A. The Nature of International and Transnational Crimes

The doctrinal match for the criminological phrases international crimes and transnational crimes reflect a plethora of definitions, many of which are not always consistent. For starters, the former as classically understood, was usually taken as a reference to what some scholars today more frequently label transnational criminal law. That is, the body of domestic law referring to those parts of municipal law addressing crimes that has cross border or extraterritorial origins and or effects.Footnote ¹¹ This was the case at least until the United Nations Security Council established the first modern ad hoc international criminal tribunals for the former Yugoslavia and Rwanda in 1993 and 1994 respectively. But the terminological confusion, which tended to lead to the loose equation of transnational criminal law with ‘traditional international criminal law’ and the law concerning the crimes within the jurisdiction of the UN ad hoc tribunals as ‘new international criminal law,’ does not end there.Footnote ¹²

In fact, it appears to also go the other way. So that, in the literature, it is not unusual to find authors alluding to transnational criminal law when they proceed to actually discuss ‘crimes of international concern.’Footnote ¹³ The latter would cover a wide range of conduct with little commonality other than the decision, or acceptance, by States that some form of inter-State cooperation regime or some coordinated international action must be taken by them within the domestic sphere to suppress such behaviour.Footnote ¹⁴ It is also interesting that, in a way, the resurrection of State interest in the so-called serious crimes of international concern forming part of what many of us would consider international criminal law, at least as administered by the International Criminal Court (‘ICC’), originated in part from Trinidad and Tobago’s proposal to criminalize drug trafficking – itself a classic transnational crime – which ironically did not make it into the statute of the permanent international penal tribunal.Footnote ¹⁵ Yet, in a further irony, the most recent work on a draft crimes against humanity convention, at the International Law Commission (‘ILC’), has drawn considerable inspiration from the statute of the ICC for its definition of the offence at the same time as it placed great reliance on various global transnational crimes conventions for its mutual legal assistance, extradition and other clauses. Both fields, it seems, are beginning to converge substantively as well as procedurally.

In any event, despite the lack of definitional clarity, the traditional distinction between international and transnational crimes on the one hand, and between international and transnational criminal law on the other, now provides at least a generally agreed basis for scholars to distinguish between so-called international crimes stricto sensu (that is the post-Nuremberg law governing the so-called ‘core crimes’ – genocide, crimes against humanity, war crimes and the crime of aggression) and transnational crimes (covering a diverse set of crimes such as slavery, drug trafficking, or money laundering). The former are seen as capturing those acts that implicate the fundamental values of the international community as a whole. As the Rome Statute of the International Criminal Court (ICC Statute) would later put it in its preamble, those offenses are among those that particularly ‘threaten the peace, security, and well-being of the world’.Footnote ¹⁶ On the other hand, transnational criminal law provides for the exercise of national jurisdiction by states in respect of conduct which has transnational implications. These, by their nature, involve or affect the interests of more than one State.

But, in an attempt to draw clear boundaries to help minimize the conflation, scholars have suggested that the crucial distinction between these crime categories is that in addition to the distinctive normative goal of protecting core Grotian or Kantian community values, as Boister and Kress have suggested, international criminal law actually creates a system of direct penal responsibility for individuals under international law.Footnote ¹⁷ Here, in this category of crimes, international law basically bypasses municipal law and criminalizes behaviour directly. In other words, these are universal crimes condemned by international law. They must thus be punished irrespective where in the world they are committed and by whom.Footnote ¹⁸

On the other hand, when it comes to so-called transnational criminal law, there is an indirect system of liability. That system imposes obligations on States Parties to criminalize certain conduct under their domestic laws as much as some core international crimes conventions do. The obligation here is placed on the State, not on individuals. States undertake to prohibit and punish those among the latter category who commit the crime. The obligation is usually imposed in political contexts that indicate the national authorities want to jealously guard their jurisdiction to prescribe, their jurisdiction to adjudicate and their jurisdiction to enforce the relevant prohibitions rather than delegate them to a distant international penal tribunal over which they have may not have meaningful control.

The regime of ICL now largely addresses itself directly to the individual. It anticipates enforcement of the prohibitions under both national and international law at the national, and in some cases, the international level. The TCL regime, for its part, addresses itself primarily to the State and uses national courts primarily as a means for enforcement. In other words, the latter reflects a web of mutual interstate obligations generating national duties to prohibit the conduct. This is usually supplemented with a specific treaty-based duty to legislate and for a duty to either investigate and prosecute or to extradite the perpetrator, and typically limits the availability of the traditional political offence exception. The degree of enforcement of transnational crimes, as well as coordination between States, will depend on the nature of the specific offence under consideration. It will also reflect the extent to which they (i.e. States) desire to address the threat stemming from the prohibited conduct. The prohibition of such crimes in transnational criminal law regime reflects the concern with the self-interest of sovereignty conscious States. The ICL regime, while secondarily accounting for the stability and other interests of states, seems mainly aimed at protecting human beings and the preservation and even promotion of certain fundamental values within the ‘jus puniendi’Footnote ¹⁹ of the international community as a whole.Footnote ²⁰ Values that include the protection of human rights and freedoms, including the right to life and at least a soft right of victims of atrocity crimes to some form of remedy and reparation.

Still, the distinction between ICL and TCL should not be overemphasized. There are certainly some remarkable overlaps between the two regimes. For instance, while ICL did insist from its founding – in what was then a rather radical idea – ‘that individuals have international duties which transcend the national obligations of obedience imposed by the individual state’,Footnote ²¹ some of the main treaties that prohibited conduct that is now widely considered to fall within the realm of international offenses initially permitted or imposed upon states the duty to prosecute or punish such criminal conduct within their municipal law. The addition of international criminal courts as enforcement mechanisms, initially only ad hoc and eventually also permanent, came much later. At present, there is no Transnational Criminal Court, in the same way that there is an ICC. Nonetheless, for both TCL and ICL offenses, states still bear the primary legal obligation – at least at the domestic level – to investigate and prosecute the suspects who may have committed such crimes. A failure to do so may, in some cases, give rise to a duty to extradite that person upon request of another State willing and able to prosecute.Footnote ²² This is the case for crimes like torture, which is both an international crime found under war crimes and crimes against humanity, but also a separate subject of a suppression treaty (i.e. the Convention Against TortureFootnote ²³). Of course, in the case of what we might label purely international crimes in relation to one of the current 123 States Party to the ICC, complementarity might require the unwilling and/or incapable State to surrender the suspect to The Hague. The complementarity principle, as a jurisdiction-sorting rule that initially gives priority to concrete actions of national over international authorities, further supports the argument that the distinction should not be overemphasized.

Unlike in most domestic systems, as compared to the international level, there is not at present a comprehensive penal code of crimes at the international level. The ILC, which was tasked in 1947 by the United Nations General Assembly with producing a draft code of crimes for states to consider for adoption, appear to have had no choice but to focus – as per the terms of its actual mandate concerning the topic – on the relatively narrow list of ‘offenses against the peace and security of mankind’.Footnote ²⁴ Despite its many useful contributions, including to the development of the corpus of modern international criminal law through, inter alia, the formulation of the Nuremberg Principles and the draft statute for the permanent international penal court, in addition to the draft code of crimes against the peace and security of mankind. The ILC did not explicitly adopt a comprehensive theoretical framework setting out preconditions for an international crime or the policy that should guide international criminalization when the project was finally completed in 1996.Footnote ²⁵

B. A Workable Analytical Framework

Bassiouni, who probably undertook one of the earliest and most complete efforts to clarify the concept of international crimes, has rightly observed that the international criminal law literature is replete with terms all of which are aimed at identifying the various crimes categories at the international level.Footnote ²⁶ This includes the use of the descriptors such as crimes under international law, international crimes, international crimes largo sensu, international crimes stricto sensu, transnational crimes, international delicts, jus cogens crimes, jus cogens international crimes, and even a further subdivision of international crimes referred to as core crimes.Footnote ²⁷ He proposed to bring some type of order by seeking to address two things. First, the criteria that should guide the policy of international criminalisation. Second, after having done so, to identify the particular characteristics the presence of any of which would, if found, be sufficient to delimit what constitutes an international crime.

With respect to the policy criteria, Bassiouni suggested five main guidelines, as follows:

1. (a) the prohibited conduct affects a significant international interest, in particular, if it constitutes a threat to international peace and security;

2. (b) the prohibited conduct constitutes egregious conduct deemed offensive to the commonly shared values of the world community, including what has historically been referred to as conduct shocking to the conscience of humanity;

3. (c) the prohibited conduct has transnational implications in that it involves or effects [sic] more than one state in its planning, preparation, or commission, either through the diversity of nationality of its perpetrators or victims, or because the means employed transcend national boundaries;

4. (d) the conduct is harmful to an internationally protected person or interests; and

5. (e) the conduct violates an internationally protected interest but it does not rise to the level required by (a) or (b), however, because of its nature, it can best be prevented and suppressed by international criminalization.Footnote ²⁸

Having set out the above criteria, he next considered the ten features that make something an international crime in international treaty law. These were:

1. (1) explicit or implicit recognition of proscribed conduct as constituting an international crime, or a crime under international law, or a crime;

2. (2) implicit recognition of the penal nature of the act by establishing a duty to prohibit, prevent, prosecute, punish;

3. (3) criminalisation of the prohibited conduct;

4. (4) duty or right to prosecute;

5. (5) duty or right to punish the proscribed conduct;

6. (6) duty or right to extradite;

7. (7) duty or right to cooperate in prosecution, punishment (including judicial assistance);

8. (8) establishment of a criminal jurisdictional basis;

9. (9) reference to the establishment of an international criminal court or international tribunal with penal characteristics; and

10. (10) no defence of superior orders.Footnote ²⁹

The assessment of whether a particular crime fulfils one or more of the foregoing characteristics could probably best be done empirically. The presence of any of those characteristics, in any convention, was thus apparently sufficient in the practice of states for him to label the prohibited conduct an ‘international crime’.Footnote ³⁰

Several observations can be made about the above policy criteria and the characteristics of international penalization. First, Bassiouni’s interesting scheme appears to have found some general support among scholars as a useful starting (not ending) point for discussion.Footnote ³¹ It offers a workable framework for discussion on the classification of such crimes, though their full practical consequences cannot be explored here given our limited focus. Nonetheless, as some academics such as Cryer have noted, the foregoing criteria are not necessarily ‘self-applying, and the judgments that they are fulfilled are, for the purpose of positive international criminal law, subjective’.Footnote ³² Second, and as Einarsen has also observed, Bassiouni does not explain the sources of the five policy criteria.Footnote ³³ Rather than being grounded on a theoretical framework, they appear to be descriptive of a wide variety of penal treaties thereby raising questions about their potential prescriptive value. Third, the history of international criminalization does not always show that States have systematically or consciously adopted and applied these criteria objectively when determining what offenses to prohibit or not. This would be consistent with the free hand that they have under principles of international law to regulate matters within their domestic spheres.

Nonetheless, by providing an empirical study based starting point for debate, it seems sufficiently clear that we can probably judge whether some of the crimes that have been proposed for the African Criminal Court offer a basis to regulate conduct as criminal in nature. This, of course, goes above and beyond what is required because international law does not demand a justification from States in their assertion of jurisdiction – as the Permanent Court of International Justice clarified in the classic Lotus Case, a position that has been admittedly somewhat softened since then. We can still nonetheless query, by careful analogy, whether the mixed basket of crimes contained in the Malabo Protocol carry with them some or all of the similarities and logic of the established crimes to explain, if not necessarily justify, their repression at the regional (i.e. African) level. To the extent that we are here contemplating a system that has been identified as far from coherent, in any event, this useful analytic scheme demonstrates that the variety of offences contained in the regional African instrument may not be outside the norm as may at first blush appear.

Based on the above guidelines, Bassiouni’s study, which obviously reflects a broad instead of narrow conception of what gives rise to international crimes such that it is inclusive of what some might ordinarily consider ‘transnational’ crimes, identified the presence of one or more of the penal features in 281 conventions. He argued that, while it would be ideal for all or most of these ten characteristics to appear in every penal treaty, this was simply not the reality.Footnote ³⁴ He went on to identify about 27 crimes in existing international conventions, which he further subdivided into four general groupings: ‘truly international’ crimes; ‘transnational’ crimes; ‘partly international or transnational’ crimes; and ‘international crimes.’ The practicality of these groupings being the way to enhance their prevention and suppression.Footnote ³⁵ These four broad classes seem to mirror each other and differ only in the quality of being pure or mixed as the language of ‘truly’ or ‘partly’ indicate.

Unlike treaties such as the ICC Statute, instruments addressing the phenomenon of transnational crimes do not establish direct penal liability by defining specific crimes in the same manner that, for example, genocide or crimes against humanity are delineated. Instead, by accepting to sign on to such a treaty as noted earlier, the State undertakes to criminalise in its domestic law the prohibited conduct as well as to provide penalties for the violations. Though the matter may not yet be entirely settled, the United Nations Convention against Transnational Organized Crime has provided some useful guidance on what criteria a crime must fulfil to fall within the so-called ‘transnational’ crimes category. Under this approach advanced by the UN, much like Bassiouni’s ten penal characteristics for what makes something an ‘international crime’, the presence of one or more of the following four factors is said to be determinative of ‘transnational crime’ status:

1. (1) it is committed in more than one state;

2. (2) it is committed in one state but a substantial part of its preparation, planning, direction or control takes place in another state;

3. (3) it is committed in one state but involves an organized criminal group that engages in criminal activities in more than one state; and

4. (4) it is committed in one state but has substantial effects in another state.Footnote ³⁶

Under this methodology, we may conclude that the transnational nature of a crime apparently relies on the existence of cross-border geographical dimensions. This is supported by the main literature on transnational criminal law which seeks to add definitional certainty on TCL as a category. It also implies the fact of several States coming together to engage in some type of cooperation to stem the perpetration of the crime as part of protecting their individual and collective interests.

A. The Context

The African Court of Justice and Human and People’s Rights, whose creation is contemplated by the Malabo Protocol which, as of writing, has only been signed by eleven African States, will exercise jurisdiction over general, criminal, and human rights matters through three different chambers:

1. (1) a General Affairs Section;

2. (2) a Human and Peoples’ Rights Section; and

3. (3) an International Criminal Law Section.Footnote ³⁷

For the limited purposes of this chapter, I do not engage on the first two types of jurisdiction which are carefully evaluated by other colleagues in this volume. Rather, I ponder the subject matter competence of the last of the three foregoing sections in a way that should inform the subsequent chapters that follow on the specific crimes. More specifically, I will examine what the Malabo Protocol defined as ‘international’ crimes as listed in its Article 28A. There is, of course, much that could be said about the subject matter jurisdiction of the African Criminal Court, triable in the International Criminal Law Section.Footnote ³⁸ However, the discussion here is limited only to the description (‘international crimes’) that the drafters gave to the 14 crimes contained in the court’s subject matter jurisdiction. This issue is of interest, not only because of the seeming confusion that exists in the literature on what makes a crime an international as opposed to a transnational one, which traditional distinction we could use the Malabo Protocol to test, but also because it is evident that the invocation of that label in the circumstances of this one instrument will be controversial. Controversial because, at the least, the classification of the crimes as ‘international’ threatens to undo the conventional paradigm among scholars and policymakers that, until recently, attempted to draw a somewhat neat division separating international from transnational crimes.

