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

Written by

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.

The Flaws in the Process of Amending the Statute of the African Court

In February 2010, pursuant to a decision taken by the African Union (AU) Assembly a year earlier, the AU Commission appointed consultants to work on drafting the amended protocol to expand the jurisdiction of the African Court to prosecute crimes. In June 2010, only four months after receiving their brief, the consultants completed a first draft protocol, which was considered at two validation workshops coordinated by the AU Pan-African Parliament in late 2010 and at three meetings of government experts convened by the AU Commission during 2011. The draft was reviewed at the AU Government Legal Experts meeting, held in May 2012 in Addis Ababa, Ethiopia. A meeting of Ministers of Justice and/or Attorney Generals adopted the adopted the Draft Protocol with the exception of the provision relating to the crime of unconstitutional change of Government (which is apparently to be given some more thought because of its definitional problems).

While this process on paper appears stretched over three years, it has whether by design or default eschewed input and minimised buy-in from across the continent.  Most notably Governments were not invited to the ‘validation workshops’ in late 2010; so African governments (for whom the implications are the greatest) have only had a year to review the draft protocol.  Compounding that difficulty is that the actual text of the draft protocol was only made available to states and their legal advisers in March 2011. At a roundtable meeting hosted, in April 2012, by the Institute for Security Studies legal advisors and senior representatives from several states from southern African countries confirmed that they believed the process to be rushed and very complex and did not provide enough time for proper consideration. And of course NGOs and other externals legal experts were not asked for comment; and the draft protocol was never made available on the AU’s or the consultant’s websites, nor was it publicly posted for comment in other media.

The short time frame which the AU had provided for the complex task of drafting the amendments is telling in itself – the hurried process and its flawed result occur against the backdrop of the AU’s open hostility to the International Criminal Court’s (ICC) focus of African situations. It is also unfortunate that the rushed process to expand the African Court’s jurisdiction and a lack of transparency had not permitted adequate consultation. Questions around jurisdiction, the definition of crimes, immunities, institutional design and the practicality of administration and enforcement of an expanded jurisdiction, among others, require careful examination, and in the spirit of transparency and good regional governance, the AU would have benefited from a genuine process of consultation.

The process of expanding the African Court’s jurisdiction is fraught with many legal and practical complexities. The expansion has implications on an international, regional and domestic level. All these implications need to be considered, particularly the impact on domestic laws and obligations, and the relationship between African states parties to the Rome Statute of the ICC, the ICC itself and the African Court.

The AU Commission denies that the Protocol has been motivated by anti-ICC sentiment, but that rings hollow when regard is had to the recent tension between African states, the UN Security Council and the ICC; and when (as we shall see below) the Protocol is studiously silent on any relationship between the African Court with its expanded criminal jurisdiction, and the ICC.           

While undoubtedly the AU’s position is strengthened by the persistent refusal of the United Nations Security Council to act even-handedly as regards international criminal justice (willing to send African situations to the ICC for the court’s attention; unwilling to send similarly deserving cases in respect of Israel or Syria to The Hague), the saga nevertheless suggests that in some (African) quarters the belief is that African leaders should not be held to account by a non-African court.

Concerns With The Content of the Draft Protocol

The first concern is with the court’s ambitious jurisdictional reach. Even before the International Criminal Law Section (ICL) section was introduced, the African Court would have had its hands full. With the ICL section added, there must be legitimate questions about the capacity of the court to fulfil not only its newfound ICL obligations, but also about the effect that such stretching will have on the court’s ability to deal with its general and human rights obligations.

In the first place, the subject-matter of the court’s ICL jurisdiction is itself anything but modest. The ICL section ‘shall have the power to try persons’ for a long list of the worst crimes known to humanity, including: genocide, crimes against humanity, war crimes, the crime of unconstitutional change of government; piracy; terrorism; mercenarism; corruption; money laundering; trafficking in persons; trafficking in drugs; trafficking in hazardous wastes; illicit exploitation of natural resources; the crime of aggression; and inchoate offences.  Each of these crimes is separately defined as an offence under the draft protocol. The problems with some of these definitions require treatment in a separate paper. For now it is enough to note that the court is expected not only to try the established international crimes, but also to tackle a raft of other social ills that plague the continent. While in principle this is laudable, the fact remains that international criminal trials are a slow and laborious process at the best of times, particularly if proper fair trial guarantees are to be respected. The process of doing justice to these prosecutions runs the risk of being severely compromised when a Court is expected to do too much by way of the crimes on its docket.

That is particularly the case when the Court is given too little by way of resources. If the court’s ICL section is meaningfully to do justice to the subject-matter of this vast list of crimes, it will not only have to have a dedicated team of prosecutors and investigators to perform the task of getting the cases to court, but will also require a raft of highly experienced judges who can preside over the trials and adjudicate the appeals. In this respect, the draft protocol creates ‘The Office of the Prosecutor’ and indicates that the prosecutor ‘shall be responsible for the investigation and prosecution of the crimes specified in this Statute’. The draft protocol does not spell out what such investigations might entail, or how the prosecutor’s office might be structured to perform such a task.

Even assuming that there will be sufficient manpower to perform such investigations and prosecutions, another key question is whether there will be judicial capacity to deal with the range of issues that arise in a criminal prosecution involving such crimes. The protocol says that “six (6) judges shall be elected from amongst the candidates of list C [containing the names of candidates having recognized competence and experience in international criminal law]”. Those six judges will be in charge of the ICL section.  According to the draft protocol the ICL section of the court ‘shall have three (3) Chambers: a Pre-Trial Chamber, a Trial Chamber, and an Appellate Chamber’; and the six ICL judges will obviously have to be allocated to these three chambers. But whatever their allocation, the draft protocol already stipulates the quorum for the various chambers of the ICL section: the pre-trial chamber shall be duly constituted by one judge; the trial chamber shall be constituted by three judges and the appellate chamber by five judges.

