‘Saddling’ the New African Regional Human Rights Court with International Criminal Jurisdiction: Innovative, Obstructive, Expedient?

2014 ◽  
Vol 7 (1) ◽  
pp. 7-42 ◽  
Author(s):  
Vincent O. Nmehielle
Keyword(s):  
Human Rights ◽  
Rome Statute ◽  
International Criminal ◽  
African Union ◽  
Political Commitment ◽  
Member States ◽  
Human Rights Protection ◽  
International Crimes ◽  
Court Of Justice ◽  
Recent Initiative

Abstract This article examines the recent initiative of the African Union (au) to amend the Protocol on the Statute of the African Court of Justice and Human Rights that initially merged the African Court of Human Peoples’ Rights with the African Court of Justice of the African Union and to now create a new and holistic regional court – the African Court of Justice and Human and Peoples’ Rights – and endow it with jurisdiction for international crimes. The article principally interrogates three issues: (1) the legality and novelty of the au initiative, (2) the question whether the plan is in any way obstructive or a distraction, and (3) whether the initiative is actually necessary when considered against the wider scheme of effective functioning of the au and its human rights protection regimes. The article finds that while the au’s desire to establish an international crimes chamber within its human rights court may have largely been influenced by the politicisation of the international criminal justice system and its concerns about the icc’s nearly exclusive focus on Africa, there is nothing in international law that prevents the au from embarking on such initiative. However, it is essential for the au to conduct a necessity test, taking a number of issues into account such as adequate resources, credible legal and political commitment, and the opportunity available to member states in the complementarity principle of the Rome Statute of the icc. It is submitted that since Africa, as a regional block, has accepted the Rome Statute regime in large numbers, the au needs to engage with that system in ways that give African states parties credible ownership of justice, as addressing atrocity crimes would largely be achieved within the domestic systems of member states.

Recent Developments in the African Human Rights System 2011/12

2012 ◽  
Vol 1 (1) ◽  
pp. 158-172
Author(s):  
Gina Bekker
Keyword(s):  
Human Rights ◽  
African Union ◽  
International Crimes ◽  
Court Of Justice ◽  
Welfare Of The Child ◽  
Recent Developments ◽  
African Commission

A number of important developments have taken place in the African regional human rights system. This article surveys some of the key developments with respect to human rights within the African Union covering the period from 1 January 2011 to 31 January 2012. Consideration in this regard is given to a number of matters including the extension of the jurisdiction of the African Court of Justice and Human Rights to try international crimes, the issue of lack of individual access to the African Court on Human and Peoples’ Rights as well as the promotional and protectional work of the African Commission on Human and Peoples’ Rights and the African Committee on the Rights and Welfare of the Child.

Substituting International Criminal Justice for an African Criminal Justice?

2017 ◽  
Vol 14 (2) ◽  
pp. 291-320 ◽  
Author(s):  
Konstantinos D Magliveras
Keyword(s):  
Criminal Justice ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Added Value ◽  
International Criminal Justice ◽  
African Union ◽  
Court Of Justice ◽  
The One

This article examines the reasons and the grounds behind the antiparathesis between the African Union and several of its Member States, on the one hand, and international criminal justice and the International Criminal Court (‘icc’), on the other hand. It also examines the consequences of and responses to this antiparathesis, including the creation of an International Criminal Law Section to the African Court of Justice and Human Rights and questions whether it offers any added value. The article concludes with suggesting the setting up of icc regional/circuit chambers, each dealing with a specific continent/region, as a means to restructure the icc, to make it more relevant to its users, namely the contracting parties to the Rome Statute, and to allay fears of politically motivated prosecutions.

scholarly journals The other side of the Article 21(3) coin: Human rights in the Rome Statute and the limits of Article 21(3)

2019 ◽  
Vol 32 (4) ◽  
pp. 837-850
Author(s):  
Emma Irving
Keyword(s):  
Human Rights ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Central Place ◽  
Legal Framework ◽  
Criminal Court ◽  
Human Rights Protection ◽  
Rights Protection ◽  
The Past

