Speculum Juris Support SAFLII

You are here:  SAFLII >> Databases >> Speculum Juris >> 2016 >> [2016] SPECJU 5

| Noteup | LawCite

Swanepoel, C F --- "Is a permanent African criminal court likely soon considering the continents post-colonial response to international criminal justice?" (Vol 1) [2016] SPECJU 5

Download original files

PDF format

RTF format



IS A PERMANENT AFRICAN CRIMINAL COURT LIKELY SOON CONSIDERING THE CONTINENT’S POST-COLONIAL RESPONSE TO INTERNATIONAL CRIMINAL JUSTICE?  

Professor CF (Neels) Swanepoel

BA LLB (Stellenbosch) LLM LLD, (University of the Free State) Associate Professor: Public Law, University of the Free State

 

1          INTRODUCTION

The Al-Bashir controversy regarding South Africa’s non-compliance with its national and international obligations, and particularly the fact that the International Criminal Court (ICC) was acting on the authority of a United Nations Security Council (UNSC) resolution that had referred the situation in Darfur to the ICC, has prompted this assessment of Africa’s post-colonial response to international criminal justice and the chances of successfully establishing a permanent African criminal court in the near future. The assessment is carried out by examining aspects of the legal and political relationship between the Security Council, ICC, African Union and South Africa with reference to literature and case law.

International criminal justice and the ICC cannot function in a vacuum unperturbed by political influences. On the other hand, the United Nations (UN) is a political body and not a court, and therefore must be able to rely on international criminal justice and the ICC where situations demand. The insertion of Article 13(b) in the Rome Statute of the International Criminal Court, which allows the ICC jurisdiction where the UNSC refers a matter to it acting under Chapter VII of the United Nations Charter, must therefore be welcomed. It is another step to prosecute perpetrators of heinous international crimes who are often high ranking state officials and heads of state. This contribution departs from the premise that the prosecution of perpetrators of international crimes serves as a justice mechanism giving a voice to victims, and importantly serves as a deterrent for future human rights abuses.

Closely linked to Article 13(b) is Article 16, which states:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.” [1]

It is not the provisions of Articles 13 and 16 of the Rome Statute as such, but the fact that the Security Council failed to heed requests from the African Union (AU) for the deferral of certain cases currently falling under the jurisdiction of the ICC that appears to have influenced Africa’s changed attitude towards the ICC. It provides an insight into Africa’s response to developments in the field of international criminal justice, and ultimately the likelihood of the establishment of a permanent ICC soon. Any investigation into the post-colonial response of Africa to international criminal justice must therefore necessarily take regard of the role and relationship between the UN and Africa, as represented by the AU. In this article, the significance and reasons for the establishment of a permanent international court are considered, submitting that breaking ranks with the ICC would be a counterproductive move on the part of the African continent because of the very reasons why the Court was established, the time it took to create the Court, and the indications of the financial unviability of a permanent African criminal court. If the African continent were to break ranks with the Court, it would imply a move backwards, ensuring amongst other things further impunity for violators of human rights, particularly and often, from the ranks of high state officials and heads of state.

It must, however, be clear that the UN and Security Council would be well advised to treat seriously the anti-colonialist, non-interventionist and pan-African ethos that drives the AU. As is referred to below, the power structure of the Security Council has been a constant problem since the 1950s, which is why platforms similar to the recently announced special criminal court in the Central African Republic may be of considerable value as a demonstration of a more cooperative relationship between the UN and African states where justice demands. The time has come for robust deliberation between politicians to establish greater cooperation between the AU, UN and ICC – that is, of course, if the international community is serious about justice for victims of gross human and humanitarian rights violations. It is therefore important to remind ourselves at the outset of the significance of establishing a permanent ICC. The reasons it was established and the time it took unfortunately point to the unlikelihood for the establishment of a permanent African criminal court soon.

2          THE ESTABLISHMENT OF THE ICC

The establishment of a permanent ICC has been described as the greatest event since the establishment of the UN.[2] The creation of the Court was part of a continuum to achieve the goals of the UN Charter itself which, as stated in the UN Charter preamble, is inter alia “to save succeeding generations from the scourge of war” that has “brought about untold sorrow to mankind”; to reaffirm the international community’s faith in fundamental human rights, human dignity and the worth of  human persons, and “to establish the conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”.[3] Significantly is the fact that the ICC suggests the existence of a social system built on universal respect for the idea of human rights – a system that recognises that allowing impunity to those responsible for the most heinous war crimes, crimes against humanity and genocide diminishes and threatens all those who live under it.[4] This is the premise from which this article departs.

