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A case of negative regional complementarity? Giving the African Court of Justice and Human Rights Jurisdiction over International Crimes

Published on August 27, 2012        Author: 

Max du Plessis, Visiting Fellow at the Oxford Institute for Ethics, Law and Armed Conflict.  He is an Associate Professor, University of KwaZulu-Natal, Durban; Senior Research Associate, International Crime in Africa Programme, Institute for Security Studies; and a Barrister, South Africa.

At their latest African Union (AU) Assembly meeting, held in July, African Heads of State were asked to adopt a draft amended protocol on the Statute of the African Court of Justice and Human Rights (hereafter ‘African Court’) which would have expanded the jurisdiction of the African Court to include the competence to prosecute individuals for international crimes. The draft protocol would have created an International Criminal Law Section of the African Court with criminal jurisdiction over the international crimes of genocide, war crimes and crimes against humanity, as well as several transnational crimes such as, terrorism, piracy, and corruption.

Thankfully, the Heads of States decided not to adopt the amended protocol at that meeting and to postpone consideration of this proposal. Of course, we should all applaud if the AU were in due course to unveil a comprehensively funded, strongly resourced, legally sound, and politically backed African court that fearlessly pursues justice for those afflicted by the continent’s warlords and dictators, at the same time as fulfilling effectively its parallel human rights roles. However, given (i) the process by which the draft protocol had been put together thus far, and (ii) the contents of the draft protocol, the creation of an effective court had seemed unlikely. More time was needed to consider various aspects of the proposals and one can only hope that the time that has been afforded by the postponement of consideration of the protocol will be used wisely. This post deals with the flawed process that had been adopted as well as some concerns regarding the content of the draft amended protocol. I expand on these issues in a recent paper for the Institute for Security Studies.

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