1. Introduction

The present enforcement system of international criminal law essentially rests on three main pillars. First, there are prosecutions of international crimes within the national courts of the territorial states where the offense occurred. This could be through the regular criminal courts of those states or so-called “hybrid” or “mixed” chambers specifically created for that purpose by the state alone, or with the help of the United Nations (UN), as was the case in Cambodia, Bosnia-Herzegovina (BiH), East Timor, Lebanon, or Kosovo.Footnote ¹

Second, there are prosecutions within international courts, whether ad hoc or permanent. The former dates back to the Nuremberg and Tokyo International Military Tribunals. Those pioneers were followed more recently by the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL), all of which were either created directly as subsidiary bodies of the UN or authorized by its Security Council under its mandate to ensure the maintenance of international peace and security.Footnote ² There is, of course, also the multilateral treaty-based International Criminal Court (ICC), which as of writing, comprises 123 States Parties from all regions of the world and is endorsed in principle by 15 other signatories.

Lastly, present international criminal law also contemplates prosecutions within the domestic courts of third states. Good examples of the latter include Australia, Belgium, Canada, France, and Senegal, all of which have in the past invoked universal or quasi-universal jurisdiction in an attempt to investigate and prosecute so-called core international crimesFootnote ³ such as genocide, war crimes, and crimes against humanity.Footnote ⁴ This has occurred despite their lack of any of the usual territorial, nationality or other traditional jurisdictional links to the offenses other than the presence of the accused. These types of prosecutions, along with those in the national courts of the territorial states, form part of what the late M. Cherif Bassiouni dubs the “indirect enforcement system,”Footnote ⁵ in contrast to international prosecutions which are part of the “direct enforcement system”Footnote ⁶ of international criminal law.

Each of these direct or indirect enforcement models has its benefits and drawbacks. Generally, national prosecutions within the territorial state are considered ideal on legal, pragmatic or legitimacy grounds. But experience teaches that municipal courts do not always prosecute international crimes for all kinds of reasons. It is often the case that, in some situations, the concerned state and its judicial system may have collapsed or lacks the willingness and/or material ability to investigate or prosecute. Though generally relatively inexpensive, when compared to international trials, national judicial processes can also sometimes be manipulated leading to biased prosecutions.

For their part, for various reasons including the prioritizing of the parochial national over the wider community interest, third party states tend to be hesitant to invoke universal jurisdiction to prosecute foreign officials, or due to immunities, may even be legally barred from doing so—at least while the most senior ranking officials of other states are still holding office. For instance, Belgium, initially exceptional for its enthusiasm in seeking the title of “European capital of universal jurisdiction,”Footnote ⁷ famously found itself in a legal and political challengeFootnote ⁸ at the International Court of Justice (ICJ) in the Arrest Warrant saga when it indicted the then incumbent Congolese foreign minister.Footnote ⁹ Belgium was reminded that, although legal steps to prosecute serious crimes is not necessarily a bad thing, any such initiatives must be scrupulously compliant with customary international law immunities. The ICJ deemed those applicable at the horizontal level as between co-equal sovereigns.Footnote ¹⁰ Other more recent cases from certain European courts, such as those of France, Spain and the United Kingdom against Rwandese officials based on the universality principle, have been no less controversial.Footnote ¹¹ The end result tends to return us to the all too familiar normalcy of impunity.

Against this backdrop, international penal courts have increasingly come to be perceived as a key if not the ultimate solution to the rampant global impunity for atrocity crimes. The few UN international penal tribunals established by states since the end of the Cold War have to date successfully dispensed justice for the specific situations in the former Yugoslavia and Rwanda that they were mandated to address. The same is true of the Sierra Leone Special Court. Nonetheless, international courts also have their own share of challenges. So international criminal lawyers and states are beginning to raise doubts on whether they could be the magic bullet against individuals who perpetrate atrocity crimes.Footnote ¹² These include issues concerning their costly nature, their generally lengthy proceedings, and their geographic distance and remoteness from the territories and populations in whose name they seek to render justice.Footnote ¹³

As to the permanent ICC, in addition to some worries about its slow start in terms of completed trials to date as well as other challenges, it may also lack jurisdiction or the resources to start investigations and to prosecute. Indeed, even where it does possess the jurisdiction and resources to prosecute, the Prosecutor may decline to proceed because the situation as a whole is of insufficient gravity to warrant international intervention. Where she decides to proceed, say against a sitting Head of State, the ICC may, due to perceptions of selectivity in application of its legal regime, fail to muster the state cooperation required to facilitate the rendering of such persons to answer crimes against humanity and genocide charges. The example of President Omar Al Bashir of Sudan comes to mind.Footnote ¹⁴

Furthermore, given the sheer number of global hotspots and the magnitude of the atrocities, the ICC was never intended nor realistically expected to be the sole institutional response to provide criminal accountability.Footnote ¹⁵ That is largely why the Court was predicated on the complementarity principle, which under Article 17 of the Rome Statute of the ICC requires states to act as the first lines of defense in the battle against impunity.Footnote ¹⁶ In so doing, states placed the responsibility of prosecutions on themselves, consistent with the principles of sovereignty and international law, while undertaking to be the primary actors to investigate or prosecute Rome Statute crimes. But failing that, given the long history of bloodied wars that leave impunity to roam freely around the world, they envisaged the ICC as a back-up system. This in practice means that wherever the jurisdiction-bearing state is “unwilling or unable genuinely to carry out the investigation or prosecution,”Footnote ¹⁷ the ICC could take up that mantle, in behalf of the “international community.”Footnote ¹⁸ This would be the case, at least in respect of a limited group of persons bearing greatest responsibility. Viewed in this wider context, it seems apparent that even in a post-ICC world the impunity gap will be left even larger whenever national court or international tribunal action is unavailable. This irrespective whether for reasons of lack of capacity, political will or other constraints.

