Substituting International Criminal Justicefor an African Criminal Justice?*

Professor Konstantinos D Magliveras**

I. Introduction – The question of legitimacy ininternational criminal justice

There is no doubt that Africa as a whole and the AfricanUnion (AU), as its principal representative on theinternational plane, in particular, have developed aserious confrontation with international criminaljustice, as the latter has been devised and promotedsince the end of World War II primarily by the Westernstates (the so-called First World). Thus, the AU has onnumerous occasions clashed with the InternationalCriminal Court (ICC), the principal institutionalmanifestation of international criminal justice, and hasbeen at odds with (or even shown hostility towards) suchlegal notions as universal jurisdiction, lack of immunityfor heads of state and government, etc.1 These notionshave been applied and implemented mostly by Westernstates. Moreover, as is well known, Africa has expectedthat the international community would not only condemnsuch practices as colonialism and apartheid but it hasalso pressed to have them prohibited and turned them into

1* Paper presented at the Sixth European Conference on AfricanStudies (ECAS-6), Sorbonne, Paris, 6-10 July 2015.** Department of Mediterranean Studies, University of theAegean, email: kmagliveras@rhodes.aegean.gr

? For the AU position on universal jurisdiction and thepotential for being abuse, see AU Executive Council, Report of theCommission on the Use of the Principle of Universal Jurisdiction by Some Non-AfricanStates as Recommended by the Conference of Ministers of Justice/Attorneys General,AU Doc. EX.CL/411(XIII), June 2008. In 2012, it adopted theAfrican Union Model National Law on Universal JurisdictionOver International Crimes for Use by the Member States, see AUDoc. EX.CL/731(XXI)c, available at:http://legal.au.int/en/sites/default/files/MODEL%20LAW%20FINAL-EN_0.pdf

1

international crimes.2 Based on these successes, the Arabworld, backed by African states, would later demand thatthe international community treat Zionism in the same wayas apartheid.3 More recently, Africa has promoted theelevation to the status of international crimes a numberof illicit activities and behaviour, which have beenregion specific to Africa, for example mercenarism4 andthe dumping of dangerous wastes.5 As is true with anyjustice system, a lot depends on which party or partieswill apply it and against whom. The question oflegitimacy is always present, both to justify which partyis enforcing it and against which party it is beingapplied.

II. The AU criticism of international criminal justiceand the ICC

2 On 30 November 1973, UN General Assembly Resolution3068(XXVIII) approved the International Convention on theSuppression and Punishment of the Crime of Apartheid, whichcame into force on 18 July 1976, 1015 U.N.T.S. 243. On 14December 1960, the General Assembly adopted under Resolution1514(XV) the Declaration on the Granting of Independence toColonial Countries and Peoples, where colonialism was held toconstitute a denial of fundamental human rights. In October1970, General Assembly Resolution 2621(XXV) declared that thefurther continuation of colonialism in all its forms andmanifestations is a crime; see also General AssemblyResolution 32/14, 7 November 1977.3 Two years after Resolution 3068(XXVIII), General AssemblyResolution 3379(XXX), adopted on 10 November 1975, determinedthat Zionism is a form of racism and racial discrimination butwas not expressly referred to as an international crime. Itwas revoked in 1991 under General Assembly Resolution 46/86. 4 See OAU Convention for the Elimination of Mercenaries inAfrica, adopted in 1977, in force since 1985. The text ofOAU/AU treaties together with tables of ratifications areavailable at www.au.int. Generally, see L.S. Sunga, The EmergingSystem of International Criminal Law: Developments in Codification andImplementation, The Hague: Kluwer Law International, 1997. 5 See Bamako Convention on the Ban of the Import into Africaand the Control of Transboundary Movement and Management ofHazardous Wastes within Africa, adopted in 1991, in forcesince 1998.

2

The AU has held for a considerable period of time thatWestern states have abused the international criminaljustice system and have unfairly directed it against theAfrican continent and dignitaries. The view advocated bythe President of Sudan Al Bashir that the ICC "is a toolto terrorize countries that the West thinks aredisobedient”6 is apparently held many an African leader.The AU has accused the ICC (effectively this includes thecurrent Prosecutor who is an African) of concentratingsolely on the black continent and consistently ignoringcrimes coming under its remit but allegedly committed inregions outside Africa.

For the following reasons this should be regarded asunfair criticism and as a not properly justified claimwhich fails to show how Western states have undulyinfluenced the ICC or how it has been used as their tool.First, considerably more war crimes, crimes againsthumanity and acts of genocide have been perpetrated inthe Member States of the AU than elsewhere. Second,African states constitute the largest group ofcontracting parties to the Rome Statute establishing theICC.7 Combined with the previous reason it is notdifficult to see why most cases before the ICC relate toAfrica. Third, so far the UN Security Council has decidedto make use of its prerogative to refer situations to theICC Prosecutor for examination and eventual prosecutionsonly as regards African situations, namely Sudan in 2005and Libya in 2011. Fourth, even though impunity is ripein other parts of the world, in Africa it has become asystematic problem. All in all, the AU position soundsmore like a conspiracy theory targeting the usualsuspects (the former colonial powers) and less like awell-structured submission.

