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?
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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.
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29
Statute of the African Court, supra note 5, Art. 17.
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39
D. Deya, ‘Worth the Wait: Pushing for the African Court to Exercise Jurisdiction for International Crimes’, International Criminal Justice, Openspace 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.
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44
Statute of the African Court, supra note 5, Art. 28A.
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46
Statute of the African Court, supra note 5, Art. 28I; uneca, Combating 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.
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47
Statute of the African Court, supra note 5, Art. 28E.
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64
On 2 January 2015, Palestine 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 Palestine, icc-otp-20150116-PR1083, (16 January 2015), <www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1083.aspx>, 24 October 2015.
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75
Protocol on Amendments, supra note 5, Art. 11(1).
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78
Statute of the African Court, supra note 5, Arts. 46B and 46D.
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89
Rome Statute, supra note 1, Art. 36.
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100
Rome Statute, supra note 1, Arts. 115–116.
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111
Statute of the African Court, supra note 5, Art. 46A bis.
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118
Statute of the African Court, supra 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’.
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131
Rome Statute, supra 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’.
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134
Statute of the African Court, supra note 5, Art. 46H (1).
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137
Cassese and Gaeta, supra 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).
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149
On 5 September 2013, Kenya’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>.
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150
In October 2015, South 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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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 ReviewSearch for other papers by Manisuli Ssenyonjo in
Current site
Google Scholar
PubMed
Search for other papers by Saidat Nakitto in
Current site
Google Scholar
PubMed
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.
| All Time | Past Year | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 869 | 68 | 4 |
| Full Text Views | 333 | 13 | 0 |
| PDF Views & Downloads | 185 | 28 | 0 |