Given the presently bifurcated direct and indirect enforcement systems, it seems to be helpful to examine whether international criminal law could benefit from the approach of its sister discipline—international human rights law—to query whether, in addition to the currently available options to prosecute, regional or perhaps even sub-regional courts could also play a useful role in the wider quest to mete out individual criminal responsibility for atrocity crimes. Regional organizations, and their courts, may well offer some of the key advantages associated with national courts and mitigate some of the key disadvantages of international tribunals.

In engaging upon this admittedly preliminary exploration, this chapter will evaluate the work of regional organizations in international peace and security. We focus in particular on ways regional tribunals could supplement the ICC’s mandate to prosecute core international and even other serious transnational offenses. An important consideration may be that there are already in place regional human rights courts in Africa, the Americas and Europe, though with varying degrees of effectiveness. Asia and the Middle East, though presently without any human rights courts, could in the future be inspired by the other regions to eventually head in that direction. When they do so, that could make global enforcement of international criminal law through regional courts a potential reality for all regions of the world. In other words, a system of regional criminal law enforcement has the prospect of a universal reach, depending on the progress made toward universalization of regional human rights courts.

The chapter will turn the spotlight on the emerging attempt to regionalize international criminal law enforcement in Africa, the world’s second largest continent. This appears fitting for many reasons. Here, we might mention two that immediately come to mind. First, that region has been the source of all but one of the ICC’s current situational caseload. Since the States of Africa are presently the main users of the ICC, we might reasonably presume that they are the ones more likely to explore additional institutional mechanisms for the prosecution of atrocity crimes. This appears to be borne out by the practice.

Second, African States have gone furthest in developing their own court with the African Union (AU)’s recently adopted protocol that would create a criminal chamber with jurisdiction over ICC crimes almost as part of the African government pushback against the permanent ICC.Footnote ¹⁹ The continent’s effort, which is the focus of this volume, appears to have been greeted with general skepticism. In such an environment, where the agenda driving the regional criminal court project has been cast into some doubt by the context in which it emerged, what can and should The Hague-based court do to ensure that its work is actually complementary, instead of competitive, with the future African court and others like it that may be established in other regions?

Structurally, the chapter proceeds as follows. Section B will draw from the early experience of the international human rights system to assess whether there could be a place for regional courts in prosecuting international crimes. It will be argued that the ICC should assume a leadership role by cooperating with states and entities wishing to design courts consistent with its own statute. This would be in line with the object and purpose of the ICC and the policy of “positive complementarity”Footnote ²⁰ which the Court itself has advanced over the past few years.

Section C of the chapter will assess the form and shape that the AU effort has taken, regrettably without any ICC engagement, partly because of the unfortunate current tension in the relationship between the Court and some of its African States Parties. In section D, we will examine some of the more innovative aspects of the regional treaty that AU States adopted in June 2014 for their proposed regional criminal court. It will be shown that the particularities of the African context have led to the inclusion of new offenses and even corporate criminal liability in the Malabo Protocol and that these go beyond what is presently contained in the ICC Statute. The idea seemed to be to address, in addition to the core crimes, pressing governance and transnational concerns facing the Africa region but which the Rome Statute framework did not address. These novel elements seem to strengthen the case for the serious consideration of regional court involvement in prosecuting international crimes.

Finally, just before the conclusion and recommendations, section E takes up some questions that may arise about the legal compatibility of regional prosecution mechanisms with prosecutions carried out by the world criminal court. In particular, I suggest that the complementarity principle, though initially conceptualized vis-à-vis the obligations of States Parties to the ICC, appears flexible enough to successfully regulate the jurisdictional relationship with regional criminal courts. Thus no amendment to the Rome Statute is necessarily required. In the main, my overarching argument is that, much as in the international human rights system which is composed of a multilayered national, regional, and international enforcement system, international criminal law would likely in the future benefit from a similar multilevel system of accountability. Africa’s opening of this additional approach to tackle impunity seems to suggest that this development may be hard to resist and perhaps even be inevitable. The last part of the chapter focuses on some of the key challenges that the future court might face.

2. The Evolution of Universal and Regional Enforcement of Human Rights Law and Possible Lessons for International Criminal Law

3. The Legal Duty of African States to Strengthen Regional Cooperation to Enhance Human Security in Africa, Including through Prosecution of International Crimes

At the broadest level, the first factor that made near inevitable the notion of a regional criminal court in Africa is a much wider one that speaks to the current positioning of the African continent in global affairs. Here, we are referring to the fateful decision after the end of the Cold War by African States to transform Africa’s primary regional organization, formerly known as the OAU which had been in existence since May 1963, into what might be termed a human security-centered organization through adoption of the Constitutive Act of the African Union in July 2001.Footnote ⁵⁹

The decision to establish the AU was motivated by several complex considerations. These included a desire to shift from the logic of the principle of non-interventionFootnote ⁶⁰ in the domestic affairs of its Member States, which underpinned OAU policy and action, along with an understandable concern about preserving the territorial integrity of African States. That policy stance, which showed great deference to national sovereignty and rather limited regional level concern about gross human rights abuses within some post-colonial African States, was largely a function of history and where Africa found itself in the aftermath of the defeat of colonialism.