6 In an interview to Time in August 2009, seehttp://content.time.com/time/world/article/0,8599,1916107,00.html 7 Statute of the International Criminal Court, adopted in 1998,in force since 2002, 2187 U.N.T.S. 3.

3

Notwithstanding these considerations, one can appreciatehow a whole continent must feel when Africa is beingportrayed to the world opinion as consistently violatingeven the most basic human rights and fundamental freedomsand persistently negating the rule of law and otheruniversal principles. Indeed, Africa has been depicted asa backwards looking continent; as a region blessed withnatural resources and minerals but due to corruptionunable to reap the socio-economic benefits to advance thewelfare of its population; and as a region with aprevailing ethos of impunity which in some cases has evenbecome state policy. It will be contended that the AU hasexhibited a notable degree of denialism in addressing andtackling the scourges affecting the continent in generaland the issues pertaining to violations of human rightsand humanitarian law in particular. Indeed, when, as willlater be explained, the AU believes that it canlegitimately dictate policy to Member States, it has thecorresponding obligation to offer solutions to theproblems affecting the continent.

These observations beg the question how would Africaitself had reacted to the many instances of breaches offundamental freedoms, crimes against humanity, acts ofgenocide, etc. taking place in its territory had it notbeen for the initiatives largely taken by Western statesto establish legal and quasi-legal institutions cominginto the ambit of international criminal justice. For itis the Western world which now stand accused by the AU ofstriving to achieve judicial domination akin to neo-colonialism through the work of the ICC.8 Two institutionsset up in the context of the United Nations and with theassistance of the Western powers stand out: theInternational Criminal Tribunal for Rwanda (ICTR, set upin 1994 under a UN Security Council Resolution) and theSpecial Court for Sierra Leone (SCSL, set up in 2002 as a‘hybrid’ tribunal, i.e. a domestic tribunal with

8 Magazine articles such as the following indicate best theprevailing sentiments:, “ICC, A Tool To Recolonise Africa”,New African Magazine, 1 March 2012, at:http://newafricanmagazine.com/icc-a-tool-to-recolonise-africa/

4

international participation), reference to which is madelater.

It should be noted that there are not that many legalvehicles which could be created by internationalorganisations or by groups of states bound togetherthrough institutional cooperation to address the kind ofperplexed situations prevalent in Africa. Whether theyare criminal courts or mixed tribunals or sui generistribunals there is no infinite number of solutionsavailable. Unless the current notions of individualcriminal responsibility (the ICC is evidently the bestexample), of State criminal responsibility (the Tokyo andNuremburg tribunals) or of collective liability (arguablythe proposed ad hoc international court to try the Kaiserand German citizens for World War I crimes) are changedor revised, the tools available to bring allegedperpetrators to justice and to combat impunity willremain the same.

III. To accommodate AU concerns, is the creation of ICCregional chambers a solution?

Of these different types of criminal responsibility, theone followed by the ICC is the dominating one. For allits faults and shortcomings, the ICC still represents thebest example of a multilateral institution equipped totackle at a supranational level what cannot be achievedat a domestically, ensure that those allegedlyresponsible will receive a fair trial and, if foundguilty, are punished. If the ICC at its presentconfiguration is unable to fulfill its mission as the AUhas maintained, how could it perform better? Perhaps itcould be broken down into regional chambers, somethingalong the lines of the circuits in the court system ofthe USA. One of these ‘circuit courts’ will havejurisdiction exclusively for Africa. The ICC could thenplay the role of a ‘supreme court’ hearing only cases ofimportance referred to it by one of the regional

5

chambers.9 It could be counter-argued that this proposalpresupposes that all countries of the world arecontracting parties to the Rome Statute. Since the ICChas not yet achieved universality (and it is doubtful ifit will in the foreseeable future) this proposal isunattainable. True as this submission might be, it willbe submitted that at present the ICC constitutes a self-contained transnational regime with its own decision-making body (the Assembly of States Parties) where 65% ofthe UN Member States participate, including 34 out of the55 African states. This offers to the ICC the ability toclaim a degree of legitimacy in acting as the principalinternational criminal justice institution, at least whenno domestic criminal court is competent or willing toaddress the commission of war crimes, crimes againsthumanity or acts of genocide.

The proposal to establish ICC regional chambers requiresa measure of ingenuity and forward thinking. The ultimateaim is to offer a more or less doable proposition inmaking the ICC more user friendly (if this term could beused). In particular, the chamber for Africa will betasked with tackling qualifying criminal behaviour whichhas been allegedly committed within the territory of oneor more of the current African contracting parties and ofthose which will accede to the Rome Stature in thefuture. As this chamber will be reserved solely forAfrica, it will have both a Prosecutor and judges comingonly from that continent. Moreover, it will be able totake into consideration African customs, traditions andvalues, to the extent of course that the latter are notin conflict with peremptory rules of international law(e.g. the total prohibition of slavery and practicessimilar to it).

