say that the Protocol for the African Court allows for the frontloading of “political” action through peace–justice sequencing and includes two provisions in the Protocol – Article 34A(1) and Article 29 – that have their own internal mechanisms for the management of violence. Beyond these provisions, the AU transitional justice architecture privileges sequencing as an important way to conceptualize legal justice within the larger AU Transitional Justice strategy.

The legal issues related to Article 34A(1), 29 are worth highlighting because they underscore the Court’s position in the larger African Union framework and set the tone for the ways in which the African Union is likely to relate to the Court more generally. First, the Malabo Protocol amends article 29 of the Statute of the African Court of Justice and Human and Peoples’ Rights to permit two additional entities – the Peace and Security Council and the Office of the Prosecutor – to submit cases to the Court on any issue or dispute within the Court’s jurisdiction.Footnote ⁵⁴ When combined with the pre-existing provisions in article 29 of the Statute, this would enable three types of entities to have broad access to the African Court on any matter within its jurisdiction: The State Parties to the Protocol, Certain organs of the African Union, namely the Assembly, the Peace and Security Council, the Parliament and Other organs of the Union authorized by the Assembly; and the Office of the Prosecutor.Footnote ⁵⁵

Second, in Article 34A (1), the revised Statute of the African Court of Justice and Human and Peoples’ Rights requires the Registrar of the African Court to notify the Chairperson of the Commission of all criminal cases instituted before it.Footnote ⁵⁶ When combined with article 49 of the Statute, such notice will enable the African Union, a continental intergovernmental body, and its various organs, to submit a request to intervene in a case if the organ believes it has an interest of a legal nature that may be affected by the decision in that case.Footnote ⁵⁷

What we shall see is that The Malabo Protocol solidifies the status of the African Court of Justice and Human and People’s Rights as a key institution in the African Union’s larger peace and security architecture. By granting the Peace and Security Council, along with the Assembly and Parliament, the authority to bring, and the possibility of intervening in, a case before any chamber of the African Court, the Malabo Protocol helps to ensure that decisions about whether and when to bring cases before the Court are informed by the African Union’s wider efforts to prevent, manage, and resolve conflicts on the Continent.Footnote ⁵⁸ These efforts recognize that criminal prosecutions, though important, are just one of many interventions that must be coordinated and carefully sequenced if there is to be a lasting transformation in countries emerging from mass atrocities. The Malabo Protocol facilitates that coordination and sequencing by providing the chief peace and security institutions of the African Union – the Assembly, the Parliament, and the Peace and Security Council – with a vital role in the initiation and continuation of cases.

The third section works through a number of examples to highlight successful representations of sequencing. What we see in the final section is that there is no single ‘one-size-fits-all’ approach to sequencing. Rather, a number of considerations should be reflected on that will affect the success of transitional justice/sequencing measures.

2. A Differentiated Approach to the Management of Violence

The African continent has experienced some of the worst atrocities of the modern era,Footnote ⁵⁹ forcing its leaders to develop innovative and comprehensive institutions and strategies to prevent, manage and resolve conflicts.Footnote ⁶⁰ Historically, the Organization of African Unity (OAU) held a policy of non-interference with the political affairs of other Africa states. However, this left the African continent without resources for managing mass violence crises (citation).

Shaped by constitutive act, the African Union of the post 2004 period has been engaged in shaping a new justice model for Africa that involves ways to operationalize peace and justice interests that directly contravene this model.Footnote ⁶¹ The African Union’s Constitutive Act that transformed the AU from the OAU outlines the existence of seven organs of the Union: The Assembly; Executive Council; Pan-African Parliament (PAP;Footnote ⁶²) The Court of Justice; The Commission; Permanent Representatives Committee; Specialized Technical CommitteesFootnote ⁶³; the Economic, Social and Cultural Council and Financial Institutions.Footnote ⁶⁴ Article 6 of the Constitutive Act, identifies the Assembly, composed of Heads of States and Government and their representatives, as the apex decision-making body of the Union. It is seen as the de facto executive of the Union. Its functions and powers are often identified as making and monitoring the implementation of the common policies of the Union. The Executive Council is the alternate to the AssemblyFootnote ⁶⁵ and both organs are served by the Commission and constitute the AU’s executive bureaucracy. The Assembly works closely with the Peace and Security Council (PSC), a fifteen (15) member body elected on a regional basis, which serves as the AU’s standing decision-making organ responsible for the maintenance of continental peace and security.Footnote ⁶⁶

The AU’s PSC, established in 2002, was established as a ‘decision-making organ for the prevention, management and resolution of conflicts.’Footnote ⁶⁷ To achieve these objectives, the PSC has a wide mandate to promote peace, security and stability; anticipate and prevent conflicts; promote and implement peace-building and post-conflict reconstruction activities; combat terrorism; and encourage democratic practices, good government, the rule of law, and the protection of human rights.Footnote ⁶⁸ The PSC may also recommend that intervention in a Member State where there are war crimes, crimes against humanity, or genocide,Footnote ⁶⁹ consistent with the Constitutive Act of the African Union.Footnote ⁷⁰ To pursue these objectives, the PSC works closely with other AU and African entities, including the Parliament, Commission, Panel of the Wise, Continental Early Warning System, African Standby Force, and regional mechanisms.Footnote ⁷¹

The PSC was established before the creation of the African Court, and well before the proposal to extend its jurisdiction to international crimes, therefore, the PSC does not have an explicit mandate with respect to the African Court or international criminal processes. Nonetheless, combating impunity and ensuring justice for international crimes would certainly fall within the PSC’s mandates to encourage the rule of law, protect human rights, and promote respect for the sanctity of human life and international humanitarian law.Footnote ⁷² From its first intervention in Burundi, to recent ones in KenyaFootnote ⁷³ Sudan, South Sudan, Mali and Central African Republic, some of the activities undertaken by the AU have attempted to de-escalate conflicts, monitor ceasefires, or negotiate power-sharing agreements following the cessation of hostilities.Footnote ⁷⁴ Since its first peace-keeping mission in Burundi with the African Mission in Burundi (AMIB),Footnote ⁷⁵ in 2002 the practice has although with challenges become a staple of AU responses in situations of ongoing conflict. After the deployment in Burundi, the AU has fielded a number of missions including African Union Mission in Sudan (AMIS); AU Mission for Support to the Elections in the Comoros (AMISEC); African Union Mission in Somalia (AMISOM); AU Electoral and Security Assistance Mission to the Comoros (MAES); AU Military Observer Mission in the Comoros (MIOC); United Nations African Union Mission in Darfur (UNAMID Hybrid force); African-led International Support Mission to Mali (AFISMA) and; Africa-led International Support Mission to the Central African Republic (MISCA) which transformed into the UN Multidimensional Integrated Stabilization MissionFootnote ⁷⁶ to the Central African Republic (MINUSCA).Footnote ⁷⁷

The PSC and the associated institutions that support its work, together with the Regional Economic Communities (RECs), jointly constitute what is commonly referred to as the African Union’s Peace and Security Architecture (APSA).Footnote ⁷⁸ They range from implementing various actions, mechanisms, and approaches entailed in the functioning of the PSC and by which relevant AU actors engage in the resolving of conflict, including violent conflicts.

Relatedly, the African Governance Architecture (AGA) is the AU’s institutional framework established to coordinate action undertaken by AU organs, institutions and the regional economic communities (RECs) to support member states in strengthening democracy, governance and human rights. AGA was mandated by the AU Assembly in July 2010 at its 14th Ordinary sessionFootnote ⁷⁹ and arose out of a series of deliberations within the AU (between the DPA and AUC) driven by the desire to ‘facilitate policy and programme convergence on Governance amongst AU Member States as a means to accelerate deeper integration.’Footnote ⁸⁰

The African Union’s PSC is at the centrepiece of the effort to manage African violence and the AGA complements the African Peace and Security Architecture (APSA), which addresses the AU’s peace and security agenda. The AGA and APSA were designed to bring together principles of democratic governance, peace, and security as interrelated and mutually reinforcing.Footnote ⁸¹

In 2004, then Secretary-General Kofi Annan asserted in 2004 that ‘[j]ustice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives. Advancing all three in fragile post-conflict settings requires strategic planning, careful integration and sensible sequencing of activities.’Footnote ⁸² This statement has paved the way for the development of ‘a range of judicial and non-judicial processes to meet the complex challenges facing many countries in varying types of transition.’Footnote ⁸³ It is also reflected in the ATJF, which recognizes that

This approach was reinforced in the Report of the African Union High-Level Panel on Darfur (AUPD), which stated that, in the context of Sudan,

To guide the work of the AU organs and the PSC, the African Union’s Transitional Justice Policy assists African societies emerging from violent conflicts or authoritarianism in pursuing peace, justice, and accountability.Footnote ⁸⁶ At the heart of this policy is the understanding that in ‘fragile post-conflict setting[s], a … balance … must be struck between peace and reconciliation on the one hand and responsibility and accountability on the other.’Footnote ⁸⁷ In contrast to other approaches, the AU’s transitional justice policy recognizes that societies emerging from conflict often have multiple needs, including ensuring peace, catalyzing democratic transformation, and pursuing reconciliation and accountability, and that it is ultimately the people of the affected society who must determine the appropriate combination of transitional justice mechanisms based on their unique circumstances.Footnote ⁸⁸ By focusing on the larger range of measures open to societies in transition, the AU’s Transitional Justice Policy allows affected societies and the AU to determine how and when to fit prosecutions into a larger, holistic transitional justice program. Such an approach does not negate the importance of accountability measures, but acknowledges that peace and reconciliation are equally important and desirable goals.Footnote ⁸⁹

Indeed, for countries still in the midst of conflict, ‘the most urgent desire of the affected population is to cease hostilities, restore peace and security.’Footnote ⁹⁰ In the eyes of many of these affected communities, peace itself ‘constitute[s] a first measure of justice in Africa.’Footnote ⁹¹ An exclusive focus on prosecutions, as is often the case in the West, detracts from this broader understanding of justice, reducing the idea of justice to the prosecution of a handful of individuals rather than addressing the root causes of mass atrocity crimes.Footnote ⁹² But ensuring that such atrocities are not repeated requires much more than prosecutions; it requires changes in the political, economic, and cultural structures of society that contributed to the atrocities in the first place.Footnote ⁹³

The AU’s Transitional Justice Policy recognizes advancing peace, reconciliation, and accountability requires careful planning and strategic sequencing of transitional justice measures.Footnote ⁹⁴ Particularly for countries still engaged in or just emerging out from conflict, this sequencing approach recognizes that it is not always possible to achieve peace and justice at the same time.Footnote ⁹⁵ As Thabo Mbeki and Mahmood Mamdani have written, ‘[t]here is a time and a place for courts, as in Germany after Nazism, but it is not in the midst of conflict or a nonfunctioning political system.’Footnote ⁹⁶ Where mass atrocities are ongoing, the initial focus must be to stop the fighting, implement a ceasefire, and negotiate a solution to the crisis.Footnote ⁹⁷ This does not mean that all accountability measures are suspended, but that they may be more limited until a political settlement has concluded.Footnote ⁹⁸

3. Legal Interests in Peace: Justice Sequencing

As established, since its transformation from the Organization of African Unity, the African Union, has demonstrated a renewed energy and growing capacity to resolve conflicts around the continent using particular peace–justice sequencing strategies. While on one hand, in March 2009, the AUC commissioned the Pan African Lawyers’ Union (PALU) to prepare a draft protocol to expand the criminal jurisdiction of the African Court which resulted in the production of the Malabo Protocol for the African Court whose innovations are in the introduction of new international crimes, on the other hand, central to its justice emphasis was the incorporation of that structure in a larger transitional justice architecture.