Despite the creation of the OAU, civil wars, bad governance, rampant public corruption, and a weak rule of law continued to plague the continent. This resulted in many countries degenerating into ethnic divisionism and fratricidal wars, and the commission of gross human rights and humanitarian law violations. Much as Europe had suffered the brunt of conflict in the early part of the twentieth century, Africa, as the world’s second largest continent with many unstable states seeking to find their own place in the world, became the scene of some of the worst atrocities toward the end of that same century.

The creation of the AU signaled a new type of continental body, legally, politically, and practically. It was to be more proactive in anticipating and addressing the scourge of conflict and commission of gross human rights violations in the region. Indeed, the OAU stance had, though preserving the integrity of the African States effectively, squandered the promising dividends of independence for ordinary people and served as a rather thorny source of insecurity for the continent for several decades. Following the footsteps of Europe and the Americas, African States did start thinking about the need to establish their own regional human rights system in the 1960s. But this idea only matured to governmental endorsement in the late 1970s. This eventually paved the way for discussions and adoption of an African human rights charter, which was heralded for its innovative approach to civil and political alongside economic rights, individual rights, and collective duties.Footnote ⁶¹

But the same regional treaty that was greeted with enthusiasm entailed a key difference with other regional systems in that it opted for a quasi-judicial instead of judicial enforcement system. Specifically, instead of creating a regional rights court as had been done in the Americas and Europe, the main enforcement system was to be the African Commission on Human and Peoples’ Rights, which would be based in Banjul, The Gambia. Interestingly, the drafters of the African Charter were uncertain that African governments were ready for a binding judicial system that would give effect to human rights as had been the case in the other regions. They nonetheless suggested that a court to complement the commission should be revisited in the future.Footnote ⁶² This occurred almost two decades later. Interestingly, for our purposes here, the Committee of Legal Experts charged with drafting the African human rights charter did briefly consider a proposal by the Republic of Guinea to establish a regional court that would also have criminal jurisdiction to judge crimes against humanity in addition to adjudicating claims relating to human rights violations.Footnote ⁶³ Nonetheless, despite the Guinean proposal to include crimes against humanity jurisdiction, it was felt that to do so would be premature for two reasons.Footnote ⁶⁴

First, one of the main concerns that had influenced the proposal for criminal jurisdiction was to address the South African apartheid policy as a crime against humanity. To this proposal, the principal drafter, Kéba M’baye from Senegal, pointed out that “an international penal court” had already been anticipated as an option in the International Convention on the Suppression and Punishment of the Crime of Apartheid even though states could also prosecute such crimes within their national courts.Footnote ⁶⁵ Second, and seemingly more importantly, the UN was already considering the establishment of “an international court to repress crime against mankind.”Footnote ⁶⁶ These two factors, according to the main drafter of the charter, militated in favor of shelving the criminal jurisdiction idea for the African human rights court.

In essence, African States had been active in leading the charge to develop a global treaty to criminalize apartheid due to their concern about the racism rampant in South Africa and its pernicious effect on that country’s majority black population.Footnote ⁶⁷ They thus put on hold the inclusion of a criminal chamber that would address a crime of particular concern to Africa because of the hope for international regulation through a permanent international penal court, which idea was then under consideration at the International Law Commission (ILC). As it would happen, neither the special court to prosecute apartheid as a crime against humanity nor the standing world criminal court they had expected were created for a while. It would take until the adoption of the ICC Statute on July 1, 1998 (i.e. 19 years later) and its entry into force on the same date in 2002 (23 years after the fact), that an international criminal tribunal with jurisdiction over apartheid as a crime against humanity would come into being.

The irony of the present suspicions about the motives of the African States in adopting a legal instrument for a regional criminal court, including among local scholars who are divided over the wisdom of the project,Footnote ⁶⁸ is that a reason why African countries held back on that initial proposal at the time related to a preference for international cooperation for an enduring world criminal court. Yet, from another perspective, this historical experience demonstrated to African States that particular crimes of interest to their continent (e.g. apartheid) would not necessarily generate the same interest in legal prohibition for the rest of the international community of states. The thought that they should instead wait for the global penal court meant that they forewent regional action in favor of international coordination, leading one commentator to speculate that this was a “dupe,” and that for African States, the experience was “significant” in affirming lack of global attention to Africa’s specific concerns.Footnote ⁶⁹

But besides the African States’ preoccupation with addressing apartheid, which took on renewed urgency after the Soweto Uprising of June 1976, the African human rights system established in the early 1980s has in its application through the commission based in Banjul generally fallen short of the achievement of its counterparts in Europe and the Americas. There have, of course, been many significant advances under difficult conditions. But the impact on the realization of the human rights of ordinary Africans as guaranteed under well crafted regional instruments has been far from ideal. The lackluster performance, partly due to the non-binding nature of the commission’s legal decisions, inadequate resources, and the lack of political will on the part of African States to actually comply with human rights standards, among other factors, would later resuscitate calls for the establishment of an African Court on Human and People’s Rights.

