Jurisdictional conflicts between the ICC and the African Union - solution to the dilemma.

• Author: Nam, Jacky Fung Wai
• Position: International Criminal Court

1. INTRODUCTION

   Any fragmentation of jurisdiction has a deleterious effect on international criminal law as it may create jurisdictional confusion, conflicts of laws, forum shopping, and can ultimately lead to impunity for perpetrators. Recently, this confusion was further aggravated when the South American Government refused to extradite Omar Al-Bashir to the International Criminal Court ("ICC") upon issuance of a South African Court Order and a warrant issued by the ICC in order to preserve the relationship with the African Union ("AU"). (1)

   This paper discusses the fragmentation of jurisdiction of international criminal law, and discusses the basic jurisdictional mechanism of the ICC and African Court of Justice and Human Rights ("ACJHR").

   In January 2013, a proposal ("ACJHR Draft Protocol") was submitted to expand the jurisdiction of the ACJHR. Though the Draft Protocol has failed to meet with widespread support of African States, it serves to pose a risk of defunctionality of the ICC, as it adds confusion as to which entity--the ACJHR or the ICC--is empowered to adjudicate international crimes. The ICC was intended to be the final adjudicator for individual responsibility for international crimes in the new era. (2) Yet, this mandate will be diluted if the ACJHR's jurisdiction is expanded to include international crimes.

   The regional court system has always been chaotic in Africa. (3) Recently, the ACJHR was established by the Protocol on the Statute of the African Court of Justice and Human Rights ("Protocol on the ACJHR"), (4) which was a merger of the African Court of Human and Peoples' Rights ("ACHPR") (5) and the Court of Justice of the African Union ("ACJ") (6). The ACHPR and the ACJ were replaced by the ACJHR and the Protocol on the ACJHR became the single primary legal instrument for the ACJHR. (7)

   While the legality and the reputation of ACJHR are still being questioned by commentators, (8) the African Union, in its January 2013 Summit of Assembly of African Union Heads of State ("the AU Assembly"), considered expanding the jurisdiction of the ACJHR to include criminal competence in the Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights ("the Draft Protocol"). (9) The international crimes under the expanded jurisdiction include genocide, crimes against humanity, war crimes, the crime of unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, illicit exploitation of natural resources, and crimes of aggression. (10)

   The expansion of jurisdiction is under consideration. At its 2013 January Summit, the AU Assembly asked the African Union Commission to consider jurisdictional legitimacy and financial implications for the expanded power of the ACJHR. (11) Specifically, the African Union Commission was requested to

   conduct a more thorough reflection ... on the issue of popular uprising ... and on the appropriate mechanism capable of deciding the legitimacy of such an uprising; ... [and] to submit, a report on the structural and financial implications ... from the expansion of the jurisdiction of the African Court ... to try international crimes.... (12) While it is impossible to predict whether the expansion of jurisdiction will materialize, it is nonetheless beneficial to consider the potential relationship between the ICC and the ACJHR if it is empowered with expanded criminal jurisdiction. This is particularly relevant as most of the current ICC situations are in Africa. (13) This discussion will examine the jurisdictional basis of these two important international courts.

   This paper will first give an overview of the historical background of the African regional court system. It will discuss the basic jurisdictional mechanism of the ICC and the current ACJHR, as well as the proposed mechanism of the latter. It will further discuss the conflict of laws between the Draft Protocol on the ACJHR and the Rome Statute of the International Criminal Court ("Rome Statute") (14) and the possible consequences. Finally, it will provide possible solutions calculated to resolve the dispute.

2. HISTORICAL BACKGROUND OF AFRICAN REGIONAL COURT SYSTEM

   In order to fully understand the current situation in Africa, it is necessary to first understand the background of the African regional court system. For several decades, the states in Africa have ratified different human rights treaties and conventions.