The emergence of an African Court of Justice and Human Rights, therefore, is not to be mistaken as another example of a blind move toward criminal accountability in the twenty-first century in which court proceedings are deemed the only venue for addressing violence. Rather, the emergence of the African Court should be seen in relation to Africa’s unfolding transitional justice domain underway. The assumption is that in mass atrocity violence situations, if peace and a functioning government cannot be achieved, the very effort to create a new state will suffer. In such situations (especially when compared to a specific crisis in a consolidated democracy), the political stakes are also higher, making the conflict between the peace-versus-justice dilemmas even more acute. This highlights the importance of understanding the way that the Malabo is part of a larger African transitional justice infrastructure that sees peace–justice sequencing as central to the relevance of political settlements in deeply unequal social fields.

Articles 29 and 34A of the revised Protocol provide a mechanism for assimilating the African Union’s peace and justice sequencing strategy by providing the African Union’s key peace and security organs an important role in the initiation and continuation of cases. In situations where criminal prosecutions may encourage peace by bringing all parties to the table, the Assembly, the Parliament, or the Peace and Security Council would have the authority to make an early referral of a case to the African Court under article 29 to pressure the relevant parties to negotiate. By contrast, where prosecutions risk derailing peace processes by removing key actors critical to the negotiations or by encouraging parties to dig into the fighting in order to win at all costs, these institutions could delay referral of a case to the Court, thereby facilitating the search for a mediated political solution.Footnote ⁹⁹

4. Prioritizing Peace: Sequencing as Key to Justice Reconceived in the African Region

Recognizing that international criminal law prohibits amnesties for war crimes and crimes against humanity, those who approach the international legal terrain through this lens often argue that in several situations where peace agreements initially included amnesties for warring parties, domestic, regional, and international courts have annulled those amnesties and permitted prosecutions to proceed. For example, they suggest that in October 1992, the Inter-American Commission on Human Rights found that Argentina’s ‘Full Stop Law’ and other laws granting amnesty for human rights violations committed during Argentina’s ‘dirty war’ deprived victims of their right to justice under the American Convention on Human Rights.Footnote ¹¹⁷

In March 2001, The Inter-American Court of Human Rights invalidated Peru’s Law No. 26479, which granted amnesty to perpetrators of human rights violations during its period of armed conflict from 1980 to 1995.Footnote ¹¹⁸ Here the argument made was that the Court held that ‘all amnesty provisions … are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearances, all of them prohibited because they violate non-derogable rights recognized by international human rights law.’Footnote ¹¹⁹ These regional precedents led to the judicial invalidation of Argentinian amnesty laws in domestic courts, and eventual legislative annulment.Footnote ¹²⁰

Some also argue that the issuance of an international indictment sends a message of condemnation that delegitimizes the accused warring party, and triggers States’ duties of arrest which isolate the individual and lead to retreat.Footnote ¹²¹ Human Rights Watch points to the situations of both the Former Yugoslavia and Liberia as successful examples of marginalization and isolation through issuance of arrest warrants:

Similarly, some of those advocating this position in African contexts have suggested that although Article IX of the 1999 Lomé Peace Agreement between the government of Sierra Leone and the Revolutionary United Front granted ‘absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives,’Footnote ¹²³ it came with an express reservation by the UN that it did not accept immunity for war crimes and crimes against humanity. As such, the Peace Agreement was not an impediment to the establishment of the Special Court for Sierra Leone and trying rebel leaders.Footnote ¹²⁴

While some view the annulment or invalidation of various amnesties as a positive approach to achieving peace, there is also a more regionally relevant approach to the management of violence on the African continent that is underway that points to a fresh and new set of possibilities that focuses on the preservation of human life first through the cessation of hostilities.

1. Introduction

The Africa rising narrative has gained traction within and beyond the continent.Footnote ¹ Endowed with significant human and natural resources, Africa’s promise and potential is unparalleled in modern history. The continent’s growth and development has undoubtedly transformed over the last decade, buoyed by a youthful demographic. However, Africa’s rise is measured in terms of economic growth.Footnote ² In the midst of the celebrated macro-economic growth lie deep inequality, fragility, unemployment and exacerbating poverty of African peoples.Footnote ³ Despite marked socio-economic progress in Africa, significant challenges continue to stand in the way of reaping the full potential of the continent’s abundance in resources. Democratic governance deficit is identified as one of the structural root causes of Africa’s conflicts and under development.Footnote ⁴ The African Union (AU) acknowledges that ‘the scourge of conflicts in Africa is a major impediment to the socio-economic development of the continent’.Footnote ⁵ To redress conflicts in Africa, the AU commits ‘to promote peace and security, human rights and ending impunity.’Footnote ⁶

In a remarkable departure from its predecessor – the Organization of African Unity – which relied on strict interpretation of the principle of state sovereignty (non-interference) – the AU’s principle of non-indifference, marked a significant paradigm shift.Footnote ⁷ In an unprecedented affirmation of the right of the Union to intervene in a Member State where grave crimes have been committed, the AU further condemns and rejects impunity.Footnote ⁸ Indeed, conscious of the high cost of impunity to Africa’s socio-economic development, the AU’s Peace and Security Council in 2009 – through one of its pillars, the Panel of the Wise – recommended the adoption of an African Transitional Justice Policy Framework.Footnote ⁹

While sufficient credit goes to the AU Panel of the Wise for the formal recommendation to the AU to consider developing and adopting a Transitional Justice Policy Framework, the original thought and idea about consolidating comparable transitional justice practices in Africa is traceable to the 2009 African Union High Level Panel Report on Darfur (Mbeki Panel Report).Footnote ¹⁰ The Mbeki Report made an unprecedented attempt to confront the ‘challenge of finding an effective and comprehensive approach to the issues of accountability and impunity on the one hand, and to peace, healing, and reconciliation on the other.’Footnote ¹¹ The Mbeki Panel Report recommendations were instrumental and likely guided the AU Panel of the Wise on the possible ‘contours’ of an AU Transitional Justice Policy Framework’.Footnote ¹² While the Mbeki Report was only focused on the situation in Darfur, its recommendations are applicable to other situations and include: ‘the utility of comprehensive national processes and principles for the establishment of hybrid courts in parallel with truth seeking and reconciliation processes’.Footnote ¹³ This paper examines the draft AU Transitional Justice Policy Framework. The paper is structured into three broad sections. Section 1 begins by tracing the objectives of the AU TJ Policy Framework. Section 2 reviews the Policy Framework’s focus and contents. Section 3 is a forecast of the promise and prospects of the Framework in addressing impunity and post conflict reconstruction and development in Africa.

2. Objectives of the AU Transitional Justice Policy Framework

South Africa’s transition from apartheid to a democracy is hailed as nothing short of a miracle.Footnote ¹⁴ When Nelson Mandela took over from FW de Klerk as President of South Africa in 1994 – after spending 27 years in prison – the world sighed in amazement as once arch-foes formed a government of national unity. De Klerk was appointed as Mandela’s deputy until 1996. Inspired and motivated by pragmatism or perhaps a symbolic gesture of reconciliation, it was a game changer in South Africa’s pursuit for national unity among diametrically opposed sides. To deal with past injustices of apartheid, South Africa formed a Truth and Reconciliation Commission in 1995 with a mandate to examine human rights violations and atrocities from 1960 to 1994.Footnote ¹⁵ The mandate was set out in the Promotion of National Unity and Reconciliation Act, South Africa, 19 July 1995. While other African countriesFootnote ¹⁶ had previously attempted reconciliation processes including through truth commissions, South Africa’s iconic experiment is heralded as inspiring replication across the continent on dealing with past atrocities.Footnote ¹⁷ Rwanda, Sierra Leone, Liberia, Kenya, Ivory Coast, Mali, Zimbabwe, and South Sudan are some of the other African countries that have since attempted various transitional justice initiatives.

Although several AU Member States have since attempted different versions of transitional justice, there is lack of a coherent continental approach or guide towards effective and legitimate transitional justice processes and mechanisms. Indeed, the AU Panel of the Wise acknowledges that ‘since the early 1990s, Africa has served as a vast testing ground for new policies to address impunity, seek truth and justice, and enable reconciliation in fractured societies’.Footnote ¹⁸ The impact of those experiments in meeting the objectives to which they were established is mixed. Several lessons can be teased out from comparable experiences of countries in Africa and beyond that have adopted and undertaken transitional justice. Besides examining effective practices – in light of differences in contextual realities of AU Member States – some of the lessons are on what not to replicate and copy, rather than what to do.