There were also other, more practical reasons for the creation of a permanent ICC. Mostly, those responsible for international crimes go unpunished because no states’ courts are prepared to try them.[5] Secondly, the processes to set up ad hoc tribunals such as the international criminal tribunals for the former Yugoslavia and Rwanda proved too time-consuming and costly.[6] This was affirmed by United States (US) Ambassador Scheffer who had led the US delegation to the Rome conference on the establishment of a permanent ICC.[7]

In the third place it must be remembered that the establishment of the ICC took centuries to achieve.[8] It was a cumbersome process complicated by the Cold War. At the conclusion of the Cold War, the UN assumed a more active role in world affairs than during the War, when consensus could rarely be achieved because of the likelihood of a veto vote over the Security Council.[9] The fourth practical reason for establishing a permanent ICC instead of ad hoc tribunals was: (a) to avoid charges of victor’s justice after periods of war and conflict; (b) to establish a professional core of staff trained in criminal investigation and prosecution, who could respond swiftly to any new crisis before evidence could be destroyed, as well as staff trained to address the psychological problems and problems of personal safety encountered by victims and witnesses of mass atrocities.[10] Many states represented at the Rome Conference were opposed to granting the UNSC the power to refer matters to the ICC, never mind the power to defer situations on application by states. Now, Africa favours that deferral powers of the UNSC and demands that it be exercised where the deferral concerns Africans. It is common cause that on 12 October 2013, the AU passed a resolution stating that no AU head of state or government shall be required to appear before any international court or tribunal during their term of office, which has subsequently resulted in a number of requests by the AU to the UNSC to defer matters, including the matter of President Al-Bashir.[11] Therefore, Africa’s political response to post-colonial international justice is significantly influenced by the increased institution building by the UN since the end of the Cold War (which it struggles to come to terms with) because of its own anti-colonialist ethos which drives it.

The following section examines the increased institution building by the UN and resultant international legal precedent, and Africa’s responses thereto. The investigation is part of the broader question of how likely the establishment of a permanent African criminal court is. The reason for the investigation is that time delays sadly favours the continuance of gross human rights violations in Africa. These violations occur daily.

3 INSTITUTION BUILDING BY THE UN, AND INTERNATIONAL LEGAL PRECEDENT

Akhavan comments as follows on the UN’s institution building, particularly after the Cold War:

In empirical terms, unconscionable atrocities have been the most effective catalyst for standard setting and institution building in the international human rights system. Indeed, the introduction of human rights into the corpus of international law was the result of the unprecedented barbarity of the Second World War. The doctrine of crimes against humanity under the Nuremberg Charter, the Convention on the Prevention and Punishment of the Crime of Genocide, and the Universal Declaration of Human Rights – all owe their existence to the universal moral revulsion against the Holocaust and other excesses of Nazi Germany. In the post-Cold War era, ‘ethnic cleansing’ in the former Yugoslavia and genocide in Rwanda have assumed a similar role, giving rise to an unprecedented experiment in institution building by the United Nations.”[12]

This institution-building drive by the UN has therefore contributed to the general evolution and development of international criminal law and justice.[13] Most would argue that a positive outcome of this has been the further development of a credible international legal order governed by the rule of law; that violators of international crimes are brought to justice, and the victims of these crimes are heard. Whilst many have called for faster UN intervention where human rights are abused, the AU in 2013 called for the UNSC to exercise its deferral of prosecution powers.[14]

Arguably the single most significant and valuable contribution to international criminal justice by the UN was the establishment of the ad hoc tribunals at the behest of the Security Council, acting in terms of its Chapter VII powers. This has settled the principle that the UN can lawfully interfere in matters that fall under the domestic jurisdiction of a state.[15] In addition, the Security Council’s establishment of the ad hoc tribunals has provided legal precedent in areas of international law that were previously unchartered. Such precedent has, amongst other things, confirmed the need for speed in acting against human rights violations and confirmed the lawfulness of the UNSC’s creation of criminal tribunals as part of its international maintenance of peace and security powers. In The Prosecutor v Joseph Kanyabashi,[16] for example, counsel for the defence objected that the principle of state sovereignty was violated by the fact that the ICTR was not established by a treaty but through the UN General Assembly.[17] The ICTR rejected this argument based on the need for expeditious implementation of UN decisions in situations of gross violation of human rights unsettling international peace and security.[18] The Trial Chamber, specifically on the matter of state sovereignty, stated that membership of the UN entailed certain limitations on the sovereignty of member states because, pursuant to article 25 of the UN Charter, all member states have agreed to accept and carry out the decisions of the Security Council in accordance with the Charter.[19] On the issue of whether or not Chapter VII powers in terms of the UN Charter included setting up international criminal tribunals with a view to adjudicating on individuals’ criminal accountability, defence counsel’s argument that it did not was rejected.[20] The decision whether a conflict constituted a threat to international peace and security was the sole prerogative of the Security Council, which has wide-ranging discretion as to when and where a threat to international peace and security exists. The chamber took note of the massive wave of refugees spilling over into neighbouring countries as a result of the conflict in Rwanda.[21].