9 Note that the proposal made here does take into account theexistence of regional human rights courts. However, thesecourts’ competencies and jurisdiction are quite different fromthat of the proposed ICC regional chambers: the former are inessence tribunals supervising and controlling whether thecontracting parties to the regional human rights instrument,which established them, observe their duties and covenants.

6

If, for the sake of argument, such a regional ICC chamberhad been established, would the concerns, fears and theanimosity exhibited by the AU have been relieved? Wouldit have been palatable? It is submitted that even in sucha development the AU would not have been content. Andthis because it would appear that the AU objects toWestern institutions and values in general and tointernational criminal justice as promoted by Westernstates in particular. There is definitely an Africandiscourse to that effect, which might have to do with theofferings emanating from the former colonial partners andthe Western world at large.10 Had the ICC been, again forthe sake of argument, a project of the BRIC countrieswould it have been accepted by the AU, especially if itsupkeep was paid, for example, by China?11

The criminal law institutions mentioned earlier, namelythe ICTR and the SCSL have largely been creations ofWestern states. This is easily explained, on the onehand, by the dominating role that they have played andcontinue to play on the international plane and, on theother hand, by the concerted efforts to bring about theirown version of humanity in interstate relations.Notwithstanding the fact that the Western world has had amonopoly in proposing mechanisms in the internationalcriminal justice area, what should be of paramountimportance is whether these institutions deliver or atleast strive to deliver what has been promised, alwaystaking into due account the surrounding conditions andcircumstances.

As far as the ICTR and the SCSL are concerned, they havemore or less completed their lifespan (residual tribunalsare now in place) and, therefore, one could reach his/her

10 Cf. D.E. Uwizeyimana, “Democracy and pretend democracies inAfrica: Myths of African democracies” [2012] 16 Law, Democracy &Development 139, available at:http://www.saflii.org/za/journals/LDD/2012/8.pdf 11 Note that the cost for the construction of the new AUheadquarters in Addis Ababa, Ethiopia, was covered by China,see http://uk.reuters.com/article/2012/01/28/uk-africa-china-idUKTRE80R0RG20120128

7

conclusions. But some of their successes should beremembered. For example, the SCSL can boast to have beenthe first international tribunal to indict, try andconvict a sitting head of state (the trial of LiberianPresident Charles Taylor).12 It is true that the ICCappears to be going through a protracted phase ofinfancy, despite the fact that it is now at the 13th yearof operation. There are mitigating factors which could(to a larger or smaller extent) explain and even justifythe shortcomings (and blunders one might add) exhibitedby the ICC. The 34 African contracting states have everyright to complain about these failings. Moreover, it willbe within their rights if they were to take whatevermeasures they deemed necessary to remedy the situationand make the ICC more dynamic or more relevant to itsgoals.13

But a number of African parties have concentrated theirefforts at the ICC Assembly of States Parties on tryingto change the Rome Statute’s stipulations as regards theimpunity of heads of state and government. The provisionin point is Article 27(1), which aims at restricting theinstances of not prosecuting dignitaries on the groundthat he/she cannot be criminally responsible:

“This Statute shall apply equally to all personswithout any distinction based on official capacity.In particular, official capacity as a Head of Stateor Government, a member of a Government orparliament, an elected representative or agovernment official shall in no case exempt a personfrom criminal responsibility under this Statute …”

12 The Appeal judgment was given in September 2013, for thetext seehttp://www.rscsl.org/Taylor_Appeals_Chamber_Decisions.html.Generally, see C. Jalloh (ed.), The Sierra Leone Special Court and itsLegacy: The Impact for Africa and International Criminal Law, Cambridge:Cambridge University Press, 2014. 13 Note that, pursuant to Article 112(4) of the Rome Statute,the Assembly of States Parties is empowered to establishsubsidiary bodies as may be necessary, including independentoversight mechanisms for inspection, evaluation andinvestigation of the ICC.

8

The original intent of the African proposal was to amendthe Rome Statute effectively granting immunity todignitaries. As this approach met with resistance, theproposal was revised to suspend ICC prosecutions duringtheir term of office. In the course of 2014, Kenya, onbehalf of the African contracting parties made thesuggestion to have a third paragraph added to Article 27with the following wording:

“Notwithstanding paragraph 1 and 2 above, servingHeads of State, their deputies and anybody acting oris entitled to act as such may be exempt fromprosecution during their current term of office.Such an exemption may be renewed by the Court underthe same conditions”.14

IV. The problematic AU’s diplomacy towards the ICC andits repercussions – The role of the ICC when domesticcourts are unable or unwilling to act