The AU TJ Policy Framework therefore seeks to consolidate lessons, practices and emerging norms on credible and legitimate transitional justice mechanisms and processes in Africa and raises questions about the new locus of justice being fomented through the African Court for Justice and Human Rights. The objectives of the Framework ‘is to assist African Union (AU) Member States emerging from violent conflicts and repression in their pursuit of accountability, sustainable peace, justice and reconciliation. The AUTJF reflects contemporary issues in the area of transitional justice and aims to be a guide that can be adapted by countries in the design and implementation of transitional justice mechanisms.’Footnote ¹⁹

The Framework makes it clear that it does not to seek to create any ‘new obligations for AU Member States’, but rather complements and provides clarity to AU instruments and policies that ‘deepen the links between justice, governance, human rights, peace and security and development’.Footnote ²⁰ Acknowledging the gap between what transpires in practice and in various AU normative instruments, the Framework seeks to ‘improve the timeliness, effectiveness and coordination of efforts by States emerging from conflict and oppressive rule.’Footnote ²¹

3. Focus and Content of the AU TJ Policy Framework

The scope and focus of the AU TJ Policy Framework is largely inspired by the AU Shared Values instruments and policies relative to democratic governance, human rights, peace and security and post conflict reconstruction and development.Footnote ²² The Framework places emphasis on an imperative for synergy, complementarity and coherence between the African Governance Architecture and the African Peace and Security Architecture.Footnote ²³ Effective implementation of AU Share Values at national level is critical for addressing impunity and post conflict reconstruction and development. The Framework is conceptualized and designed as an imperative to ‘end violent conflicts and repressive rule, and nurture sustainable development, social justice, human and peoples’ rights, democratic rule, and good governance, consolidate peace, reconciliation and justice in Africa, and prevent impunity’.Footnote ²⁴

The Framework is structured along four broad areas. It begins by acknowledging the principles and values that underpin the Framework. It then highlights the guiding normative framework which includes the AU Shared Values on democratic governance, human rights, constitutionalism, rule of law, peace and security. While not purporting to be exhaustive, the Framework outlines some of the constitutive elements of transitional justice largely based on comparable lessons and experiences of AU Member States that have undertaken transitional justice in Africa. Finally, the Framework identifies the key actors and governance mechanisms for implementation. The next section examines the four broad areas in turn.

4. Promise and Prospects

The development of an AU TJ Policy Framework marks a turning point for the AU in the fight against impunity. Beyond reaffirming its condemnation and rejection of impunity in its founding instrument – the Constitutive ActFootnote ⁸⁸ – the AU through the Framework elaborates specific measures and practical steps to enhance accountability and realize human and peoples’ rights in Africa. The Framework’s significant promise is its offer to Member States crucial guidance on dealing with past atrocities. The Framework reasserts the idea that ‘peace, justice, accountability and reconciliation, are interrelated, interdependent and mutually reinforcing’.Footnote ⁸⁹

Although it acknowledges that it might be necessary to sequence these processes based on appropriate timing and seizing the right moment, the Framework notes that the none of the four imperatives of peace, justice, accountability and reconciliation can be sacrificed for the other.

The Framework elaborates the mandates, provisions and relevant principles of AU Shared Values instruments in addressing impunity whose implementation would guarantee non-recurrence. One of the Framework’s value propositions beyond affirming that its legal basis is the AU Shared Values instruments is the identification of comparable lessons and practices in Member States on dealing with impunity and addressing historical injustices. The Framework reasserts the fact that AU Shared Values are not in contradiction with international human rights and humanitarian standards.

Unlike any other transitional justice instruments globally, the AU TJ Policy Framework’s point of departure is the imperative of peacemaking processes in shaping and informing transitional justice. Political negotiations and mediation in Africa offer perhaps the best platform for inclusion of transitional justice processes. The role of the AU Panel of the Wise and Regional Economic Communities as well as the African Governance Architecture and Peace and Security Architecture in undertaking, coordinating and guaranteeing peacemaking processes has significant potential and promise to yield sustainable peace in Africa.

The Framework places emphasis on examining structural root causes of conflict in the design and conceptualization of transitional justice processes and mechanism among countries emerging from conflict, rather than only looking at the symptoms of conflict. Democratic governance, deficit, and in particular human rights violations and lack of respect for the rule of law and constitutionalism are identified as critical drivers and triggers of conflict. The Framework suggests not only reforming laws and institutions but also building state capacity to promote and uphold principles of democratic governance as essential in facilitating reconciliation and ensuring socio-economic and political justice.

The Framework’s potential in changing the paradigm of state-society relations is marked by its according primacy to citizens and beneficiaries of transitional justice processes. Responding to heightened demands by citizens that ‘nothing about us, without us’ which has reverberated across the continent, the Framework calls on Member States to ensure that ownership of transitional justice processes resides with its beneficiaries. Through appropriate and genuine participation and consultations with citizens, victims and civil society the Framework goes beyond rhetoric to insist on inclusion of all actors from design, implementation and evaluation of transitional justice initiatives.

One of the unique contributions of the Framework in post conflict reconstruction and development in Africa is its broadening of the notion of justice beyond retributive justice to encompass restorative, redistributive and transformative justice. The Framework embraces traditional and alternative justice systems whose twin objectives of ensuring accountability and reconciliation is the hallmark of African understanding of justice.

The importance of socio-economic justice in transitional justice in Africa finds adequate emphasis in the Framework. Through promotion of effective reparations programmes that are designed to ensure that victims’ losses are acknowledged publicly, symbolically through memorialization and where need be materially, the Framework finds significant resonance in Africa.

Another unique and important contribution of the AU TJ Policy Framework is its acknowledgement of the gender dimensions of transitional justice. Besides appropriately calling on Member States to address the special needs and vulnerabilities of women victims in conflict, it identifies women as peace makers, mediators and actors who have great promise and capacity to ensure transitional justice processes are effective, legitimate and credible. The Framework equally addresses the special vulnerabilities of children in conflict as victims and also as perpetrators – child soldiers – and how to deal with such children based on the overriding principle of the best interest of the child.

Conscious of the imperative for synergy, harmony, coherence and importantly the fact that its promise and potential hinges on the extent to which it is implemented at national level, the Framework identifies critical actors and mechanisms for that purpose. The AU, RECs, Member States, and non-state actors including civil society and development partners are crucial for the effective implementation of the AU TJ Policy Framework. As efforts continue to ensure that the Framework is adopted by the AU, one can only wait with bated breath for what promises to be a game changer in Africa’s fight against impunity and the push for accountability and post conflict reconstruction and development.

1. Introduction

This chapter will assess how the move towards enabling the African Court of Justice and Human Rights (ACJHR) to prosecute the most serious crimes of international concern, could impact on the African Union’s evolving transitional justice architecture. The chapter will argue the emergence of alternative sources and ways of framing international criminal law, as evidenced in the Malabo Protocol, will broaden the spectrum of options available to African Union (AU) member states in their attempts to implement transitional justice processes. The chapter will further argue that what I call a differentiated accountability system is at the core of the African Union’s evolving transitional justice architecture. The chapter will assess how the African continent is emerging as a theatre of innovation in terms of advancing our understanding the nexus between international criminal law, transitional justice and peacebuilding. This development will enable the continent to extricate itself from the puerile and interminable false debate as to whether one is ‘for’ or ‘against’ impunity depending if one advocate for the interventions of the international criminal tribunals in Africa. The chapter concludes by arguing that it is always vital to learn what African transitional justice, and specifically judicial, strategies or responses might be appropriate in different country contexts, which should be the foundation for a differentiated accountability system. As we shall see, understanding the operationalisation of the Malabo Protocol as a judicial instrument requires considering its application in relation to political commitments to African transitional justice.

2. Transitional Justice in Context

Though the formation of the African Court for Justice and Human Rights presupposes judicial solutions to violence and inequality to Africa, it is important to understand how it is conceived as working in relation to larger structures of violence management, such as African transitional justice. What we see is that the processes that the field of transitional justice embodies have been implemented for as long as there have been conflicts and efforts to deal with the past. However, as a field of academic study and sphere of practical intervention, transitional justice began being systematically analysed during the transitions from authoritarian regimes in Latin America in the 1980s.Footnote ¹ The genocide in Rwanda, in 1994, and in Srebenica, in 1995, further crystallised the quest and need to understand how societies that had endured mass atrocities could establish processes and mechanisms to deal with such a brutal past and enable a society to move forward. Concurrently, in 1994, South Africa’s liberation from the yoke of a white supremacist apartheid regime to a system of democratic governance, also generated a broad range of insights and experiences that could be analysed and documented, on how to operationalise transitional justice. There are still perplexing challenges such as the issue of whether transitional justice processes can be implemented in the absence of a ‘transition’ or regime change. There is no definitive satisfactory response to this conundrum and often it is necessary to begin laying the foundations for transitional justice even in the absence of a transition or during a violent conflict.

3. A Working Definition of Transitional Justice

Alex Boraine notes that ‘transitional justice seeks to address challenges that confront societies as they move from an authoritarian state to a form of democracy’.Footnote ² More often than not such societies are emerging from a past of brutality, exploitation and victimisation. In this context, transitional justice does not seek to replace criminal justice; rather, it strives to promote ‘a deeper, richer and broader vision of justice which seeks to confront perpetrators, address the needs of victims and start a process of reconciliation and transformation towards a more just and humane society’.Footnote ³

The broadly accepted purpose of a process of transitional justice is to establish a quasi-judicial framework to undo the continuing effects of the past. It is also necessary not to lose sight of the fact that transitional justice is just that, a ‘transitional process’ and it should not be viewed as a permanent solution to addressing the atrocities of the past. It is a transient process that will have to give way to the rule of law and the restoration of a constitutional order that will manage and resolve the social, political and economic tensions within society. The institutional vehicles through which transitional justice is implemented, bodies such as truth and reconciliation commissions and special courts are temporary and time-bound institutions and should not be considered as a permanent solution.

Boraine argues that there are at least five components of a transitional justice process including:

• ensuring accountability in the fair administration of justice and restoring the rule of law;

• the use of non-judicial mechanisms to recover the truth, such as truth and reconciliation commissions;

• reconciliation in which a commonly agreed memory of the past atrocities is acknowledged by those who created and implemented the unjust system as a prerequisite to promoting forgiveness and healing;

• the reform of institutions including the executive, judiciary and legislative branches of government as well as the security sector to ensure that a degree of trust is restored and bridges between members of society can be re-built;

• the issuing of reparations to victims who had suffered human rights violations, as a way to remedy the harm suffered in the past.