AbstractThe drafters of the Rome Statute sought to accord human rights a central place within the legal framework of the International Criminal Court (ICC). This was done not only through numerous provisions on the rights of the accused, victims, and witnesses, but also through the inclusion of the overarching Article 21(3) of the Rome Statute. Article 21(3) Rome Statute requires that the interpretation and application of all ICC law be consistent with internationally recognized human rights. While this provision has been employed on numerous occasions to bolster human rights protection in the ICC legal framework, it is not without its limits. In a series of decisions over the past few years, ICC judges have placed limits on the protections that can be read into the ICC legal framework on the basis of Article 21(3). Beyond stating that the ICC ‘is not a human rights court’, the decisions in question articulate no clear justification for the limitations imposed on Article 21(3). The present article analyses these decisions and identifies the underlying rationale for the Court’s approach: the principle of speciality. However, the picture is further complicated by the judges’ willingness to overlook the principle of speciality when particularly serious violations of human rights are involved. This leaves the precise contours of human rights protection in the ICC legal framework undefined.

Human Rights Protection before the International Criminal Court

2016 ◽  
Vol 18 (1) ◽  
pp. 72-101
Author(s):  
Alex Davidson
Keyword(s):  
Human Rights ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Successful Operation ◽  
Human Rights Protection ◽  
Substantive Content ◽  
Rights Protection ◽  
Interpretative Analysis

This article assesses the human rights framework of those accused before the International Criminal Court, with particular emphasis on Article 21(3) of the Rome Statute. Part 2 examines a number of obstacles currently impinging the successful operation of human rights protection before the Court, which Article 21(3) may remedy. Part 3, drawing on strands of interpretative analysis, seeks to interpret and illuminate Article 21(3), arguing that a broad scope ought to be adopted for determining the substantive content encapsulated by ‘internationally recognized human rights’. Moreover, Article 21(3) should be recognised as containing the hierarchical standard of what has been termed ‘super-legality’. Part 4 then highlights the interpretive potential for Article 21(3) as both a tool of innovation and as a remedial device for human rights violations before the Court that are not explicitly provided for in the Rome Statute.

The Rise of the African Union Opposition to the International Criminal Court’s Investigations and Prosecutions of African Leaders

2013 ◽  
Vol 13 (2) ◽  
pp. 385-428 ◽  
Author(s):  
Manisuli Ssenyonjo
Keyword(s):  
International Criminal ◽  
African State ◽  
Criminal Court ◽  
African Union ◽  
Double Standards ◽  
International Crimes ◽  
State Immunity ◽  
Court Of Justice ◽  
Head Of State ◽  
International Court

On 9 January 2012 the African Union (AU) stated that it ‘shall oppose any ill-considered, self-serving decisions of the ICC [International Criminal Court] as well as any pretensions or double standards that become evident from the investigations, prosecutions and decisions by the ICC relating to situations in Africa’. These relate to the United Nations [UN] Security Council referrals (in Darfur/Sudan and Libya) and the Prosecutor’s investigations proprio motu (in Kenya). This article considers the rise of the AU opposition to the ICC investigations and prosecutions in Africa directed against current African State leaders focusing on three issues. First, whether customary international law creates an exception to Head of State immunity when international courts, such as the ICC, seek a Head of State’s arrest for the commission of international crimes. Second, whether the International Court of Justice can decide on immunity of State officials sought by the ICC. Third, whether the AU should empower the African Court of Justice and Human Rights with the jurisdiction to prosecute individuals for international crimes committed in Africa.

The African Court of Justice and Human Rights: A Judicial Curate’s Egg

2012 ◽  
Vol 9 (2) ◽  
pp. 383-449 ◽  
Author(s):  
Gino J Naldi ◽  
Konstantinos D. Magliveras
Keyword(s):  
Human Rights ◽  
Criminal Court ◽  
African Union ◽  
International Court Of Justice ◽  
Intergovernmental Organization ◽  
International Crimes ◽  
Court Of Justice ◽  
International Court ◽  
Definition Of