The protocol for a court, aimed at supplementing the protective mandate of the commission, was eventually adopted in Burkina Faso on June 9, 1998. It entered into force on January 25, 2004.Footnote ⁷⁰ The regional human rights court is presently based in Arusha, Tanzania. But even that institution has, besides the usual start-up problems, failed to receive the strong endorsement of African States. Proof of this can arguably be found in the fact that only over half of African States have ratified its treaty (30 out of 55 states), and of those, an even smaller number of States Parties have, to date, filed the special declarations permitting the court to hear human rights complaints brought by individuals against them (a total of 7 out of the 30 states that already ratified as of this writing).Footnote ⁷¹

With this general backdrop in mind, and the explosion of several internecine conflicts on the continent including the 1994 Rwandan genocide and the notoriously brutal conflicts in Liberia and Sierra Leone, it should be no surprise that African States have over the past two decades increasingly turned their minds toward more robust action against those who perpetrate gross human rights violations on the continent. In this regard, the establishment of the AU as a replacement of the OAU had already given rise to the inauguration of various and interlocking institutional mechanisms, forming part of the African Peace and Security Architecture that are all aimed at addressing the prevention and management of conflicts in Africa.Footnote ⁷²

In fact, as part of the growing regional sensitivity against impunity, there was an explicit legal duty in the Constitutive Act of the African Union to take concrete steps against impunity. Under Article 4(o), the AU reaffirmed its commitment to “respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities.”Footnote ⁷³ The AU further recommitted its members to “respect for democratic principles, human rights, the rule of law and good governance,” and the “promotion of gender equality” and “of social justice to ensure balanced economic development.”Footnote ⁷⁴ Article 4(h) of the Constitutive Act, which preceded the entry into force of the ICC Statute by a year, goes even further and confers on the AU the legal “right 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.”Footnote ⁷⁵ The logic of all the above provisions, and the various legal instruments and decisions adopted by the AU since it was founded, is that the continental African body can now act, including through the use of military force but also through other measures, in the defense of civilians in the African territory.Footnote ⁷⁶

It is notable that the protocol establishing the Peace and Security Council of the AU entrusted with the responsibility of preventing and managing conflicts on the continent was adopted in the same month as the Rome Statute entered into force in July 2002. In other words, taken together, whether as specified in the AU’s founding treaty from 2000 or the additional instruments adopted since then, the core principles contained in the Constitutive Act have supplied a legal framework, at the regional level, for the operationalization of the Responsibility to Protect in Africa. This norm has also been endorsed by the international community, including through resolutions of the UN General Assembly. But the inclusion of Article 4(h) in the AU’s Constitutive Act appears unique as the first serious attempt to ram down the barriers of state sovereignty in a significant way. It creates a regional carveout of a narrow exception to the non-intervention principle and the prohibition on the use of force against other states articulated in Article 2 of the Charter of the United Nations. All in the name of protecting civilians from war crimes, crimes against humanity and genocide.

In addition, since the days of the OAU and now accelerated under the AU, there has been steadily developing a solid body of African human rights treaties and a web of regional obligations that address the specific human rights needs of women and children, prohibition of mercenarism, corruption, dumping of hazardous wastes on the continent, trafficking in drugs and persons, etc.Footnote ⁷⁷ These regional instruments, forming part of African State practice, highlight greater preoccupation with public regulation on the continent to address particular problems afflicting the Africa region.

One more specific example might suffice to make the point. This relates to the African Charter on Democracy, Elections and Governance, which was adopted on January 30, 2007 at Addis Ababa, and thereafter obligated the AU and its Member States to take several measures to promote democracy on the continent.Footnote ⁷⁸ First, it not only deemed unacceptable any undemocratic means of acquiring power reflecting the preoccupation with coup d’états that have stunted the growth of democracy on the continent, it also anticipated that the perpetrators of unconstitutional changes of government would be barred from participating in the ensuing election.Footnote ⁷⁹

Second, and going even further, the AU was under this regional treaty empowered by its Member States to prosecute the perpetrators and also provided for their trial at the regional (Africa) level.Footnote ⁸⁰ This, if only implicitly, suggested that there would eventually be a need to adopt new criminal prohibitions that penalize “unconstitutional change of government” and that there would be some kind of competent regional tribunal to try the offenders. For that reason, the decision to include that offense naturally followed when it was proposed to merge the African Court of Justice and the African Court of Human Rights.

In sum, there is nothing in the text of the Constitutive Act and other AU instruments to make the creation of a regional criminal tribunal incompatible with the objects and purposes for which African States created their regional organization. Indeed, far from being only tied to pushback on the ICC, the AU’s legal instruments, starting with its founding treaty and several other treaties developed since then, implied there was already emerging a regional legal sensibility and even obligation that the AU States must take robust measures to address gross rights violations and international crimes committed on the continent. This is further than, at least in terms of the normative architecture, any other region has to date accomplished. Indeed, as Ademola Abass has argued, it cannot be the case that the AU would legislate on crimes that it does not intend for its own court to prosecute.Footnote ⁸¹ That would simply not make any sense. In any event, action at an Africa-wide level to create a judicial mechanism becomes even more justified considering the unavailability of appropriate national or international judicial forums to prosecute some of the crimes of special concern to Africans.

4. The Hissène Habré Affair and the Committee of Eminent Persons’ Recommendation for an African Criminal Jurisdiction

The second more immediate factor that gave rise, at the regional level, to the proposal for a standing African Criminal Court (ACC) comes from the AU’s initially unplanned role and involvement in the resolution of the issue relating to the trial of former Chadian president Hissène Habré. Contrary to popular belief, the recommendation to create such a regional criminal court originates in a formal proposal that stemmed from the deliberations about the best forum to try him instead of the ICC–Africa problem.