Transitional justice is complicated by a number of dilemmas including how to balance the ‘competing legitimate interests in redressing the harms of victims and ensuring the democratic stability of the state’.Footnote ⁴ It requires the balancing of two imperatives ‘on the one hand, there is the need to return to the rule of law and the prosecution of offenders: on the other, there is a need for rebuilding societies and embarking on the process of reconciliation’.Footnote ⁵

4. International Criminal Law within the Transitional Justice Framework

International criminal justice falls within the rubric of retributive justice. Consequently, international criminal law (ICL) is only one element of a broad range of transitional justice processes. The dominant view among legal practitioners, scholars, jurists and lawyers is to view transitional justice as a ‘spin-off’ of ICL. This view also perpetuates a myth that transitional justice is a soft version of ‘justice’ that seeks out avenues to punish perpetrators and consequently it denies the ‘duty to punish’ and it undermines the ‘morally superior’ pursuit of the rule of law based on legal criteria. Regrettably, such views are the result of a myopic approach to the ‘law’ which begins in the law schools, where through a process of indoctrination legal scholars are erroneously taught that their sphere of activity is immune from the contamination of political, social and economic forces. This is a counter-intuitive position when one considers that all law is created through political negotiation, or more precisely through political manipulation. Consequently, the idea that ‘law’ somehow operates above politics is derisory and self-deluding which can lead to disastrous outcomes, particularly in post-conflict contexts which evade easy categorisations, and which due to their extremely volatile nature can lead to the loss of life by the actions of over-zealous prosecutorial fundamentalists.

5. The Eurocentric Origins of International Law

International law emerged from the domestic political, cultural and legal norms of European societies. Subsequently, international law and ICL has been projected onto the world stage as a universally applicable system of norms and rules, which should frame and guide the way societies should live. If Eurocentric domestic norms can inform international law, the question arises as to whether other non-European societies can also extract, distil and proffer certain norms which can inform the reconstruction and redefinition of international law (IL) and ICL? The response is self-evidently in the affirmative the modern regime of international law is to a large extent a work-in-progress as a normative framework. The current corpus of IL and ICL does not foreclose the possibility that other sources of influence can be drawn upon to reorient this IL and ICL normative framework. The way forward will not be to continue to pretend that its origins were culturally inclusive and to embrace the possibility of new ways of conceptualising and framing international law and international criminal law, by drawing from other cultures around the world.

6. The African Union’s Evolving Transitional Justice Architecture

The Constitutive Act of the African Union, of 2000, empowers the body ‘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 … upon the recommendation of the Peace and Security Council’.Footnote ⁸ In contradiction of some of the dominant narratives about the continental body, the African Union was two-years ahead of the operationalisation of the Rome Statute in formally adopting a legal position on the importance of confronting mass atrocities through rejecting impunity for international crimes. Consequently, from the outset the AU’s policy documents sought to internalise the organisation’s commitment to confront impunity. Along these lines the AU Constitutive Act identified the need to create an AU Court of Justice and recognised the continued functioning of the African Court on Human and Peoples’ Rights.

The cyclical nature of conflict in Africa, points to the critical need to move beyond temporary stalemates and ceasefires, peacekeeping deployments and military operations, that are so common in this era, towards a regional policy informed by intentionally confronting the underlying grievances that have fuelled decades of animosity and violence on the continent. This means that the continent’s peace and security institutions need to interface more effectively with the African Union’s evolving post-conflict reconstruction and transitional justice mechanisms.

7. The Implications of the Malabo Protocol on the AU Transitional Justice Architecture

The emergence of alternative sources and ways of framing international criminal law, as evidenced in the Malabo Protocol, will broaden the spectrum of options available to AU member states in their attempts to implement transitional justice processes. This will enhance the differentiated accountability system which is at the core of the African Union’s evolving transitional justice architecture.

On 1 July 2008, member states of the AU adopted the Protocol on the Statute of the African Court of Justice and Human Rights, which in effect ‘merged the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union into a single Court’.Footnote ²¹ Subsequently, the AU adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (hereafter Malabo Protocol). The Malabo Protocol will enter into force upon the ratification of the Protocol by 15 member states of the African Union, with instruments of ratification being deposited with the Chairperson of the AU Commission. The AU also intends to register the entry into force of the Court with the secretariat of the United Nations.

The organs of the African Court include the: (i) Presidency; (ii) Office of the Prosecutor; (iii) Registry; (iv) Defence Office. This is indicative of the intentions to create an institution to adjudicate international crimes. Article 3(1) of the Protocol stipulates that ‘the Court is vested with an original and appellate jurisdiction, including international criminal jurisdiction’.Footnote ²²

The African Court has the ‘jurisdiction to hear matters or appeals as may be referred to it in any other agreements that the member states or the regional economic communities or other international organisation recognized by the African Union’.Footnote ²³ The word ‘recognition’ is significant in this instance since it gives the AU the means not to engage with international organisations that it is not prepared to recognise.

8. Africa as a Theatre of Innovation in International Criminal Law

The AU has subsequently embarked on the elaboration of its own international criminal law through the prospective operationalisation of the Malabo Protocol.

9. Beyond the Puerile False Debate on Impunity and the Support for the ICC in Africa

The articulation and operationalisation of a differentiated accountability system will enable the continent to extricate itself from the puerile, facile and interminable false debate as to whether you are ‘for’ or ‘against’ impunity depending if you advocate for the interventions of the International Criminal Court (ICC) in Africa. Rather than viewing the emergence of alternative sources and framings of international criminal law as a threat to the ICC or as an attempt by regional actors to evade justice, they should be viewed for their potential to create differentiated jurisdictions to address the violations in situations of conflict. It is necessary to make judicial processes more responsive to the victims, by drawing them into the processes of pursuing redress for the violations that they have endured. Consequently, ICC interventions will not necessary be the most appropriate framework to deploy in every situation in which there has been mass atrocities. The fact remains the Rome Statute stipulates a relationship between the ICC and nation-states, but it does not elaborate on the prospects for a relationship between the ICC and regional or continental courts. This is a lacuna in ICL which needs to be urgently addressed given the prospective operationalisation of the African Court of Justice and Human Rights. Ultimately, the existence of a differentiated accountability system provides the African continent a broad range of options, through which to address impunity, and complements the AU’s objection to the abuse of the principle of universal jurisdiction, particular in instances in which African statesmen and women are disproportionately subject to IL, when compared to other regions of the world.

10. Conclusion

Given the historical and imperial origins of European international law, non-African governments and societies as well as international organisations will need to reflect on how they can collaborate more closely with traditional justice and reconciliation processes to promote genuine ownership of the processes of post-conflict justice and peacebuilding. External actors must be willing to learn and not blindly or patronizingly transpose or impose systems that are not immediately translatable or understandable to their host populations. We should question attempts to impose a universal conception of justice or assume that so-called ‘international law’ is devoid of any imperial pretentions as far as disciplining and controlling target countries is concerned. Instead, we should draw lessons from African thinking relating to ICL, evidenced in the Malabo Protocol, which is a riposte to the tendency to privilege euro-centric notions of justice, particular its over-emphasis on individual culpability. It is always vital to learn what African transitional justice, and specifically judicial, strategies or responses might be appropriate in different country contexts, which should be the foundation for a differentiated accountability system. Africa in this sense has challenged the artificial normative strictures of the global discourse of ICL and is advancing its own home-grown norms to dealing with the violations of the past. On this basis, Africa has become an innovator in the development of ICL and transitional justice norms. The fact that a number of countries on the continent will be emerging from conflict in the next decade and beyond, Africa will continue to be a thought-leader, norm-setter and norm entrepreneur in terms of ICL and transitional justice processes and institutions and the perplexing challenge of addressing the violations of the past. The question that faces us today in the context of our globalised world is whether we are prepared to draw from the lessons of African models of justice and reconciliation.

1. Introduction

In accordance with article 24(2) of the Charter of the United Nations (Charter), the United Nations Security Council (UNSC) has the primary responsibility for the maintenance of international peace and security.Footnote ¹ Chapter VII of the Charter further provides the UNSC with extensive powers to take binding decisions for member states to maintain or restore international peace and security. Articles 25 and 103 of the Charter respectively oblige member states to give effect to binding decisions under the Charter and to give precedence to these decisions in cases of conflict with other obligations under international law.Footnote ² In this context, it is important to keep in mind that while the African Union (AU) is not a party to the Charter, all its member states are. This implies that in case of a conflict between a binding UNSC decision and a decision of the AU, member states will have to give precedence to those obligations following from the UNSC decision.Footnote ³

The question arises as to whether conflicting AU and UNSC decisions are likely, in light of the fact that the African Union Peace and Security Council for its part is charged with the primary responsibility for the prevention, management and resolution of conflicts in Africa. Article 16 of the African Union Protocol Relating to the Establishment of the Peace and Security Council of the AU of 9 July 2002 (AUPSP) determines that, insofar as the AU’s relationship with sub-regional organizations is concerned, the AU has the primary role in relation to the maintenance of peace and security on the continent.Footnote ⁴ One can read this statement as running counter to the primacy conferred upon the UNSC, unless it was intended as an implicit reminder that article 53(1) of the Charter calls on the UNSC to utilize regional arrangements or agencies for enforcement action under Chapter VII of the Charter. This point will be taken up again below, when discussing article 17 of the AUPSP.Footnote ⁵ However, despite the possibility of interpreting article 16 of the AUPSP harmoniously with the Charter, the question arises as to how these two security councils will interact on issues of peace and security.

This contribution focuses in particular on the legal implications where both the UNSC and the AU Peace and Security Council refer the same situation in which international crimes have potentially been committed respectively to the International Criminal Court (ICC) and the yet to be established Criminal Chamber of the African Court of Justice and Human Rights (African Criminal Chamber – ACC), for the purpose of investigation and possible individual prosecution of the perpetrators. The ICC Statute provides for referrals of such situations in article 13(b) of its Statute.Footnote ⁶ The purpose of this article was to enable the ICC to undertake investigations and prosecutions in states not party to the ICC Statute.Footnote ⁷ In this context, one has to keep in mind that the UNSC has the competence under Chapter VII of the Charter to create international criminal tribunals, such as the International Criminal Tribunals for the Former YugoslaviaFootnote ⁸ and Rwanda as sub-organs of the UNSC,Footnote ⁹ as well as to request a treaty-based international criminal court such as the ICC to investigate whether international crimes have been committed in a particular territory.Footnote ¹⁰ However, the ICC, for its part, is not obliged to accept such a referral as it is – unlike all its member states – not a party to the Charter and therefore not bound by it. However, through article 13(b) the ICC is vested with the power to receive referrals from the UNSC.Footnote ¹¹ Thus far, the UNSC has referred two situations to the ICC, namely, that of Darfur (Sudan)Footnote ¹² and Libya.Footnote ¹³

According to the amended article 29(1)(b) of the Protocol on the Statute of the African Court of Justice and Human Rights of 1 July 2008 (Statute of the African Court),Footnote ¹⁴ the AU Peace and Security Council will for its part also have the competence to refer cases to the African Criminal Chamber. Article 46F(2) further confirms that the ACC will have jurisdiction in instances where the AU Peace and Security Council refers a situation to it, where it appears that crimes have been committed over which the ACC has jurisdiction.Footnote ¹⁵ The use of ‘case’ in article 29(1)(b) and ‘situation’ in article 46F(2) of the Statute mirrors the terminology used in the ICC Statute, where the term ‘case’ has been interpreted more narrowly than ‘situation’, since it only includes specific individual investigations or prosecutions. If the identical terms used in the Statute of the African Court were given a meaning identical to these terms in the ICC Statute, it would seem that the AU Peace and Security Council would not be able to refer conflict situations in which potential international crimes have been committed. However, since article 46F(2) authorizes the ACC to refer situations referred by the AU Peace and Security Council, one could argue that article 29(1)(b) implicitly also covers ‘situations’ and not merely individual cases.