It can therefore be safely accepted that the UNSC’s powers to refer situations that threaten international peace and security to the ICC as part of its Chapter VII powers to restore international peace and security is settled international practice and settled legal precedent.

In the light of Africa’s response to international criminal justice and having stated that it relates to the UNSC’s political failure to respond positively to requests for deferral by the AU, it is necessary to examine next the deferral powers of the UNSC. In conclusion, the AU response to the ICC with reference to Sudan, particularly, is difficult to fathom given the time intervals and number of UNSC resolutions and the AU’s initial support for ICC referral.

4          The deferral powers of the Security Council

Article 16 of the Rome Statute stipulates that the UNSC may, in a resolution adopted by that body in terms of Chapter VII of its Charter, request the court not to proceed with an investigation or prosecution for a period of 12 months, after which the request may be renewed under the same conditions.[22] This power was and is now a controversial issue for the AU.

The AU relied on Article 16 to request the Security Council to defer the ICC’s investigations and prosecutions in respect of Sudan (and, for that matter, Libya). The response they received has contributed to the political opposition to the ICC.

4 1       The AU and UNSC deferral Power Requests to the ICC

Upon its establishment in 2002, the ICC was warmly embraced by many African governments, but this initial geniality changed after the ICC started to indict Africans, particularly heads of state such as the late Colonel Gadhafi and President Bashir.[23]

The exact sequence of events giving rise to the AU’s current discontent with the ICC will not be recorded herein; that has been well documented by others, such as Okoth.[24] However, the first signs of dissatisfaction became evident after Security Council Resolution 1593 (2005),[25] when the Security Council, acting under Chapter VII of the UN Charter, referred the situation in Darfur to the prosecutor of the ICC for investigation. The AU requested a deferral of the case pursuant to Article 16 of the Rome Statute, but the UNSC refused to accede. Following the referral, the ICC issued two warrants of arrest against President Al-Bashir.[26] The first was on 4 March 2009 for war crimes and crimes against humanity, and the second on 12 July 2010 for the crime of genocide.[27] In November 2009, the AU adopted a list of “Recommendations by African States Parties to the ICC”, which gave rise to a proposal tabled by South Africa (further mandated by a previous decision of the AU) for the amendment of the ICC referral system.[28] It was proposed that:

[W]here the UN Security Council fails to decide on the request by the state concerned within 6 (six) months of receipt of the request, the requesting Party may request the UN General Assembly to assume the Security Council’s responsibility under paragraph 1 consistent with Resolution 377(v) of the UN General Assembly”.[29]

Resolution 377(v) has a history of its own, which incidentally dates back to the time of the Cold War.[30] The gist of Resolution 377(v) – and thus the AU proposal – is that in instances where the UNSC is prevented from exercising its primary duty to maintain international peace and security because of a lack of unanimity amongst its permanent members, the General Assembly may become seized of the matter. As Tomuschat notes,[31]despite the fact that Resolution 377(v) has provided UN members with recourse should they be dissatisfied with the policies of the permanent members, it remains very much a question of power politics.[32] To the AU’s credit, the very challenges surrounding the UN’s balance-of-power structure in 1950 still remains. In addition, as the UN and its decisions as a political body are not subject to legal review, the AU’s proposal therefore attests to an undeniable need among states today – as in 1950 – for a mechanism in terms of which resolutions by the UNSC may be challenged. This fact is further illustrated by the ICC’s Pre-Trial Chamber judgment in On the Cooperation of the Democratic Republic of the Congo regarding Omar Al Bashir’s arrest and Surrender to the Court[33] (hereinafter the ICC Pre-Trial Chamber judgment), where the chamber remarked (with reference to the 2013 AU resolution that no sitting head of state shall be required to appear before an international court or tribunal) that there was a discernible tension not between the AU and the ICC, but rather between the AU resolution and Security Council Resolution 1593.[34]

However, the following section will demonstrate that as far as the Sudan matter before the UNSC is concerned, that body did not make its referral on a whim, so to speak, but only after thoroughly satisfying itself of the viability and need for the referral, and after inviting support from the AU in particular. What is more, that resolution was supported by the AU. As for the ICC pre-trial stage, although the process is arguably protracted, it does ensure transparency and fairness in terms of the Rome Statute and its rules of procedure and evidence.[35]

