Endowing the African Court of Justice and Human Rights with Jurisdiction over International Crimes: A More Legitimate Form of Justice for Africa or a Recipe for Disaster?

ARC Paper Proposal for Conference on International Law in Africa

On 14 March 2012, Trial Chamber I of the International Criminal Court (the “ICC”) delivered its long awaited first judgment in the case of The Prosecutor v. Thomas Lubanga Dyilo (Case No. ICC-01/04-01/06). The ICC found Thomas Lubanga guilty of the war crimes of conscripting, enlisting, and using children under the age of 15 years for combat purposes while serving as political head of the Union of Congolese Patriots rebel group in the Ituri region of the Democratic Republic of the Congo.

On 4 April 2012, the Pre-Trial Chamber of the ICC rejected the second request of the Libyan Government that Libya be allowed to postpone the surrender, to the ICC, of Saif Gaddafi.

These recent developments are likely to reinforce three perceptions of international criminal justice: first, that international criminal justice is pursuing an African agenda; second, that ending impunity comes at a high price, the Lubanga trial in particular running up costs into millions of US dollars and taking an inexplicably long time to complete; and third, that the effectiveness of the international criminal justice system is ultimately dependant on the political will of national authorities.

Meanwhile, in the heart of Africa, the African Court of Human and Peoples’ Rights sits in relative obscurity. Few know how to use it and it is in serious danger of being marginalised. At some point in the future, the court will be merged with the Court of Justice of the African Union, in order to form the permanent African Court of Justice and Human Rights. A protocol to this effect was adopted at the African Union Summit in July 2008. From 7 to 15 May 2012, the African Union will meet to discuss, inter alia, a Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the “Draft Protocol”), which aims to confer upon the African Court of Justice and Human Rights international criminal jurisdiction.

In this paper, we discuss the relative merits and obstacles of the proposed international criminal law regime for Africa. In particular, we assess:

(i)              the merits of the perception that international criminal justice institutions pursue an African agenda;

(ii)            the benefits of a functioning African court with jurisdiction over international crimes, in particular for the legitimacy of international criminal justice;

(iii)           the obstacles to such a regime in light of lessons learned from the practice of the African Court on Human and Peoples’ Rights (in particular, difficulties resulting from its dependency on the African Union to enforce its orders and judgments) and the ICC (in particular, difficulties envisaged in light of the large amount of resources required to run an effective international criminal trial); and

(iv)            amendments that would need to be made to the Draft Protocol in order to ensure that it is complementary to other international justice mechanisms, such as the ICC.