Furthermore, it is not clear whether the AU Peace and Security Council can refer a situation to the ACC only where it concerns an AU member state that is also a party to the Statute of the African Court, or whether it can in addition refer situations in AU member states that have not yet ratified the Statute of the African Court. The organizational practice has not yet confirmed whether the AU Peace and Security Council’s primary role in matters of peace and security on the continent implies that it has powers analogous to that of the UNSC under Chapter VII (albeit on a regional level). Either way, the inclusion of these articles in the Statute of the African Court gives rise to the possibility of a conflict between the ICC and the ACC. It is possible that a situation or a case resulting from a referral of a situation from the UNSC to the ICC has also been referred to the ACC by the AU Peace and Security Council. While these are not the only situations in which jurisdictional conflicts between the ICC and ACC can arise,Footnote ¹⁶ the central role of the UNSC in the maintenance of international peace and security, as personified by article 103 of the Charter, merits an analysis of how conflicts resulting from simultaneous referrals can be resolved and preferably be prevented from happening in the first place.

This contribution will examine these questions. In doing so, it departs from the premise that – despite tensions between the AU and the ICC - Africa remains committed to supporting the prosecution of international crimes committed on the continent, while continuing a cooperative relationship with the ICC.Footnote ¹⁷ Such a premise may come across as surprising in light of the increasing discontent of African governments with the ICC, which is perceived as biased towards Africa.Footnote ¹⁸ In fact, a series of events in recent years suggest that the AU and its member states are in practice are increasingly rejecting the ICC (and for that matter the UNSC). For example, at the time of writing one of the former 34 African state parties to the ICC has definitely withdrawn from the ICC in accordance with article 127(1) of the ICC Statute.Footnote ¹⁹ Other acts of rebellion included the refusal by Chad, Malawi, the Democratic Republic of the Congo and South Africa to surrender President Bashir of Sudan to the ICC when he visited these countries,Footnote ²⁰ as well as the decision by the AU that its member states do not cooperate with the ICC in relation to the surrender of sitting heads of state.Footnote ²¹ Similarly, the creation of the ACC at first sight comes across as an act of rebellion, since the Statute of the African Court remains silent on the relationship between the ACC and the ICC, despite the fact that 33 African AU member states are parties to the ICC Statute.Footnote ²²

However, the author is of the opinion that, while many AU member states may indeed, at the time of writing, have little political enthusiasm for cooperation with the ICC, the creation of the ACC does not legally prevent them from doing so, neither does it release them from their obligations under the Charter or the ICC statute, as long as they remain parties to these treaties. The potential for cooperation between the AU Peace and Security Council and the UNSC is acknowledged by the Charter as well as the AUPSP. Part VIII of the Charter, notably article 53(1), allows the UNSC to delegate enforcement measures to regional organizations such as the AU.Footnote ²³ Article 17 of the AUPSP for its part acknowledges the primacy of the UNSC in the maintenance of international peace and security and pledges close cooperation with the UNSC in promoting and maintaining peace, security and stability in Africa and in keeping with Chapter VIII of the UN Charter. This commitment to cooperation with the United Nations is further affirmed in article 3(e) of the Constitutive Act of the AU, which ‘takes due account’ of the Charter and the Universal Declaration of Human Rights.Footnote ²⁴ These references in the Charter, the AU Constitutive Act and the AUPSP support the development of a symbiotic, cooperative relationship between the AU (including its Peace and Security Council) and the UN (including the UNSC) in matters of peace and security. This would include cooperation in relation to the prosecution of international crimes as a mechanism for restoring international peace and security in situations where an international (including regional) threat to peace exists.

2. Conflicting Obligations Pertaining to State Cooperation with the ICC and the ACC

Before elaborating on the conflicts that may result from concurrent jurisdiction of the ICC and the ACC,Footnote ²⁵ it is necessary to briefly outline the extent to which there can be overlaps in substantive, personal and temporal jurisdiction between the two courts. It is only when there is a simultaneous overlap in relation to all three areas of jurisdiction that a jurisdictional conflict can arise. While the ACC has much broader substantive jurisdiction than the ICC, both have jurisdiction in relation to genocide, crimes against humanity, war crimes and the crime of aggression.Footnote ²⁶ The personal jurisdiction over natural persons of the ICC and ACC is limited to individuals who were over the age of 18 at the time the crime was committed.Footnote ²⁷ Both courts can exercise jurisdiction over crimes that occurred on the territory of state parties and crimes that are committed by nationals of a state party, while the ACC also provides for jurisdiction where the victim of the crime is a national of a member state, as well as in relation to extraterritorial acts by non-nationals that threaten a vital interest of a member state.Footnote ²⁸

The statutes of both the ICC and the ACC limit the overall temporal jurisdiction in respect of crimes committed after the entry into force of the respective treaties.Footnote ²⁹ In the case of the ICC this was 1 July 2002, while in the case of the ACC it will be 30 days after the Amendment Protocol had entered into force.Footnote ³⁰ In addition, both the ICC and the ACC have only temporal jurisdiction over crimes committed in the member state in question after its ratification of the respective Statute.Footnote ³¹ As the Amendment Protocol has not yet entered into force,Footnote ³² any jurisdictional conflict between the ICC and ACC for the time being remains hypothetical. Even so, future conflicts cannot be excluded once the Amendment Protocol enters into force.

In the context of this contribution, it is the potential overlap in substantive, personal and temporal jurisdiction resulting from simultaneous referrals by the UNSC and the ACC that is of interest. In cases of such overlap, member states of these respective courts may find themselves confronted with conflicting obligations to cooperate in relation to investigations and prosecutions. As mentioned above, a UNSC referral combined with article 13(b) of the ICC Statute enables the ICC to undertake investigations and prosecutions in states not party to the ICC Statute. Once a situation in a non-state party is brought within the jurisdiction of the ICC by means of a UNSC referral, the ICC statutory framework determines the way in which investigations, prosecutions and cooperation by member states are to take place.Footnote ³³ For example, in accordance with article 86 of the ICC Statute, state parties will have to fully cooperate with the ICC in its investigation and prosecution of crimes within the ICC’s jurisdiction.Footnote ³⁴ In addition, they will have to comply with requests for arrest and surrender in accordance with the ICC Statute.Footnote ³⁵

As far as ICC non-member states are concerned, it is worth recalling that they are all members of the UN and, therefore, bound by UNSC decisions, including the precedence clause in article 103 of the Charter. These states, therefore, are bound to give effect to obligations in the referring UNSC resolutions that are directed at them. Thus far the UNSC, when referring situations to the ICC, has obliged the respective state to fully cooperate with the ICC.Footnote ³⁶ This reference to ‘full cooperation’ in UNSC Resolution 1593 (2005) concerning Darfur, and UNSC Resolution 1970 (2011) concerning Libya established a textual link with the ICC Statute that triggers all articles in the ICC Statute concerning cooperation.Footnote ³⁷ Therefore, the states in question (Sudan and Libya) had to take all measures required by international and national law necessary to facilitate investigations and eventual prosecutions by the ICC in relation to those individuals against whom the ICC issued arrest warrants. It further meant that indicted state officials could not invoke immunities to prevent their arrest and surrender.Footnote ³⁸

Moreover, ICC member states can assume or presume that in response to UNSC Resolutions 1593 (2005) and 1970 (2011), Sudan and Libya respectively have removed any international or domestic legal obligations that prevented their cooperation within the ICC statutory framework – despite the fact that these resolutions did not explicitly state as much. This conclusion is supported by the 1970 Namibia advisory opinion of the International Court of Justice (ICJ).Footnote ³⁹ The decision concerned the UNSC resolution that declared the South African presence in Namibia illegal,Footnote ⁴⁰ without, however, imposing any explicit obligations on third states. The ICJ gave a purposive interpretation to the resolution and determined that the UNSC resolution required all states to recognize the illegality of South Africa’s presence and to refrain from any acts that would imply the recognition of the legality of South Africa’s presence.Footnote ⁴¹ All states thus had to accept the legal situation resulting from the UNSC binding decision and act in accordance with such acceptance, as anything less would undermine the efficacy of the principal organ entrusted with the primary responsibility for international peace and security.Footnote ⁴²

As far as the ACC is concerned, article 46L of the Statute of the African Court provides for a comprehensive cooperation framework with the ACC for state parties to the Statute of the African Court. If the AU Peace and Security Council were to refer situations occurring in parties to the Statute of the African Court to the ACC, clearly the latter’s statutory framework would be applicable to investigations and prosecutions. Moreover, if one assumes for the sake of argument that the AU Peace and Security Council can also refer situations in states that are not party to the Statute of the African Court to the ACC, then it is likely that the effect of such a referral would be comparable to that of a UNSC referral to the ICC. The statutory framework of the ACC would become applicable and determine the obligations of member states in relation to the investigations and prosecutions by the ACC in the territory of a non-state party.

In cases of a simultaneous referral by the UNSC to the ICC and the AU Peace and Security Council to the ACC, states will have to give preference to the obligations stemming from the UNSC referral in cases of conflict. In light of article 103 of the Charter, all UN member states (which include all AU member states) will have to give precedence to obligations to cooperate with investigations and prosecutions resulting from a UNSC referral. The overriding effect attached to Chapter VII obligations extends to investigations and prosecutions resulting from a UNSC referral in accordance with Chapter VII of the Charter. In line with the reasoning if the Namibia advisory opinion, such an interpretation is necessary to ensure the efficacy of binding UNSC decisions in the interests of international peace and security.