Partly because of this, and the way the Malabo Protocol relies on an eclectic mix of treaty sources for the crimes contained within the African Criminal Court’s jurisdiction, it is important to discuss these offences. This exercise becomes that much more necessary because it offers a sufficient basis to compare the African regional instrument with the international penal tribunals that have preceded it, again, even if this is not necessarily required to justify the form of the regional prohibitions under international law. The clarification may also be helpful for both theoretical and practical reasons. Indeed, in relation to the latter aspect, some scholars, such as Van der Wilt, have already relied on the conventional international versus transnational crime distinction to propose that this categorization could enable a division of labour that could help avert future jurisdictional conflicts between the African Criminal Court and the ICC.Footnote ³⁹ This is an interesting proposal, though given the arguments of this paper, I remain doubtful whether the international-transnational crimes divide could by itself be a sufficient basis to properly resolve any jurisdictional conflicts that might arise.

B. The Baskets of Crimes in the Malabo Protocol

The ACC contains a more extensive list of fourteen crimes within its subject matter jurisdiction. It differs, in that respect, from the international and other tribunals that preceded it. Indeed, since the seminal Nuremberg trials in 1945, international criminal courts have tended to include only three main offenses within their jurisdictional ambits. Part of the reason for that stems from the practical reality that only the gravest crimes that have been widely condemned under international law can be realistically prosecuted at the international, as opposed to, the national levels. The more extensive list of crimes in the African Criminal Court are, as listed in the constitutive instrument, (1) genocide, (2) crimes against humanity, (3) war crimes, (4) the crime of unconstitutional change of government, (5) piracy, (6) terrorism, (7) mercenarism, (8) corruption, (9) money laundering, (10) trafficking in persons, (11) trafficking in drugs, (12) trafficking in hazardous wastes, (13) illicit exploitation of natural resources, and (14) the crime of aggression. The form of the list does not appear to imply any hierarchy. The first three, and the last one, are typically considered to be among the worst crimes known to international criminal law.

Applying Bassiouni’s ten penal characteristics to each of these offenses in the Malabo Protocol, if we assume all ten are present in each crime, they could reflect up to one hundred and forty. However, even on a cursory review, it becomes apparent that not all of the identified characteristics can be found in each crime. This is to be expected since some of the crimes may contain ideological or political components (for example, the crime of unconstitutional change of government), which implies that they may be expected to have a lower number of actual penal characteristics. Conversely, the offenses lacking political or ideological features might contain a larger percentage of penal characteristics. Whatever the case, for convenience, we can at the broadest level of generality sub-divide the fourteen crimes included in the Malabo Protocol into Bassiouni’s four main categories. These, it will be recalled, are (1) international crimes, (2) transnational crimes, (3) partly international crimes and (4) partly transnational crimes, which can thus be depicted graphically as followsFootnote ⁴⁰:

The discussion, which follows next, considers some of the main features and sources of the crimes contained in each of these four groupings.

A. Genocide

The Convention on the Prevention and Punishment of the Crime of Genocide (1948) (Genocide Convention) contains closed and narrow categories with respect to its ‘protected groups’, since they are expressly limited by that treaty to only four: national, ethnical, racial or religious groups.Footnote ¹⁵ This is replicated in the Rome Statute (1998).Footnote ¹⁶ Thus, if similar actions were carried out on any other group – regardless of whether the group is viewed objectively or subjectively – they would fall outside of the scope of the crime of genocide (although they would likely be considered, at a minimum, as persecution as a crime against humanity). This situation has attracted criticism directed at the definition of genocide over the years. The same criticism might also be repeated with respect to Article 28B of the ACJHR Statute under the Malabo Protocol (2014), since it lists the same four protected groups.

Some early jurisprudence from the International Criminal Tribunal for Rwanda (ICTR) viewed genocide’s protected groups differently. Consider the following pronouncement in Akayesu:

This holding, that the Genocide Convention (1948) protects any stable and permanent group – as opposed to only national, ethnical, racial or religious groups – has not been wholeheartedly embraced by subsequent jurisprudence. Only the same ICTR Trial Chamber both in Rutaganda and Musema adopted it, albeit with slight modifications,Footnote ¹⁸ and one can also catch a glimpse of it in the International Criminal Tribunal for the former Yugoslavia (ICTY)’s Krstić case.Footnote ¹⁹

Some AU countries also appear to have moved away from the closed protected groups found in the Genocide Convention (1948) by the manner in which genocide has been incorporated into their domestic law. Thus, while some have included only the four protected groups found in the Genocide Convention (1948),Footnote ²⁰ others have gone beyond this and added political groups,Footnote ²¹ political and ‘colour’ groups,Footnote ²² social groups,Footnote ²³ any other groups based on ‘any arbitrary criterion’,Footnote ²⁴ or any other identifiable group.Footnote ²⁵ Given this African reality, and the aforementioned (but limited and controversialFootnote ²⁶) jurisprudence arising from Akayesu, a question might be asked: was an opportunity lost to incrementally modernize genocide so that any stable and permanent group could be protected, somewhere halfway perhaps between those AU member states that have incorporated the four protected groups of the Genocide Convention (1948) into domestic law and those that have gone beyond?

Such a change would have moved genocide away from customary international law (assuming that genocide’s definition is the same under custom and it is in the Genocide Convention (1948)). Yet, it is also true that the treaty’s original drafters could only express their vision for the protected groups through the prism and frame of reference of 1948, that is, the prevailing permanent and stable groups at that time: national, ethnical, religious and racial groups. Today, for example, it is not at all uncommon for a person to move from one religion to another. Nonetheless, a conscious decision was made to remain faithful to Article II of the Genocide Convention (1948) by the drafters of the Malabo Protocol (2014). In the absence of cases in modern times where stable and permanent groups have been targeted for genocidal acts, but were found not to fit within either national, ethnical, racial or religious groups, it appears unjustified to modify the protected groups at this time. It remains to be seen whether this continues to hold true in the future.

The ACJHR Statute as per the Malabo Protocol (2014) also adds to the enumerated list of acts and conduct that can constitute genocide. In addition to those found in Article 6(a)–(e) of the Rome Statute (1998) (which replicates Article II(a)–(e) of the Genocide Convention (1948)), Article 28B(f) adds ‘rape or any other form of sexual violence’ as acts of genocide per se. Of course, this should not be interpreted as saying that such acts could not have constituted genocide before this innovation. Indeed, the notion that rape and similar conduct, under the right conditions, could form the actus reus of genocide was first held by the ICTR’s Akayesu judgementFootnote ²⁷ and consistently recognized by international criminal case law ever since.Footnote ²⁸ But it is the first time that this jurisprudence has been formally codified as such into a definition of genocide under international law.Footnote ²⁹ Until now, rape and other forms of sexual violence has been prosecuted as genocide before international criminal tribunals as acts that cause serious bodily or mental harm,Footnote ³⁰ not as rape and sexual violence per se. It is important that such actions – particularly those directed against women – be expressly recognized as capable of constituting genocide rather than being subsumed within a broader range of criminal acts. Therefore, the addition of such acts within the enumerated list of the actus reus component of the definition of genocide is a welcome development.

On the other hand, one substantive omission from genocide under the ACJHR Statute as per the Malabo Protocol (2014) is the inchoate offence of direct and public incitement to commit genocide, which is found in Article III(c) of the Genocide Convention (1948). In the Rome Statute (1998), this offence is not found in its provision on genocide (Article 6), but is instead included in Article 25 which governs modes of liability at the ICC (specifically, Article 25(3)(e)) (a matter that invoked some disagreements among the drafters)).Footnote ³¹ However, direct and public incitement to commit genocide is found neither in Article 28B (genocide) or 28N (modes liability) of the ACJHR Statute as per the Malabo Protocol (2014). To be fair, incitement is expressly listed in Article 28N(i) and it applies to all crimes equally.Footnote ³² That is, however, not the same thing as direct and public incitement to commit genocide. Indeed, the jurisprudenceFootnote ³³ has made it quite clear that these are substantive elements of the offence, with the ‘public’ requirement in particular having engendered some controversy in the case law.Footnote ³⁴ Thus, under the Malabo Protocol (2014), mere incitement is punishable vis-à-vis genocide – a distinct shift away from the Rome Statute (1998). This unfortunately also departs from the original intent of the drafters of the Genocide Convention (1948), who, by specifying the ‘direct’ and ‘public’ requirements, wished to allay concerns regarding freedom of speech and expression.Footnote ³⁵

B. War Crimes

The ACJHR Statute under the Malabo Protocol (2014) also introduces innovations regarding the definition of war crimes in Article 28D. While it largely replicates the lists of war crimes in the context of international and non-international armed conflicts that is found in the Rome Statute (1998) (including, notably, the 2010 ICC Kampala Amendments on war crimes in non-international armed conflicts),Footnote ³⁶ it also adds a significant number of new ones. To the list of war crimes committed during international armed conflicts the following are added:

• Intentionally launching an attack against works or installations containing dangerous forces in the knowledge that such an attack will cause excessive loss of life, injury to civilians or damage to civilian objects which will be excessive in relation to the concrete and direct overall military advantage anticipated (Article 28D(b)(v));

• Unjustifiably delaying the repatriation of prisoners of war or civilians (Article 28D(b)(xxviii));

• Willfully committing practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination (Article 28D(b)(xxix));

• Making non-defended localities and demilitarized zones the object of attack (Article 28D(b)(xxx));

• Slavery and deportation to slave labour (Article 28D(b)(xxxi));

• Collective punishments (Article 28D(b)(xxxii); and

• Despoliation of the wounded, sick, shipwrecked or dead (Article 28D(b)(xxxiii)).

In addition, in a particularly refreshing move away from the Rome Statute (1998), the following war crime is included in Article 28D(b)(xxi): ‘Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law or armed conflict’.

This is to be contrasted to the equivalent provision in Article 8(2)(b)(xx) of the Rome Statute (1998) (emphasis added):

As is well known, this provision was the compromise solution that resulted from the controversy, difficulties and eventual deadlock that ensued during the negotiations on the inclusion of prohibited weapons in the Rome Statute (1998). It pitted those states that opposed the inclusion of nuclear weapons as a prohibited weapon in the Rome Statute (1998) against those states that, as a result of this position on nuclear weapons, opposed the inclusion of biological and chemical weapons (i.e. the poor man’s nuclear weapon) as a prohibited weapon in the Rome Statute (1998).Footnote ³⁷ However, in the words of the late Professor Cassese, ‘given the extreme unlikelihood that such amendment will ever be agreed upon, the use of those weapons, projectiles, etc. may eventually not amount to a war crime within the jurisdiction of the [ICC] [under Article 8(2)(b)(xx)]’.Footnote ³⁸ These prophetic words have proved to be right, at least so far. The ICC is now some 16 years old and we are no closer to the amendment required under this article, despite the efforts of some states (particularly Belgium and Mexico) in the lead up to the 2010 ICC Review Conference held in Kampala, Uganda. It remains a dead letter. However, the ACJHR Statute under the Malabo Protocol (2014) has boldly included Article 28D(b)(xxi) as a general provision without any strings attached. This means that a determination of whether a particular weapon causes ‘superfluous injury or unnecessary suffering or [is] inherently indiscriminate’ has been left to judges and, potentially, future judicial evolution – something that the drafters of Article 8(2)(b)(xx) of the Rome Statute (1998) were particularly weary of.

Similarly, to the list of war crimes committed during non-international armed conflicts, the ACJHR Statute under the Malabo Protocol (2014) adds the following:

• Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies (Article 28D(e)(xvi));

• Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations (Article 28D(e)(xvii));

• Launching an indiscriminate attack resulting in death or injury to civilians, or an attack in the knowledge that it will cause excessive incidental civilian loss, injury or damage (Article 28D(e)(xviii));

• Making non-defended localities and demilitarized zones the object of attack (Article 28D(e)(xix));

• Slavery (Article 28D(e)(xx));

• Collective punishment (Article 28D(e)(xxi)); and

• Despoliation of the wounded, sick, shipwrecked or dead (Article 28D(e)(xxii)).

While these provisions are mostly carbon copies of the same crime committed in international armed conflicts (i.e. the corresponding crime found under Article 28D(b)), the substantive differences found in Article 28D(e)(xviii) and Article 28D(e)(xx) are worth noting.

With respect to Article 28D(e)(xviii), that provision should be contrasted to its international armed conflict twin, Article 28D(b)(iv) (emphasis added): ‘Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’.

While the language of Article 28D(e)(xviii) is not exactly the same as that contained in Article 28D(b)(iv), the underlying idea largely aligns and is readily identifiable in both provisions. There are however, some important substantive differences. For one, Article 28D(e)(xviii) does not explicitly include damage to civilian objects, although this could perhaps be read into the concept of ‘civilian damage’. But more importantly, is that the standard under Article 28D(e)(xviii) appears to be lower than that under Article 28D(b)(iv); the former only requires the incidental damage/injury/loss to be excessive but the latter requires the incidental damage/injury/loss to be clearly excessive. In other words, the standard appears to have been set higher in the context of an international armed conflict (‘clearly excessive’ – Article 28D(b)(iv)) than under a non-international armed conflict (‘excessive’ – Article 28D(e)(xviii)). One struggles to understand why this should be so. The same could be said with respect to the omission of crimes against the environment in Article 28D(e)(xviii), particularly in light of the International Commission of the Red Cross’ customary international humanitarian law study which determined that customary rules had ‘arguably’ developed with respect to the protection of the environment in non-international armed conflicts.Footnote ³⁹

Concerning Article 28D(e)(xx), its international armed conflict counterpart, Article 28D(b)(xxxi)), includes additional substantive language (emphasis added): ‘[s]lavery and deportation to slave labour’. Clearly, the drafters of the provision had in mind the events of World War II, when Nazi Germany deported millions of foreign civilians and prisoners of war to provide slave labour to the German war industry; numerous individuals were charged and tried for slave labour as a war crime and/or crime against humanity in the war’s aftermath.Footnote ⁴⁰ However, considering that deportation generally occurs when there is an expulsion of persons across a de jure border from one country to another (or in some cases a de facto border)Footnote ⁴¹ and that individuals have been convicted of this crime during a non-international armed conflict,Footnote ⁴² there would appear to be little room to doubt that deportation to slave labour could take place on the African continent during a non-international armed conflict. This would be particularly so where the relevant armed group operates across state boundaries. The Lord’s Resistance Army, which allegedly operates in Uganda, South Sudan and the Democratic Republic of the Congo, comes to mind. Whether such an offence would be in violation of customary international law applicable in non-international armed conflicts would remain to be seen, but is not, on the face of it, far-fetched.