But this is a very far cry from what happened in October2013 when the AU Assembly of Heads of State andGovernment was convened in extraordinary session todiscuss the future behaviour of Member States towards theICC. This was a unique event, especially consideringthat, despite the many and most pressing problemssurrounding the continent, this was the firstextraordinary session in eight years. The last was heldin the summer of 2005 to deliberate an AU common positionon the reform of the UN Security Council.15 The October2013 discussions (and before it the deliberations in2005) have arguably shown that the AU’s relations with14 See ICC Assembly of States Parties, Report of the Working Group onAmendments, ICC-ASP/13/31, 7 December 2014, pp. 2-3, 16, athttp://www.icc-cpi.int/iccdocs/asp_docs/ASP13/ICC-ASP-13-31-ENG.pdf

15 Seewww.au.int/en/sites/default/files/ASSEMBLY_EN_4_AUGUST_2005_AUC_FOURTH_EXTERAORDINARY_SESSION_DECISIONS.pdf An obviousdifference between the two extraordinary sessions is of coursethat all AU Members States participate in the United Nations.

9

third transnational institutions are more significantthan events taking place within the continent, not tomention Africa’s dealings with other internationalactors. Thus the question arises why AU would regardrelations with the ICC more crucial than, for example,relations with the European Union (the largestcontributor to the AU budget) or with China, whichcontinues to make inroads in the continent. For if ICC isthe most important issue in the AU’s foreign affairsagenda, a matter which does not even concern the wholecontinent considering that many an African country do noteven contemplate joining the ICC, there is clearlysomething wrong with the AU’s priorities.

Before the extraordinary session of October 2013 one ofthe ideas that had surfaced as a kind of direct challengeto the unacceptable treatment of Africa by the ICC was tocall for the collective withdrawal of African partiesfrom the Rome Statute. In the end, it was not carried onin the final Declaration.16 But the Assembly did reach anumber of conclusions, which arguably challenge basicrules of international law and impose upon those MemberStates which are parties to the ICC duties of a politicalnature, possibly even exceeding its powers andfunctions.17 Indeed one cannot but seriously questionwhether one international organisation (in casu, the AU)may dictate to its membership a specific behaviourtowards another international institution (the ICC) withwhich there exists no institutional or other linkage.

If, for the sake of argument, the Assembly were to askall Member States and parties to the Rome Statute towithdraw which would the repercussions have been for theICC? No doubt that the ICC’s image would have been serveda severe blow. It its quest towards achieving

16 See Assembly, Decision on Africa’s Relationship with the InternationalCriminal Court (ICC), AU Doc. Ext/Assembly/AU/Dec. 1, 12 October2013, available at: http://www.au.int/en/content/addis-ababa-12-october-2013-%E2%80%93-extraordinary-session-assembly-african-union.17 See further K. Magliveras and G. Naldi, The African Union,Alphen aan den Rijn: Wolters Kluwer, 2014, pp. 73-74.

10

universality, it of paramount importance that the ICC isseen as being trusted by the largest number of statescoming from all parts of the world. But every cloud has asilver lining and such blows could result in a shocktherapy. In the case of the ICC this could translate intoa first rate opportunity to end its prolonged infancy, amixed blessing so to speak. But where would such an enmasse withdrawal leave the African states themselves?

In the past, African contracting parties to the RomeStatute took the initiative and referred domesticsituations to the ICC and asked for investigations intoalleged crimes. There is nothing wrong for contractingparties to ask the ICC to do so and certainly it is notan affront to their sovereignty (so sacred in Africa). Torequest the ICC to offer its services in investigatingthe responsibility of individuals having allegedlyperpetrated war crimes, crimes against humanity or actsof genocide should not be regarded as being differentfrom, say, a request to the World Health Organization toassist in fighting a contagious disease affecting largeparts of the population.

Despite how the AU and individual Member States havechosen to portray the ICC, the reality is that, like anyother international institution, its prime role is tooffer specialized services (in casu, investigation,prosecution, trial, and sentencing in criminal law casessubject to pre-agreed conditions and limitations) to itsmembership. Equally this is one of the reasons (perhapsthe most significant reason) why states have been andwill continue to be attracted by the ICC. States have theprimary obligation to ensure protection, care, safety andsecurity for the whole of their population and toguarantee that those causing them harm by committing warcrimes, crimes against humanity and genocide shall bedealt with accordingly within their court system.Arguably this obligation falls within the so-calledResponsibility to Protect (R2P), which was unanimously adoptedat the 2005 World Summit.18 In effect, should a

18 It is true that para. 138 of the 2005 World Summit Outcomedoes not expressly refer to prosecution of alleged

11

contracting party to the Rome Statute be unable toexercise this basic duty (which at the same time is amanifestation of its sovereignty), it has the ability(and possibly the duty should R2P be regarded as a normof international law19 finding universal application20) toask the ICC to take over.

