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July 10, 2014

As is clear from our prior coverage of the issue, the availability of jurisdictional or defensive immunities is ever-present in discussions of how to ensure accountability for the commission of grave international crimes. At last week’s African Union Summit in Equatorial Guinea, AU members voted to grant African leaders immunity from prosecution before a proposed, but yet to be established, regional human rights court, the African Court of Justice and Human and Peoples Rights. As this post details, the provision (Legal Instruments – Adopted in Malabo – July 2014)—if it is ever brought into force—would set the new African Court apart from all of the other international criminal tribunals when it comes to the availability of immunities from criminal prosecution. Indeed, it is now axiomatic that state officials are not entitled to any form of immunity before the various international tribunals, all of whose constitutive documents disclaim any form of immunity with respect to defendants appearing before them.

The Proposed Amendment

The immunity proposal (which would be inserted into the draft Statute at Article 46Abis) reads:

“No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”

The term “senior officials” is not defined by the Protocol, and records of the deliberations indicate that it has been left to the new Court to determine the reach of the term. In the negotiations around this provision (which were described in the record as “exhaustive”), it seems that the enigmatic reference to immunity “based on their functions” is meant to incorporate immunity ratione materiae, or functional immunity.

The proposal to grant immunity to African leaders before the new Court can be traced to the hostility of some AU members toward the ICC’s efforts to prosecute two sitting heads of state—Uhuru Kenyatta of Kenya and Omar Al-Bashir of Sudan—for international crimes (as manifested in, among other things, an AU resolution calling for non-cooperation by African ICC member states in the arrest of al-Bashir) and to efforts led by Kenya to introduce an analogous amendment to the ICC Statute at the 12th session of the Assembly of States Parties held in November 2013. It is anticipated that this proposed amendment will be back on the ASP agenda in December 2014.

Not surprisingly, NGOs across the region and beyond have objected to the proposed immunity provision. A particular source of criticism stems from the fact that the draft Protocol is contrary to the AU’s Constitutive Act, which contains broad and inspiring language obliging members to

“Promote and protect human and peoples’ rights in accordance with the African Charter on Human and People’s Rights and other relevant human rights instruments”

And allowing the Union

“to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity…”

At Odds with Other International Criminal Tribunals

The Protocol, if it is brought into force, will also establish the future African Court of Justice and Human and Peoples Rights as an outlier amongst international courts, none of which allows heads of state or state officials to assert any form of immunity from criminal prosecution. Indeed, every international court to consider the question has denied immunity to official defendants, even heads of state who might enjoy robust immunities before domestic courts. Key examples include:

The constitutive documents of the various hybrid tribunals, which embed specialized chambers to prosecute international crimes into the domestic legal systems of the target state, are also in accord. The Special Court for Sierra Leone (SCSL, Article 6(2)) in a decision with respect to Charles Taylor, ex-President of Liberia, explained that immunities that may apply in a domestic court are inapplicable before an international court:

[T]he principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.

Special Court for Sierra Leone, Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-I, Appeals Chamber, Decision on Immunity from Jurisdiction (31 May 2004), at para. 52.

Likewise, Article 29(2) of the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, 27 October 2004 (NS/RKM/1004/006), states:

The position or rank of any Suspect shall not relieve such person of criminal responsibility or mitigate punishment.

Indeed, the ECCC was in the process of prosecuting Ieng Sary, Foreign Minister and Deputy Prime Minister of the Khmer Rouge, when he died of heart failure in March 2013. Likewise, the UNTAET Regulation establishing the Special Panel for Serious Crimes in Timor-Leste rejected both functional and personal immunities. UNTAET Regulation No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UNTAET/REG/2000/15 (6 June 2000), at Article 15(2) provided:

Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the panels from exercising its jurisdiction over such a person.

The Statute creating special Senegalese chambers to prosecute Hissène Habré, former President of Chad, also eschews all immunities (Article 10(3)).