These criticisms aside, a positive development relating to war crimes can be seen in the crime of conscripting or enlisting children into national armed forces in an international armed conflict (Article 28D(b)(xxvii)) or armed forces during a non-international armed conflict (Article 28D(e)(vii)). While these provisions largely copy the same provisions found in the Rome Statute (1998) (in international and non-international armed conflicts),Footnote ⁴³ the provisions of the ACJHR Statute under the Malabo Protocol (2014) differ in one important way: no child under the age of eighteen years can be conscripted or enlisted. This is consonant with the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000)Footnote ⁴⁴ and with the African Charter on the Rights and Welfare of the Child (1990).Footnote ⁴⁵ It is, however, different from the Rome Statute (1998),Footnote ⁴⁶ Additional Protocols I and II to the Geneva Conventions (1977)Footnote ⁴⁷ and the Statute of the Special Court for Sierra Leone (SCSL Statute),Footnote ⁴⁸ which only forbid the enlistment and recruitment of children under fifteen years of age. In other words, the ACJHR Statute under the Malabo Protocol (2014) affords greater protection for children than the ICC, the Geneva Conventions and the Special Court for Sierra Leone (SCSL).

But perhaps the most interesting of all the ‘new’ war crimes is the crime of ‘using nuclear weapons or other weapons of mass destruction’ (Article 28D(g)). As aforementioned, attempts during the negotiations that led to the Rome Statute (1998) to criminalize the use of nuclear weapons proved controversial and divisive in light of stout opposition by some P5 states.Footnote ⁴⁹ Therefore, its inclusion in the ACJHR Statute under the Malabo Protocol (2014), which is in line with the African Nuclear-Weapon-Free Zone Treaty (Treaty of Pelindaba) (1996),Footnote ⁵⁰ is a most welcome innovation. Given the horrendous short- and long-term effects of the use of such weapons, their use should not be permitted, notwithstanding the 1996 advisory opinion of the International Court of Justice (ICJ) on the subject.Footnote ⁵¹

Furthermore, the manner of this provision’s inclusion also helps to expose the futility of dividing war crimes between international and non-international armed conflicts, since Article 28D(g) is not included in any of the four lists of war crimes that can be committed in those two types of conflicts,Footnote ⁵² but stands on its own. This would suggest that this crime can be committed in the course of either an international or non-international armed conflict. In other words, the prosecution of this crime would not need to establish the classification of the armed conflict as an element of the offence but merely the existence of an armed conflict regardless of its character – in the spirit of Article 3 of the ICTY Statute.

Indeed, classification can be a difficult task, particularly where non-state armed groups are involved. For example, in the ICC’s Lubanga case, the Pre-Trial Chamber’s decision confirming the charges determined that the relevant conflict was international in nature due to Uganda’s occupation of the Ituri region and only became non-international upon Uganda’s withdrawal.Footnote ⁵³ In contrast, the Trial Chamber subsequently determined that the conflict was in fact of a non-international character for the entire period and accordingly re-characterized the charges under Regulation 55.Footnote ⁵⁴ This was, after all, a case/conflict that involved no less than six armed groups and three states in and around the Ituri area in the Democratic Republic of the Congo.Footnote ⁵⁵ There is no doubt that similarly complex African classification situations will eventually be adjudicated pursuant to the ACJHR Statute under the Malabo Protocol (2014). Yet, the difficulties involved in classification could have been avoided by not dividing up war crimes into lists of those committed in international and non-international armed conflicts, at least as much as possible, particularly when we consider that many of the underlying war crimes are found in both lists anyway (especially violations of the laws and customs of war). Rather, a more attractive option would have been something similar to, or an adaption of, that found in Article 3 of the ICTY Statute, which simply states that the ICTY has the power to prosecute those who violate the law and customs of war and then provides a non-exhaustive list of such violations.Footnote ⁵⁶ This architecture, and ICTY jurisprudence,Footnote ⁵⁷ led the ICTY, in Article 3 cases, to skip conflict classification altogether and the tricky problems that they can entail.

One last war crime is worth mentioning. However, this is not because of its inclusion in the ACJHR Statute under the Malabo Protocol (2014), but rather because of its absence. This is the crime of terror (as it was known at the ICTY) or terrorism (as it was known at the SCSL/ICTR) as a war crime. It is simply not found in any of the war crimes provisions. Neither of course, is it found in the Rome Statute (1998) or explicitly in the ICTY Statute (despite convictions under Article 3 of the ICTY Statute for this crime), but it was found in the SCSL and ICTR Statutes.Footnote ⁵⁸ It must be remembered that this particularly odious offence is one of the very few crimes (when one excludes genocide convictions) that have attracted life sentences at any of the international criminal tribunals.Footnote ⁵⁹ Given this fact, and the various cases concerning this offence that were prosecuted at the ICTY and the SCSL,Footnote ⁶⁰ it is somewhat perplexing that this war crime was not included in the ACJHR Statute under the Malabo Protocol (2014).

C. Crimes Against Humanity

Crimes against humanity in the ACJHR Statute under the Malabo Protocol (2014) – Article 28C – is mostly a carbon copy of the provision on crimes against humanity found in the Rome Statute (1998).Footnote ⁶¹ However, a few salient matters are worth pointing out. The chapeau to Article 28C could be read as expanding the reach of crimes against humanity’s contextual element. This is so because it refers to ‘a widespread or systematic attack or enterprise directed against any civilian population, with knowledge of the attack or enterprise’. This is an interesting development, because there exists jurisprudence and academic commentary to the effect that the word ‘attack’ denotes violent and, in certain circumstances, non-violent acts.Footnote ⁶² If that is so, one wonders what sort of additional acts the terms ‘or enterprise’ are supposed to cover. Is the term ‘enterprise’ subsumed under the term ‘attack’? An alternative view, however, is simply that the words ‘or enterprise’ serve to add further clarity to the notion that non-violent acts are encompassed by the contextual chapeau element, especially when we consider that the term ‘attack’ has also been interpreted by some jurisprudence to denote the existence of violence, a view supported by some commentators.Footnote ⁶³

Largely incorporating the crimes against humanity definition of the Rome Statute (1998) also means that the ACJHR Statute under the Malabo Protocol (2014) has included the requirement of ‘a State or organizational policy’ in Article 28C(2)(a).Footnote ⁶⁴ In so doing, this requirement has been added to crimes against humanity’s contextual element, thus departing from consistent ICTY and ICTR jurisprudence holding that it is not required under customary international law.Footnote ⁶⁵ As to what constitutes an ‘organization’ for the purposes of an ‘organizational policy’, this is an issue that has been the subject ongoing controversy at the ICC. Two views have arisen on the matter. The first view sees this term as not being defined or limited by ‘the formal nature of the group and the level of its organization’ (although this is relevant), but rather ‘on whether a group has the capability to perform acts which infringe on basic human values.’Footnote ⁶⁶ In other words, its ‘capacities for action, mutual agreement and coordination[] … are essential features to defining an organization that, by very reason of the means and resources it possesses and its membership, allow an attack to be executed.’Footnote ⁶⁷ The late Judge Kaul succinctly expressed the second view. According to him, the relevant organization must ‘partake of some characteristics of a State[] [which] eventually turns the private “organization” into an entity which may act like a State or has quasi-State abilities.’Footnote ⁶⁸ Without this requirement, he avers that perhaps the mafia or other similar criminal organizations would be able to commit crimes against humanity.Footnote ⁶⁹ The ICC Appeals Chamber has not yet pronounced itself on this matter. Consequently, uncertainty remains, although Ambos has rightly pointed out that the criteria or characteristics outlined by both sides of the debate ‘as possible distinguishing features for the determination of an “organization” shows[] … that those criteria are in large part identical … and only differ substantially insofar as [Judge] Kaul regards them as indications of state-likeness[.]’Footnote ⁷⁰

With respect to the underlying crimes, it is noticeable that not only is torture criminalized – as is the case at all modern international criminal tribunals and courtsFootnote ⁷¹ – but also, for the first time, Article 28C(f) explicitly adds ‘cruel, inhuman and degrading treatment or punishment’ as well. Of course, this language originates from the Torture Convention (1984) and was designed to capture conduct that, while odious and deplorable, might not necessarily amount to torture as defined in Article 1(1) of that treaty.Footnote ⁷² However, its inclusion in the ACJHR Statute under the Malabo Protocol (2014) raises a question: where does this leave ‘other inhumane acts’ in Article 28C(1)(k)? Surely there is overlap, since many of the acts that could amount to cruel, inhuman or degrading treatment or punishment could have already been prosecuted as ‘other inhumane acts’ under Article 28C(1)(k).Footnote ⁷³ The danger here is that by including both of these provisions, the drafters could have – perhaps inadvertently – rendered one of them superfluous, unless the two can be somehow distinguished. It remains to be seen how this matter will be resolved by the judges of the ACJHR.

Finally, one interesting omission can be seen in Article 28C when compared to the Rome Statute (1998). Included (somewhat awkwardly) in the crimes against humanity provision at the ICC, is Article 7(3) of the Rome Statute (1998) which provides for a definition of ‘gender’ for the treaty as a whole, and states that the term ‘refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.’ This provision has been described by one commentator as ‘the most puzzling and bizarre language ever included in an international treaty’,Footnote ⁷⁴ but was added in order to address concerns that the term ‘gender’ might be read to include sexual orientation.Footnote ⁷⁵ The result was the compromise contained in Article 7(3). However, with its omission from the ACJHR Statute under the Malabo Protocol (2014), the judges of the ACJHR will be free from any constraining definition. Since ‘gender’ is expressly listed as one of the groups upon whom persecution as a crime against humanity can be carried out (as per Article 28C(1)(h)), it will be interesting to see if and how the concept of gender will develop.

D. Aggression

The ACJHR Statute under the Malabo Protocol (2014) also shows innovation in respect of the crime of aggression (Article 28M). In spite of some ambiguities, it is, on the whole, a marked improvement from the 2010 ICC Kampala Amendments on aggression (i.e. Articles 8 bis, 15 bis, 15 ter, Rome Statute (1998)). With respect to the substantive crime, while broadly mirroring Article 8 bis of the Rome Statute (1998), the most notable aspect of Article 28M is that, unlike Article 8 bis, it encompasses not only acts of aggression carried out by states but also those carried out by non-state actors.Footnote ⁷⁶ Thus, it covers both the illegal initiation of international and non-international armed conflicts. This is important because non-international armed conflicts significantly outnumber international armed conflicts. Indeed, a recent study found that in 2012 at least 37 armed conflicts took place and of these only one was an ‘active international armed conflict …, narrowly defined’ while ‘belligerent occupations continued [in] parts of nine states and territories.’Footnote ⁷⁷ In 2013, the same study found that the total number of armed conflicts had risen to 39, with two active international armed conflicts and the number of belligerent occupations remaining unchanged.Footnote ⁷⁸ In 2014, armed conflicts rose again to 42, with only three active international armed conflicts and situations of belligerent occupation rising to 10.Footnote ⁷⁹

Nevertheless, this raises some questions, since in the Rome Statute (1998), an act of aggression is intimately linked to a manifest violation of Article 2(4) of the UN Charter (1945) – the prohibition on the use of force. That provision is of no relevance to a non-international armed conflict since this prohibition is addressed to states and does not apply to non-state actors (at international law).Footnote ⁸⁰ Article 28M(A) of the ACJHR Statute under the Malabo Protocol (2014) attempts to overcome this by, in addition to the UN Charter (1945), referring to, in the alternative, a manifest violation of the Constitutive Act of the African Union (2000) ‘and with regard to the territorial integrity and human security of the population of a State Party.’ Yet, the Constitutive Act of the African Union (2000), like the UN Charter (1945), appears to address AU member states onlyFootnote ⁸¹ and contains no express provision regarding the use of force by non-state actors, but instead merely ‘condemn[s] and reject[s] … unconstitutional changes of governments.’Footnote ⁸²

In addition, the ICC’s aggression leadership element found in Article 8 bis(1) is also adopted into Article 28M, albeit in a slightly modified fashion – to account for the fact that aggression under the ACJHR Statute pursuant to the Malabo Protocol (2014) applies to non-international armed conflicts and non-state actors. Thus, according to Article 28M(A), the person accused of the crime of aggression must be ‘in a position effectively to exercise control over or to direct the political or military action of a state or organization.’ Two issues arise. The first issue, is that the ‘control or direct’ standard, which was copied from Article 8 bis(1), actually narrows the class of persons who could be criminally responsible for aggression when compared to the crimes against peace (as aggression was then known) jurisprudence of World War II. In fact, a number of defendants were convicted after World War II not on the basis that they controlled or directed the political or military action of their respective states, but instead because they were in a position to shape or influence such action – a less restrictive standard.Footnote ⁸³ In other words, the scope for criminal responsibility for aggression under customary international lawFootnote ⁸⁴ is wider than that found in Article 8 bis(1) and now Article 28M(A).

The second issue, is that Article 28M(A) introduces the same interpretational difficulties that one finds in crimes against humanity, since the question that will inevitably arise is what an ‘organization’ means in this context and whether it is the same as, or different from, that found in Article 7(2)(a) of the Rome Statute (1998) (see discussion above) and Article 28C(2)(a) of the ACJHR Statute under the Malabo Protocol (2014). Here, Judge Kaul’s view that the organization must be ‘state-like’ (in the context of crimes against humanity)Footnote ⁸⁵ finds more favour, since the idea that the African equivalent of the mafia could be responsible for acts of aggression really begins to stretch international criminal law to a place that, frankly, gives such criminal thugs more credit than they deserve.

But the most refreshing aspect of aggression as per Article 28M – and of all the core international crimes in the ACJHR Statute pursuant to the Malabo Protocol (2014) – is that it comes, on paper, with absolutely no strings attached. No special articles, unique requirements or jurisdictional provisions that only apply to aggression are included. In stark contrast, Article 15 bis and Article 15 ter of the Rome Statute (1998) purposefully put into place barriers and jurisdictional hoops that have to be jumped through and overcome, thereby ensuring that the ICC will unlikely adjudicate upon an aggression case anytime soon. Thus, Article 15 bis(2) and Article 15 ter(2) require one year to elapse after the requisite number of ICC States Parties (30) have ratified the 2010 ICC Kampala AmendmentsFootnote ⁸⁶ before the ICC can exercise jurisdiction over aggression; Article 15 bis(3) and Article 15 ter(3) require a decision to be made after 1 January 2017 to activate the ICC’s jurisdiction over aggression (this is in addition to the one year period stipulated in Article 15 bis(2) and Article 15 ter(2));Footnote ⁸⁷ Article 15 bis(4) permits states to ‘opt out’ of aggression at the ICC where the ICC Prosecutor acts proprio motu or where there is a state referralFootnote ⁸⁸; Article 15 bis(5) provides that the ICC only has jurisdiction over aggression where the state of nationality of the accused and the state on which the crime takes have both ratified the 2010 ICC Kampala Amendments on aggression (unless the UN Security Council, acting under Chapter VII of the UN Charter, refers the matter). The ACJHR Statute under the Malabo Protocol (2014) does not contain any such provisions with respect to aggression. Rather, aggression is treated just like any other international crime; as it should be. Africa deserves credit for this straightforward approach.