When the Security Council issued Resolution 1593 (2005),[36] it firstly acted under Chapter VII of the UN Charter, which means that it deemed the situation in Darfur as a threat to international peace and security.[37] Article 103 of the UN Charter stipulates that “in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement,[38] their obligations under the present Charter shall prevail”. Therefore, Article 103 trumps the AU resolution exempting sitting heads of state from appearing before an international court or tribunal. Secondly, the Security Council passed Resolution 1593 subsequent to Resolution 1564[39] (of 18 September 2004), which charged the Secretary-General to establish a commission of inquiry into the Darfur situation. Resolution 1564 recalled three previous Security Council resolutions respectively passed on 26 August 2003, 25 May 2004 and 30 July 2004, which all dealt with the critical situation in Sudan. In its feedback to the Security Council, the commission of inquiry found[40] that the attacks by the Sudanese government “and the Janjaweed were both widespread and systematic, and, as such, were likely to amount to a crime against humanity”.[41] These attacks included horrific sexual violence committed against women and children. The commission further found that the Sudanese courts were unable or unwilling to try and prosecute offenders “and that other mechanisms were needed to do justice”.[42] As the UN Charter provides no framework within which international crimes may be investigated and prosecuted, it is logical to argue that the UNSC contemplated that the ICC would investigate and prosecute these crimes – in fact, the Security Council intended for this to happen – and that it expected such a process to be governed by the ICC Statute. Therefore, an unquestionable effect of Resolution 1593 is that it obliged Sudan to accept and carry out the Security Council’s decision, which included the obligation to arrest any Sudanese official who the ICC believed ought to be arrested and handed to the court.

With regard to the process subsequent to a UNSC referral and prior to the issuing of a warrant of arrest or summons to appear before the ICC, an application for such a warrant or summons must be authorised by the Pre-Trial Chamber of the ICC.[43] Such an application by the ICC prosecutor must contain the name of the person involved, reference to the crimes that were allegedly committed, a concise statement of the facts, a summary of the evidence, and the reasons why the prosecutor believes arrest is necessary. Before issuing a warrant of arrest, the Pre-Trial Chamber must be satisfied that there are reasonable grounds to believe that the person has committed crimes under the court’s jurisdiction, and that the warrant will either “ensure the person’s appearance at trial”, “ensure that the person does not obstruct or endanger the investigation or the court proceedings” or “prevent the person from continuing with the commission of the crimes or related crimes the person is charged with”.[44]

In summary, the following facts in respect of the Sudan referral to the ICC make the AU’s current response thereto unfathomable:

(a)   The first Security Council resolution that expressed concern over the situation in Sudan was passed as early as on 26 August 2003. This was followed by another three resolutions before Resolution 1593 referred the matter to the ICC upon hearing a Security Council commission of inquiry’s irrefutable evidence of mass atrocities.

(b)   Resolution 1593 was passed without a veto vote by any of the permanent members and, ironically, was further supported by African states,“who recognised the gravity of the crimes that were being committed and the need for a justice response”.[45]

(c)   The Security Council commission of inquiry reported that the Sudanese courts were unable or unwilling to serve justice.

(d)   Since the UN Charter contains no framework for the investigation and prosecution of international crimes, the Security Council opted for an ICC referral instead of establishing yet another ad hoc tribunal, which logically was for the reasons cited earlier.

Considering the above, and particularly recalling the African continent’s initial support and initiative in establishing the ICC as well as the strong political backing of the court by Africa including South Africa,[46] Africa’s objection that the ICC, acting upon a UNSC referral, undermines her peace efforts is hard to understand. Sudan has shown no intention of cooperating with the Security Council or the ICC. It claims that Sudanese state sovereignty is being violated.[47] Meanwhile, human rights violations in Sudan continue.[48] The AU itself has also not exerted any kind of pressure in Sudan to comply with Resolution 1593. Unfortunately, deferrals increase the possibility that prosecution will never take place, “as the Sudan situation disquietingly demonstrates”.[49] In the case of Sudan and the warrants of arrest against Al-Bashir, this would be a fair and logical indication of the absence of the political will in the AU to bring to justice the perpetrators of gross human rights violations.

Another example of sub-Saharan Africa’s political response to the rule of law and justice is the SADC’s response to the SADC Tribunal’s ruling against Zimbabwe. That Tribunal which offered a measure of justice for victims of gross violations of human rights is now, for practical purposes, defunct.[50] This is reminiscent of the AU‘s changed attitude towards the ICC as soon as the Court indicted Libya’s Gadhafi and Sudan’s Al-Bashir. Also, the fact that the previous president of the AU was allegedly responsible for Matabeleland’s 1982-1986 genocide in Zimbabwe is rarely even mentioned these days.[51]

Therefore, what is the way forward for Africa and international criminal justice? In his response to the Al-Bashir controversy, South Africa’s Deputy Chief Justice endorsed the idea of an African criminal court, observing that “African leaders have no right to oppress their people and think there will be no consequences”.[52] Having considered Africa’s general response to international justice, how likely is the establishment of a permanent African criminal court in the near future?