   The African Union is the successor of the Organization of the African Unity ("OAU"). The OAU was established on May 25, 1963 and was adopted by thirty-two African States (15) with the following objectives:

   (a) To promote the unity and solidarity of the African States;

   (b) To coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa;

   (c) To defend their sovereignty, their territorial integrity, and independence;

   (d) To eradicate all forms of colonialism from Africa; and

   (e) To promote international cooperation, having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights. (16)

   Towards these ends, the African Charter on Human and Peoples' Rights ("African Charter") was adopted by the OAU and entered into force in 1986 with ratifications from all fifty-three African member states. (17) The African Charter established the first complaint mechanism with the African Commission on Human and Peoples' Rights, which required State Parties to provide self-reports on their human rights status every two years. (18)

   In June 1998, the OAU adopted the Protocol on the ACHPR, which entered into force in 2004, and established the first regional court in Africa, the African Court of Human and Peoples' Rights. (19) The role of the ACHPR is "to complement and reinforce the functions of the [African] Commission in promoting and protecting human and peoples' rights, freedoms and duties in African Union Member States. The [African] Commission, being a quasi-judicial body, can only make recommendations while the Court makes binding decisions." (20)

   In 1999, the Heads of State Assembly of the OAU issued the Sirte Declaration, calling for the establishment of the AU. (21) In 2000, The Lome Summit adopted the Constitutive Act of the African Union ("Constitutive Act"), which specified the objectives, principles, and organs of the AU. (22) Thereafter, the AU was established in 2001. (23) The AU then adopted the Protocol on the African Court of Justice ("ACJ") and it entered into force in 2009. (24) The ACJ is the principal judicial organ of the Union (25) with functions similar to that of the International Court of Justice: to interpret the Constitutive Act, deal with questions relating to international law, and to deal with disputes arising out of a breach of the obligations of the treaties between State Parties to the AU. (26)

   However, before the ACJ was established, the AU passed a motion in 2004 to merge the ACHPR with the ACJ. (27) The Protocol on the African Court of Justice and Human Rights ("ACJHR") was adopted on July 1, 2008 and would only enter into force thirty days after its ratification by fifteen member states. (28) As of February 3, 2014, out of fifty-three member states of the AU, thirty have signed the Protocol on the ACJHR but only five have ratified it. (29) The five states are Benin, (30) Burkina Faso, (31) Congo, (32) Libya, (33) and Mali. (34)

   Although only five states ratified the Protocol on the ACJHR, the importance of the draft protocol extending court's jurisdiction is significant because out of those five states, two are currently being prosecuted by the ICC (Libya and Congo) (35) and one is currently being investigated (Mali) (36) Moreover, the AU also passed a motion to call on state parties to ratify the Protocol on ACJHR. (37) Given that thirty state parties have signed the protocol but not yet ratified, (38) it may become part of the legal landscape in Africa in near future.

   If the Protocol on ACJHR comes into force, it could result in a new way of thinking about the relationship between international courts. Therefore, a comparison of the jurisdictional triggering mechanism of the ICC and the proposed mechanism under the Protocol of the ACJHR, with a particular emphasis on jurisdictional superiority, will be fruitful.

3. JURISDICTION OF THE ICC AND THE DRAFT PROTOCOL OF THE ACJHR

   There are four crimes that are within the jurisdiction of the Rome Statute: genocide, crimes against humanity, war crimes, and crimes of aggression. (39) Moreover, there are three triggering mechanism in the ICC. Article 13 of Rome Statute states that:

   The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:

   (a) A situation ... is referred to the Prosecutor by a State Party in accordance with article 14;

   (b) A situation ... is referred to the Prosecutor by the Security Council; or

   (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15. (40)

   Thus, the ICC may assume jurisdiction through state-referral, Security Council referral, or the Prosecutor's exercise of his proprio motu powers. Currently, the ICC has eight situations of which four are self-referrals (Mali, (41) Uganda, (42) Democratic Republic of Congo, (43) and Central African Republic (44)). The ICC may also exercise jurisdiction when the crime is committed on the territory of a state party, (45) or when the crime is committed by a national of a State Party on the territory of a non-State Party. (46) In case of a non-state party, the country can voluntarily accept the jurisdiction of the ICC by declaration under Article 12(3) of the Rome Statute. (47) The United Nations Security Council may also refer non-state parties to the ICC (48)

   After referral to the ICC, the...