A. Social Groups Other Than Corporations Can Commit Organizational Crimes

It may not be the norm that corporations commit grave crimes of international concern. More commonly, the wealthy and powerful – and sometimes the poor and ambitious – form political movements and their armed wings, variously known as parties, fronts, bases, armies, and states.

Many of the worst atrocities of the twentieth century began in this way. Before World War I, a political movement called the Committee of Union and Progress emerged in the Ottoman Empire, dedicated to the aim of seizing the businesses and properties of the empire’s Christian populations, events later known as the Armenian Genocide but actually broader than that. American and British diplomats wrote of the party’s scheme to kill, drive away, and plunder the Christian peoples of the empire.Footnote ³³ The National Socialist Worker’s Party of Germany, and elite Death’s Head Units of the Schutzstaffel (S.S.), began as World War I veterans who had sported the silver “death’s head” associated with the aristocratic German cavalry officer prior to the war in order to indicate their trench warfare specialty.Footnote ³⁴ In the 1920s, the Nazis evolved out of a veteran-dominated group called the Freikorps, some of whom – distinguished by their loyalty to Adolf Hitler – wore the silver Death’s Head of the elite trench soldiers.Footnote ³⁵ Nationalism and anti-Semitism often motivated these paramilitary thugs, which grew into a militia of 200,000, including sympathizers.Footnote ³⁶ Joining the Sturmabteilung, the Freikorps units murdered dozens of the Nazis’ political rivals per year, and developed a branch called the S.S. which would take a leading part in the Holocaust.Footnote ³⁷ Hitler’s right hand, Heinrich Himmler transformed the Freikorps into an “organization called the Totenkopfverbände (Death’s Head Units) to run concentration camps and for other special duties.”Footnote ³⁸ In 1939, Hitler told his troops that he was sending the Death’s Head Units to the east to kill without mercy those of Polish race and language. The Units grew to 40,000 persons by 1945.Footnote ³⁹ If the Freikorps and Sturmabteilung had been banned by some international proceeding or institution in the 1920s, countless lives may have been saved.

Scholars use a variety of terms for such politico-military organizations that may seize part of the state’s authority, be deployed by the state, or seek to intimidate or displace the state: death squads, militias, irregular armed groups, vigilantes, civil defense forces, national guards, and paramilitary forces.Footnote ⁴⁰ Famous examples include the Interahamwe of Rwanda, the Janjaweed of Sudan, the ZANU-PF of Zimbabwe, the Basij of Iran, the “Sons of Iraq,” the shabiha in Syria, and the village guards in Turkey. Moreover, Kenyan women’s organizations blamed militias for the post-election killings, tortures, and mutilations of members of ethnic groups during the month of January 2008.Footnote ⁴¹ The International Commission of Inquiry on Libya blamed the Misrata rebel militia or thuwar for ethnically cleansing and killing the Tawergas, referred to as slaves (abid) or blacks by the Misratans in language evoking the Darfur genocide.Footnote ⁴² Some of the crimes that motivated the creation of the Special Court for Sierra Leone began when Foday Sankoh’s Revolutionary United Front seized diamond fields in the Kono region of the country, advancing from there into other areas where child soldiers were conscripted, sex slaves taken, and killings and amputations were committed.Footnote ⁴³ Even worse crimes (in terms of overall magnitude) took place in Angola, where Jonas Savimbi’s National Union for the Total Independence of Angola won control of the country’s major diamond-producing regions as early as 1992, and traded them around the world unhindered until 1999, when Security Council resolutions impacted the rebels’ $500 million per year in sales.Footnote ⁴⁴ In the Democratic Republic of the Congo (DRC), the Rally for Congolese Democracy (RCD-Goma), the National Congress for Defense of the People, and other proxy forces of Rwanda and Uganda have turned the east into a zone of terrible violence and mass rape, alongside the plunder of diamond and mineral resources.Footnote ⁴⁵

In the 1990s, there were various reports that multinational corporations had acted in concert with local security forces or thugs to commit genocide, torture, and human-rights violations.Footnote ⁴⁶ For example, the Amungme tribal council in Irian Jaya, the Republic of Indonesia, alleged that mining company Freeport-McMoran Copper & Gold, Inc. acted with local officials to deport his people from their habitat, to destroy this habitat, to commit genocide, and to commit torture and human-rights violations by death threats, surveillance, and other international torts.Footnote ⁴⁷ Similarly, the residents of Bougainville, Papua New Guinea (PNG), alleged that an Australian mining company violated international law by colluding with PNG forces to blockade their community and ensure that war crimes and racial discrimination were perpetrated against them.Footnote ⁴⁸ In a case arising out of Burma, a federal court initially ruled that an oil company could be held liable for international crimes involving a joint venture to use forced labor and violence to build a pipeline.Footnote ⁴⁹ More recently, similar cases have emerged out of Africa.Footnote ⁵⁰ In one of them, the U.S. Court of Appeals for the Second Circuit concluded that multinational corporations could be sued for having aided and abetted a violation of the law of nations, although the case is now likely to be dismissed for insufficient links to the U.S. mainland under the “touch and concern” test.Footnote ⁵¹

The continuing struggle for resources, as well as the rise of political and religious extremism, led to widespread atrocities over the past decade or two. By the second term of President Obama, crimes against children, civilians, cultural heritage, established governments, sectarian and tribal groups, and economic infrastructure were seemingly very common. Schools and shelters for children frequently come under attack, notably in Nigeria but also elsewhere.Footnote ⁵² Child soldiers continued to be conscripted in large numbers.Footnote ⁵³ Stories of exploitation and enslavement appeared in an alarming number of press and nongovernmental organization (NGO) reports.Footnote ⁵⁴ For example: “In Nigeria, the abduction of more than 250 school girls, and the killing of boys and girls in attacks on schools by Boko Haram, are tragic examples of how radicalized extremist armed groups are targeting children.”Footnote ⁵⁵ Conflicts involving atrocities against civilians spread like wildfire from one nation to another, with Libyans traveling to Afghanistan and Iraq to perpetrate terrorist acts, returning to Libya to wage civil war there, driving other Libyans and Libyan arms into the Sahel, sparking conflagrations in those countries among others, and eventually contributing to the creation of the Islamic State.Footnote ⁵⁶ Enslavement remains distressingly common, for example in Mauritania, Niger, Haiti, India, Pakistan, and the United States.Footnote ⁵⁷

Churches and mosques were burned to the ground and the traditions of pagan and neo-pagan religions continued to be ground into dust.Footnote ⁵⁸ Many Buddhist, Taoist, Hindu, and Jewish temples and historic sites would also be destroyed if China, India, and Israel were less powerful militarily. Plunder and the wanton destruction of villages, economic assets, and essential infrastructure continued unabated.Footnote ⁵⁹ Large populations in diverse contexts lost secure access to food, safe water, sanitation, housing, warm clothing, employment, health, and personal security. Corruption’s role in diluting and diverting the wealth of developing nations into private stashes and foreign accounts persisted. Climate change threatened to kill millions of people.

Nonstate armed groups as well as some states perpetrated mass atrocities affecting children and other civilians.Footnote ⁶⁰ The UN special rapporteur on torture and cruel, inhuman, or other degrading treatment or punishment highlighted “the exercise of de facto control or influence over nonstate actors operating in foreign territories,” as well as military occupation and more traditional military and law-enforcement operations, as presenting a danger of torture or violations of international humanitarian law, international criminal law or customary international law.Footnote ⁶¹

For example, Leila Zerrougui, the Special Representative of the Secretary-General on children and armed conflict, has reported that assaults on schools and hospitals happened in many warzones, and were potentially war crimes. Child soldiers continued to be used, and the impact of war on children was worsening.Footnote ⁶² Ms. Zerrougi commented that children were being revictimized as child soldiers in the Central African Republic even after they had escaped this life once before.Footnote ⁶³ During the same discussion, Nigeria pointed to the DRC and Mali as nations that it called upon to abide by their pledges to end the use of children in conflict.Footnote ⁶⁴

The Russian Federation remarked that in Syria, “rebels, including Al Qaeda groupings, had forced minors into active participation in the conflict.”Footnote ⁶⁵ The International Association for Democracy in Africa has observed that despite interventions against it, “Al Qaeda had been victorious since its depredations had fragmented heterogeneous democratic societies on the basis of religion and color, and set communities against each other.”Footnote ⁶⁶ A US delegate to the General Assembly commented that macabre episodes around the world, “from Syria to the Central African Republic, South Sudan to the Democratic People’s Republic of Korea, were a reminder that the challenge of ending mass atrocities was greater than ever.”Footnote ⁶⁷

These trends are visible in UN displacement data. The number of internally displaced persons according to estimates went from 1.2 million in 1982 to 24 million in 1992 to 40 million in 2015.Footnote ⁶⁸ In 2011, there were many countries in Africa with large populations of displaced and stateless people according to the Office of the UN High Commissioner for Refugees. Angola, Burundi, CAR, Chad, Cote d’Ivoire, the DRC, Ethiopia, Eritrea, Kenya, Libya, Rwanda, Somalia, Sudan, Uganda, Western Sahara, and Zimbabwe had 100,000 or more persons of concern to UNHCR.Footnote ⁶⁹ By 2013, Mali and South Sudan were suffering insurgencies and had been added to the list of countries with 100,000 or more persons displaced or “of concern” to UNHCR, while the displacement crises in Kenya and Libya had abated somewhat. The number of those displaced from the CAR was nearly six times as large as in 2011.Footnote ⁷⁰ By 2014, Nigeria and perhaps some others such as Kenya and Libya had rejoined the list of countries suffering mass displacement, with 1.2 million internally displaced persons in Nigeria and hundreds of thousands in Kenya and Libya.Footnote ⁷¹ More recently, Nigeria’s figure has surpassed two million, driven by Boko Haram’s actions such as attacking schools and enslaving boys and girls.Footnote ⁷²

International and domestic criminal tribunals have belatedly begun to turn their attention to political organizations. In 1999, the International Criminal Tribunal for the former Yugoslavia concluded that an individual could be charged with the likely or foreseeable crimes committed by a plurality of individuals who share a common purpose.Footnote ⁷³ Two forms of this “joint criminal enterprise” mode of culpability relax the requirement that the individual intend to commit the underlying crime, requiring instead an intention to further an overall system of criminality, or an intent to carry out a criminal plan along with recklessness as to a crime outside that plan being committed.Footnote ⁷⁴ In 2004, the International Criminal Tribunal for the former Yugoslavia stated that this joint criminal enterprise mode of liability was available in genocide cases.Footnote ⁷⁵ In 2012, the Special Court for Sierra Leone convicted Charles Ghankay Taylor for actions committed as President of Liberia that “assisted or encouraged” the Revolutionary United Front of Sierra Leone, to commit mass atrocities and plunder of resources including diamonds.Footnote ⁷⁶ Revealingly, Libya reportedly funded and supplied forces that committed atrocities, whether affiliated with Taylor, Foday Sankoh, or Omar Hassan al-Bashir.Footnote ⁷⁷ In 2014, the International Crimes Tribunal convicted the leader of a death squad during Pakistan’s 1971 civil war, the Bangladesh War of Independence, sentencing him to death for a massacre of hundreds of persons.Footnote ⁷⁸ The Supreme Court of Bangladesh upheld the death penalty for the leader of the political movement Jamaat-e Islami, which collaborated with the Pakistanis in 1971.Footnote ⁷⁹

The problems confronting such individualized prosecutions for organizational policies or crimes are manifold. First, most individuals escape prosecution because they are not extradited or their states do not submit to tribunals’ jurisdiction, and as natural persons they enjoy due-process rights not to be tried and punished with prison terms in absentia.Footnote ⁸⁰ The accused might even be promoted to high office, as occurred in the DRC, Iraq, and Sudan.Footnote ⁸¹ The ICC has announced that it will suspend or abandon investigations, even when referred to it by the Security Council, if the accused are protected by the relevant state and its allies.Footnote ⁸² Second, even if jurisdiction over the person and the territory exists, the nature of clandestine death squads and other nonstate actors is that they may act independently of their supporters, feign ignorance, avoid wearing uniforms or accepting public responsibility for atrocities, and intimidate witnesses.Footnote ⁸³ Third, as mentioned at the outset of this chapter, an individual accused might well lack knowledge of all elements of the crime, even when the organization would know or intend the remaining elements. Lacking knowledge of an element might preclude Rome Statute culpability.Footnote ⁸⁴ Finally, a tribunal may find that joint criminal enterprise culpability is not consistent with the principle of legality or nullum crimen sine lege.Footnote ⁸⁵

Statelets, or regions seeking autonomous governance or being subjected against their will to insurgencies or secessions against the state, can commit international crimes without necessarily being subject to traditional restraints such as World Court jurisdiction or responsible state institutions that might cooperate with the ICC or other tribunal and extradite individuals to it. Yet these statelets can be larger, richer, and more powerful than some states. The Palestinian Authority, for example, had institutions potentially larger and with more resources than those of East Timor (2008 budget of less than $800 million) or Liberia (less than $300 million).Footnote ⁸⁶ The Islamic State in 2015 grew larger than Scotland or Jordan and had more revenue from oil and antiquities trafficking, as well as donations from persons in Qatar, Saudi Arabia, etc. than East Timor or Liberia, using those estimates from 2008.Footnote ⁸⁷ The RCD in the DRC may have been larger than the armies of the CAR or Malian governments.Footnote ⁸⁸ Terrorist movements like the Taliban insurgency in Afghanistan of 1992–1996, the Chechen insurgency in Russia of 1994–1996, and the Kosovo Liberation Army insurgency in Yugoslavia of 1994–1999 were nearly as large as the RCD and larger than the CAR military, for example.Footnote ⁸⁹ An enormous gap in international law may exist if these territories escape most international judicial proceedings due to not being “states.” A window for clandestine international crimes may be opened for states desiring to undermine or destroy their neighbors, such as Pakistan in Afghanistan, Albania in Yugoslavia, etc.Footnote ⁹⁰

Other than terrorism evolving into genocide as with the Nazis and the Islamic State, or corruption as defined in 28I, the extension of Article 46C could have implications for the fight against impunity for enslavement, recruitment of child soldiers, destruction of sacred sites, and torture. For example, the nation-states and their officials that perpetrate enslavement as a crime against humanity may be immune from accountability under various doctrines, while private organizations would enjoy no such immunity in some cases.Footnote ⁹¹ Government officials who support terrorist groups such as Boko Haram and the Islamic State that recruit child soldiers and destroy sacred sites might also enjoy immunity under limiting doctrines of international and domestic law, for example.Footnote ⁹² Alleged torturers might make similar arguments, although there is an emerging trend to reject such a ploy.Footnote ⁹³ The persons perhaps least likely to fall into the custody of the African court or the ICC would theoretically be accountable, while officials in league with them would be immune. It may help to recognize the accountability of the group that includes officials or governmental agencies, and nonimmune suspects on the ground, but other persons as well.