6          ESTABLISHING An African Criminal Court

6 1       Background

For a proper understanding of the evolution, existence and development of the African system for the protection of human and people’s rights (and its post-colonial response to international criminal justice), the Charter for the Organisation of African Unity (OAU) seems an appropriate point of departure. Clearly, although the OAU Charter was intended to be read in conjunction with the UN Charter, particularly the Universal Declaration of Human Rights, the protection, development and enforcement of individual rights against government abuse was not what triggered the charter.[53] Instead, it was “inspired by the anti-colonial struggles of the 1950s, [and] the Organization was dedicated primarily to the eradication of colonialism and the condemnation of abuse of the rights of Africans by non-Africans, such as in the case of apartheid”.[54]

As articulated by Udombana, this has not always had positive outcomes:

Indeed, the concept of defending sovereignty and independence implied non-interference in the internal affairs of member States. This non-intervention principle, enshrined in Article III(2) of the OAU Charter, has been a foundation stone of the Organization, a rule regarded as sacrosanct, to which States have rigidly adhered. In fact, the body was born ‘in a context of nearly untrammelled state sovereignty, in which heads of states sought sedulously to safeguard the independence so recently won’”.[55]

This hard-won and therefore sacrosanct state sovereignty continues to influence Africa’s response to international criminal justice. But gross human rights violations cannot indeterminably hide behind state sovereignty. In this regard, Van der Vyver noted that the governments represented in New York (in preparation for the Rome Conference establishing the ICC) as well as in Rome were sensitive to the general decline of the substantive enclave of state sovereignty in international law.[56] In addition, with reference to the prohibition of torture as an international norm of ius cogens, De Wet argues that it would be illogical to uphold sovereign immunity when faced with ius cogens violations because these violations are illegal under the laws of every sovereign nation.[57] The original concept of sovereignty has been described as outdated, and a new approach is increasingly being called for.[58] When the AU underwent a name change from OAU to AU, its purposes and principles in defence of the sovereignty, non-interference and the promotion of unity and solidarity remained, although the AU’s Constitutive Act did introduce nuanced changes.[59] Notably, the Constitutive Act permitted the AU to interfere in internal matters in exceptional circumstances.[60]

In 1981, the OAU adopted the African Charter on Human and People’s Rights, also known as the Banjul Charter. This charter was regarded as the first major African contribution to the international discourse on human rights.[61] From the start, the provisions of the Banjul Charter were criticised for “their unrealistic and radical approach”, but at the same time lauded “for their progressive inclusion of civil and political, economic, social and cultural, peoples’ rights and individual duties in one document”.[62] In terms of Article 30 of the Charter, an African Commission on Human and Peoples’ Rights was established within the OAU “to promote human and peoples’ rights and ensure their protection in Africa”.[63] Opinion on whether the commission has been successful in fulfilling its mandate since the adoption of the African Charter in 1986 varies.[64] Murray lauds as positive the fact that the commission has asserted its mandate by not only promoting and protecting human and people’s rights through state reporting and communications, but also by interpreting the provisions of the Charter.[65] However, the commission has been “reticent” to interpret the more unusual provisions of the Charter.[66]

6 2       The African Court on Human and People’s Rights, and the African Court of Justice and Human Rights

The Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and People’s Rights was adopted on 9 June 1998 at a summit of African heads of state and government in Ouagadougou, Burkina Faso.[67] In the preamble to the protocol, which served as base document for the establishment of an African Court on Human and People’s Rights, the essential objectives for the achievement of the legitimate aspirations of the African peoples (as contained in the Banjul Charter) are reaffirmed.

Article 3 provides that the court’s jurisdiction shall extend to “all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States”.[68] In terms of Article 5, the following parties may submit cases to the court: the African Commission on Human and Peoples’ Rights; the state party “who has lodged a complaint to the Commission”;[69] the state party against which the complaint was lodged at the commission; the state party whose citizen is a victim of a human rights violation, and African intergovernmental organisations. The Association for the Prevention of Torture commented as follows on the jurisdiction of the court:

The new judicial framework established for the African system for the protection of human rights would have been optimum had the individual been granted easy access to the Court. The drafters of the Protocol would have achieved a significant development in international procedural law in the field of human rights had they been able to make the African system progressive in this respect.” [70]

In terms of Article 5(3), read with Article 34(6), the court may allow individuals or non-governmental organisations to bring cases before it prior to them first resorting to the African Commission on Human and Peoples’ Rights. In the case of such individual access to the court, the state party concerned (from where the individual comes) must first make a declaration acceding to the court’s jurisdiction. In addition, the court itself must agree to exercise its discretion in acceding to jurisdiction. Therefore, in effect this limits the court’s jurisdiction to the examination of inter-state disputes.[71]

In his detailed account of the AU’s agenda on the African Court of Justice and Human Rights – a merged court intended to replace the African Court on Human and Peoples’ Rights – for the period February 2009 to November 2011, Du Plessis[72] highlights the concerns with what was then still the draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (aimed at providing the court with extended jurisdiction, also including international crimes). The draft protocol attempted “to create jurisdiction over a number of crimes that are not yet fixed in the international law firmament”; the fiscal implications of such an African court raised serious “questions about the effectiveness, independence and impartiality of such a court”, and the protocol nowhere mentioned its relationship with the ICC despite the fact that 33 African states were members of the ICC, most of whom had also already implemented ICC national legislation.[73] Du Plessis then concludes:

All things considered, the draft protocol appears to have been rushed into existence, and the result is a legal instrument that raises more questions than it provides answers to Africa’s vast human rights needs. A positive outcome would be for the AU to set up a court that complements the work of the ICC…”[74]

This draft protocol, which was eventually adopted by the AU at its 23rd ordinary session in June 2014, already set off red warning lights regarding “structural and financial challenges” in the way of an African criminal court.[75] A glimpse into the financial implications of the African court compared to the ICTR and ICC reveals the following:

Financially, international criminal justice investigations are simply too expensive for any African to pursue. The budget for the African Human Rights Court was $6m in 2011. By contrast, just two years (2006-2007) of running the International Criminal Tribunal of Rwanda – exactly the type of thing the new, merged court intends to replace – cost$270m. The ICC operates with an annual budget of $140m. A ten-year expenditure of nearly a billion dollars has yielded only one verdict. The new court would require these kinds of sums, and would therefore need donors to fund it. But what donors would cough up the money to create an African court that will duplicate what the ICC is already doing?”[76]

Article 46A of the final adopted protocol also – some would argue, unsurprisingly – provides further conclusive evidence of Africa’s response to justice. It reads:

No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”[77]

Judging by the huge pessimism surrounding its establishment and in light of all of the above, a fully functional African criminal court should therefore not be expected soon. However, the international community, human rights activists and victims of gross international crimes have taken heart with the recent announcement of the establishment of the special criminal court in the Central African Republic. At least this demonstrates that the protracted endeavours by the majority of the international community to curb immunity have been of some avail.

7          CONCLUSION

This article emphasised the significance of, reasons for and considerable time and effort invested in the creation of the ICC. In a strong institution-building drive, the UN established criminal courts and tribunals as both justice mechanisms and as powers available to the UNSC under Chapter VII of the UN Charter. The fact that the ad hoc tribunals established under Chapter VII have produced jurisprudence that addressed previously uncharted terrain in international criminal law augurs well for the continued development of international criminal law and justice. The time has also surely come for many African governments to realise that state sovereignty cannot be used as a veil to hide behind and escape accountability for gross human rights violations sanctioned by high officials and heads of state.

With reference to the UNSC’s referral of the Sudan matter to the ICC in terms of Resolution 1593 and the subsequent seemingly changed attitude towards the ICC by the African continent, the evidence cited firstly shows that the referral was not an impulsive move. In reality, it was preceded by various other resolutions with regard to Sudan as well as a commission of inquiry. What is also clear is that the AU did in fact not oppose the referral to the ICC as such, but rather (years later) the referral was in direct contradiction with its own 2013 resolution establishing immunity for its heads of state and its requests for deferral of the matters concerned. The ICC process prior to the issuing of warrants of arrest has been shown to be an open and impartial one, in which Sudan was entitled to appeal the indictment of President Al-Bashir but chose not to.[78]

In all fairness to the international African states-community, the OAU and the AU do owe their existence primarily to an anti-colonialist, state sovereignty and non-interventionist ethos. However, membership of the UN does imply that there can be limits to state sovereignty where mass atrocities are committed, requiring a much different response to international criminal justice than the one displayed by Africa in the Sudan (and Libyan) matters, as well as the unfortunate demise of the SADC Tribunal after it ruled against one of Africa’s worst post-colonial rogue regimes; this against the well documented disastrous socio-economic consequences in Zimbabwe.

Although hinted at, the establishment of an effective African criminal court seems unlikely, mainly due to financial constraints and the many unresolved issues surrounding the protocol establishing an extended jurisdiction for the African Court of Justice and Human Rights. The biggest obstacle is, however, the lack of political will to bring high officials and heads of state to book for human rights violations.

The time has come for open and robust deliberations between the AU, UN and ICC. Such an effort could very well be facilitated by the president of the AU and the Secretary-
General of the UN. Unless the politicians get it right, however, immunity for the perpetrators of gross human rights violations will sadly continue in Africa.



[1] Rome Statute of the International Criminal Court https://www.icc.cpi.int/nr/rdonlyres/ea9aeff7-5752 ( last accessed on 11/11/2016.)

[2]Schabas An Introduction to the International Criminal Court (2001) 20.

[3]Preamble to the UN Charter http://www.un.org/en/documents/charter/preamble.shtml  (last accessed 05-07-2015).

[4]Du Plessis “Seeking an international criminal court. Some reflections on the United States opposition to the ICC” 2002 SAJCJ 301 304; Wedgewood “The International Criminal Court: an American view” 1999 Eur. J. Int’lL. 93.

