The African Court of Justice and Human and Peoples’ Rights ‘International Criminal Law Section’: Promoting Impunity for African Union Heads of State and Senior State Officials?

in International Criminal Law Review
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On 27 June 2014 the African Union (au) Assembly adopted a protocol entitled ‘Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights’. This Protocol contains an annex entitled ‘Statute of the African Court of Justice and Human and Peoples’ Rights’. The Protocol and the Statute annexed to it provide for the establishment of a regional court in Africa to be known as the ‘African Court of Justice and Human and Peoples’ Rights’ (African Court). This Court will, among others, exercise criminal jurisdiction over a wide range of international crimes involving individual criminal responsibility and corporate criminal liability over legal persons (with the exception of States), which goes beyond any other international court or hybrid tribunal. This article considers reasons for establishing a regional court in Africa with criminal jurisdiction and examines the likely effectiveness of the African Court focussing on the wide jurisdiction conferred on the Court; the impact of immunity from criminal prosecution granted to serving au heads of State and other undefined ‘senior State officials’; and the need to strengthen national criminal jurisdictions to enable them to prosecute international crimes in Africa.

The African Court of Justice and Human and Peoples’ Rights ‘International Criminal Law Section’: Promoting Impunity for African Union Heads of State and Senior State Officials?

in International Criminal Law Review

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References

29

Statute of the African Courtsupra note 5 Art. 17.

39

D. Deya‘Worth the Wait: Pushing for the African Court to Exercise Jurisdiction for International Crimes’International Criminal JusticeOpenspace 2 (February 2012) 24 <www.osisa.org/openspace/regional/african-court-worth-wait> 24 October 2015; M. du Plesis ‘Implications of the au Decision to Give the African Court Jurisdiction over International Crimes’ Institute for Security Studies (iss) Paper No. 235 (June 2012) <www.issafrica.org/uploads/Paper235-AfricaCourt.pdf> 24 October 2015 p. 4.

44

Statute of the African Courtsupra note 5 Art. 28A.

46

Statute of the African Courtsupra note 5 Art. 28I; unecaCombating Corruption Improving Governance in Africa: Regional Anti-Corruption Programme for Africa (2011 – 2016) <www.uneca.org/sites/default/files/publications/combating-corruption-improving-governance-in-africa-2011-2016.pdf> 24 October 2015.

47

Statute of the African Courtsupra note 5 Art. 28E.

64

On 2 January 2015Palestine deposited its instrument of accession to the Rome Statute with the un Secretary General who on 6 January 2015 accepted ‘Palestine’s accession to the Rome Statute’. Thus Palestine ‘became the 123rd State party to the icc.’ icc Press Release The Prosecutor of the International Criminal Court Fatou Bensouda Opens a Preliminary Examination of the Situation in Palestineicc-otp-20150116-PR1083 (16 January 2015) <www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1083.aspx> 24 October 2015.

75

Protocol on Amendmentssupra note 5 Art. 11(1).

78

Statute of the African Courtsupra note 5 Arts. 46B and 46D.

89

Rome Statutesupra note 1 Art. 36.

100

Rome Statutesupra note 1 Arts. 115–116.

111

Statute of the African Courtsupra note 5 Art. 46A bis.

118

Statute of the African Courtsupra note 5 Art. 46A bis. This would apply to ‘au Head of State or Government or anybody acting or entitled to act in such capacity’.

131

Rome Statutesupra note 1 Art. 27 provides for the irrelevance of official capacity by stating:‘1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular official capacity as a Head of State or Government a member of a Government or parliament an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute nor shall it in and of itself constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person whether under national or international law shall not bar the Court from exercising its jurisdiction over such a person’.

134

Statute of the African Courtsupra note 5 Art. 46H (1).

137

Cassese and Gaetasupra note 120 pp. 278–281; R. O’Keefe ‘Universal Jurisdiction: Clarifying the Basic Concept’ 2 Journal of International Criminal Justice (2004) 735–760; L. Reydams Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford University Press Oxford 2003).

149

On 5 September 2013Kenya’s National Assembly voted on a special motion to withdraw Kenya from the Rome Statute. Thereafter on 10 September 2013 Kenya’s Senate approved a motion to withdraw Kenya from the Rome Statute but the resolution was not implemented. Thus Kenya remains a State party to the Rome Statute. See Situation in the Republic of Kenya icc-01/09 (30 September 2013) <www.icc-cpi.int/iccdocs/doc/doc1653688.PDF>.

150

In October 2015South Africa’s governing African National Congress (anc)’s National General Council decided that South Africa should withdraw from the Rome Statute. See F. Viljoen ‘Centre for Human Rights Calls for More Reflection on icc Withdrawal’ Press Statement Centre for Human Rights University of Pretoria 12 October 2015 (on file with authors).

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