B. How Article 46C Could Cover Political and Other Groups

Given these challenges, it would not be that difficult to clarify Article 46C’s application to noncorporate organizations.

A political party, like a partnership or other noncorporate business, could be defined as a legal person. Its policies, knowledge, and conduct could be aggregated or inferred from the statements or decisions of its leaders, or from the repeated actions of its followers. This is already permissible for corporations under 46C, as well as for conspirators, aiders and abettors, and joint criminal enterprise participants under international law and domestic counterparts like the Rome Statute and the U.S. Code. The Rome Statute established criminal responsibility for aiders and abettors and joint criminal enterprises (common purpose/knowing contribution) as well as conspirators.Footnote ⁹⁴ The U.S. Code includes the War Crimes Act defining grave violations of the Geneva Conventions a U.S. offense, as well as sections making conspiracy and aiding and abetting crimes.Footnote ⁹⁵ Civil-law systems such as the Netherlands may also recognize the culpability of those who aid states or other actors who commit international crimes.Footnote ⁹⁶ The Allied Control Council Law No. 10, Article II(a), presumably developed with the participation of civil-law France or even with German legal principles in mind, imposed responsibility on anyone who, while not being accessories or abettors or inciters, “was a member of any organization or group connected with the commission of any such crime …”Footnote ⁹⁷

There are precedents for creating new remedies for victims of criminal organizations. In the 1960s, the US Congress devoted renewed attention to the problem of La Cosa Nostra, the “Mafia,” and other “mobsters” and organized criminals who engage in “planned, ongoing, continuing crime as opposed to sporadic, unrelated, isolated criminal episodes.”Footnote ⁹⁸ The problem addressed was that “large amounts of cash coupled with threats of violence, extortion, and similar techniques were utilized by mobsters to achieve their desired objectives: monopoly control of these enterprises.”Footnote ⁹⁹ The “power of organized crime to establish a monopoly within numerous business fields” was repeatedly raised.Footnote ¹⁰⁰ The law Congress passed, the Racketeer Influenced and Corrupt Organizations Act, focuses on criminal organizations which perpetrate a pattern of interstate criminal activities as an enterprise.Footnote ¹⁰¹ Its scope extends to “any person employed by or associated with any enterprise engaged in … interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity,” or “who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt … to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in … the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.”Footnote ¹⁰² In cases of murder, arson, and fraud, among others, the law “makes it unlawful to invest, in an enterprise engaged in interstate commerce, funds ‘derived … from a pattern of racketeering activity,’ to acquire or operate an interest in any such enterprise through ‘a pattern of racketeering activity,’ or to conduct or participate in the conduct of that enterprise ‘through a pattern of racketeering activity.’”Footnote ¹⁰³

A. Jurisdiction with Respect to Persons in a Position Effectively to Exercise Control Over or to Direct the Political or Military Action of a State or Organisation

Since the relevant international trials held in the 1940s, aggression was considered as a ‘leadership crime’ requiring special subjects – that is, high-ranking civilian and military State officials – and lower-ranking State officials were to be excluded from the range of potential subjects of the crime. Hence, Article 8 bis (1) of the Rome Statute made reference to ‘person[s] in a position effectively to exercise control over or to direct the political or military action of a State’ – thus limiting its jurisdiction to top-echelon State agents only. Formally, Article 28(M)(A) of the Malabo reproduces this provision, since it establishes the African Court’s jurisdiction with respect to the crime of aggression committed by ‘person[s] in a position effectively to exercise control over or to direct the political or military action of a state’. However, it should be noted that the efficiency of this provision is seriously impaired by Article 46A bis of the Malabo Protocol (‘Immunities’): ‘No charges shall be commenced or continued before the Court against any serving AU 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’. This broadly worded provision was designed to shield against prosecution, including on charges of aggression, not only serving AU Heads of State or Government, but also all other senior civilian and military State officials who would typically be involved in such a crime – that is, Ministers of Defence, Heads and members of General Staff, Ministers of Foreign Affairs and of the Interior, directors of special services, members of Parliaments approving an internationally unlawful use of armed force, and even prominent public figures (for example, religious or social leaders) inciting the commission of the crime. Hence, as a matter of practice, Article 28M would unfortunately remain a dead letter, as far as serving senior officials of AU Member States are concerned, until their tenure of office is over, and prosecutions of such individuals under Article 28M would only be possible, if ever, once their official capacities would cease. Obviously, the feasibility and efficiency of such belated prosecutions would depend upon the concerned States’ political will and other attendant circumstances.

Formally, Article 28M(1) of the Malabo Protocol also establishes the African Court’s jurisdiction with respect to the crime of aggression committed by representatives of non-State actors (organisations) who would use force in violation of international law. Although the military danger of non-State organisations such as Al Qaeda, Daesh, etc. is evident, and Article 28M(A) of the Malabo Protocol certainly constitutes a progressive development of regional international law, and as such is deserving of attention, this author maintains his previously expressed opinion regarding the non-applicability of the elements of the crime of aggression to non-State actors:

Hence, in the light of current customary international law, the extension of the African Court’s jurisdiction with respect to the crime of aggression to representatives of non-State actors (organisations) appears to be redundant, given that various forms of the use of force by non-State actors are already covered by Articles 28B (‘Genocide’), 28C (‘Crimes against humanity’), 28D (‘War crimes’), 28G (‘Terrorism’), and 28H (‘Mercenarism’), and Article 28M(B)(h) of the Malabo Protocol, in and of itself, establishes criminal responsibility for ‘[t]he sending or materially supporting by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State […]’ (emphasis added, see infra 3(A)(8)).

B. The Role of the Constitutive Act of the African Union

The Constitutive Act of the African Union,Footnote ¹⁰ adopted at Lomé, Togo, on 11 July 2000, reaffirms the Purposes and Principles of the United NationsFootnote ¹¹ and adapts them, respectively, in Articles 3 (‘Objectives’) and 4 (‘Principles’), to African realities. With due regard to those realities, the following rules on the use of force add to relevant provisions of the Charter of the United Nations:Footnote ¹²

• ‒ the African Union is empowered 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 (Article 4(h));

• ‒ Member States are empowered to request intervention from the Union in order to restore peace and security (Article 4(j));

• ‒ unconstitutional changes of governments should be condemned and rejected (Article 4(p)).

The disjunctive sentence in Article 28M(A) of the Malabo Protocol (‘the Charter of the United Nations or the Constitutive Act of the African Union’, emphasis added) should not be read as juxtaposing the Constitutive Act vis-à-vis the Charter of the United Nations, despite the preposition ‘or’ used. The Charter of the United Nations is a treaty of prevalent legal force,Footnote ¹³ and placing it before the Constitutive Act is quite appropriate, since the provisions of the Act should not contradict those of the Charter (cf. infra 3(A)(1), though). Although the Constitutive Act’s more specific rules do not have direct equivalents in the Charter, they should not be interpreted as contravening the Charter but rather should be read in conjunction with it: since Article 52 of the Charter explicitly endorses the operation of regional arrangements, the provisions of the Constitutive Act’s Article 4 referred to above should be regarded as additional grounds for internationally lawful uses of force. Consequently, the instances of the use of force in accordance with subparagraphs (h), (j) and (p) of the Constitutive Act’s Article 4 are not to be regarded as acts of aggression under Article 28M(A) of the Malabo Protocol, and should not entail individual criminal responsibility.

C. Human Security of the Population of a State Party as a Protected Value

Article 28M(A) of the Malabo Protocol concludes with a reference to two specific values protected by the provision against acts of aggression – namely, to ‘the territorial integrity and human security of the population of a State Party’. Whereas States’ territorial integrity is a well-established value protected by international law against aggression,Footnote ¹⁴ the notion of ‘human security of the population of a State Party’ seems to overlap with the definition of crimes against humanity for the purpose of the Malabo Protocol (cf. Article 28C). Since crimes against humanity ‘target fundamental, recognized human rights, in particular, life, health, freedom, and dignity’ (primary object of the crime) and thereby call into question ‘the security and well-being of the world’ (secondary object of the crime),Footnote ¹⁵ treating similar acts, additionally, under the heading of the crime of aggression would, in this author´s opinion, somewhat distort both concepts. It is therefore advisable to limit the notion of aggression to what it traditionally has been – that is, the use of force against the territorial integrity, political independence or other essential features of statehood – and to deal with crimes against the ‘human security of the population’ under the heading of crimes against humanity.

D. Other Essential Elements of the ‘Chapeau’

As will be seen below, Article 28M of the Malabo Protocol was almost literally borrowed from Article 8 bis of the Rome Statute – with the latter’s substantive advantages and, probably more importantly for practical purposes, limitations. Where the corresponding elements of both provisions overlap exactly, this author’s earlier reflections on relevant provisions of the Rome Statute are reproduced, with an understanding that they should also be fully applicable to the Malabo Protocol’s respective rules. In turn, linguistic and, especially, substantive differences between Article 28M of the Malabo Protocol and Article 8 bis of the Rome Statute are emphasised, and their legal consequences are shown.

A. Examples of Acts of Aggression

The generic definition of an act of aggression in Article 28M(A) is followed by eight specific examples (in subparagraphs (a)–(h)), seven of which almost literally reproduce the relevant provisions of pre-existing international law. The subparagraphs (a)–(h) of Article 28M(B) are crucial, for they represent, for the purpose of the Malabo Protocol, prima facie acts of aggression, about which its States Parties to the Statute agreed that such acts ‘shall constitute acts of aggression’ (emphasis added) – certainly, provided that they, by their character, gravity and scale, constitute manifest violations of the Charter of the United Nations or the Constitutive Act of the African Union (cf. supra 2(B), 2(D)(4)). A brief analysis of subparagraphs (a)–(g) is offered below.

A. The Importance of Not Undermining Existing Treaty Regimes for the Suppression of Transnational Crime

The definitions of many of the transnational crimes are drawn from the criminal provisions in treaties that are central to different ‘prohibition regimes’ in transnational criminal law. While there are some variations in the definition of crimes between regional and global suppression conventions, on the whole there is a remarkable degree of consistency. These ‘crimes’ serve as conditions for the operation of prohibition regimes that serve as bridges for cooperation between States and are the focus of institutional development around the world, of legal practice, and of expertise. African states play an important part in these regimes. The elevation of these transnational crimes to the status of a regional crime in the jurisdiction of the African Court raises the potential difficulty of ‘fit’ with these existing regimes, which will have to be assessed in regard to each crime. The definition of piracy in Article 28F, for example, is drawn almost verbatim from Article 101 of the 1982 UN Convention on the Law of the Sea.Footnote ²⁷ Some of the originating instruments are AU instruments. The definition of terrorism in Article 28 G subparagraph (A) and (B), for example, is drawn from the definition in Article 1(3) of the OAU Convention on the Prevention and Combatting of Terrorism.Footnote ²⁸ One problem may be that if the definitions of these offences in the Amended Statute differ from those in the suppression conventions, they will pull African states in conflicting directions when it comes to enacting these offences in their domestic law. The African Court should try to avoid this outcome by attempting through its interpretation of provisions to reinforce these prohibition regimes, not undermine them. For example, one element contained in the rubric of the definition of money laundering in the UN’s suppression conventions which is absent from the definition of money laundering in Article 28 I Bis of the Statute of the Court is the requirement that the actions criminalised be done ‘intentionally’. The Court is thus free to impose this subjective test, or apply more stringent tests sometimes followed in national law in some States parties including negligence based money laundering. If it does so it will be increasing the scope of criminalisation, creating a problem of legality if the case originates in a territory of a State which only requires intention. To some extent this reflects the lowest common denominator nature of the provisions in the suppression conventions. It will be important for the Court to conform its position to the law of the territorial State or face challenges.

B. The Source of the Primary Rules

A particular legal problem is that the provision describes certain regulatory crimes but does not provide the standard of legal behaviour from which that criminal behaviour deviates. So, there are legal ways to supply drugs or off-load waste or deal in natural resources and these ways are partly set out in certain international instruments. However, these are promises by States to other States, not international custom. The actual guidance for individual’s on how to regulate their behaviour are set out in the national law of States parties to these instruments. It follows that if an individual is to be prosecuted before the Criminal Chamber for the violation of, for example, the correct way of disposing of waste, regulation of the correct way of disposing of waste will have to have been made in national law of the jurisdiction where it occurs as a pre-condition for that prosecution. If not – there will be no crime. Reliance on a regional instrument to provide the correct way for doing so would be in violation of the principle of legality because those regional instruments may never have been applied in the territory where the disposal was carried out. National legislation will be necessary to provide the yardstick and to be effective it will have to be available in every state. This implies that the AU will have to undertake an exercise in positive complementarity regarding the regulatory standards which these crimes violate.

C. The Necessity of Criminalisation in National Law

Several of the crimes listed in the amended Statute are either not crimes or defined differently in the domestic law of African states. This necessitates an exercise in positive complementarity to ensure the legislative enactment of appropriate offences in African states to enable them to cooperate with the criminal chamber.Footnote ²⁹ Arguably they are required to do so when becoming party because the Protocol creates offences. The jurisdictional expansion at national level over these crimes will also be necessary to ensure fair warning to potential violators and State cooperation with the Court. It seems that this is not entirely what the drafters of the Protocol had in mind, however. In article 28G’s definition of terrorism they include the requirement that the act must violate, in addition to the laws of a ‘State Party’ (to the Protocol one assumes), the law of the AU itself, or a regional economic organisation recognised by the AU, or international law generally. This suggests that one of the goals of the AU’s new jurisdiction is to have a court for the prosecution of these crimes where currently there is none. The notion that terrorism is an international crime, a notion that has been propagated by the Special Tribunal for Lebanon, is highly controversial and rejected by most commentators.Footnote ³⁰ Its status as a regional African crime depends not on the OAU Convention on the Prevention and Combatting of Terrorism,Footnote ³¹ which simply provides in article 2(1) for an obligation on States Parties to criminalise terrorism in their national law, but on article 28 of the Statute of the Court. Prosecution in the Criminal Chamber that relies on the regional proscription in the absence of a national proscription of the conduct raises fundamental issue of legality and of notice certain to spawn human rights challenges (possibly even within the human rights jurisdiction of the Court itself). Even if the Criminal Chamber is only used for symbolic prosecution of carefully selected cases, it would be unreasonable to assume that individuals that fall into its jurisdiction will know that the Protocol has promulgated certain crimes that apply to them in the Statute of the Court.

D. The Absence of a Gravity Threshold

The most significant problem raised by the inclusion of transnational crimes within the Court’s jurisdiction is that no court can hope to cope with prosecution of a large number of cases of these crimes, the vast majority of which are likely to be trivial. This ‘gravity threshold problem’ is really two problems.

First, the Protocol does not indicate at which stage in the procedure this threshold should be set and managed. Perhaps the most appropriate way of applying such threshold criteria would be through prosecutorial discretion (whether cases are taken up by the prosecutor, by authorised AU organs or submitted by AU member states or individuals or NGOS within those states).Footnote ³² The Court also has the power to decide whether a crime is of ‘sufficient gravity’ to justify admissibility under Article 46 H (2)(d), and to exclude it if a crime is not sufficiently grave.