[5]Seguin “Denouncing the International Criminal Court: an examination of the U.S. objections to the Rome Statute” 2000 B.U. Int’l L.J. 85 86.

[6]Seguin 2000 B.U. Int’l L.J. 86.

[7]Seguin 2000 B.U. Int’l L.J. 86.

[8]Cassese International Criminal Law (2003) 327. The author divides the attempts to create an ICC into five distinct phases: (i) abortive early attempts (1919-1945); (ii) criminal prosecutions by the IMT in the aftermath of World War II; (iii) elaboration by the ILC of the Statute of a permanent court; (iv) the post-Cold War “new world order” with the establishment of the ICTY and the ICTR; and (v) the drafting of the ICC Statute.

[9]Crawford “The ILC adopts a statute for an international criminal court” 1995 AJIL 404 415.

[10]Kirch and Holmes 1999 AJIL 8.

[11]Tekle “AU appalled over UNSC failure to defer ICC cases of Sudan, Kenyan leaders” http://www.sudantribune.com/spip.php?article49831 (last accessed 20-07-2015).

[12]Akhavan “The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment” 1996 AJIL 501; also see Akhavan “Beyond Impunity: can International Criminal Justice prevent future atrocities?” 2001 AJIL 7 27.

[13]This is in stark contrast to many years preceding the establishment of the ad hoc tribunals. See e.g. Chip “A United Nations role in ending civil wars” 1981 Colum. J. Transnat’l L. 15 15 et seq.

[15] This view is shared by Tocker “Intervention in the Yugoslav Civil War: the United Nations’ right to create an International Criminal Tribunal” 1994 Dick. J. Int’l. L. 527 546, where he states: “Thus, based on past incidences of Council intervention, it now appears that the Council is authorized to intervene in an internal conflict in which a government violates the human rights of its own inhabitants.”

[16]ICTR-96-15-T.

[17]Prosecutor v Joseph Kanyabashi 727 B.1.

[18]Prosecutor v Joseph Kanyabashi 727 10.

[19]Prosecutor v Joseph Kanyabashi 726 13. The chamber notes the following as an example of limitations upon the sovereignty of states, namely where the use of force against a state is sanctioned by the Security Council in accordance with Article 412 of the UN Charter.

[20]Prosecutor v Joseph Kanyabashi 726 17.

[21]Prosecutor v Joseph Kanyabashi 724 24.

[22]Rome Statute of the International Criminal Court (1998).

[23]Monageng “Africa and the International Criminal Court: Then and Now” Ch 2 in Werle, Fernandez and Vormbaum (Eds.) Africa and the International Criminal Court” (2014) 14.

[24](2014) 196 et seq. See also Du Plessis “The International Criminal Court that Africa wants” 2010 Monograph 13 et seq. http://www.issafrica.org/anig/uploads/Du Plessis-The ICC-that-Africa-wants.pdf (last accessed 23-07-2015).

[25]Security Council Resolution 1593 (2005) http://www.icc-cpi.int/nr/rdonlyres/85febla-29/8-4ec4-9566-48edf587/283244/rO5 (last accessed 05-07-2015).

[26]The ICC accepted jurisdiction over the matter in terms of Article 13(b) of the Rome Statute.

[27]Paras 15 and 16. The ICC prosecutor initially applied for an arrest warrant for war crimes, crimes against humanity and genocide, but the Pre-Trial Chamber refused the warrant of arrest with regard to the genocide charge. This was successfully appealed by the prosecutor to the Appeals Chamber (http://www.icc.int/iccdocs/doc/doc817795.pdf (last accessed 05-07-2015)), who ordered the Trial Chamber to reconsider, which it did, eventually allowing the warrant for the genocide charge. (http://www.icc-cpi.int/iccdocs/doc/doc907140.pdf  (last accessed 05-07-2015)).

[28]Du Plessis 2010 Monograph vi.

[30]Tomuschat “Uniting for Peace” http://legal.un.org/avl/ha/ufp/ufp.html  (last accessed 23-07-2015).

[31]Tomuschat4.

[32]Tomuschat 4.

[33]ICC 02/05-01/09 http://www.icc-cpi.int/iccdocs/doc/doc1759849.pdf  (last accessed 10-07-2015).

[34]ICC Pre-Trial Chamber Judgment para 30.

[35]Van Wyngaerd (Ed.) International Criminal Law-a collection of International and Regional Instruments 4 ed (2011).

[37]Under article 39 of the UN Charter, action by the Security Council is triggered if a situation is a “threat to the peace, breach of the peace or act of aggression”. Also see Dugard International Law: A South African Perspective 4 ed (2012) 183, where it is pointed out that this is a political decision made by a political body “subject to the possibility of a veto by one of the permanent powers”.

[38]At Own italics.

[39]Security Council Resolution (last accessed 23-07-2015).

[40]Du Plessis 2010 Monograph 55.

[41]Du Plessis 2010 Monograph 55.

