At the African Union (AU) Summit meeting in July, the African Heads of State are expected to finalize and adopt the creation of the African Criminal Court. The creation of such a regional criminal court is unprecedented and may come into conflict with the existing International Criminal Court (ICC), but the question is: is an African owned justice process, outside the hand of “western” influences, what is needed to foster security and peace on the Continent?
The African Court of Justice and Human Rights (aka the African Criminal Court) will be the result of the merger of two existing AU legal structures—the African Court on Human and People’s Rights and the Court of Justice of the African Union—and will have three sections: general affairs, human rights, and international criminal law. The jurisdiction envisioned for the court will include the categories already covered under the Rome Statute of the ICC – genocide, crimes against humanity, and war crime – but will also include crimes of particular relevance to African, including piracy, terrorism, mercenary activity, corruption, money-laundering, human/narcotic trafficking, and illegal exploitation of resources. This comprehensive list of indictable crimes aims to combat some of African’s biggest problems through criminal justice, in hopes that this will subsequently promote regional peace and security. While its adoption is anticipated at the July AU Summit, the new court will not enter into force until it is ratified by 15 member states.
The African Union has been very vocal regarding its feelings of contempt for the present system of international criminal justice. Since, to date, the ICC has only taken on African cases, there is a general feeling that the Court biased, determined only to seek out and prosecute African violators of international criminal law. It is important to note, however, that out of the 18 cases the ICC is currently handling, 12 were referred to the ICC by the respective countries and only 6 were the result of a UN Security Council directive. While the President of the ICC maintains that is ICC is not a political entity and acts impartially within the strict legal framework provided for by the Rome Statute, the fact that the only Security Council directives have been for African fugitives while other violators in international criminal law have thus far escaped indictment, questions the degree of independence by which the ICC operates. It is in this context that the African Union has sought to create their own system to bring about African justice by and African hand.
One of the biggest problems with the ICC and its indictments in Africa is that it does not take into consideration the context in which their indictments have been rendered. For example, the ICC has indicted, tried, and convicted Congolese perpetrators of crimes against humanity in the midst of the enduring conflict in the Democratic Republic of Congo. In this way, the ICC acted with a strictly judicial understanding: an individual has committed an indictable crime under the Rome Statute and therefore must be brought to justice. Such a mindset does not take into consideration the large implications of such an indictment on the longer term peace and security of the region. Justice, while an important aspect in post-conflict reconstruction and an essential component of any democratic society, renders hard-line, black and white decisions—either convicting or acquitting an individual; in the midst of a conflict the circumstances surrounding an individual’s actions are hardly ever black and white. There is a lot of grey area that the ICC does not have the mandate to take into account. Justice creates clear winners and losers and, in doing so, can negatively impact the reconciliation and post-conflict reconstruction process. In extreme cases, this creation of winner and losers can prove the grievances upon which future violence is founded. The interest of peace and security is the reason why the AU has called for the postponement of trials against AL-Bashir, not wanting trials Given this, is would an African owned judicial system be more understand of the context in which it operates and make greater strives towards achieving regional peace and security?
The creation of the regional criminal court is completely unprecedented under international law and consequently, its interaction with the ICC is uncharted charted territory. For one, there is no hierarchy of treaties under international law; everything is on the same level. Currently, the ICC has agreements with national court, surrendering jurisdiction to the national level if the state is willing and able to carry over prosecution, but it has not such mechanism to deal with the creation of a regional court. Thus, if a state is partied to both the African Criminal Court and the ICC, there is no clear cut why of determining which court will have jurisdiction. This will pose a conflict in terms of jurisdiction among those African countries which have ratified the ICC Charter and which seek to ratify the statute of the African Criminal Court.
If the United Nation’s coordination of peacekeeping missions with the African Union serves as precedence than there may be some guidance in the construction of the AU/ICC road-map. More and more, there is a movement towards African led peacekeeping mission that are supported by the UN. The African Union Mission in Somalia (AMISOM) is an example of this. The goal then would be to create a relationship between the African Union and the ICC in which the African Union has primary jurisdiction over cases, but is supported by the ICC and has the discretion to refer cases to the ICC. The exact details of this suggested relationship remain unclear at the present moment. However, in order to avoid future conflict and headaches, the relationship between the ICC and the African Criminal Court should be fleshed out in more detail before the African Criminal Court enters into full force.
Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law. Currently she is in Arusha, Tanzania, working as a Legal Intern for the United Nations International Criminal Tribunal for Rwanda. You can email her at firstname.lastname@example.org or follow her on twitter @joleneh340
- International Criminal Court is ‘hunting’ Africans (telegraph.co.uk)
- African Union accuses International Criminal Court of racial bias (irishtimes.com)