Second, the Protocol does not provide criteria to set this threshold. For a court with a limited capacity there must be further conditions. It is a problem to which the International Law Commission’s scheme for inclusion of the treaty crimes within the jurisdiction of the then proposed ICC was alive, when it recommended that they had to reach a threshold of seriousness in order to fall under the ICC’s jurisdiction.Footnote ³³ How serious a breach is enough for the Court to take it up? That has to be tied back to the Court’s goals of fighting impunity and promoting justice and stability. There is little about the definitions of the crimes that is of assistance in establishing such a threshold.

At the moment, the following criteria are being applied:

Some of these crimes are morally repugnant (human trafficking), but they are not of equal moral repugnance (drug trafficking). The activities themselves are varied although they can be roughly broken down into activities motivated mainly by corporate or individual monetary gain (piracy, mercenarism, corruption, money laundering, people trafficking, drug trafficking, hazardous waste trafficking, illicit exploitation of natural resources) and by attacks on the State and its constitutional order (terrorism, mercenarism, corruption), although as we can see some crimes fit into both categories. Gravity is not an intrinsic element in the way these offences are defined. The amplificatory elements in the core international crimes – systematic and scope in the definitions of crime against humanity, the presence of an armed conflict in the definition of war crimes, the genocidal intent in genocide – are absent. It has thus been questioned whether the transnational crimes ‘meet the definition of “most serious crimes of concern to the international community” as understood by Article 5(1) of the Rome Statute.’Footnote ³⁴ Although these crimes do cause serious social effects, these negative effects are usually the result of the aggregated social harm of large numbers of individual relatively low impact offences rather than of large scale individual offences. Nor does the nature of the victim assist much. While the core international crimes protect individuals from their own cancerous State and State like entities, transnational crimes protect the State and its citizens from other citizens. Some deal with direct harms to individuals, some with harms of an economic kind, some with harms to the State, some with harms to governance, some with harms to resources, and some with harms to the environment.

Taking only the ‘worst’ cases is desirable because these in penal theory terms have the greatest deterrent and retributive value. A purely empirical comparative measure is probably impossible because the data to make such a relative judgment is simply not available in Africa. There may also be a need in specific cases for the expressive message of fighting impunity to make an example of someone in order to coax the relevant justice system into greater activity. The challenge is to find a suitable general threshold that will enable the court to take into account issues like the socio-economic harm apparently done by the crime, as well as the need for making an exemplary judgment in cases which may not on an absolute scale be among the worst but which are relatively harmful because of, for example, the complete lack of prosecution of such crimes in a State, sub–region or in Africa as a whole. The empirical nature of these offences do, however, suggest a numbers of criteria which loosely applied can serve as criteria for a gravity threshold:

1. (i) Crimes that ‘pose a threat to the peace, order and security of a region’ for the reasons listed above or for other reasons may be considered for prosecution.Footnote ³⁵ The formula used in some of the crimes in article 28, seems apt: Whether the crime is ‘sufficiently serious to affect the stability of a State, region or the Union’.

2. (ii) Many of these activities have a higher impact when they involve cross-border activity or effects as they involve the interests of different States, different communities. They involve problems of extraterritoriality that provide a reasonable basis for regional concern, and problems of international cooperation to which the Court’s jurisdiction might provide a practical solution. Following the definition of ‘transnational’ in article 3(2) of the UN Convention against Transnational Organized CrimeFootnote ³⁶ (UNTOC), seriousness would be indicated by activity that (a) is committed in more than one State; (b) is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State; (c) is committed in one State but involves an organised criminal group that engages in criminal activities in more than one State; or (d) is committed in one State but has substantial effects in another State.

3. (iii) The commission of many of these offences requires organisation involving cooperation amongst networks of individuals, sometimes in a transnational context. This organisation provides a multiplier effect justifying a regional response. It facilitates the commission of offences otherwise not possible and increases the harmful social or political impact they have because of the impact on scale and scope. Some guidance on the number of individuals involved, the length of time, the nature of their relationship, and their purpose can be obtained from the definition in article 2(a) of the UNTOC of an ‘organised criminal group’ as ‘a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences … in order to obtain, directly or indirectly, a financial or other material benefit’. A ‘structured group’ is further defined in article 2(c) as a ‘group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure’. A corporation can be one of the persons involved in such organisation given that Article 46 C provides for corporate criminal liability.

4. (iv) The definition of serious crime in article 2(b) of the UNTOC as the availability of a maximum punishment of at least four years or more deprivation of liberty at national law in the national jurisdiction where it has occurred may provide some guidance as to what kinds of transnational crime are considered serious but should not be seen as a rigid standard because of the possibility that national law may be unreformed and penalties low for what is regionally considered a serious crime. Moreover, other purely national legal indications of seriousness should if available be taken as a guide.

5. (v) Serious harm in individual cases may depend on specific considerations like the large volume and value of material involved, the tenure of the activities, their complexity, the size of profits, the potential number of victims and the vulnerability of victims, the presence of violence, corruption or abuse of public office, all of which can lead to higher potential social or political impact. In essence, these elements suggest a quantitative and qualitative assessment from the victim’s perspective.

6. (vi) Some decisions of the ICC’s interpreting the Rome Statute’sFootnote ³⁷ threshold for seriousness suggest that role and position (high rank) of the alleged offenders is a crucial factor when assessing gravityFootnote ³⁸ and can transform a trivial crime into a serious crime,Footnote ³⁹ while othersFootnote ⁴⁰ have rejected reliance on the perpetrator’s status. It is submitted that in transnational crimes the identity of the perpetrator is a relevant consideration.

The occurrence of these criteria in regard to a specific crime could be used to assess promotion of that crime into the jurisdiction of the Court as anticipated by article 28 A (2). The presence of all these criteria should not, however, necessarily be required; a nuanced assessment of the case may require only one or a selection to exist before prosecution is justified.

E. Modes of Responsibility

The transnational crime suppression conventions usually provide for modes of responsibility as a perpetrator in the definition of the offence itself and do not single out this mode of responsibility in a specific provision. They do usually, however, provide for details regarding different appropriate forms of secondary responsibility. For example, article 27 of the UN Convention against CorruptionFootnote ⁴¹, entitled ‘Participation and Attempt’, provides in paragraph one for criminalisation in national law of ‘participation in any capacity such as an accomplice, assistant or instigator’ of a Convention offence, in paragraph two for the optional criminalisation in domestic law of ‘any attempt to commit a’ Convention offence, and in in paragraph three for the optional criminalisation in national law of ‘the preparation for a’ Convention offence. The Statue of the African Court uses a single consolidated provision, for both core international crimes and transnational crimes, Article 28 N, entitled ‘modes of responsibility’ which provides:

Some of these modes in article 28N such as liability as a co-principal, developed in regard to the core international crimes by the ICC, are unknown in the language of the suppression conventions. Some of these modes such as conspiracy are drawn from the common law and are usually subject to some form of compatibility with basic law provision, if they are included at all, in a suppression convention. In result the Statue of the Court expands the scope of these offences. It may be difficult to reconcile some of the general modes with the specific modes internal to the crimes as defined in the suppression conventions or in Statute of the African Court itself. Article 28N should thus be considered the general provision on modes of responsibility. It covers many of the modes likely to be found in suppression conventions but not all. Taking the example of the UNCAC, it does not cover the specific mode of ‘preparation’. In a case where preparation was a possible charge at the national level but not in the Criminal Chamber, the prosecution cannot put that charge because it does not enjoy that substantive jurisdiction but would have to formulate it as an attempt if possible or abandon it. The same reasoning applies to the criminalisation of modes of responsibility such as ‘sheltering’ a mercenary in the OAU Convention for the Elimination of on Mercenarism in Africa;Footnote ⁴² its status as an OAU Convention does not expand the jurisdiction of the court because neither the Convention nor the Statute of the Court reveal such an intention, although the specific modes of participation such as ‘sheltering, organising, equipping, promoting, supporting or employing mercenaries’ may assist in the interpretation of broad modes of participation mentioned in article 28N such as ‘facilitation’. Article 28N does cover many of the modes found in the Statute’s definitions of the crimes themselves.

Sometimes, however, the mode of responsibility internal to the crime is more specific. Article 28 F criminalises ‘voluntary participation’ and ‘intentional facilitation’ while article 28N speaks only of ‘participation’ and ‘facilitation’. Generally speaking, following the rule lex specialis derogat lex generalis it would not be open to put a charge of, for example, reckless facilitation based on article 28N when article 28F specifically required mens rea in the form of intention. Article 28 N does not cover some modes of responsibility covered in the specific definitions of the crimes. For example, it does not cover the ‘promotion’ of terrorism under article 28GB, an inchoate offence that considerably broadens the scope of criminal liability. However, given the specific mention of this mode in the Statute the lex specialis rule means that that it was the intention of the States parties to expand the subject matter jurisdiction of the Court to include promotion of terrorism. It follows that the prosecutor would be entitled to put a charge of promotion of terrorism and would not be barred from doing so because of the failure to mention this form in the general provision for modes of responsibility in article 28N. The same reasoning applies to all the definitions that provide for specific internal modes of responsibility additional to those in article 28N.

F. Punishment of Transnational Crimes

The suppression conventions are notoriously vague on sentencing, leaving the fixing of penalties to States because it is such a sensitive issue. Where they do make provision, early treaties tend to call for the application of severe penalties, later treaties penalties in proportion to the gravity of offences, while some treaties such as the UN Drug Trafficking Convention, list aggravating factors which suggests a range of penalties from the trivial to severe.Footnote ⁴³ State practice varies widely.

Under the Statute of the Court, Article 43 A (2) provides that the Court may only impose fines and/or penalties of imprisonment (something important for corporate criminal liability), while Article 43 A (4) provides that the Court should take into account factors such as the gravity of the offence and the individual circumstances of the accused person. The Statute is silent on aggravating factors, which should be developed by the Court itself in a subordinate instrument. It is also silent on post-sentencing procedures like parole and the possibility of prisoner transfer to the State of origin; again, the Court will have to develop these in a subordinate instrument. Under Article 43A (5) ‘the Court may order the forfeiture of any property, proceeds or any asset acquired unlawfully or by criminal conduct, and their return to their rightful owner or to an appropriate Member State.’ This appears to make criminal confiscation (in personam) available to the Court, and implies a power to take preliminary measures to trace, freeze and seize assets. It is not clear whether civil forfeiture (in rem) or value transfer procedures (where the Court makes an estimation of unlawful profit by the accused and confiscates that amount), are available. Article 46J Bis (2) notes that if a State Party is ‘unable to give effect to a forfeiture order it shall take measures to recover the value of the proceeds, property or profits ordered by the Court to be forfeited’, which suggests that value confiscation is available. Under Article 45, restitutionary measures to victims are left to the Rules which will have to consider some of the detailed provisions in this regard in suppression conventions, but Article 45(4) provides expressly that no rights are prejudiced by this provision.

G. Jurisdiction and Immunity to Prosecution for Transnational Crimes

The jurisdiction of the Court is laid down in Article 46 E Bis (2) as follows:

1. 2. The Court may exercise its jurisdiction if one or more of the following conditions apply:

   1. (i) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft.

   2. (ii) The State of which the person accused of the crime is a national.

   3. (iii) When the victim of the crime is a national of that State.

   4. (iv) Extraterritorial acts by non-nationals which threaten a vital interest of that State.

The language is slightly muddled but it appears to mean the Court will have jurisdiction if the crime occurs on the territory of an AU Member State or upon a vessel or aircraft registered with an AU Member State (territoriality and ship and aircraft jurisdiction), or if the accused is a national of an AU Member State (nationality jurisdiction), or if the victim is an AU Member State (passive personality jurisdiction), or if the accused are non-nationals who threaten a vital interest of the State from outside its territory (protective jurisdiction). Establishing territorial jurisdiction is a standard obligation in suppression conventions.Footnote ⁶³ Establishing nationality jurisdiction is almost always a permissive provision in suppression conventions (but commonly extended to habitual residence). Establishing passive personality jurisdiction is limited to anti-terrorism conventions, and again is permissive. The protective jurisdiction may line up with similar but again permissive principles in suppression conventions.

Arguably the African states which have established these different forms of jurisdiction may delegate it to the African Court. It appears, however, that as the African Court enjoys original jurisdiction it will not matter as a strict question of law in the Criminal Chamber if some African states have not adopted these extraterritorial forms of jurisdiction. However, it may lead to arguments based on legality. Moreover, it will become practically problematic if the Court seeks the assistance of the relevant state in the arrest of accused persons and they do not have criminal jurisdiction over those persons. Territoriality is not the issue; it is nationality, passive personality and the protective jurisdiction. Many States do not take these permissive options; to align themselves with the African Court they are going to have to. Article 46 E Bis (2) does not mention the duty generally included in crime suppression conventions to extradite or prosecute, which implies a legal obligation to establish jurisdiction when extradition is not granted. It raises the question of whether an AU Member State on whose territory an alleged transnational criminal is found but refuses to extradite them, will (i) meets its obligations under a suppression convention if it does hand them over to the African Court, and (ii) whether the African Court will lawfully have jurisdiction.

In general, however, the principles enumerated in Article 46 E Bis (2) potentially give it a broad jurisdiction over individuals located in and outside of the AU. Any legal incompatibility of the Court’s jurisdiction with the jurisdiction of AU members will be avoided if they have all enacted the relevant offences and subject them to these jurisdictions. This is what is implied by the provision in Article 46H (1) that the ‘jurisdiction of the Court shall be complementary to that of national courts as well as Regional Economic Communities where specifically provided for by those Communities’. The Court´s jurisdiction cannot complement a State Party´s non-existent jurisdiction over the crime. This view is reinforced in the detail of Article 46H (2), which grounds admissibility on extant investigation or prosecution, decisions not to do so, double jeopardy, and in Article 46H (3), which is about the quality of national proceedings (shielding, delay, lack of independence), and in Article 46H (4), which is concerned with the state of the domestic criminal justice system, all of which imply the State in question has already enacted the same offence with the same jurisdiction. The difficulty will be exercising extraterritorial jurisdiction over individuals in non-African states who are alleged to be responsible for offering bribes, supplying drugs, trafficking humans, dumping waste etcetera in Africa. The foreign State may have a legal relationship with the territorial African State, and the African State may have a relationship with the African Court, but the foreign State will not (yet) have a legal relationship with the African Court.