[42]Du Plessis 2010 Monograph 56.

[43]Art 58, Rome Statute.

[44]Art 58, Rome Statute.

[45]Du Plessis 2010 Monograph 53. Author’s italics.

[46]Du Plessis 2010 Monograph7 et seq.

[47]Du Plessis “Implications of the AU decision to give the African Court jurisdiction over international crimes” 2012 ISS Paper 235http://www.issafrica.org/uploads/Paper 235-AfricaCourt.pdf (last accessed 31-07-2015).

[48]Kadouda “Sudan arrests Pro-Democracy Figureshttps://freedomhouse.org/article/sudan-arrests-pro-democracy-figure   (last visited on 31-07-2015); Anonymous author “Sudan arrests Another Human Rights Activist” https://freedomhouse.org/article/sudan-arrests-pro-democracy-figure (last visited on 31-07-2015).

[49]Du Plessis 2010 Monograph 75.

[50]According to a report in Business Day, 24-06-2011.http://www.businessday.co.za/Articles/Content (last accessed 24-08-2011)., four of the tribunal’s judges labelled the decision to suspend the tribunal as “illegal and in bad faith”.

[51]Simpson “Tracking down a massacre” http://news.bbc.co.uk/2/hi/africa/7388214.stm (last accessed 29-07-2015). For an account of more recent atrocities in Zimbabwe, see Reid “Mugabe’s genocide: The images of despair that reveals the full horror of Zimbabwe” http://www.dailymail.co.uk/news/article-1099467Mugabes-genocide (last accessed 27-07-2015). 

[52] Lewis “Deputy Chief Justice backs call for African ICC” http://www.sabc.co.za/news/a/6324df8049117  (last accessed 03-08-2015).

[53]Udombana Toward the African Court on Human and Peoples’ Rights: better late than never” 2000Yale H.R. & Dev. L.J. 45 55.

[54]Udombana 2000 Yale H.R. & Dev. L.J. 55.

[55]Udombana 2000 Yale H.R. & Dev. L.J. 56.

[56]Van der Vyver “Universal Jurisdiction in terms of international criminal law” 1999 S Afr. YIL 109 109.

[57]De Wet “The prohibition of torture as an international norm of jus cogens and its implications for national and customary Law” 2004 Eur. J. Int’l L.97 106.

[58]Jackson “Sovereignty-modern: a new approach to an outdate concept” 2003 AJIL 782 782 et seq.; Cassese International Law (2005) 21, on the traditional Grotian pattern in international law opposed to the more modern Kantian paradigm.

[59] Art 3(g) of the Constitutive Act.

[60]Dugard 550.

[61]Udombana 2000 Yale H.R. & Dev. L.J. 58; also see Mutua “The African Human Rights System: a critical evaluation” http://hdr.undp.org/docs/publications/background-papers/MUTUA (last accessed 03-08-2015).

[62] Murray “The African Charter on Human and Peoples’ 1987-2000: An overview of its progress and problems” 2001 AHRLJ 1 2; see further Mutua http://hdr.undp.org/docs/publications/background-papers/MUTUA (last accessed 03-08-2015).

[63] African Charter on Human and Peoples’ Rights hhtp://www.achpr.org/instruments/achpr ( last accessed on 11-11-2016)

[64]Murray 2001 AHRLJ 2 et seq.

[65]Murray 2001 AHRLJ 2.

[66]Murray 2001 AHRLJ 2.

[67]Presentation, analysis and commentary: The Protocol to the African Charter on Human and People’s Rights, establishing the Court” http://www.apt.ch (last accessed 06-10-2014).

[68] African Charter on Human and Peoples’ Rights hhtp://www.achpr.org/instruments/achpr ( last accessed on 11-11-2016

[69] African Charter on Human and Peoples’ Rights hhtp://www.achpr.org/instruments/achpr ( last accessed on 11-11-2016

[70]Presentation, analysis and commentary: The Protocol to the African Charter on Human and People’s Rights, establishing the Court” http://www.apt.ch (last accessed 06-10-2014).

[71]Presentation, analysis and commentary: The Protocol to the African Charter on Human and People’s Rights, establishing the Court” http://www.apt.ch (last accessed 06-10-2014).

[72]2012 ISS Paper 235 4 et seq.

[73] Du Plessis ISS Paper 235 10.

[74] Du Plessis ISS Paper 235 11.

[75]Lubbe “Aantekening: Internasionalestrafregtelikejurisdiksievir die Afrika-hof: problematieseaspekteen die implikasiedaarvan” 2014 LitNetAkademies223.

[76]Allison “Is there an African alternative to the International Criminal Court?” http://www.dailymaverick.co.za/ article/2013-10-15-is-there-an-african-alternative-to (last accessed 31-07-2015).

[77] As quoted by Lubbe 2014 LitNetAkademies 230.

[78]Art 82, Rome Statute.