The ICC does not have the primary competence toinvestigate and to prosecute alleged perpetrators whohave the nationality of one of the contracting parties.Pursuant to the principle of complementarity, it acquirescompetence in the following two situations. First, when,as has just been explained, a contracting party has askedit to do so, in other words when the party in questionhas transferred to the ICC its principal responsibilityto bring before a court of justice suspected criminals.Three African parties have already made self-referrals tothe ICC: Uganda, the Democratic Republic of Congo (DRC),and the Central African Republic (CAR), the latter inDecember 2004 and again in May 2014. Second, when the ICChas concluded that the party in question cannot or willnot exercise its duties and, in order to avoid impunity,

perpetrators: “Each individual State has the responsibility toprotect its populations from genocide, war crimes, ethniccleansing and crimes against humanity. This responsibilityentails the prevention of such crimes, including theirincitement, through appropriate and necessary means. We acceptthat responsibility and will act in accordance with it …”.However, a way to prevent these crimes is to ensure that thereis no impunity for those already committed.19 See United Nations, Report of the Secretary-General,Implementing the responsibility to protect, UN Doc. A/63/677, 12 January2009.20 Τhe Security Council has had a mixed record in citing theR2P; although mentioned in several resolutions concerningpeace and security situations (e.g. Darfur (Resolution1706(2006)); Libya (Resolutions 1970(2011), 1973(2011),2016(2011), and 2040(2012)); Côte d'Ivoire (Resolution1975(2011); Yemen (Resolution 2014(2011)); Mali (Resolutions2085(2012) and 2100(2013)); and Sudan and South Sudan(Resolutions 1996(2011) and 2121(2013)), in other situations(notably in Syria) it has been silent leading to the apparentconclusion that double standards apply.

12

intervenes and substitutes it in its jurisdiction.Naturally, there are important differences between theapplicable law and procedures which will be applied andfollowed, respectively, by the party in question and bythe ICC. The law and procedures of the ICC willinvariably be more developed, more detailed and willfully observe the relevant international standards. Theaccused might get a better trial before the ICC thanbefore domestic courts. This consideration is ofperipheral significance, the important one being that theICC should be able to ensure that the commission ofcrimes will be looked into, that those responsible willbe held accountable and that justice will finally beserved.

It follows from the above that the first victim of anymass withdrawal from the Rome Statute would be thenationals of the contracting parties. Given that the ICCwould be unable to investigate the commission of allegedcrimes affecting them, should it also be impossible tofind justice before the domestic court system thenimpunity would most probably prevail. And this is exactlywhat the leaders of dictatorial and undemocratic regimesexpect: to avoid supervision by a transnational juridicalinstitution with the power to order their arrest andsurrender to be tried.

A diligent student of African affairs would have this tosay: there exist judicial and quasi-judicial bodies andentities in Africa which could, under specificconditions, be seized of those international crimescoming under the ICC’s ambit. They include the AfricanCommission on Human and Peoples’ Rights, the AfricanCourt on Human and Peoples’ Rights, the African Court ofJustice and Human Rights (when it comes into operationreplacing the African Human Rights Court)21, and the legalorgans of certain sub-regional African organisations. Thelatter, although they have no criminal jurisdiction perse, they have the power to rule on issues falling withinthe broad domain of protecting human rights and21 See infra note 30 and corresponding text.

13

fundamental freedoms.22 However these are notinternational criminal justice entities, a fact whichmust be emphasized.23 They should be considered asjuridical bodies of last resort called upon when allother legal avenues are closed.

A fundamental difference between the ICC and domesticcourt systems, on the one hand, and between the ICC andsuch juridical entities, on the other hand, centers onthe nature of defendants. In the former case it will beindividuals (natural persons) and in the latter case itwill be states (legal persons). Theoretically speaking,the ICC could have brought prosecutions against states aswell but the Rome Statute was founded upon theresponsibility of only natural persons (presumablybecause the ICC was created as the culmination of thelegacy of the Nuremberg and Tokyo Criminal Tribunals).States bear responsibility for all acts and omissionscommitted by its population as a whole, whether they areheads of state, dignitaries, generals, soldiers, orordinary citizens. Acts of genocide need not involve thestate apparatus: members of one tribe could aim at theannihilation of another tribe. A lot changes when thedefendant is an individual and not a state (even ifhe/she is the Head of the state). States cannot go prisonand their freedom cannot be curtailed, individuals can.There is also the question of the civil consequences(compensation, reparations, restitution) when committinggrave violations of humanitarian law. While there is muchmore concern with the criminal law aspects when graveoffences of humanitarian law are committed and thequestion of compensation is invariably relegated to anissue of much lesser importance, it is also true that

22 For example the Tribunal of the Southern African DevelopmentCommunity (SADC) and the Court of Justice of the EconomicCommunity of Western African States (ECOWAS).23 While the ICC is the typical example of a judicial organwhere international human rights, international humanitarianlaw and international criminal law overlap, relevant cases mayoccasionally be lodged with other judicial organs.