Immunity to jurisdiction is of obvious relevance to transnational crimes potentially committed by the holders of senior government offices, such as corruption. If immunity is removed for office bearers there is an incentive to retain office.Footnote ⁶⁴ The new immunity provision in Article 46Ab is provides:

Under international law immunity ratione personae and immunity ratione materiae shield the prosecution of one State’s officials in another State’s criminal jurisdiction.Footnote ⁶⁵ Placing the listed transnational crimes in the jurisdiction of what is in effect a regional international criminal court will remove immunity both of a material and personal kind for these crimes.Footnote ⁶⁶ The usual immunities available for transnational crimes including diplomatic immunity, the immunity of officials from IGOs and the immunity of officials under domestic lawFootnote ⁶⁷ will be removed because of the change of status of these crimes, although only in Africa. Article 46 A Bis, however, modifies general international law and grants some of what is removed back again by reinstating personal immunity, at least while in office.Footnote ⁶⁸

H. Procedural Issues

Unlike the system of transnational criminal law, where substantive criminalisation is only a necessary condition for elaborate procedural cooperation by States, the Statute embraces criminalisation in order to establish its jurisdiction. The Statute condenses the complex and pluralistic procedural regimes in the suppression conventions into a few relatively short provisions.

Processing transnational crimes raises a number of specific issues, all of which will require activity by the Court through the adopting of subordinate instruments and the necessity of national legislation. Sub-regional instruments such as those promulgated for purposes of mutual legal assistance by SADEC, ECOWAS, and the Francophonie States may come in useful if some way of utilising them can be worked out. It would be an advantage for the AU to adopt its own mutual legal assistance and extradition instruments, with the role of the Court built into them.

The early phases of investigation of many of these offences will require the use of intelligence led policing techniques, and in particular covert policing activities such as undercover policing and electronic surveillance. At the same time to avoid challenge in the Court it will require the protection of the human rights of those subject to these processes to ensure that evidential material is properly obtained. As the case progresses, stronger legal powers will be required. To respond adequately to a transnational crime like drug trafficking, for example, the pre-trial chamber, trial chamber and appeal chamber envisaged in article 16 will have to be able to exercise all the usual powers to summons drug traffickers, subpoena witnesses, etcetera. Under Article 46 L AU Member States are obliged to cooperate in the provision and the modes of assistance are spelled out. Under Article 46 L (3) the Court is permitted to seek help from non-member states and to conclude agreements to that end. Such agreements will be necessary to ensure effectiveness when the OTP approaches the Pre-Trial Chamber for orders and warrants, for example, under Article 19bis (2), to be applied to individuals outside the AU. Difficult situations will also arise in regard to AU Member States in regard to the Trial Chamber’s power under Article 22(A)(7) to questions suspects, victims and witnesses and collect evidence, engage in inspections in loco, if the particular State loci delicti has not enacted the particular crime because their own law enforcers will not have that power. The Court cannot rely on the provisions in the suppression conventions to compel assistance from non-AU States because it is not party to these conventions (the AU could sign some of them but could only operate as a party if its Constituent Act made it clear it had the competence to do so on behalf of its members as with the various EU treaties). More ambitiously, the AU could consider actually acceding to the UNTOC,Footnote ⁶⁹ in order to access its procedural cooperation machinery. It would be obliged to declare its level of competence with respect to the matters governed by the Convention when doing so,Footnote ⁷⁰ but by adopting jurisdiction over these offences in the African Court the AU’s level of competence would be significant. The AU Secretariat could then approach the UNTOC Secretariat, the UNODC, to coordinate activities (and the UNODC is obliged to do so).Footnote ⁷¹ It could then approach the UNTOC Conference of Parties, which is charged with promoting and reviewing the Convention and doing so in cooperation with regional organisations,Footnote ⁷² to work out how best to make the cooperation machinery in the Convention available to the Court (particularly important for the Courts work with non-AU members).

The prosecutors and judges will have to have the skill set of a successful transnational criminal lawyer, and in particular familiarity with the modus operandi used by traffickers and the different law enforcement issues involved. Article 22(5) provides that the prosecutors have to be ‘highly competent in and have extensive practical experience in the conduct of investigations, trial and prosecution of criminal cases.’ Article 22C(4) envisages a Principal Defender with experience in domestic or international criminal law; again, this must extend to transnational crime. Article 3(4) provides that judges must be expert in inter alia ‘international criminal law’. Questions have already been raised about their expertise in international criminal law.Footnote ⁷³ Again, they will also have to be expert in transnational criminal law.

Commentators have raised questions about the funding of this increase in jurisdiction.Footnote ⁷⁴ The ambitious jurisdictional reach has the potential to dilute the funds made availableFootnote ⁷⁵ so that prosecutions of crimes that are arguably more important such as genocide or crimes against humanity will be underfunded. And then there is the cost of incarceration. Some funding may come from shares of asset forfeiture. Another way of funding the court’s expansive jurisdiction over transnational crimes would be to franchise that jurisdiction. In this model a particular member state of the AU could, if it felt it necessary to transfer prosecution of, for example, a corruption case, out of its territory into the Court to avoid domestic pressure on the Court, be asked to pay for that prosecution and all punishment costs. To take this idea even further, it might be possible to make provision for subsidised sponsorship of the particular trial by foreign donors where they felt it was generally in their interest, and extradition was not forthcoming.

A. An Illegal Act of Violence, Detention or Depredation

First, piracy requires an ‘illegal’ act or acts ‘of violence or detention, or any act of depredation’ (the latter usually being defined as plunder, pillage, robbery or damage).Footnote ²⁰ Despite the reference to ‘acts’, a single prohibited act can constitute piracy.Footnote ²¹ Thus piracy may be made out by proving an act of: violence, detention, or robbery. Each of these potentially piratical acts should be construed separately and not cumulatively. One should note that the word ‘violence’ is wide enough to cover any illegal act of force and thus it does not have to be of a particular severity or result in a particular level of physical injury or damage. Further, ‘detention’ operates as an autonomous concept and requires no violence per se. Thus, in a situation where the crew do not resist and there is no physical violence by the pirates, but the crew is nevertheless ‘detained’ by being locked in a compartment, this first element would be made out. An act of either violence or detention alone is sufficient: no robbery need be intended. Conversely, piracy may be committed through robbery without violence or detention where, for example, pirates come aboard a vessel undetected in order to steal loose valuables.

Some ambiguity was introduced when the qualification ‘illegal’ was inserted into the earlier wording of the Harvard Draft Convention by the International Law Commission.Footnote ²² The best view is either that this serves to emphasise that the act must ‘be dissociated from a lawful authority’ or is ordinarily left to the national law of the prosecuting State.Footnote ²³ For a prosecution before an international court, the former consideration is obviously the more important. It opens the important possibility that where an act of violence, detention, or depredation is for some reason lawful in accordance with the flag State law applicable on either the alleged pirate vessel, or the alleged victim vessel, then it cannot be defined as piratical. Consider the following example. Imagine two yachts meet at sea and a person from one (yacht A) is invited aboard the other (yacht B) by its master. Assume then that the master of yacht B, threatens the person invited aboard from yacht A with a knife. If the person from yacht A reacts in self-defence and breaks the arm of the master of yacht B, this is not an illegal act of violence because it was an act carried out in lawful self-defence. The example described would thus not constitute piracy.

B. Private Ends

Second, the relevant illegal acts must be ‘committed for private ends by the crew or the passengers of a private ship or a private aircraft’. The key concepts here are threefold. The first two relate to the ‘two ship’ element of the offence discussed below. These are: (a) that piracy must be committed from a private vessel (UNCLOS by definition excludes the possibility of warships or government vessels committing piracy unless their crew have mutinied);Footnote ²⁴ and (b) that piracy involves the crew or passengers of that private vessel committing the piratical acts against a second victim vessel or persons or property aboard (as discussed further below). Thirdly, and contentiously, piratical acts must be ‘committed for private ends’. There are two views as to the meaning of this phrase. Some authors have maintained that this requirement excludes all acts committed with political motives from being piratical; others have argued that all acts of violence that lack state sanction are acts undertaken for private ends.Footnote ²⁵ The question then is whether the determining factor in judging ‘private ends’ should be the subjective motivation of the pirate (contrasting the idea of ‘private ends’ with ‘political purposes’) or whether their acts are objectively sanctioned by a State (contrasting ‘private ends’ with ‘public authority’). The question is returned to below (in section 6) in relation to challenges in the interpretation and application of the crime, but it is worth noting that in the few cases where national courts have been required to rule on the issue in criminal cases they have consistently upheld the proposition that unlawful violence on the high seas cannot be justified or excused from being piracy on the basis that it was committed with a political motive.Footnote ²⁶ This approach would seem sensible. It is not apparent why the law of piracy should include, in effect, a defence that would excuse unlawful and dangerous acts on the high seas because they advance a political agenda. However, we should nonetheless note that some incidents of violence at sea which were dealt with only at the diplomatic level - such as the Santa Maria in 1961– were assessed and analysed at the time by reference to a possible exception for actions in the course of civil war ‘insurgency’ (discussed further in Section 6).Footnote ²⁷

C. The Two Ship Rule

Third, the act of piracy must be directed either ‘against another ship or aircraft, or against persons or property on board such ship or aircraft’ (in relation to events on the high seas) or ‘against a ship, aircraft, persons or property’ (in relation to events occurring in ‘a place outside the jurisdiction of any State’). This is frequently described as the ‘two ship rule’: generally piracy requires that there be two vessels involved – the pirate vessel and a victim vessel. The alternative, regarding acts committed from a private vessel against persons or property outside the jurisdiction of any State, is considered below (at 3.D).

Situations involving illegal or violent conduct on the high seas in which there is only one ship involved – for example, where passengers or crew within a vessel mutiny and illegally seize control of that vessel – are not considered piracy under UNCLOS or, indeed, Article 28F of the Protocol. Such conduct is nevertheless likely to be an offence under some other law, for example, the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention).Footnote ²⁸ Under the SUA Convention, for example, state parties agree that ‘[a]ny person commits an offence if that person unlawfully and intentionally … seizes or exercises control over a ship by force or threat thereof or any other form of intimidation’; it is a further offence to injure or kill anyone in the course of so doing.Footnote ²⁹ The SUA Convention was drafted in the wake of the Achille Lauro incident in which passengers hijacked a vessel and in the course of attempting to intimidate the government of Israel, killed a hostage aboard.Footnote ³⁰ Of course, the SUA Convention binds only those States party to it and has no direct application under the Court’s statute. One should note that while piracy is subject to universal jurisdiction as a matter of customary international law most ‘terrorist’ offences under treaties are subject only to some form of ‘prosecute or extradite’ obligation, which applies only as between those States which have ratified the relevant treaties.Footnote ³¹

D. ‘On the High Seas’ or ‘Outside the Jurisdiction of Any State’

Finally, piratical acts must take place ‘on the high seas’ or in ‘a place outside the jurisdiction of any State’. For the purposes of the offence of piracy in Article 28F paragraph (a)(i), the relevant acts must take place on the ‘high seas’. It is regrettable the term is not defined in the Protocol as it might give rise to the impression that piracy can only be committed outside waters under national jurisdiction. This is not so. Under UNCLOS, the provisions of the law sea relating to piracy apply not only to the high seas but to all maritime areas outside national waters (that is, internal waters, territorial seas and archipelagic waters)Footnote ³² including the contiguous zone and Exclusive Economic Zone (EEZ).Footnote ³³ This follows from the fact that the EEZ is not a zone in which a coastal State enjoys sovereignty, merely certain sovereign rights; conversely, a variety of high seas freedoms and powers (though not all of them) enjoyed by the international community generally continue to operate in the EEZ.Footnote ³⁴ Again, it is worth noting that the UNCLOS rules on piracy are accepted as stating customary international law;Footnote ³⁵ therefore they could be taken into account in interpreting the Protocol under Charter Article 31(1)(c) on the law applicable before the Court.

A consequence of the high seas requirement is that acts otherwise capable of constituting ‘piracy’ but which take place within a States’ internal waters, territorial sea or archipelagic waters are not acts of piracy under international law. Such acts of violence, detention or depredation between vessels are matters for the national law of the relevant coastal State, and the flag State, to judge according to their own legislation and are not matters of international concern or universal jurisdiction. The term ‘armed robbery at sea’ is usually used by the International Maritime Organisation (and more recently by the UN Security Council) to refer to such acts of violence against shipping within the territorial sea or in ports, even if no ‘robbery’ occurs.Footnote ³⁶

The reference to ‘other place[s] outside the jurisdiction of any State’ was included in order to cover acts ‘committed by a ship or aircraft on an island constituting terra nullius or on the shores of an unoccupied territory.’Footnote ³⁷ In 1980 and 1982 during the UNCLOS negotiations Peru proposed the deletion of these words as unnecessary given that, as discussed above, the law of piracy clearly applied to the EEZ and thus areas within State jurisdiction.Footnote ³⁸ As the Peruvian proposal was rejected it might be inferred that the Conference considered the terra nullius argument still had some merit (or considered the issue insufficiently serious to merit the amendment).Footnote ³⁹ This provision could apply in, for example, the unlikely event that a new island was created through a volcanic eruption, which was not claimed by, and thus not under the jurisdiction of, any State. If a vessel attacked persons or property ashore (for example, shipwrecked passengers) this would constitute piracy. It is also conceivable that that this provision could bring within the definition of piracy a mutiny of the crew against the master of a vessel which occurred in such a place.Footnote ⁴⁰ Otherwise it could only encompass acts on the shores of the unclaimed sector of Antarctica (sovereign claims over the rest of the landmass are ‘frozen’ but not extinguished by the Antarctic Treaty).Footnote ⁴¹

A. OAU Convention on the Prevention and Combating of Terrorism 1999

Terrorist acts continued to escalate, including high profile attacks such as the attempted assassination of President Mubarak of Egypt by Islamists in Addis Ababa, Ethiopia in 1995, with Sudanese complicity, and the Al Qaeda bombings of the United States embassies in Kenya and Tanzania in 1998. The OAU responded by adopting the OAU Convention on the Prevention and Combating of Terrorism in 1999.Footnote ¹⁸ The OAU Convention was drafted by a sub-committee of the OAU Central Organ of the Mechanism for Conflict Prevention, Management and Resolution, comprising five states (Algeria as chair, Burundi, Namibia, Senegal and Tanzania), in collaboration with the OAU legal division.Footnote ¹⁹ At the time, few African states had already enacted specific criminal laws against terrorism. Algeria, chairing the drafting committee, had criminalized subversive or terrorist acts in September 1992.Footnote ²⁰ Egypt had also criminalized terrorism in July 1992,Footnote ²¹ a definition which heavily influenced the Arab League Convention 1998. The drafting of the OAU Convention was in turn influenced by Algeria’s leadership,Footnote ²² the Arab League Convention 1998 and the OIC Convention 1999 (with partially overlapping memberships between the three regional groupings),Footnote ²³ and a concern to accommodate civil and common law traditions.Footnote ²⁴

The preamble to the OAU Convention describes terrorism as a ‘serious violation of human rights’, particularly rights to physical integrity, life, freedom and security, and notes that it impedes socio-economic development by destabilizing states. It also notes the dangers to state stability and security, and the links between terrorism and organized crime (including arms and drug trafficking and money laundering). Article 1(3)(a) defines a ‘[t]errorist act’ as any domestic criminal act ‘which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public or private property, natural resources, environmental or cultural heritage’. Such act must be ‘calculated or intended to’:

1. (i) intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles; or

2. (ii) disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or

3. (iii) create general insurrection in a State.