It is clear that the six ICL judges will find themselves spread so thinly over these three chambers as to jeopordise any thought of speedy justice. Assuming for present purposes that the court only has one criminal trial ongoing at any given time, that would more than wrap up the entire complement of ICL judges. One judge would preside in the pre-trial chamber, and she could not then preside in the other two chambers in respect of the same case; another three would then preside in the trial-chamber; and a further (and different) five would have to be available to sit in any appeal. A full criminal trial and appeal, involving each of the designated chambers, would accordingly require nine judges, three more than the total allotment of ICL judges appointed to the court’s ICL section.

In short, there are not enough judges necessary to do anything close to the justice that this expansive criminal jurisdiction presages.

A related difficulty involves money: to ensure that justice can be done to that jurisdiction, there will be a vast amount of money required to ensure that the court is properly staffed and capacitated to run international criminal trials.

Indeed, the fiscal implications of vesting the court with criminal jurisdiction raise serious questions about the effectiveness, independence and impartiality of such a court. To put it in blunt financial terms, the unit cost of a single trial for an international crime in 2009 was estimated to be US$ 20 million. This is nearly double the approved 2009 budgets for the African Court and the African Commission standing at US$ 7,642,269 and US$ 3,671,766, respectively; and represents 14 per cent of the AU’s total annual budget of US$ 140,037,880 for 2008.

In 2011 the AU’s budget for the 2011 financial year amounted to US$ 256,754.447. Included in that amount was a total allocation for the African Court on Human and Peoples Rights of US$ 9,389,615. Compare that with the ICC. In the same year the ICC had a budget of US$ 134 million, $26 million short of what it says it needed for 2012. The point is that the ICC budget – currently for investigating just three crimes, and not the raft of offences the African Court is expected to tackle – is more than 14 times that of the African Court without a criminal component; and is just about double the entire budget of the AU.

The questions in this regard are manifold: where will the money come from? Will international partners (who currently contribute a significant percentage of the AU’s budget) be willing to contribute towards the court’s expansion? Has any costing exercise been done by the drafters of the protocol, and if not, why not? How will such costing impact on other priorities within the AU? What will the impact of such costing be on the existing work of the African Court?

What about arrangements for holding detainees and prisoners? An enhanced African Court will have to be provided with these facilities. If these are unaffordable, then agreements will have to be reached with African states for them to take responsibility for the detention of accused persons undergoing trial before the court and the imprisonment of individuals convicted after such trials.  A re-configured African Court with criminal jurisdiction will need the capacity to undertake outreach, protect victims and witnesses, and collect and preserve evidence. That is besides – if the ICC’s experience is anything to go by – the need for a defence or legal aid fund to be allocated; and for a victims unit to be established. As various African NGOs have already highlighted (including, ironically, PALU – the organisation hired by the AU to prepare the draft Protocol), the capacity of African states to muster the resources and will to guarantee these facilities – even as many of them struggle to guarantee the independence of their own domestic judicial institutions – is open to serious question.

Finally, given that the African Court will be occupying the same legal universe as the ICC, it is necessary to consider the relationship (if any) between these two courts. This is no small matter. Recall that 33 African states are now party to the ICC, with at least six of those states having adopted implementing legislation to give effect to their obligations to the ICC. It thus seems imperative that the relationship between the ICC and the African Court be addressed.

The challenges are multiform. In the first place, which court will have primacy? While it seems clear that the AU might wish for its member states to incline towards the African Court for the prosecution of regional crimes, more than 60 per cent (33 of 53) of those member states are already treaty members of the ICC. This means that there will be potentially overlapping spheres of jurisdiction; and the prospects of conflicting obligations – not to mention a doubling up for some states on contributing financially to two courts. Careful thought would obviously have to be given to the question of domestic legislation to enable a relationship with the expanded African Court (especially given problems with mutual legal assistance and extradition). Here there is a minefield of difficulties, including that: elements of crimes in the protocol may be different from the elements of crimes in domestic law (thus requiring a major re-write of many of the domestic laws of African states), or that a number of the crimes listed in the protocol are not crimes in the domestic law of African states, thus requiring careful introduction of these crimes to ensure cooperation; that domestic law may already require an obligation to cooperate with the ICC in the investigation of certain crimes; and that surrender of suspects to the African Court and extradition as between states parties will require regulation.

Given these difficulties, it is unfathomable that the draft protocol nowhere mentions the ICC, let alone attempts to set a path for African states that must navigate the relationship between these two institutions. This is at best curious, at worst sinister. Either it is a clear sign that the AU is intent on snubbing the ICC, or it is a case of irresponsible treaty making – expecting signatories to become party to an instrument that ignores the complicated relationship that will exist for states parties to the Rome Statute.

Given these interrelated, compounding and material difficulties with the creation of an international criminal chamber at the African Court, the question must be asked: what is the real motivation underpinning the draft protocol?

A fair argument might be made that the AU’s decision to embark upon the expansion of the African Court’s jurisdiction is to throw sand in the ICC’s gearbox, place speed-bumps in the path of African states parties to the ICC and send confusing signals to those African states thinking of ratifying the Rome Statute.

All things considered, serious questions are raised about whether the draft protocol is an example of “negative” complementarity; an attempt to secure a regional exceptionalism in the face of the ICC’s currently directed investigations on the continent. Through this reactionary regional exercise in rushing into existence a deeply flawed legal instrument, there is a related risk that human rights protection on the continent will be weakened.

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