3. A Symbiotic Existence Through Complementarity?

An existing avenue for resolving or even preventing conflicts that can result from simultaneous referrals to the ICC and ACC respectively is the complementarity principle provided for in article 17 ICC Statute, as well as article 46H of the Statute of the African Court, as amended. Similarly, the ne bis in idem principle in article 20(3) of the ICC Statute and article 46I of the Statute of the African Court can provide a form of complementarity. The principle of complementarity implies that prosecutions should first and foremost be undertaken by the national courts of state parties who have jurisdiction over the crime.Footnote ⁴³ As far as article 17 of the ICC Statute is concerned, articles 17(1)(a) and 17(1)(b) respectively determine that a case is inadmissible if it is being investigated or prosecuted by a state which has jurisdiction over it, or where such a state has decided not to prosecute the person concerned, unless the state is genuinely unwilling or unable to carry out the investigation or prosecution.Footnote ⁴⁴ In order for a case to be inadmissible before the ICC in terms of article 17 of the ICC Statute, the same person must be investigated or prosecuted for what is substantially the same conduct by the respective national court.Footnote ⁴⁵ Article 46H of the Statute of the African Court contains a similar clause with one noticeable difference, namely, that it also provides for complementarity in relation to the courts of the African regional economic communities, where those are specifically provided for. This suggests that the Statute of the African Court provides for prosecutions by regional courts as an alternative to its own jurisdiction where member states are unwilling or unable to carry out prosecutions.Footnote ⁴⁶

The question thus arises whether and to what extent the investigation or prosecution undertaken by an international court created by treaty such as the ACC could qualify as a national investigation or prosecution in terms of articles 17(1)(a) and 17(1)(b) of the ICC Statute, namely, one undertaken by a ‘state’. Similarly, the question arises as to whether an investigation or prosecution undertaken by the ICC can qualify as a regional investigation or prosecution in terms of article 46H(1) of the Statute of the African Court. If ACC investigations or prosecutions were to qualify as national investigations or prosecutions, that is, those undertaken by a ‘state’, they would be covered by the principle of complementarity embodied in articles 17(1)(a) and 17(1)(b) of the ICC Statute – to the extent that they indeed concern the same individuals being investigated for what amounts to substantially the same conduct. Similarly, if ICC investigations or prosecutions (relating to the same person for the same conduct) were to qualify as one undertaken by a regional court, they would be covered by article 46H of the Statute of the African Court.Footnote ⁴⁷

In such instances, the overriding quality of the obligation on states to cooperate with ICC investigations and prosecutions that resulted from a UNSC referral under Chapter VII would only be triggered if the respective investigations and/or prosecutions by the ACC were tainted by unwillingness and inability as defined in article 17 of the ICC Statute. However, if the ACC were engaging in a genuine investigation or prosecution,Footnote ⁴⁸ there would be no need for the ICC to insist on exercising its jurisdiction in the same case. After all, as already indicated, while a UNSC referral of a situation to the ICC does oblige ICC member states to cooperate with subsequent investigations and prosecutions initiated by the ICC, such cooperation has to take place in accordance with the ICC Statute.Footnote ⁴⁹ This, in turn, implies that it remains up to the ICC to decide which specific investigations and prosecutions to pursue, inter alia taking account of article 17 of the ICC Statute.

In accordance with the above reasoning, the ACC for its part would also have a legal basis to refrain from continuing with an investigation or prosecution which is also being undertaken by the ICC, or from initiating such an investigation or prosecution in the first place. The reason for this is that if the ICC were to qualify as a regional court in terms of the Statute of the African Court, article 46H(1) could be read as relating to a prosecution by the ICC as an alternative to the ACC’s own jurisdiction where a state is unwilling or unable to investigate or prosecute a particular case. Such a formal legal basis is important, since the ACC (or rather the African Court as a whole) is not party to the Charter and, therefore, not legally bound to UNSC decisions under Chapter VII of the Charter. Therefore, even while member states to the ACC will have to give precedence to obligations to cooperate with the ICC where prosecutions result from a UNSC referral under Chapter VII of the Charter, the ACC itself would still need a formal legal basis for coordinating investigations and prosecutions with the ICC. A reading of article 46H of the Statute of the African Court providing for the complementarity principle to apply to investigations and prosecutions by the ICC does give the ACC a formal legal basis for such co-ordination.

As indicated at the outset of this section, the above legal interpretation turns on whether investigations and prosecutions by the ACC can qualify as those undertaken by ‘a state’ under article 17 of the ICC Statute, as well as whether those undertaken by the ICC can be regarded as the equivalent of investigations and prosecutions undertaken by courts of the regional economic communities in terms of article 46H(1) of the Statute of the African Court. The answer to this question would depend on whether one takes a textual or purposive approach to interpreting these two articles. As to whether the ACC can qualify as a ‘state’ court for the purpose of articles 17(1)(a) and 17(1)(b) of the ICC Statute, their text clearly refers to national (domestic) jurisdictions. Both mention an investigation and prosecution ‘by a state’ which has jurisdiction over a case. Similarly, article 17(2)(a) refers to a ‘national decision’ and article 17(3) to a ‘national judicial system’.Footnote ⁵⁰

This seems to imply that the court in question has to be controlled by a particular state in relation to its creation, status, staff appointments (including judges and prosecutors), applicable law and also financing.Footnote ⁵¹ For example, the court in question needs to be imbedded in the national judiciary of a state, staffed by a majority of national judges and funded by its own government. Also, the applicable law (including the extent to which the court applies international law) is determined first and foremost by the domestic legal order.Footnote ⁵² However, the fact remains that the statutes of both the African Court and the ICC were created through international treaties. They do not constitute part of the legal system of any state; the appointment of their staff members (notably those who play the most prominent roles in the criminal prosecution, such as the judges and prosecutors) is determined by processes provided for in their respective statutes; their applicable law is also regulated by their statutes; while their funding stems from international sources such as the assessed or voluntary contributions by state parties.Footnote ⁵³

A textual interpretation of article 17 of the ICC Statute, therefore, would not support an interpretation according to which the ACC would qualify as the court of a ‘state’. Similarly, a textual interpretation of article 46H(1) does not support an interpretation in accordance with which the ICC qualifies as a court of one of the regional economic communities. These concern courts within African sub-regional communities to which the ICC clearly does not belong.Footnote ⁵⁴ Even so, these difficulties in classification resulting from a textual interpretation can perhaps be avoided if one resorts to a teleological (purposive) interpretation of article 17 of the ICC Statute and article 46H(1) of the Statute of the African Court. In accordance with a teleological interpretation, the purpose of both these articles is to ensure that the ICC and the ACC act as residual institutions. They should only intervene where other competent courts have proven to be ineffective in prosecuting international crimes.

If the ACC indeed proves itself to be willing and able to engage in genuine investigations and prosecutions, it is reasonable to conclude that investigations and prosecutions by the ACC would in principle qualify as those undertaken ‘by a state’ for the purpose of article 17 of the ICC Statute.Footnote ⁵⁵ These investigations and prosecutions, therefore, would be covered by the complementarity principle enshrined in article 17 of the ICC Statute. As a result, the ICC would only have to insist on exercising jurisdiction over cases resulting from UNSC referrals where, in a particular case concerning the same person for substantially the same conduct, the ACC investigation or prosecution did not live up to the standards outlined in article 17.Footnote ⁵⁶ Similarly, a purposive interpretation of article 46H of the Statute of the African Court would provide the ACC with a legal basis to defer certain cases to the ICC. It would allow the ACC to refrain from initiating investigations or prosecutions (of the same person for what amounts to the same conduct), where the ICC has already done so in response to a UNSC referral under Chapter VII. Alternatively, the ACC can defer the case to the ICC where the latter insists on proceeding with a particular investigation or prosecution resulting from a UNSC referral.

As indicated above, the ne bis in idem principle may also provide for a form of complementarity. This principle is guaranteed in article 20(3) of the ICC StatuteFootnote ⁵⁷ and article 46I of the Statute of the African Court.Footnote ⁵⁸ In both statutes, the principle is articulated in a way which aims at preventing a person from being tried for the same conduct by different courts, unless the trial by the other court was aimed at shielding the accused or was not conducted in accordance with the principles of independence or impartiality under international law. Interestingly, both articles 20(3) of the ICC Statute and 46I of the Statute of the African Court refer to a trial by ‘another court’ as opposed to one by ‘a state’. These articles, therefore, do not specify that the other prosecution has to take place in a domestic court. This in turn implies that article 20(3) of the ICC Statute would allow for the application of the ne bis in idem principle to also cover cases where a person has been tried by the ACC for the same conduct, without contradicting the wording of the article (as is the case with article 17 of the ICC Statute). The almost identical provision in article 46I of the Statute of the African Court would further provide the ACC with the legal basis to refrain from prosecution where a person has been tried for the same conduct by the ICC. Stated differently, if either the ICC or the ACC were simply to wait until the other court has tried a case, articles 20(3) of the ICC Statute and 46I of the Statute of the African Court would provide a clear legal basis (or even an obligation) not to try the same case. The only exception would be where the proceedings in the other court (whether the ACC or ICC) were fundamentally flawed, so as to satisfy the criteria stipulated in articles 20(3)(a) and (b) of the ICC Statute or articles 46I(a) and (b) of the Statute of the African Court.

4. Conclusion

African states do not as yet face the risk of conflicting obligations to cooperate with the ACC and ICC, due to simultaneous or overlapping referrals by the AU Peace and Security Council and the UNSC respectively. However, such conflicts may come into existence in the future if the ACC comes off the ground and there is overlapping substantive, personal and temporal jurisdiction between the ICC and the ACC. The fulfilment of these conditions for jurisdictional overlap will, amongst other things, depend on whether the Amendment Protocol will receive the required 15 ratifications and whether the current 33 African states that are party to the ICC Statute do not withdraw from it. If (more) African states indeed were to withdraw from the ICC, as many in recent times have threatened to do, they will no longer be bound by the duty to cooperate with the ICC under inter alia articles 86 and 89 of the ICC Statute. The UNSC of course can still refer situations arising in any state (including those that have withdrawn from the ICC) to the ICC in accordance with its Chapter VII powers, as well as oblige that state (and any other state) to cooperate with the ICC. However, such referrals will remain few and far between, especially while the prospects for cooperation between the AU and the UNSC in matters of ICC referrals remain bleak.

There is also the issue of the financing of the ACC, which is bound to be very expensive and may in practice prevent African states from ratifying the Amendment Protocol. As a result, it is possible, if not likely, that the ACC does not get off the ground for years to come. Therefore, the real concern from the perspective of those who want to prevent impunity for international crimes is not so much jurisdictional conflicts between the ACC and the ICC, as the lack of any (residual) international jurisdiction for the prosecution of international core crimes on the continent. This would be the logical result if there were a mass withdrawal of African states from the ICC, without the ACC being in place.