Habré, by way of quick background, was leader of the Central African State of Chad.Footnote ⁸² After he was deposed from power, he fled to Senegal to seek asylum, following a brief stay in Cameroon. He is alleged to have ordered the torture and deaths of many people during his time in power.Footnote ⁸³ While in Senegal, which is a party to the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment,Footnote ⁸⁴ some alleged victims of torture under Habré’s regime initiated a criminal complaint in 2000 before an investigative judge at the Dakar high court, claiming that he had committed various offenses including crimes against humanity and torture. An indictment was subsequently issued by the Senegalese authorities against Habré. But it was quashed by the Dakar Court of Appeal based on a finding of lack of jurisdiction. A similar complaint against Habré was subsequently filed in Belgium by a different group of victims. Belgium thereafter issued a warrant and request for his surrender for the purposes of trial on charges of torture and crimes against humanity. Instead of turning him over, Senegal approached the AU for assistance after Belgium sought Habré’s extradition.

The Assembly, the highest decision-making organ of the AU comprising the sitting Presidents and Heads of Government, adopted a decision in January 2006 in Khartoum in which they tasked the AU Chairperson to constitute a committee of eminent African jurists to study and present options on what to do with former President Habré.Footnote ⁸⁵ The specific mandate of the Committee of Eminent Persons was to “consider all aspects and implications of the Hissène Habré case as well as the options available for his trial.”Footnote ⁸⁶ Additionally, the Committee was to make “concrete recommendations on ways and means of dealing with issues of a similar nature in the future.”Footnote ⁸⁷ In discharging its duties, the experts were to account for various issues, including jurisdiction over the alleged crimes for which Habré should be tried; need for adherence to international fair trial standards; accessibility of the trial to alleged victims as well as witnesses; the independence and impartiality of the proceedings; efficiency in terms of cost and time of trial; and the prioritization of utilization of an African mechanism.Footnote ⁸⁸

The Committee examined the specific Habré case as well as the wider question regarding the future should such cases arise again. In relation to the former element, it considered that Senegal was best placed to try the former Chadian president because of its international law obligations under the Convention Against Torture. Or, if Senegal was not able to do so, it pointed out that any other African State party to the Torture Convention could also assert jurisdiction to do so. As a last resort, even an ad hoc tribunal sitting in any African State could be established to prosecute him.Footnote ⁸⁹ On the latter more forward-looking aspect, which is of particular interest here, the legal experts recommended a standing mechanism to deal with the impunity problem in Africa. They observed that the African Court on Human and Peoples’ Rights, whose protocol had already entered into force, and the Court of Justice of the AU whose treaty was still under the ratification process, did not provide jurisdiction to hear criminal matters at that time. Therefore, neither of those two institutions could prosecute the Habré case.Footnote ⁹⁰

The Committee thereafter considered the prospects for the creation of the African Court of Justice and Human Rights based on the project to merge the African Court of Human and Peoples’ Rights and the African Court of Justice.Footnote ⁹¹ The Committee proposed that this new body could be granted jurisdiction to undertake criminal trials for crimes against humanity, war crimes, and violations of the Torture Convention in Africa.Footnote ⁹² It also observed that there was room for such a development in the Rome Statute, and considered that this would not be a duplication of the work of the ICC. It emphasized that the text of such a treaty should be adopted through the quickest procedures possible.Footnote ⁹³

At the Assembly’s summit in July 2006, at the same meeting in Banjul where the Committee’s report had been presented, the AU decided that Senegal should try Habré “on behalf of Africa” with all the guarantees of a fair trial.Footnote ⁹⁴ The AU leadership urged all African States to cooperate with Senegal. It further directed the Chairperson to provide the support necessary to enable the effective conduct of the trial. They also pleaded to the international community to assist with resources, especially those of a financial nature. Senegal thereafter proceeded to make amendments to its law, in July 2008, in which it gave effect to this AU decision by including in its penal code certain international crimes including genocide, war crimes, and crimes against humanity, and providing for their retroactive application. This constituted the domestic legal framework that was intended to enable Habré’s trial.

But Senegal, which did not receive the financial support of the AU that had been promised and seemed to be dragging its feet for other more political reasons, did not pursue Habré for trial. It was to take two years more, and a new president in Senegal, for the AU to enter into a bilateral treaty with Senegal to create the Extraordinary Chambers in the Courts of Senegal.Footnote ⁹⁵ In the meantime, planning for the trial had been hastened by Belgium’s initiation of proceedings against Senegal at the ICJ in February 2009. Belgium alleged that there had been a failure on Senegal’s part to carry out its obligations under the Torture Convention either to prosecute Habré or render him over for trial. The ICJ held that the country was in breach of its obligations to properly investigate and prosecute alleged torture committed by Habré.Footnote ⁹⁶

The Extraordinary African Chamber, which sat in Dakar and was funded by a mix of African and Western donors, was conferred the jurisdiction to prosecute and try the person(s) most responsible for torture and serious violations of international law committed on the territory of Chad from June 7, 1982 to December 1, 1990. President Habré has since faced charges before the tribunal with his trial having opened on July 19, 2015.Footnote ⁹⁷ His case closed on February 12, 2016.Footnote ⁹⁸ The trial judgment was rendered on May 31, 2016. The former Chadian leader was convicted, while charges against up to 27 other alleged accomplices associated with his regime have already been issued by the domestic criminal courts of Chad in N’djamena. Habré’s conviction was largely upheld on appeal in April 2017.

