Some reflections on the current Africa’s project on the establishment of African Court of Justice and Human Right (ACJHR)Posted: 29 June, 2015
It has been more than thirteen years since the ICC was established and started its operation on most serious crimes of international concern, namely genocide, crime against humanity, crimes of war and aggression. The court is established by virtue of the Rome Statute as a permanent international criminal tribunal independent from other UN bodies. To date, all cases that have been investigated by ICC are from Africa. African countries generally have cooperated in the early stages of the establishment of ICC.
Nowadays, however, it seems that the relationship between the ICC and Africa is turning into a growing trend of contention. It has been a point of discussion in the academia and in the international politics as to whether the court is indeed exclusively targeting Africa regardless of their contribution and cooperation in the creation and advancement of ICC. The AU and various leaders in Africa have expressed their dissatisfaction in different occasions that the court is “neo-colonialist policy” or “post-colonial court.” As a result, the AU in 2008 adopted a protocol on the establishment of African Court of Justice and Human Rights (ACJHR). The protocol is being circulated and so far 11 countries have signed the document. Last year at the AU Summit, the current president of Kenya urged for the immediate establishment of the court.
Notwithstanding the current uncertainty about the fate of the Draft Protocol and thereby the establishment of the ACJHR, it is worthwhile to examine some of the challenges and opportunities that the court might face and the future of international criminal justice in Africa.
Firstly, from the draft protocol it is clear that the newly proposed court has the jurisdiction to adjudicate crimes such as, mercenarism, unconstitutional change of government, corruption and other inchoate offences. These crimes are new developments under international criminal law (ICL) as crimes against humanity, genocide and war crimes have taken the legitimacy of international crimes so far. Therefore, the inclusion of these unaccustomed international crimes under the jurisdiction of the ACJHR would affect state leader’s disposition towards the court and will likely embrace them as these crimes mostly happen in the region. Even the fact that the Rome statute does not cover such crimes will have a significant effect on the possible legitimacy of the court to adjudicate the crimes in question. Some argue that for a crime to be prosecuted by an international tribunal it should be recognized as serious and international under customary international law. The ‘seriousness’ and “international” nature of the act is material for a crime to be adjudicated by an international tribunal. So far, there is no clear answer as to whether those unaccustomed crimes under Article 28 of the draft protocol have got international crime status. It could also be argued that in order to adjudicate crimes related with unconstitutional change of government and popular uprising, we need to take in to consideration the political and internal situation of the state in question.
Secondly, international individual criminal trial in the normal standards requires more budgets and full-fledged justice machinery, mainly finding and preservation of evidence; security and support for victims and witnesses; outreach to victims and affected communities; pre-trial detention services; protection of defense rights; investigations and prosecutions; trials and imprisonment. Doing all these things is expensive, complex and time consuming. For example, the ICC took about 10 years to establish all the necessary machineries above to start its first criminal trial. The proponents of the newly proposed court are claiming that it should be fully driven and financed by Africa without indicating how this funding will be secured. It is also true that there are still states in Africa whose annual budgets are covered by foreign loan and aid. In addition, countries with a relatively growing economy in Africa (Nigeria, South Africa, Egypt and Algeria) are reluctant towards the establishment of the court. The complexity and the budgetary implications in establishing the court could delay in the delivery of criminal justice.
Thirdly, it is true that African states will still have commitments with ICC in different aspects. If the newly proposed court came into force, states will face double or probably competing duty between ICC and ACJHR. In the draft protocol nothing is stated as to the future relationship between the two courts. One may wonder as to whether the ICC’s complementary role would still be applicable in regional criminal prosecution. In addition, the way the office of prosecutor is designed should be revisited.
Firstly, the newly proposed court is the first court of its kind in the world at the regional level with the objective of addressing both human rights and ICL. It has also come up with new crimes under international law as discussed above. This could be seen as a new development in ICL.
Secondly, the establishment of a new court in Africa will have a relative advantage in the implementation of international criminal justice system. Regions are relatively homogenous in terms of culture, norm, religion, psychological makeup and perception of justice. To put it differently, there is “high level of convergence and coherence between states.” At regional level states have better political will, economic and social ties. This will be an opportunity for immediate response and improved implementation of international criminal justice. In addition, it will also offer a relative advantage of in terms of accessing victims, evidences and information, language and others.
As a conclusion, the proliferation of regional systems in criminal justice is an opportunity for the development of ICL. Yet, it is an escaping mechanism and will definitely lower the quality of criminal justice to be delivered. This is particularly problematic given the fact that most human right violations in Africa are associated with political interests and governance issues. Therefore, the proposal should be revisited and needs further discussion and research. States should not submit themselves to lesser standard of treatment at regional level to be beneficiaries of the defense of double jeopardy at the ICC level.
About the Author:
Tefera Degu Addis is an LLM candidate in International Human Rights and Humanitarian Law at the University of Essex School of Law in the UK. He holds Bachelor of laws (LLB) from Bahir Dar University (Ethiopia) in 2012. He previously worked as an assistant lecturer at the Law School of Arba Minch University (Ethiopia) for about a year and a half.