However, if the current African members of the ICC remained parties to the ICC Statute and the ACC indeed came off the ground, it is possible for the ACC and ICC to develop a cooperative relationship in cases of jurisdictional overlap. The above analysis has attempted to explain how a purposive interpretation of the complementarity principle in articles 17 and 20(3) of the ICC Statute and articles 46H(1) and 46I of the Statute of the African Court could provide a legal basis for such cooperation. Both the ACC and the ICC would have much to gain from such cooperation. The ICC for its part has limited capacity and can only engage in a limited number of investigations and prosecutions.Footnote ⁵⁹ An effective ACC would relieve the case load of the ICC and result in the availability of more resources for ICC investigations and prosecutions in other regions. Stronger involvement in other regions would strengthen the legitimacy of the ICC, which is currently perceived by many on the African continent as biased towards Africa.

The ACC and the AU Peace and Security Council for its part would also have an interest in preventing a jurisdictional conflict with the ICC, in particular where the conflict concerns investigations and prosecutions resulting from a UNSC referral under Chapter VII of the Charter. Most peace-keeping and peace-enforcement operations in Africa, whether under the auspices of the AU or the UN, are dependent on the financial and logistical support of Western states. This included Western members of the ICC and the permanent Western members of the UNSC. If a jurisdictional conflict between the ACC and ICC were perceived as an attempt to undermine binding treaty obligations vis-à-vis the UN and the ICC, this may have a negative impact on the willingness of Western states to support African peace-keeping and peace-enforcement initiatives. A cooperative relationship between the ICC and ACC in matters of jurisdictional overlap could prevent this from happening, while simultaneously carving out a strong role for the ACC in preventing impunity for international crimes on the continent.

1. Legalism and the ACC

The idea that politics should guide international criminal tribunals is anathema to the dominant legalist approach, which declares that politics can have no place in determining the operation of international criminal tribunals, which are legitimate and effective only when they are insulated from politics.Footnote ¹ Legalist arguments have been made on both sides of the debate over the ACC, pitting those who see the proposed court as an important piece in an apolitical global legal architecture against those who see it as a significant threat to that architecture because of its inescapable politicization. Exploring this debate can help illuminate the possibilities faced by the ACC.

For legalist proponents of the ACC, the court can effectively fill in gaps within the existing international criminal law architecture, a structure that reaches from national courts, up through regional mechanisms, to the ICC at its pinnacle. Based on an expansive notion of complementarity, international criminal law is envisioned as most effective when there is a multiplicity of mechanisms with specific geographical or subject-matter competences, providing a comprehensive web of courts to ensure that no case escapes prosecution under international criminal law. Most strongly voiced by the AU itself, this position presents the ACC as a good-faith effort by Africa to carry forward the fight against impunity. The proposed ACC brings certain advantages to the existing legal architecture, it is argued, in particular the expansion of the crimes within its jurisdiction to include those particularly relevant to Africa, and the commitment to hold corporations, as well as individuals, legally accountable, both of which will be discussed further later. In this view, there is no politics to the ACC beyond closing the ‘impunity gap’ more effectively and providing justice to victims – fundamentally moral-legal objectives. In Don Deya’s words, the ACC will be in a ‘complementary and harmonious relationship with the ICJ, the ICC and other courts,’ ‘the aim,’ he explains, being ‘to reduce the possibility of “politics” or “political considerations” playing a part in what should essentially be a judicial task’.Footnote ² This legalist argument identifies significant practical hurdles in the way of an effective, legitimate ACC – ranging from funding gaps, to an overly expansive jurisdiction, to the need for legal development of newly included crimes, to a lack of clarity concerning relations with the ICC and with national courts.Footnote ³ However, with proper legal design and state support, it is maintained, the ACC will be able to overcome these hurdles and contribute towards the global rule of law.

For the ACC’s legalist critics, however, the court will necessarily be subject to intense and counterproductive politicization by African states, and so its insulation from politics will be impossible. The ACC will be inescapably politicized by African political elites and an AU that represents their interests, critics argue, and so the ACC will undermine the global rule of law, not contribute to it. The most commonly cited evidence for this is the Malabo protocol’s controversial immunity provision, as well as the fact that the most immediate impetus for the development of the court seems to have been the ICC’s prosecution of presidents Omar al-Bashir and Uhuru Kenyatta. The argument against the ACC is thus often paired with a defence of the ICC, as those supporting the former are accused of doing so in order to undermine the latter and, in so doing, the fight against impunity. Critics have, implicitly or explicitly, denounced the proposed ACC as a ploy by African leaders to guarantee themselves immunity from prosecution through an ineffective, compromised institution that will be under their control in a cynical instrumentalization of international criminal law. This understanding often appears based upon a fundamental distrust of any politics in Africa and an assumption that African sovereignty is little more than a shield for abusive leaders against international human rights. As Murungu argues, the AU may not have ‘any genuine purpose in establishing a Criminal Chamber’ other than ‘trying to protect some of its leaders who are well known for a culture of impunity and the commission of serious international crimes against their own citizens.’Footnote ⁴ According to Kurt Mills, the proposal for the ACC is ‘designed as [an] attempt to put the brakes on globally based prosecutions of Africans—or at least African heads of state,’Footnote ⁵ and Max Du Plessis has asked if the ACC is a case of ‘negative complementarity,’ possibly setting the stage for show trials and entrenching impunity.Footnote ⁶ The ACC is a threat to the ICC and there can be no principled opposition by African states, organizations or intellectuals to the ICC and its actions, according to this position: Richard Dicker of Human Rights Watch asserts that the AU’s challenge to ICC prosecutions of African heads of state reveals that ‘the AU leadership’s objective was to…roll back the fight against the most serious crimes under international law’; African states’ opposition to the ICC is thus ‘a rejection of the fight against impunity’.Footnote ⁷

Against these critics of the ACC, AU Legal Counsel and Director of Legal Affairs Vincent Nmehielle points out that categorical condemnation of the ACC takes the AU’s effort as being necessarily in bad faith and the proposed court as being entirely subjugated to the will of putatively criminal, corrupt African leaders.Footnote ⁸ Instead, he argues, the diversity of positions on international criminal accountability among African leaders, and even within the AU on the prosecution of African heads of state, must be recognized. Thus, the practice of the ACC is by no means politically predetermined. Du Plessis similarly agrees that, while there are some countries who seek to use the ACC as a way of undermining the ICC, ‘it is too simplistic to claim that the proposal for such a mechanism is simply or purely motivated by a desire to undermine the ICC,’ in particular since moves towards an ACC predated the ICC’s indictment of al-Bashir.Footnote ⁹ Thus, the ACC’s possibility of being a key piece in a global legal architecture cannot be dismissed out of hand.Footnote ¹⁰

The legalist critics of the ACC prejudge the counterproductive politicization of the proposed court; the legalist supporters of the ACC tend to assume that politics can be eliminated from the functioning of the court, thus guaranteeing its legitimacy and efficacy. Both, however, ignore the lessons about the relation between politics and law offered by the immediate history of the ICC, which tends to be held up by the critics of the ACC as a model international court. A brief look at the relation between law and politics in the ICC’s operation in Africa suggests that politics are an inescapable dimension of international criminal tribunals in Africa and, thus, that instead of the legalist pretence that politics can be eliminated from the workings of international criminal law, the centrality of politics to law should be accepted. Admitting this inevitable politicization would then allow for open debate over what those politics are and should be and how courts can be held accountable by those in whose name they act.

The discussion of the ICC will set the stage for my argument, namely, that although the ACC shares the fundamental limitations revealed by the ICC’s work in Africa, the African court is within a sufficiently different context that it has the possibility of contributing towards an emancipatory politics. However, as suggested already, this possibility requires a re-thinking of the relation between the ACC and the political beyond the legalists’ false dichotomy of international law either being part of a non-political ‘fight against impunity’ or being corrupted by politicization.

2. Lessons from the ICC in Africa

The irony of the legalist critique of the ACC is that many of the arguments being made against the proposed court – that it will be politically instrumentalized by powerful states to the detriment of legality and justice, that it will uphold authoritarian rule instead of challenging it – are precisely the accusations that have been made against the ICC, often by African critics.

Today, fifteen years after the Rome Statute entered into force, there remain few observers who would deny that the ICC’s practice in Africa has been guided by pragmatic decisions on the part of the prosecution, shaped by global politics. The ICC’s exclusive focus on Africa is fundamentally a product of the global War on Terror: The US was actively opposed to the ICC when it was founded, and so the ICC, under threat before it had even started its first case, decided it would have to conform to US interests if it was to have a chance to survive. As David Bosco has described in detail, the ICC responded to US opposition by making clear that it would target putatively politically meaningless African violence, not the violence of the US or its allies. And so the first, defining case for the ICC, launched at the very moment when US invasions were raging, was the DRC.Footnote ¹¹ The ICC’s turn to Africa represented a strategic response to the changed political landscape after 9/11, but it also drew on a long history of Africa being represented as a terrain of humanity, of incorrigible savages committing atrocities against helpless victims in need of a Western saviour.Footnote ¹² The ICC’s exclusive intervention in Africa was thus a product of international power relations that made Africa the only region weak enough so that international intervention could take place there without accountability and unimportant enough so that the West would allow the ICC to intervene there, and also the historical legacy of the Western civilizing mission in the continent. The result was that there has been a substantive politics behind the ICC’s supposedly apolitical legal engagement with Africa: the ICC has reinforced the relation of subordination between Africa and the West by declaring African sovereignty to be subject to disqualification by a ‘global’ court that appears structurally unable to intervene anywhere but in Africa.

But avoiding US censure was not enough; the court also had to seek enforcement power – the fundamental dilemma faced by any international criminal tribunal built upon a domestic model of criminal law enforcement. The history of the ICC in Africa has thus been a history of the ICC’s constant effort to align itself with Western, in particular US, support in a desperate quest for enforcement capacity.Footnote ¹³ Constructive relations have emerged between the ICC and Western violence: the crowning moment was in Libya, when the ICC was a partner in regime destruction, but such alignments have also been seen in Uganda, Mali and Ivory Coast. The recent capture of LRA commander Dominic Ongwen, for instance, was enabled by the presence of the US military in Central African Republic as part of the expansion of AFRICOM.