This trend has a long pedigree and finds support in United States practice. Allied Control Council Law No. 10, enacted by the victorious allies following World War II to govern trials in Allied military courts at the national level, echoed the Nuremberg Charter and provided that official position does not exempt any defendant from criminal responsibility.

Next Steps

At the moment, the African Court of Justice and Human and People’s Rights exists only on paper. To bring it into operation will require the merger of two African judicial institutions—the African Court of Human & People’s Rights and the African Court of Justice—and the creation of a new criminal chamber within this merged entity. Several legal instruments thus remain to be ratified and to enter into force before the Court and any immunity provision will become operational. This outcome is far from certain; only five states have ratified the treaty effectuating the proposed merger, which is arguably defunct in light of the recent amendments.

By way of background (a deeper history can be found here), the African Charter on Human and Peoples’ Rights (a.k.a. the Banjul Charter), the continent’s omnibus human rights treaty, gave rise to the African Commission on Human and People’s Rights, a body analogous to the Inter-American Commission on Human Rights (but with weaker enforcement powers) that is dedicated to enforcing the Banjul Charter within AU member states. A 1998 Protocol to the Charter led to the creation of the African Court on Human and Peoples’ Rights (ACHPR) in 2004. The Court (which can hear claims against those States Parties that have accepted its jurisdiction) entertains petitions submitted by States Parties, African intergovernmental organizations, NGOs, and individual citizens (Article 5) concerning the interpretation and application of the Banjul Charter or any other human rights treaty that has been ratified by the states concerned (Article 3). So far, the Court has not been particularly active. Since 2008, the Court has received 27 applications, 22 of which have been finalized; the rest remain pending. That said, it is makings its mark on the continent with some important rulings (such as provisional measures against Libya during its 2011 revolution).

The Constitutive Act of the AU established the African Court of Justice (ACJ), which is roughly analogous to the European Court of Justice because it is a forum for state-to-state disputes between AU member states. While the ACJ’s Protocol entered into force in 2010, it has yet to come into existence because an intervening Protocol approved by the AU in 2008 envisioned that the ACJ would be merged with the ACHPR to create an African Court of Justice and Human Rights. Fifteen ratifications are required to bring this Protocol into force; only five states have ratified it so far–Benin, Burkina Faso, Congo (Brazzaville), Libya, and Mali. As originally conceived, the merged Court was to have two sections: a “general affairs” section to handle inter-state disputes and a human rights section to assume the docket of the African Court on Human and Peoples’ Rights and exercise jurisdiction over a range of human rights treaties.

In early 2009, the AU Assembly of Heads of State and Government began considering the possibility of expanding the jurisdiction of the not-yet-formed African Court of Justice and Human Rights to include a third chamber with the power to assert penal jurisdiction over international crimes, such as war crimes and crimes against humanity (among others). Discussions, drafting, and negotiations ensued, and in 2011, a draft report and statute were provisionally adopted by the Ministers of Justice and/or Attorney Generals that was largely complete except for the crime of effectuating an Unconstitutional Change of Government, which remained under consideration. In 2012, a Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights was finalized (with the one contentious crime bracketed). In May 2014, the AU Special Technical Committee (STC) on Justice & Legal Affairs adopted the Draft Protocol, which contains the draft statute of the tripartite successor court.  The full AU then followed suit in June in Equatorial Guinea.  Arguably, this new Protocol has superseded the original Protocol merging the ACHPR and the ACJ.

Features of the Proposed Criminal Chamber

It is envisioned that the new criminal chamber would exercise jurisdiction over all “legal persons” over the age of 18, which would include corporations (Article 46C). In particular,

Corporate intention to commit an offense may be established by proof that it was the policy of the corporation to do the act which constituted the offence. …Corporate knowledge of the commission of an offence may be established by proof that the relevant knowledge was possessed within the corporation and that the culture of the corporation caused or encouraged the commission of the offence.