To conclude this section, it seems notable that the AU did not immediately endorse the expert committee recommendation to add criminal jurisdiction to the African regional court. Nonetheless, it should by now be uncontroversial that the modern origin of the idea for such extension of jurisdiction was born out of the Habré affair. It can be said to be part of that Chadian case’s legacy. No explanation was given by the AU Heads of State for accepting the recommendation relating to the specific case of Habré but not the longer term proposal to create a regional criminal court. It is anecdotally reported that funding constraints played a key role. Yet, as will be seen in the next subsection, developments relating to a separate issue which raised concerns about foreign-administered justice in Africa and against Africans did encourage AU States to revisit the recommendation for a regional criminal jurisdiction.

5. The “Abuse” and “Misuse” of Universal Jurisdiction

The third factor was not the source of, but did catalyze, AU interest in creating a criminal chamber. This was the indictment of African State officials by the national courts of various European states. These included France, Spain, and Belgium, all of which raised legal and practical concerns for African States with respect to, for example, whether those foreign jurisdictions were complying with customary international law immunities. The practice in this area and how it appears to have even given rise to regional African concerns about the ICC itself has been analyzed elsewhere, so will only be briefly summarized here.Footnote ⁹⁹ A key thing to note about the controversial doctrine of universal jurisdiction is that this issue predated the establishment of the Committee of Eminent Persons, which had examined the Habré matter and that then recommended the expansion of the jurisdiction of the African Court to include international crimes.

Let us illustrate with reference to the two most well-known controversies regarding “universal jurisdiction” and African States. The first was the Belgian indictment and the issuance of an arrest warrant for the Congolese foreign minister, Abdulayae Yerodia Ndombasi. This famously led the Democratic Republic of Congo (DRC) to initiate proceedings against Belgium at the ICJ in which the DRC alleged that Belgium had violated its obligations under customary international law. In a much-criticized decision, at least among some commentators who lament the majority’s decision not to engage with the universality principle, the ICJ ruled in favor of DRC on February 14, 2002, finding that certain immunities are unopposable before the national courts of states even if they are not available to block prosecutions before certain international criminal courts.Footnote ¹⁰⁰

What is significant about the Yerodia case, from the perspective of our argument here, is that the African government concern about the possible abuse of the principle of universal jurisdiction by foreign courts had predated even the entry into force of the Rome Statute of the ICC. This of course was the case in relation to individual African States on their own, such as the Congo, not necessarily as part of the regional body we now know as the AU. That said, there is of course much interplay in the two. Once Member States have concerns about certain policy matters, including on foreign policy questions, they raise those issues bilaterally with the other states and at the same time pursue action within regional or international clubs that they are part of as a way of mustering political support. They could thus better identify collective solutions to initially individual problems. We have seen that phenomenon with other African States bringing up issues in Addis Ababa and New York, including on topics of international criminal justice. This, of course, is not unique in international relations.

The perfect example of this is the second round of universal jurisdiction-based indictments. These were against Rwandan leaders and led to a strong reaction from the AU that this constituted a blatant “abuse” of the principle of universal jurisdiction.Footnote ¹⁰¹ Certain French and Spanish courts had indicted several high-level Rwandese officials. In the case of the former, this did not include President Paul Kagame, and in the case of the latter, it did. The judges sought warrants for him and 43 others including the Chief of Protocol to the President, Madame Rose Kabuye.Footnote ¹⁰² This would later lead to a major diplomatic row between Kigali and Paris, especially after Madame Kabuye was arrested in Germany, on a European arrest warrant. The AU subsequently adopted strongly worded resolutions that may have far-reaching implications for the development of state practice respecting universal jurisdiction. Those decisions most notably called for a moratorium on the issuance of arrest warrants against African leaders by European courts; decided to constitute an AU–EU expert group on universal jurisdiction with both African and European experts; and ultimately as of September 2010, seized the UN General Assembly’s Sixth Committee of the matter. The Sixth Committee is now undertaking a global study on universal jurisdiction. The study continues as of this writing. In 2018, due in part to the politicization of the topic in the General Assembly and the call of many States for it to assist in bringing greater legal clarity, the International Law Commission added the topic to its long-term program of work based on a proposal of this author.

More pertinent for our purposes tracing the genesis of the criminal jurisdiction for the African Court of Justice and Human and Peoples’ Rights, in several later decisions on universal jurisdiction the AU, because of the use of universal jurisdiction against Rwandese officials, directed its commission to explore, in consultation with the Banjul Commission and the African Court, the “implications” of empowering the regional court with jurisdiction “to try international crimes such as genocide, crimes against humanity and war crimes.”Footnote ¹⁰³ This decision was further reiterated during their annual 2009 summit in Sirte, Libya.Footnote ¹⁰⁴ In other words, the African government concern about alleged abuse of universal jurisdiction seemingly returned the AU to more serious consideration of the proposal to endow the African Court, which had been initially proposed by the Committee of Eminent Persons, with criminal jurisdiction. Needless to say, the recommendation had essentially been initially put on the shelf. The concern about foreign-imposed justice from universal jurisdiction therefore resuscitated it and later bore other implications for the ICC’s work on the continent.

The point I wish to make here is that the recent rounds of universal jurisdiction indictments against African leaders in Europe, most of which seemed to have ultimately been withdrawn, sped up urgency in the AU for an African mechanism that will try African crimes on African soil. Again, the fraught ICC–Africa relationship, which is important and will be considered next, played into this. But, by now, it should be apparent that this additional factor was only one of several aspects that seemed to strengthen the African government resolve to add a regional criminal jurisdiction in the AU’s future regional court.