The ICC’s decisions as to where to intervene within Africa, its tendency to target certain situations to the exclusion of others and pursue certain parties within those conflicts while ignoring others, have been shaped also by its need for powerful allies within the continent as well. Frequently, the ICC allies itself with African states who will facilitate prosecutions and, in exchange, provides those states with effective immunity. The ICC takes sides with the victors or the stronger party to a conflict, even though violence by all sides could fall under the ICC’s jurisdiction. In practice, the ICC’s capacity appears limited to prosecuting minor warlords who have fallen out with state sponsors and former African leaders who have been overthrown by Western military intervention. The result is that, in every case in which the ICC has become involved, the court has either aligned itself with the interests of the powerful or, when it has tried to prosecute those with power, faced disaster – most notably with the collapse of the cases against Uhuru Kenyatta and William Ruto and the constant disregard of the arrest warrant against Omar Al-Bashir, which have thrown the court into crisis. Thus, the ICC has made it clear that the best way to avoid prosecution is not to abide by the law but to win on the battlefield, to sign up to the War on Terror or to offer up suspects to the ICC.

African states have realized the ICC’s dire straits and taken advantage of the situation themselves.Footnote ¹⁴ The ICC has been instrumentalized by states or, sometimes, non-state actors who seek to appropriate for themselves the mantle of ‘saviour’ so as to legitimize their violence, often through the strategic use of self-referrals. African states can, through ICC intervention, obtain justification for their use of force against those whom the ICC has declared international criminals. This ability to assume the role of human rights enforcer is typically the prerogative of African states with the requisite international patronage, and so global law enforcement can provide a link between the West and its allies, justifying militarized state-building in the name of building the capacity to enforce international justice. Thus, the ICC’s practice has conformed most closely not to the liberal rule of law but to international lines of force, ushering in not a post-Westphalian order but a new geography of de facto impunity. Again, the substantive politics behind the court’s putative apolitical legality are revealed: to entrench the power of authoritarian African rulers and violent state actors.

The final political dimension to the ICC’s operations in Africa stems from its exclusive jurisdiction over atrocity crimes. Because the crimes the ICC has jurisdiction over – war crimes, crimes against humanity and genocide – are so extreme and morally charged, the ICC’s practice cannot help but be endowed with a polarizing logic of friend-enemy.Footnote ¹⁵ That is, perpetrators of atrocity crimes are more than criminals – they are the inhuman enemy, the hostis humani generis. At the same time, the crimes are considered so atrocious, so morally evil, that the ‘friend’ is anyone who will effectively deploy violence in the name of enforcing international law, who will bring such inhuman perpetrators to justice. The result is that, as the ICC gets involved in contexts of widespread, extreme violence, it provides a tempting instrument for those who would seek to criminalize and dehumanize their enemies through international law and would seek to sanctify their own violence as enforcing human rights. This has meant that the ICC intervenes into situations of significant political violence, which it can end up polarizing and intensifying, raising the stakes in dangerous ways. When this tendency is combined with the ICC’s political selectivity in terms of where it intervenes, as just discussed, the danger is obvious: in the very pursuit of international legal justice, international courts can become accessories to the violence of the powerful and entrench violence in conformity with existing lines of power.

These negative repercussions of ICC intervention have produced significant resistance to the ICC from within Africa from a broad set of social and political actors who have accused the ICC of ruining peace processes and amnesties. ICC involvement, particularly in Northern Uganda, has led to intense controversies over the supposedly universal applicability of the ICC’s model of justice, as activists there have mobilized for ‘traditional’ forms of local justice declared to be more relevant to the victims.Footnote ¹⁶ In Kenya, activists were divided on whether the ICC had the capacity to deliver justice or whether it would prove ineffective and derail domestic efforts at building peace and reconciliation. And there have been accusations that the ICC ignores local voices and is ignorant of the contexts into which it intervenes.

At heart, these problems stem from the ICC’s lack of accountability towards those in whose name it acts. The ICC’s practice makes clear the fundamental problem facing any tribunal that attempts to enforce international criminal law on the global level in the absence of a global sovereign or global political community, that is, any court that tries to scale up a domestic criminal legal system to the global level with the assumption that the benefits of a domestic legal system – justice for victims, the enforcement of peaceful social order, deterrence – will be replicated globally. Most obviously, the attempt to enforce international criminal law without a sovereign global state leads to the selective application of the law due to the lack of central enforcement capacity. Equally important are the problems that stem from the lack of a political community at the global level that can be the source of the law and to whom the law is accountable. Without a global political community, any court that purports to enforce international law will suffer from a lack of political accountability and democratic legitimacy. It will be subject to politicization by the powerful, often by the very international actors who most need their impunity to be challenged by a global court. And so, although there is much talk of victims’ participation at international tribunals, that participation is restricted to being in the limited spaces allowed by the tribunals; the legal process is in no way accountable to those victims in whose name it acts. Similarly, while the involvement of NGOs and civil society organizations is often proclaimed, those organizations with a voice are exclusively those that are focused on the anti-impunity agenda and the demand for expanding criminal accountability for certain atrocity crimes. As the consequences of the ICC’s lack of accountability have become increasingly obvious, so has the ICC’s legitimacy faced increasing challenge.

Denunciations of ICC intervention, primarily from Africa, have become too loud for the court and its publicists to ignore.Footnote ¹⁷ Many of the court’s legalist supporters admit that the ICC has been politicized; however, they also insist that politicization can be dealt with within the Rome Statute regime of international criminal law. According to Keppler, for instance, ‘Efforts should include pressing for the investigation of relevant crimes wherever they are committed, and broader ratification of the Rome Statute.’Footnote ¹⁸ Thus, the legalist solution to politicization is typically found in insulating the ICC from external political forces, in particular the Security Council, by giving the ICC more autonomy, fostering state cooperation and providing more resources.Footnote ¹⁹

This supposed solution, however, ignores the fundamental character of the ICC’s politicization and treats the court as if it had the possibility to escape political pressure and become a genuinely non-political tool of global law. As I have argued, the politicization of the ICC, its focus on Africa and its subservience to the United Nations Security Council and to Western interests are not simply minor hurdles for the ICC, to be overcome through adjustments in its practice. Instead, given its lack of enforcement capacity, lack of downward accountability and exclusive jurisdiction over atrocity crimes, politicization is the condition of possibility for the ICC to function at all. In the words of William Schabas, international prosecution ‘is both selective and political by nature.’Footnote ²⁰ The proposed ACC will face this same dilemma as an inevitable consequence of its work – but with two key differences that may enable it to have a different relation with the political, as I argue in the next section.

To realize this possibility, however, the very idea of international criminal law as operating effectively and legitimately only when it is insulated from politics, when it is non-political, must be abandoned. We have seen that this idea cannot survive the scaling-up of international criminal law from the domestic to the global level, where the proclamation of apolitical legality only hides the actual political determination of law enforcement.Footnote ²¹ Better to admit the inevitable politicization of international criminal law so that it can be held accountable and an emancipatory politics can be put at its centre.

3. The Politics of the African Criminal Court: Old Dilemmas, New Possibilities

4. Re-envisioning the Politics of the African Criminal Court

The ACC thus has the possibility to help articulate and advance a substantive, emancipatory politics, based on a vision of Africa as a continent with a history of violence committed against it with impunity, but also with a history of struggle to secure self-determination and justice in the face of that violence. The ACC could give legal embodiment to the demand for justice for that legacy of violence, grounded in the legacy of struggle and solidarity. In these ways, the ACC offers the possibility to be in service of a counter-hegemonic, emancipatory political project for the continent. The ACC could thus help realize a vision in which, in Antony Anghie’s words, ‘international law can be transformed into a means by which the marginalized may be empowered. In short, that law can play its ideal role in limiting and resisting power.’Footnote ³⁴

However, the ACC will be able to achieve this democratic politics only if it is open to the demands and claims made by popular movements, social struggles and civil societies in the name of Africa’s legacies of struggle for self-determination, sovereignty and democracy. This will only occur if those movements and struggles demand that the court be accountable to them – because the state elites currently deciding the shape of the ACC have no interest themselves in making the court democratically accountable. Interestingly, contemporary political developments may be laying a foundation for just such demands for accountability, found in particular in the broad uprising of new forms of protest and social struggle throughout the continent.Footnote ³⁵ These developments can ground alternative understandings of international law: indeed, there is no need for international criminal justice to be the exclusive preserve of states. State-centric models of international law have long been challenged by legal scholars and activists, primarily from the Global South, who argue that social movements and struggles can also be sources for international law.Footnote ³⁶

African lawyers, academics and activists involved in the court can thus look to social movements and popular struggles as proposing new ways of doing international criminal justice and as imagining ways to make international criminal justice responsive and accountable to those it claims to serve.Footnote ³⁷ Upon that basis, African discourses and institutional experiments around the ACC may be able to help reform dominant understandings of international criminal justice more generally, opening new possibilities that have been foreclosed by the restrictive state-centred international law.Footnote ³⁸ The ACC may help catalyze a process by which international law comes increasingly to be understood as a fragmented, multi-centric terrain in which multiple histories weave together within a broad ethical-political framework; in Upendra Baxi’s words, these Third World understandings of international law build upon ‘histories of mentalities of self-determination and self-governance, based on the insistence of the recognition of radical cultural and civilisational plurality and diversity … They suggest constantly the need for the reinvention of our common insurgent humanness.’Footnote ³⁹

An approach to international law that looks to popular movements and democratic demands for guidance for the ACC would also ensure that the international courts do not monopolize the discourse of global justice.Footnote ⁴⁰ International criminal law, embodied in the ACC, will be only one part of broader political struggles, one tool among many used by progressive political forces in the service of emancipation, instead of being a new constitution to which all must conform.

Thus, the decisions and punishments meted out by the ACC may be of less importance than the symbolic value of the legal strategies it legitimates. The ACC leads to transformations in imaginations, in ideas about what is accepted as normal and what is refused, what is justiciable and what is outside of justice. The ACC shows that there are legitimate alternatives to the vision of global justice embodied in any court and opens the debates over justice to broad plural determination. This reinforces the central lesson of the ICC in Africa: that international criminal tribunals are simply unable to function in accordance with their legitimating ideology of a single, unitary court on the international level. Rather, they are always part of a political context and will always be politically determined. And as that political context, if it is democratic, will be plural and contested, so will international law be articulated differently by different political forces. Legal analysis and activism, at the ACC and more broadly, should begin from a recognition of the plurality of African popular struggles and respond to those struggles through deliberation, debate and contestation instead of rejecting the accountability of international courts through a spurious denial of international criminal law’s inescapably political nature.