Monday, November 12, 2012

Increasing the Jurisdiction of the African Court of Justice and Human Rights


Since the decision by the African Union in July of this year to propose adopting a Draft Protocol increasing the jurisdiction of the African Court to try international crimes; there has been a whole lot of debate and criticism surrounding the issue. It’s been said that this is the African Union’s (AU) way of getting back at the International Criminal Court (ICC), given their already troubled relationship. Also there has been talk about the ‘the hurried process’ surrounding the Draft Protocol; the assumption that Africans want to be  tried by an African Court only; the subject matter of the courts jurisdiction; resource and financing issues; lack of experienced personnel and judges; insufficient capabilities and manpower in dealing with large scale, future investigations; incompatible mandates between the human rights section of the African court and its international criminal law section and the list goes on…  For more information on some of these criticisms you can read Max du Plessis’s recent blog post on Ejiltalk and Frans Viljoen’s post on AfricLaw.
While there are, indeed an array of concerns and questions, academics are rarely commenting on the positives that increased jurisdiction of the African Court may bring to the table for Africa and the international community. The problem is that we focus so much on the negatives, that we forget that there are reasons why such a Court may be beneficial. My own view on the issue is that an African Court could benefit Africa and the international community for a myriad of reasons, some of them include:

a) Supporting the ICC’s principle of complementarity, more so positive complementaritythrough the strengthening of national judicial systems of African member states;
b)  Strengthening international criminal justice and human rights on the continent;
c)   Providing a stronger deterrent for the commission of crimes within its mandate and by its respective perpetrators;
d)  Preventing arbitrary arrests and detention of African citizens to be tried elsewhere under the principle of universal jurisdiction;
e)  Addressing crimes occurring on a wider scale and specific crimes within the context of Africa, such as the crime of aggression, corruption, illicit exploitation of natural resources, mercenarism, piracy, terrorism and trafficking in drugs; persons or hazardous wastes (see article 28A Draft Protocol)
f)   Strengthening and solidifying African States in their fight against impunity on the continent;
g)  Giving Africa a more united sovereign voice when it comes to issues of international criminal justice and human rights on the continent and curbing misgivings about Africa by the international community.
I would also like to make a few more comments about some of the more popular criticisms already made against the Draft Protocol establishing increased jurisdiction for the African Court. First, is this the AU’s way of getting back at the ICC? In my opinion, I would have to say no…. the idea of a merged African Court already started during talks in the 1980’s however, later this idea was abandoned. It re-emerged when issues of universal jurisdiction started becoming an issue for Africans. A good example or turning point in this regard included the impending prosecution of Hissene Habre the former President of Chad by Senegal and France’s arrest warrant issued for Rose Kabuye of Rwanda. Talks and dialogues  then started between AU Member States including the AU and European Union (EU). It was at this point that there was a return to the original idea of empowering African States to deal with issues of international crime in Africa.
In other words the process has not been a hurried one, as many say it has been.  The idea was already borne years ago. Don Deya, Chief Executive Officer of the Pan African Lawyers Union (PALU) contracted to advise on the Draft protocol has written a piece outlining the steps and lengthy process involved in the process of expanding the African Court’s jurisdiction. For more information on the steps taken you can read his article entitled ‘Worth the Wait’
Another issue is whether the African Court of Justice and Human Rights is meant to subvert the ICC’s function? I believe that it is meant to complement and strengthen the ICC’s function jurisdictionally. If, national systems are held to account by a Court on the continent, it is more than likely that there will be greater incentive to adjust their judiciaries in a way more attuned to both international standards, especially if there is a key player on the African Continent enforcing such standards. Although, the Protocol is silent on the how the Court will function in relation to the ICC we must remember that this is a draft document. It will take years (maybe around ten) before any of its provisions enters into force and becomes final. Like any draft document it is open to amendment and change. It is likely that the African Court will complement the ICJ and ICC. Why must we assume otherwise? Deya has also supported this view in his article.  
Also, two of the biggest criticisms against the African Court having jurisdiction over human rights accountability of states and criminal jurisdiction over individuals with individual criminal responsibility is that this is unprecedented and secondly that its expanded jurisdiction impinges on the autonomy and mandate of the other section which deals with state responsibility (see Viljoen’s article). I don’t understand what’s the fuss about. Each division of the Court; the general affairs section, the human rights section and the international criminal law section will function independently of each other. Although there are different mandates for each division and different evidentiary standards that apply, both states and individuals will have to meet those standards accordingly in the section that the case is brought up in. The mandates of each section should not be considered incompatible at all because they are not meant to mutually reinforce each other in the first place
With regard to autonomy although human rights abuses committed by states are just as serious and important as those committed by individuals, the triggering mechanisms for both state responsibility and individual responsibility differ (states generally bring a case against each other while the OTP will select a case for criminal responsibility). Each section will have its own autonomy and I would naturally assume that criminal cases will be brought more frequently before the international criminal section than cases involving states before the human rights section. So, once again how can autonomy from the human rights section be usurped by the international criminal law section, when they do not by nature function on the same playing field?  Also the criticism that the Appellate Chamber might hear human rights matters and therefore be ill-equipped in that particular context is an incorrect assumption (see Viljoen). Deya points out that there will only be an appellate division within the international criminal law section which will hear appeals from that section only. For the other two sections (the general affairs section and the human rights section) reviews will apply only.
While indeed there remain some major hurdles for the African Court in the long run such as its logistics, financing and staff. It has been echoed by African Union members that there is no reason why Africa cannot pull this off. Resources are estimated to start at the minimum and gradually increase as the Court’s caseload grows. Additionally, there are many international legal scholars and jurists who might be willing to work for a Court on the continent itself if they were given the choice; than to work or remain abroad, so job opportunities at the Court are likely to attract Africans looking for work within and outside Africa.
 Posted by Ingrid Roestenburg-Morgan

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