6. The Africa–ICC Relationship

The final and perhaps most important single concern that led African States to start fast-tracking their plans for the creation of a criminal jurisdiction stemmed from the African government dissatisfaction with the work of the ICC on the continent, and in particular, the activities of the Office of the Prosecutor (OTP) in the Sudan situation. It is widely known that the decision of the ICC Prosecutor to seek an indictment against the Sudanese Omar President Al Bashir in March 2008 provoked a strong reaction from the AU. In its first decision on the matter, the AU expressed grave concern that the delicate regional efforts to make peace in the Sudan may be impeded if not entirely jeopardized by such a move.Footnote ¹⁰⁵ This same type of stance was taken by the AU Peace and Security Council when the ICC Pre-Trial Chamber (PTC) finally approved the proposed indictment for the Sudanese leader on charges of crimes against humanity.Footnote ¹⁰⁶ The AU insisted that it was not against prosecution of anyone, but made clear that in light of the then humanitarian catastrophe that was taking place in Darfur, it was opposed to the timing of the prosecution. It felt that this would render it difficult to find a political solution to the conflict in Sudan. An interesting element of this decision was the direction that the AU Commission convene a meeting of African States Parties to the Rome Statute so that they could exchange views and develop recommendations on the ICC’s work in Africa, especially its action “against African personalities.”Footnote ¹⁰⁷

From the point of view of escalation of concern in the ICC–Africa relationship, the follow-on step was the AU’s request for a deferral of the Sudan situation under Article 16 of the Rome Statute. This request was forwarded to New York. It was later reiterated. The repeated deferral request was implicitly rejected.Footnote ¹⁰⁸ African States thereafter decided, collectively, that in view of the Security Council’s implicit refusal to act to address the African government concern, none of them shall cooperate with the ICC in respect of the arrest and surrender of President Al Bashir.Footnote ¹⁰⁹ This problematic decision, taken on July 3, 2009 at Sirte, Libya, remains on the AU books to this day. It underscored the African government conclusion that the timing of the indictment was wrong and had resulted in what the AU considered to be negative consequences for peace. However, from the perspective of ICC law, this decision arguably puts individual African States-Parties to the Rome Statute in violation of their obligations under the Rome Statute which imposes a general duty on all ICC States-Parties to cooperate with the ICC.

Besides this far-reaching decision framing the future of ICC–Africa relations in relation to non-cooperation in the Sudan situation, which has frustrated the attempts to have Al Bashir arrested to answer charges, the AU leaders also took another less well-known but equally important step in July 2009. It decided that the jurisdiction of the regional court of the continent should be enlarged to entrust it with the mandate “to try serious crimes of international concern such as genocide, crimes against humanity and war crimes, which would be complementary to national jurisdiction and processes for fighting impunity.”Footnote ¹¹⁰ Subsequent developments since then, including the issuance of indictments arising from the Kenya Situation, have all fueled the political posturing of African countries, insisting that the continent should develop its own regional criminal justice system to prosecute serious crimes of concern to the continent as a whole.Footnote ¹¹¹

The upshot of all this for us was that the AU Commission contracted a non-governmental organization, the Pan African Lawyers Union (PALU) located in Arusha, Tanzania, to prepare a detailed study and a draft treaty that would amend the protocol of the Statute of the African Court of Justice and Human Rights. In June 2010, PALU issued its first report and draft legal instrument to the AU Legal Counsel’s Office which then requested certain changes. A revised version of the draft treaty was submitted in August 2010 to two validation workshops held in October and November 2010. Legal advisers of African States then held several meetings to consider the draft instrument in March, May, and October/November of 2011, which in turn led to further amendments and adoption of the draft protocol.

Upon approval at the ministerial level, the treaty was then submitted to the AU Assembly in July 2012, and contrary to general expectations that it would be adopted, the Heads of State requested further study of the “financial implications” of the expanded jurisdiction. They also sought clarification of the definition of the novel crime of unconstitutional change of government. A report was subsequently prepared on which further consideration was required, although it glossed over the huge financial costs of international criminal jurisdiction. In the final step, in a May 2014 meeting, the legal advisers of AU States met in the inaugural meeting of the Specialized Technical Committee on Legal Affairs in Addis Ababa where additional amendments to the protocol were made. These were thereafter endorsed by the ministers of justice and then forwarded to the Assembly of Heads of State which adopted the protocol and opened it for signature on June 27, 2014. As of writing, nine African States have signed the treaty. None has yet ratified it.

7. The Legal Relationship Between the African Court and The International Criminal Court

In this section of this chapter, we consider a question which tends to lurk in the background of the ongoing debates among ICC supporters about the AU’s proposed criminal chamber with jurisdiction to prosecute Rome Statute crimes. That is, the nature of the legal relationship that we can begin to expect between The Hague-based court and its African counterpart if and when the latter’s treaty comes into force. The answer to this issue is important, not just for the Africa region but also for the argument made here that regional courts from all parts of the world could potentially become integral to an interlocking web of future enforcement regimes for international criminal law.

8. Key Challenges for The Future African Court

In as much as the preceding sections have suggested that there are good reasons favoring the prosecution of international and other crimes within regional courts such as the proposed African Court, this is only one part of the picture that we must assess. The other half of the story is the fear that such a regional project could undermine, if not imperil, the hard-won achievement of a permanent international penal court. So, while due to space I will not consider all the issues, let us now discuss five major concerns that could give cause for pause in terms of the establishment of a criminal chamber within the African Court of Justice and Human Rights. I will attempt to offer some preliminary reflections that could help alleviate some of these concerns.