14

states can pay far more compensation than individualscan.24

Finally, a recent development shows how the ICC couldwork alongside contracting parties and, while it may bealready pursuing an investigation, parallel domesticcriminal proceedings could commence. The case in pointconcerns the CAR, which, as has been mentioned, has twicemade referrals to the ICC.25 In February 2015, its Councilof Ministers voted to establish a Special Criminal Court(SCC) to deal with atrocities committed in its territory,especially since 2003. In April 2015, the NationalTransition Council approved its creation, while therelevant legislation was promulgated in June 2015.26 TheSCC will be competent to investigate and prosecuteserious violations of international humanitarian law inthe CAR, including crimes against humanity, war crimesand genocide, namely crimes coming into the ICC’sjurisdiction.27 The setting up of the SCC was envisaged inthe Memorandum of Understanding on Urgent TemporaryMeasures, which was signed on 7 August 2014, andenvisaged the inclusion of judges from countries outsidethe CAR, having proven expertise in the prosecution ofinternational crimes.

The need for international judges to participate in orderto conduct proceedings objectively was also emphasized bymembers of the International Commission of Inquiry on the

24 For case studies of reparations to victims of grave humanrights violations, see P. De Greiff (ed,), The Handbook ofReparations, Oxford: Oxford University Press, 2008. 25 Note that in September 2014 the ICC Prosecutor opened aninvestigation following the CAR’s referral on alleged crimescommitted since 2012, see the Statement by the Prosecutor athttp://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/pages/pr1043.aspx 26 See https://www.fidh.org/International-Federation-for-Human-Rights/impacts/central-african-republic-special-criminal-court-officially-created27 According to UN Security Council Resolution 2217(2015), 28April 2015, the SCC’s jurisdiction is consistent with theCAR’s international human rights law obligations.

15

Central African Republic28 meeting informally the SecurityCouncil on 21 January 2015.29 As envisaged in the lawapproved in April 2015, the majority of the 27 judges tosit at the SCC will be from the CAR (including itspresident and the heads of the indictment, first-instancetrials, and appeals chambers) with the remaining judgescoming from third states. Even though the CAR is no doubta special case in the sense that, as a state completelytorn by war and conflict, the restoration of thejudiciary and the criminal justice system is of paramountimportance, it does serve to show that the ICC and itscontracting parties could work in unison and not asadversaries. As has been explained, the ICC’ proper roleis to support those states in need of assistance in thearea of criminal justice.

V. The AU’s version of international criminal justice:the International Criminal Law Section attached to theAfrican Court of Justice and Human Rights

When in October 2013 the AU Assembly was discussing theattitude that Member States should adopt towards the ICC,there was already in the pipeline the African version ofa juridical institution with competence in the area ofinternational criminal justice. In particular, in May2012 the AU had finalized the draft instrument toestablish within its legal organ (this being the AfricanCourt of Justice and Human Beings (ACJHR))30 a separate28 It was established pursuant to Security Council Resolution2127(2013), 5 December 2013, with the task to investigatehuman rights and humanitarian laws violation and abuses in theterritory of the CAR since 1 January 2013. 29 See http://www.un.org/apps/news/story.asp?NewsID=49863#.VYVgJPntmkr. Interestingly enough, SecurityCouncil Resolution 2196(2015) on the CAR, which was adopted onthe following day, fails to make any reference to theinternational element of the SCC.30 The creation of the ACJHR is envisaged in a Protocolattached to the AU Constitutive Act, which was adopted in 2008but has not entered into force, [2009] 48 International LegalMaterials 337. For analysis, see G. Naldi & K. Magliveras, "TheAfrican Court of Justice and Human Rights: A Judicial Curate’s

16

chamber endowed with the jurisdiction to prosecute andtry cases concerning the alleged commission of an arrayof criminal acts, far exceeding those coming into theambit of the ICC.31 After a considerable period of timethat the draft instrument was left in limbo, it wasfinally adopted by the Assembly in July 2014.32

A rather perplexed situation has emerged because the AU’scriminal justice organ, the International Criminal LawSection (ICL Section), was not devised as a separate AUorgan33 but was made an integral component of the ACJHR,which is yet not in operation and is unknown when it willbe. It follows that in order to brush off any allegationsthat it has not combated impunity and protected Africanpopulations from grave violations of human rights, the AUcreated its own version of a transnational criminaljustice entity. In substance, this new entity, as aconcept, does not deviate considerably from theaforementioned proposal to have an ICC regional chamberfor Africa. Indeed its Statute has been heavilyinfluenced by the Rome Statute.34

The big question to be asked is this: which is the addedvalue of the ICL Section that warranted its creation? Ifit were to fight impunity, there is a slim chance ofachieving it since its Statute ensures the continued fullimmunity for serving heads of state, heads of government,

Egg" [2012] 9 International Organizations Law Review 387.31 See Draft Protocol on Amendments to the Protocol on theStatute of the African Court of Justice and Human Rights, AUDoc. Exp/Min/IV/Rev. 7, 15 May 2012.32 See Assembly, Decision on the Draft Legal Instruments, AU Doc.Assembly/AU/Dec.529 (XXIII), 27 June 2014. See G. Naldi & K.Magliveras, “African Union Establishes an InternationalCriminal Court” ” [2014] 30 International Enforcement Law Reporter 430.33 The AU Constitutive Act grants to the Assembly completediscretion to set up any organ that it deems necessary for theproper functioning of the AU. 34 The Statute is available at:http://www.au.int/en/content/protocol-amendments-protocol-statute-african-court-justice-and-human-rights. The AU websitedoes not offer any information on how many Member States havesigned / ratified it.