The present article analyzes the African Court of Justice and Human Rights, the proposed “main judicial organ of the African Union”. The African Court of Justice and Human Rights is meant to replace the African Court of Human and Peoples’ Rights and would therefore constitute a unique international judicial body combining the jurisdiction of the judicial organ of an intergovernmental organization with the jurisdiction of a regional human rights court. It shares features of the International Court of Justice and the Inter-American Court of Human Rights. In a highly contentious move detrimental to the role of the International Criminal Court, it is currently proposed to extend its jurisdiction over international crimes, the definition of which goes much further than that currently accepted by the international community, raising the prospect of conflicting obligations. The Court’s governing instruments are too ambitious and contain some significant flaws and the case for doing away with the now operational African Court of Human Rights and Peoples’ Rights seems unconvincing. Even though the Court has not yet been established, its structure and mandate do pose many challenging questions that deserve to be thoroughly investigated by drawing comparisons with the existing similar judicial organs in other international organizations.

scholarly journals The Issues of Legitimacy of the International Criminal Court in Its Relations with African Countries in the Sphere of Counteracting International Crimes

2019 ◽  
Vol 13 (2) ◽  
pp. 332-339 ◽  
Author(s):  
Jean-Batiste Bukuru ◽  
Aleksandr Solntsev
Keyword(s):  
South African ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
African Union ◽  
The South ◽  
African Countries ◽  
Western Countries ◽  
International Crimes

The authors study the legitimacy of the establishment and work of the International Criminal Court (ICC) from the perspective of African countries. They point out that African countries initially supported the idea of creating the ICC and actively participated in its establishment and development. However, after the Court initiated investigations regarding the current President of Sudan Omar Al-Bashir and other African leaders (current President of Kenia Uhuru Muigai Kenyatta, its Vice-President William Samoei Ruto, former Head of the Great Libyan Arab Jamahiriya Muammar Gaddafi, the ex-President of Cote d’Ivoire Laurent Gbagbo, and others), the ICC began to lose its legitimacy in the eyes of most African leaders, who started to perceive it as a political instrument of Western countries. As a result, the African Union in its Resolutions (13 (XIII), 987 (XXIX), 952 (XXVIII) and others) called on African countries to stop cooperating with the ICC concerning warrants for the arrest of current officials and, finally, to totally withdraw from the Rome Statute of the ICC of 1998 because it believed that the Court is selective in its persecution of Africans only. Following this, three African countries (Burundi, the South African Republic and Gambia) announced in 2016 that they intend to withdraw from the Rome Statute. However, the South African Republic and Gambia did not do this due to internal political situation and pressure from the Western countries, and only Burundi withdrew from the 1998 Rome Statute on October 27, 2017. Besides, the African Union initiated the establishment of the International Criminal Chamber within its regional court — the African Court of Justice and Human Rights (Malabo Protocol of 2014); the authors believe it to be the reaction of the African countries to the activities of the ICC. Based on their research, the authors suggest reforming the International Criminal Court to ensure its independence and impartiality in fighting international crimes and impunity, as well as developing regional criminal justice in Africa.

The International Criminal Court’s Involvement with Africa: Evaluation of a Fractious Relationship

2013 ◽  
Vol 82 (3) ◽  
pp. 417-446 ◽  
Author(s):  
Konstantinos D. Magliveras ◽  
Gino J. Naldi
Keyword(s):  
Rome Statute ◽  
International Criminal ◽  
Crimes Against Humanity ◽  
African Union ◽  
International Crimes ◽  
Election Violence

This article examines the International Criminal Court’s (ICC) role in relation to international crimes allegedly committed in Africa; it considers the difficulties and obstacles that the ICC has encountered in securing the co-operation of not only States Parties but also of non-States Parties which, in certain instances, are mandated to assist it; and it analyses the acrimonious relationship that has arisen between the African Union (AU), the Continent’s political and security organisation, and the ICC. Thus far, the two most significant sources of antagonism between the ICC and Africa have been the arrest warrants against President al-Bashir of Sudan in relation to the situation in Darfur, and the crimes against humanity allegedly perpetrated during Kenya’s post-election violence in 2007–2008. Finally, the article examines the continuing attempts by African States to amend Article 16 of the Rome Statute.

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