9. Concluding Remarks and Recommendations

This chapter has examined whether there could be a viable place for regional courts in the global struggle against impunity. In this view, much as in the international human rights system that has developed over the last half century, international criminal law—which is still trying to find the best ways to dispense justice on behalf of the victims of atrocity crimes—would likely benefit from regionalization of some of its enforcement of its prohibitions. Each part of that mutually reinforcing enforcement system can play its own role in the fight toward the same goal of combating impunity for serious international crimes. I have suggested in this chapter that, as in the global human rights system, international criminal law could also have at least three layers.

First, consistent with the principles of sovereignty and international law, national courts would continue to act as the first responders to the impunity crisis that we presently face in the international community. In the Africa region, whose overwhelming number are supporters of the Rome Statute for example, the regionalization of the duty to prosecute through an institutional mechanism will help bolster the capacity for countries in the continent to prosecute war crimes, crimes against humanity, genocide, and aggression. Those same national courts would also have jurisdiction over the transnational and other economic offenses that are of particular concern to the African region and that are codified in the Malabo Protocol. By pooling their resources, they would likely be better able to give effect to the fundamental precepts of complementarity and discharge their legal obligations to prosecute.

Second, at the regional level, again as we can tell from the Africa illustration, we could have regional courts endowed with jurisdiction to prosecute the crimes prohibited in the Rome Statute and possibly additional others that have also been condemned by the international community such as torture and terrorism. There is even the possibility, once the regional court door is opened, that we might also see the capacitation of courts embedded in sub-regional bodies such as the East African Court of Justice or the ECOWAS Court of Justice to prosecute such crimes. Other regions and sub-regions of the world might explore this model over time, both for efficiency and other practical reasons. Such a development would seem consistent with the experience of human rights courts, allowing each region of the world the opportunity to give its own unique stamp to the development of a global anti-impunity architecture. There are already strong indications of such potential developments in the Americas region.

Finally, at the international level, we would have an additional back-up system for whenever national courts are unable and or unwilling to prosecute. Here, the ICC will continue in its role as the permanent and premier world criminal court. Its place would be reserved to step in when states, including the ones in the African region, prove to be inactive, unwilling, and/or unable to prosecute the heinous crimes of most serious concern to the international community as a whole, consistent with the complementarity principle contained in the Rome Statute. This role will be crucial when it comes to investigating, trying, and punishing sitting Heads of States, their deputies or other senior government officials that are, for one reason or the other, not easily prosecutable at the national or regional court level.

A few preliminary recommendations can be developed from the discussion in this chapter. For the ICC, as its current president Judge Chile Eboe-Osuji (Nigeria) seems to have argued in Chapter 28 of this volume, an important one is that the court should keep an open mind toward working with not just states but also regional organizations, as it develops proactive or positive complementarity. This implies a willingness to engage, whether at the organ or ICC level, with initiatives that might be in development in different regions of the world. Such engagement would help to ensure that whatever regional systems are designed will be compatible with the goals of the Rome Statute and the regime that it is developing. The ICC, which will continue to be at the center of that system wherever national or regional action falls short of the expectations of the international community, must recognize that this will be in its long-term interest. It certainly seems obvious that the Court will in any event be unable to fulfill all the hyper expectations created for it in the minds of victims of atrocity crimes around the world.

The type of engagement with African concerns we saw through the 2013 Assembly of States Parties (ASP) debate or the 2017 hosting of joint seminars with the AU, for instance, are all important in creating mutual trust. In turn, that could lead to deeper conversations about how the Court, without transforming itself into a development agency, could work with African States to turn over a new leaf. On the side of the AU, it could continue to encourage its African States Parties and possibly take decisions in that regard to push for a closer dialogue within the ICC States Parties on positive complementarity and an assessment of the implications of regional court jurisdiction. Consideration should also be given to the role the ICC and other international partners, such as the UN, could play in offering technical assistance in anticipation of more signatures and further ratifications of the Malabo Protocol.

To national jurisdictions that are part of the 123 States Parties of the ICC regime, especially those that are struggling to come out of conflict, consideration should be given to collaborating with other states at the regional or even sub-regional level in order to explore the implications of cooperating to give effect to their duties to prosecute war crimes, genocide, crimes against humanity, and the crime of aggression. In a new spirit of mutual accommodation, the ICC could work out how to meaningfully assist its members to put in place things like the proposed criminal chamber to prosecute ICC offenses. As part of that, The Hague court could, whether through its organs or perhaps more appropriate its ASP, convene a discussion with the judges of regional human rights courts and the States Parties to consider options under which regionalization could be used to help reinforce the difficult mandate it has to fight impunity at the secondary level under the Rome Statute.

For regional organizations and human rights court systems, including those in Europe and the Americas, some consideration could begin to take place on whether and how criminal jurisdiction could be incorporated into their mandates, at least for certain types of core international offenses. To the extent that transnational crimes are of interest, in a particular region, the feasibility and desirability of considering those should be part of that discussion. As would the implications. A key lesson, based on the African experience, is that greater effort must be made to spell out how to resolve conflicts of jurisdictions. This should provide a framework whereby complementarity, rather than competition, is fostered as a central goal. Such is the way we might ensure that there is a unified global regime that works toward the same principal objective of tackling impunity.

To African and global civil society, which as discussed in another chapter have played an important role in advancing international criminal justice through advocacy, recognition should be given to the reality that the ICC was neither designed nor ever intended to be the panacea to the global scourge of atrocity. In that context, while the world criminal court should continue to receive all our support, it is not inconsistent with that support to appreciate that national and regional mechanisms could be other ways to advance the cause of individual criminal accountability and justice for victims of gross human rights violations around the world.