17

and senior officials. Thus, their jurisdictional immunityis guaranteed, as opposed to the Rome Statute whoseArticle 27 reads:

Th[e] [ICC] Statute shall apply equally to allpersons without any distinction based on officialcapacity … [i]mmunities which may attach to theofficial capacity of a person, whether undernational or international law, shall not bar the[ICC] from exercising its jurisdiction …

To be fair, the Statute of the ICL Section provides forthe attribution of individual criminal responsibility andestablishes that the accused perspn’s previous positioncannot be a defence absolving him/her fromresponsibility. This is in line with the traditionalposition that former officials may have to face criminalproceedings before transnational criminal courts.35

Notwithstanding these observations, arguably the AU andits membership can still not come into terms with thetrend in international law not to refuse the prosecutionof sitting heads of state, if there is prima faciae evidenceagainst them alleging the commission of most seriouscrimes. The ICC has already made a compelling case whythis category of individuals should not be entitled toany preferential status when accused of heinous crimes,36

a case which it recently reiterated.37 The AU does not

35 Cf. Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium),Judgment, [2002] International Court of Justice Reports 3,paras. 58-61. 36 See ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, DecisionPursuant to Article 87(7) of the Rome Statute on the Failureof the Republic of Malawi to Comply with the CooperationRequests Issued by the Court with respect to the Arrest andSurrender of Omar Hassan Ahmad Al Bashir, Corrigendum, P.-T.Ch. I, ICC-02/05-01/09, 12 December 2011, [2012] 51 InternationalLegal Materials 393. For analysis, see K. Magliveras & G. Naldi,“The ICC Addresses Non-Cooperation by State Parties inArresting President Al-Bashir: The Malawi Decision” [2013] 6African Journal of Legal Studies 1. 37 See Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision onthe Cooperation of the Democratic Republic of the CongoRegarding Omar Al Bashir’s Arrest and Surrender to the Court,

18

want to heed to this kind of legal reasoning but prefersto continue upholding the sanctity of African leaders, asit did in the 1970s and 1980s when its predecessor, theOrganisation of African Unity, was referred to as “thedirectors’ club”.38

However, the Statute of the ICL Section does have anumber of innovative features, the most important ofwhich is the impressive range of crimes coming under itsscope. Thus it will be possible to prosecute individualsfor allegedly committing, inter alia, the followinginternational criminal offences: unconstitutional changeof government, piracy, corruption, money laundering,trafficking in human beings, trafficking in hazardouswastes, and illicit exploitation of natural resources.This expansive list of criminal behaviour is no doubt anadded value of the ICL Section but there is a rathertricky element. In particular, given that the ICL Section(as indeed is the case with the ICC), is based on theprinciple of complementarity, it will only havecompetence when and if domestic courts are unwilling orunable to prosecute alleged perpetrators. However, thispresupposes that the domestic criminal law systems ofcontracting parties will have to contain the constitutiveelements of these crimes. This follows from the ancientlegal axiom nullum crimen nulla poene sine lege. Thus if, for thesake of argument, Member State and party to the ICLSection’s Protocol XX does not envisage in its criminallegislation the offence of money laundering and YY, acitizen of XX, is accused of committing money launderingin the tune of billions of USD, could he/she be triedbefore the ICL Section even though this would be notpossible before the domestic courts of XX?

These observations are mutatis mutandis relevant to theother innovative feature of the ICL Section, namely theinclusion of corporate legal liability covering theillicit behaviour of both domestic and multinational ortransnational corporations (TNCs). If the internal law of

P.-T. Ch. II, ICC-02/05-01/09, 9 April 2014, http://www.icc-cpi.int/iccdocs/doc/doc1759849.pdf 38 See http://www.bbc.co.uk/news/world-africa-16910745

19

a Member State does not feature corporate legalliability, will the ICL Section still be in the positionto prosecute companies? It would appear that thesituation at hand could be described as follows: theprinciple of complementarity becomes obsolete and the ICLSection will have jurisdiction not because domesticcourts will not or cannot exercise jurisdiction butbecause they are prohibited to do so on account of thelack of the required domestic criminal law provisions. Itis not clear if and to which extent the legal experts whodevised the ICL Section delved into this kind ofargumentation. Perhaps they were not even concerned withthese repercussions and may have even overlooked them.At any rate the paramount consideration here was to showto the outside world that Africa possesses its owncontinental criminal justice body and for this reasonthere was need for the distasted ICC and its unfairhandling and targeted prosecution of African dignitaries.