The chamber will be empowered to consider an expansive list of international crimes of particular relevance to the continent (Article 28A):

  • 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
  • the crime of aggression.

The definitions for genocide, crimes against humanity, and war crimes in the Protocol track those of the ICC Statute. The definition of aggression in Article 28M is somewhat more expansive than the definition that was negotiated in Kampala for inclusion within the ICC Statute in that it envisions acts of aggression being committed by non-state actors:

For the purpose of this Statute ‘Aggression’ means the use, intentionally and knowingly, of armed force or any other hostile act by a state, a group of States, an organization of States or non-State actor(s) or by any foreign or external entity, against the sovereignty, political independence, territorial integrity and human security of the population of a State Party, which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations or the Constitutive Act of the African Union.

The enumerated acts of aggression are those outlined within GA Resolution 3314, but also include the provision of:

Technological assistance of any kind, intelligence and training to another state for use in committing acts of aggression against another State.

The cost of prosecuting such an expansive list of crimes, which goes well beyond any other international or hybrid tribunal, has been a source of concern, particularly given that the AU is chronically under-funded.

One of the most controversial crimes that would potentially be prosecutable by the new African criminal court is the crime of Unconstitutional Change of Government. Echoing the AU Constitutive Act, the African Charter on Democracy, Elections and Governance (ACDEG) has as a stated objective the prohibition and condemnation of unconstitutional changes of government in member states, considering such circumstances to pose

a serious threat to stability, peace, security and government.

Article 25(5) of the ACDEG also envisions the criminal prosecution of the perpetrators of an unconstitutional change of government “before the competent court of the Union,” effectively requiring the AU to define the crime. The difficulty in reaching consensus on the definition of this crime partially explains the delay in finalizing the constitutive documents for the new successor Court. This crime has been tentatively defined in Article 28E of the Protocol to include coups or other interventions to replace democratically-elected governments, and any changes to the state’s constitution by an incumbent to maintain power.

Jurisdiction before the regional court will be prospective only, so if is ever formed it should not impact ongoing cases before the ICC involving African situations (Central African Republic, Côte d’Ivoire, the Democratic Republic of Congo, Libya, Kenya, and Sudan). The jurisdiction of the criminal chamber will be complementary to national courts and the courts of the Regional Economic Communities, such as the Economic Community of West African States (ECOWAS). The Protocol’s provision regarding this relationship (Art. 46H) tracks Article 17 of the ICC Statute, which contains the ICC’s complementarity regime, but makes no mention of that Court. Thirty-three African Union member states are also party to the ICC Statute and some have adopted legislation implementing their ICC obligations to cooperate with the Court, etc., which may give rise to conflicting obligations in those states and create overlapping jurisdiction. Although it regulates the relationship toward national courts, the ICC Statute is silent as to its relationship to regional criminal courts, and so it is unclear if its complementarity provisions would apply mutatis mutandis to proceedings before the proposed African criminal chambers.

The motivations behind the proposed African criminal court are multifaceted. Some members of the AU are no doubt inspired by continued antagonism toward ICC, especially in light of the indictments against sitting heads of state. Members of the AU have also objected to the assertion of universal jurisdiction over African defendants, particularly by former colonial powers (with Germany’s prosecution of Rose Kabuye, Rwanda’s chief of Protocol, serving as a particular flashpoint).  These critics find common cause with human rights advocates in urging African states to do more to prosecute international crimes committed in Africa. Less cynically, there are advocates in the region who are championing the creation of a regional criminal court in order to expand the fora capable of prosecuting serious crimes committed on the continent.  The creation of the Habré special court in Senegal no doubt serves as a model for implementing African solutions to African problems, and the complex and protracted negotiations around its establishment offer additional support for the goal of creating a standing body. It remains to be seen whether there is adequate political and financial support for a new African institution, particularly one with such a glaring flaw.  Stay tuned…

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