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.
Protocol of the Court of Justice of the African Union