VI. Conclusions

Given the stance taken by the AU vis-à-vis the internationalcriminal justice and the ICC, the question could validlybe put with whom should the primary allegiance of the AUlie. Should it lie with the Member States, their heads ofstate and their prime ministers? In effect, should the AUcontinue to promote an outdated version of the head ofstate immunity paradigm and even sacrifice its standingon the international plane in order to support it? Orshould it lie with ordinary Africans and protect therights and the privileges to which they are entitled andof which so often they are robbed? Millions of Africanshave died and many more have been forced to leave theirland due to violent conflicts, ethnic tension and similarsituations. While it may not be opportune to deliberatewhether the AU has a responsibility to protect Africansas a whole, its anthropocentric Constitutive Act doesplace upon it at least a duty to act and assist those inperil, even if this means clashing with certain MemberStates and their revered leaders. And there have been inthe past instances of friction. In 2006, Al Bashir was

20

effectively not allowed to assume the AU Presidencybecause its name was implicated in the Darfur massacres.39

And when the Morsi regime was undemocratically removedfrom power in the summer of 2013, the AU did not thinktwice before suspending Egypt’s participation for as longas what it considers to be an unconstitutional regimeremains in power.40 In the event, Egypt’s participationresumed a year later following the acceptance of the newConstitution in a plebiscite.

But despite these instances, which show that the AU canstand up to dictators and autocrats, the AU hasvehemently campaigned against the ICC and what it standsfor. Already in 2009, Member States were directed not tocomply or give effect to any arrest warrant and requestfor cooperation emanating from the ICC.41 Effectively, theAU has given to its membership a carte blanche to ignorethe legitimate demands made by another internationalinstitution, demands which are addressed to its owncontracting parties. This offending but above allirresponsible attitude has resulted in unacceptablesituations like the one played out in June 2015 in theRepublic of South Africa, a traditionally staunch ICCsupporter, over the arrest of Al Bashir. Despite a rulingby the High Court of South Africa that the government waslegally required to arrest him,42 the government,presumably regarding him as another brother in arms inneed of assistance, allowed him to return to Sudan.43 The

39 See Magliveras and G. Naldi, The African Union, supra note, 17 p.107. 40 See S. Ayele Dersso, “The AU's suspension of Egypt isdefensible, but presents several challenges”, ISS Today, 10July 2013, at http://www.issafrica.org/iss-today/the-aus-suspension-of-egypt-is-defensible-but-presents-several-challenges 41 See AU Assembly, Decision on the Report of the Commission on the Meetingof African States Parties to the ICC Statute of the International Criminal Court (ICC),AU Doc. Assembly/AU/Dec 245 (XIII), 3 July 2009.42 See Southern Africa Litigation Centre v Minister of Justice And Constitutional Development and Others, 24 June 2015, at http://www.saflii.org/za/cases/ZAGPPHC/2015/402.html 43 Al Bashir was in South Africa attending the six monthlymeetings of the AU Assembly. See N. Onishi, “Omar al-Bashir,

21

African National Congress, South Africa’s governingparty, had this to say: “[The ICC] is no longer usefulfor the purposes for which it was intended — being acourt of last resort for the prosecution of crimesagainst humanity”.44

The only way to regard the South African government’sbehaviour, other than its obvious violation of covenantsfreely assumed when the country joined the ICC, is this:it wanted to ridicule the ICC and to continue regardinginternational criminal justice as a politicized question.At the same time, by breaking pacta sunt servanda, thisancient and sacred rule of international law, SouthAfrica, like many an African country in the past, wassending out this message: break the rules and fear nopunishment for it.45 This is not much different from theethos of impunity that has for so long prevailed inAfrica with catastrophic results. If there are AfricanICC parties which do not wish to participate any longer,no one is forcing them to remain in this bastion ofimperialism and Western domination. Until they choose todo so, they are morally and legally obliged to fulfil alltheir obligations in good faith. On the other hand, theyare free to make use of their own version ofinternational criminal justice, if and when it becomesoperative that is. -

Leaving South Africa, Eludes Arrest Again”, The New YorkTimes, 15 June 2015, at:http://www.nytimes.com/2015/06/16/world/africa/omar-hassan-al-bashir-sudan-south-africa.html?src=xps 44 See http://www.nytimes.com/2015/06/15/world/africa/bashir-sudan-international-criminal-court-south-africa.html 45 There is a measure of responsibility to be borne by theother ICC states parties, which have not reacted to thebehaviour shown by South Africa and other contracting statesin the past. Clearly Article 119(2) of the Rome Statute doescome into play (it stipulates that any dispute betweencontracting parties as to the Statute’s interpretation orapplication shall be settled through negotiations or otherwiseshall be referred to the Assembly of States Parties) not tomention the role that the UN Security Council could play insituations threatening or violating international and regionalpeace and security.

22

23