Terrorist acts are further defined to include various extended modes of criminal liability, including ‘any promotion, sponsoring, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organizing, or procurement of any person, with the intent to commit any act referred to’ above (Article 1(3)(b)). As discussed below, the Malabo Protocol virtually replicates this definition.

As in the Arab League and OIC Conventions,Footnote ²⁵ article 3(1) of the OAU Convention excludes ‘the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces’. This exclusion exists despite article 3(2) stating that ‘[p]olitical, philosophical, ideological, racial, ethnic, religious or other motives shall not be a justifiable defence against a terrorist act’ – an exclusion borrowed from the language of the UN General Assembly’s 1994 Declaration on Measures to Eliminate International Terrorism.Footnote ²⁶ The exemption reflects the heightened importance of national liberation struggles in African political histories, even if excessive liberation violence could still be prosecuted, for instance, as war crimes or crimes against humanity. It could even exclude, for instance, Al Shabaab attacks on AU peacekeepers in Somalia, ‘on the pretext that they are fighting a foreign invasion and domination by foreign forces’.Footnote ²⁷ There is, however, no exclusion in the OAU Convention of conduct in armed conflict covered by IHL.

States are then required to criminalize terrorist acts (article 2); eliminate political or other motives as a defence (article 3); establish extensive jurisdiction over the offences (article 6); investigate (article 7) and prosecute or extradite (article 8) suspects (thus addressing the problem of impunity). States must also cooperate in a range of ways (article 4), including exchange of information (article 5) and mutual legal assistance (Section V).

The OAU Convention shares some elements of the Arab League and OIC definitions, is more restrictive in other respects, and is more expansive in other ways. In addition to the national liberation exception, the OAU Convention follows the Arab and OIC Conventions in referring to instilling fear in the public; endangering life, physical security or freedom; harming public or private property, or the environment; and endangering ‘natural resources’ (the Arab and OIC Conventions refer comparably to a ‘national resource’).

The OAU Convention appropriately requires an underlying harmful act to also be ‘a violation of the criminal laws of a State Party’, whereas the Arab League and OIC Conventions more loosely extend to any act or violence that causes the requisite harm. It also does not reproduce the vague element from the OIC Convention of ‘threatening the stability, territorial integrity, political unity or sovereignty of independent States’.

On the other hand, the OAU Convention goes further than the other treaties by referring to acts against ‘cultural heritage’;Footnote ²⁸ or which disrupt public or essential services or create a public emergency; or that create ‘general insurrection’ in a state. The latter offence reorients terrorism as a national security or political offence,Footnote ²⁹ focused on protecting governments from rebellion or revolution, or averting civil war. The references to public or essential services bear some resemblance to the Algerian and Egyptian national definitions of 1992, with the Algerian law mentioning disruption to traffic, communication, transport, public authorities and public institutions, and the Egyptian law referring to damage to communications or impeding public authorities.Footnote ³⁰

Further, whereas the Arab and OIC Conventions focus on the terrorization of people, the OAU Convention includes an alternative ‘special intent’ (or motive) element of coercing or inducing a government, body or institution. A similar element was included in the UN Terrorist Financing Convention half a year later, in December 1999,Footnote ³¹ and has since appeared in the UN Draft Comprehensive Terrorism Convention, the EU Framework Decision on Combating Terrorism 2002, and in various national terrorism offences.Footnote ³²

The definition of terrorist offences in the OAU Convention have been criticized on human rights grounds as being vague and over-broad, and infringing the principle of legalityFootnote ³³ (which requires sufficient specificity and predictability in the definition of offences).Footnote ³⁴ The protected targets are wide and ill-defined. ‘Inducing’ a government to adopt or abandon a particular standpoint is a basic aim of democratic politics, sometimes occasioned by overzealous acts of protest which amount to criminal violence but fall short of the concept of terrorism and which ought not be treated as such. Regarding acts which create a ‘public emergency’ or a ‘general insurrection’ as terrorism conflates national security or emergency laws with terrorism, eroding any meaningful distinction between these categories. There have also been concerns about the impact on the right to strike.Footnote ³⁵

B. Subsequent AU Counter-Terrorism Developments

Several normative developments at the regional level, also potentially relevant to the interpretation of the Malabo Protocol terrorism offence, should be mentioned. The definition and exception in the OAU Convention supply the operative norms for an AU Protocol 2004 to the OAU Convention 1999,Footnote ³⁶ spurred in part by concerns about the slow domestic implementation of the Convention. The Protocol 2004 creates no new offences, but aims to enhance the implementation of the Convention and to coordinate and harmonize African efforts to prevent and combat terrorism.Footnote ³⁷ States undertake to implement a range of measures on terrorist training and financing, mercenarism, weapons of mass destruction, compensation for victims of terrorism, preventing the entry of terrorists, and exchange of information and cooperation.Footnote ³⁸ The Protocol forbids the torture or degrading or inhumane treatment of terrorist suspects, but asks States to ‘take all necessary measures to protect the fundamental human rights of their populations against all acts of terrorism’.Footnote ³⁹ It tasks the AU’s Peace and Security Council with harmonizing and coordinating African counter-terrorism, and states undertake to submit regular reports to the Council.Footnote ⁴⁰

At a ‘soft’ law level, the AU developed an African Model Anti-Terrorism Law in 2011Footnote ⁴¹ to stimulate and guide domestic implementation of international counter-terrorism obligations. While the model law defines ‘terrorist act’ by reference to UN and AU instruments, its other cumulative elements of definition significantly narrow the scope of liability and bring African practice more into line with international standards. In particular, relevant treaty offences must be intended ‘to intimidate the public or any section of the public or compel a government or international organization to do or refrain from doing any act and to advance a political, religious or ideological cause, if the act’:

1. (a) involves serious violence against persons;

2. (b) involves serious damage to property;

3. (c) endangers a person’s life;

4. (d) creates a serious risk to the health or safety of the public or any section of the public;

5. (e) involves the use of firearms or explosives;

6. (f) involves exposing the public to any dangerous, hazardous, radioactive or harmful substance, any toxic chemical or any microbial or other biological agent or toxin;

7. (g) is designed to disrupt, damage, destroy any computer system or the provision of services directly related to communication infrastructure, banking and financial services, utilities, transportation or key infrastructure;

8. (h) is designed to disrupt the provision of essential emergency services such as the police, civil defence and medical services; or

9. (i) involves prejudice to public security or national security.Footnote ⁴²

While these elements overlap in significant respects with the acts mentioned in the OAU Convention, they tend to be more tightly circumscribed (for example, ‘serious’ violence, property damage, or risk to public health). In broad terms they are drawn from the elements of the Terrorist Financing Convention 1999. In addition, the further specific intent or motive element is required of a ‘political, religious or ideological cause’, which is drawn from some common law jurisdictions (such as the UK, Canada, Australia, New Zealand and South Africa) and partly reflects the UN General Assembly’s 1994 Declaration (which refers to ‘political purposes’).

While the Model Law remains broad in other respects – such as an ambiguous reference to ‘prejudice to public security or national security’ – it is narrowed in an important way by the inclusion of a ‘democratic protest’ defence (excluding any act that is the result of ‘advocacy, protest, dissent or industrial action’ and which does not cause certain types of serious harm to people or property).Footnote ⁴³ Unlike the OAU Convention, the Model Law further excludes ‘acts covered by international humanitarian law, committed in the course of an international or non-international conflict by government forces or members of organized armed groups’,Footnote ⁴⁴ while also replicating the exemption for liberation or self-determination struggles.Footnote ⁴⁵

More generally, the AU’s Plan of Action on the Prevention and Combating of Terrorism in Africa of 2002 makes further recommendations in the criminal field to states, including specific suggestions for legislative and judicial measures.Footnote ⁴⁶ These include measures in relation to investigation and prosecution, criminalization and punishment, evidence, judicial capacity building, harmonization of laws, extradition and mutual legal assistance, exclusion of the political offence exception to extradition, establishment of jurisdiction, extended modes of criminal liability (to place the mastermind, the apologist, the accomplice, the instigator and the sponsor of a terrorist act on the same pedestal as the perpetrator’); dissemination of propaganda; and terrorist financing.

A. Drafting History

The Report of the Committee of Eminent African Jurists on the Case of Hissene Habre, which recommended in 2006 that the African Court be granted criminal jurisdiction,Footnote ⁴⁷ did not enumerate which crimes the Court should have jurisdiction over. The Habre case primarily concerned the Convention against Torture. The AU Assembly subsequently requested, in February 2009, the AU Commission to study the implications of the Court being empowered to try ‘international crimes, such as genocide, crimes against humanity and war crimes’,Footnote ⁴⁸ but again no mention was made of terrorism.

In February 2009 the AU Commission asked the Pan African Lawyers Union (PALU) to provide recommendations. PALU proposed the first draft of the Protocol in its June 2010 report to the Commission.Footnote ⁴⁹ No general crime of terrorism was included and the only operative reference to terrorism was in the war crime of ‘acts of terrorism’ (which was ultimately excluded from the Malabo Protocol as adopted in 2014). There was also a preambular reference to terrorism, which reiterated the AU’s ‘respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities, unconstitutional changes of governments and acts of aggression’. That wording was retained through to the final Protocol as adopted in June 2014.

The first draft of June 2010 was reviewed by the AU Commission’s Office of Legal Counsel in June 2010 and considered in ‘validation’ workshops with AU organs and Regional Economic Communities in August and November 2010. The crime of ‘terrorism’ appeared for the first time in the November 2010 draft Protocol.Footnote ⁵⁰ The offence was drawn almost verbatim from the OAU Convention, including its extended modes of criminal liability, the liberation/self-determination exception, and the exclusion of political or other motives. Like the OAU Convention, the draft did not exclude conduct in armed conflict covered by IHL.

The only significant change of language between the OAU Convention and the draft Protocol was in the description of the underlying acts. Whereas the OAU Convention stipulates that an act must be a violation of national criminal law, the draft Protocol added to that formulation the alternatives of an act being a violation of ‘the laws of the African Union or a regional economic community recognized by the African Union, or by international law’.Footnote ⁵¹

The draft Protocol was considered further at a meeting of government experts in November 2011 and a May 2012 draft of the Protocol was endorsed by a meeting of Ministers of Justice and Attorneys-General in July 2012.Footnote ⁵² By that the stage the draft Protocol contained one further amendment to the terrorism provision: acts covered by IHL, committed in the course of an international or non-international armed conflict by government forces or members of organized armed groups, were not to be considered as terrorist acts. Such acts were thus left to be regulated by the special law (lex specialis) of IHL, including war crimes liability. As noted earlier, in 2011 the AU had adopted the African Model Anti-Terrorism Law, which excluded acts covered by IHL.

Thereafter the final adoption of the draft Protocol was delayed because of lingering controversies over the definition of the crime of unconstitutional change of government, the scope of immunities, and financing issues. There were, however, no further changes to the terrorism offence when the Protocol was adopted in June 2014. There was also little opportunity for civil society input into the AU’s internal drafting process.Footnote ⁵³

B. Definition of the Crime of ‘Terrorism’ and Interpretive Issues

As adopted, the Malabo Protocol confers jurisdiction over the crime of ‘terrorism’ in article 28A(1)(6) and defines the crime of ‘terrorism’ in article 28G as follows:

As mentioned, the definition is drawn largely verbatim from the OAU Convention and consequently the drafting debates, and subsequent interpretation and practice surrounding that instruments since 1999, are relevant in shedding light on the Malabo Protocol offence. At the same time, practice under the OAU Convention is scarce; African states have been slow in both ratifying and domestically implementing it, and prosecutions and recorded judgments concerning its terrorist offences are rare.

The complex, compound definition of terrorism in the Malabo Protocol gives rise to numerous interpretive issues. The elements of the definition of terrorism are:

• An underlying act that violates national criminal law, AU law or African regional economic community, or international law; and

• Danger to life, physical integrity or freedom; or serious injury or death to a person or group; or damage to public or private property, natural resources, environmental or cultural heritage; and

• A special intent, or motive, to: (1) intimidate, put in fear, coerce or induce a government, body, institution, the public (or part of it); or (2) disrupt a public or essential service, or create a public emergency; or (3) create general insurrection.

The Malabo Protocol does not require any transnational element to the crime of terrorism, such that purely domestic terrorism comes within the jurisdiction of the African Court. This contrasts with, for instance, the approach of the international counter-terrorism conventions,Footnote ⁵⁴ the UN Draft Comprehensive Terrorism Convention, and the nascent customary international crime of terrorism identified by the Special Tribunal for Lebanon.Footnote ⁵⁵

In light of protracted international debates about state versus non-state terrorism, it may be observed that any individual may bear criminal responsibility for the crime of terrorism, whether a state official or agent, members of non-state terrorist groups, or lone individuals. However, heads of state or government, and senior officials based on their functions, enjoy immunity from jurisdiction during their tenure in office pursuant to article 46A bis of the Malabo Protocol. There is also corporate criminal liability of legal persons, but not states, under article 46C of the Protocol.

C. Extended Modes of Criminal Liability

Article 28G(B) of the Malabo Protocol further defines the crime of terrorism to include ‘[a]ny promotion, sponsoring, contribution to, command, aid, incitement, encouragement, attempt, threat, conspiracy, organizing, or procurement of any person, with the intent to commit any act referred to in sub-paragraph (a)(1) to (3)’. The provision replicates the extended modes of criminal liability for terrorism in the OAU Convention.

The inclusion of these extended modes of criminal liability is both largely unnecessary and technically problematic. The extended modes were necessary in the OAU Convention because that instrument dealt solely with the crime of terrorism, designed for implementation in domestic law, and accordingly there were no common or general provisions on extended liability which the instrument could fall back upon. Extended modes otherwise vary in national law, and the OAU Convention aims to encourage domestic harmonization and transnational cooperation on commonly identified forms of criminal participation.

In contrast, the Malabo Protocol demarcates a regional court’s jurisdiction over a bundle of different crimes and contains a common provision on extended modes of liability. Article 28N sets out the ‘modes of responsibility’, and addressed fully in a separate chapter, is applicable to all crimes in the Protocol:

Unlike terrorism, most of the other crimes in the Malabo Protocol are not defined to include their own specific modes of extended liability, but rely on the common modes in article 28N. There are only a few crime-specific exceptions to this general approach (such as recruiting, using, financing or training mercenaries in article 28H(2)) – as well as some troubling omissions (such as the failure to specifically include direct and public incitement to genocide, as required by the Genocide Convention 1948).

The combination of the terrorism-specific modes of extended liability in article 28G(B) and the general modes of extended liability in article 28N both creates grave confusion and overly broad criminal responsibility. In means, for instance, that a person may be liable for inciting incitement to terrorism; or attempting to attempt terrorism; or aiding the aiding of terrorism, and so on.

Oddly, one of the most important terrorism-specific extended offences, financing terrorism, is not found in the terrorist crimes in article 28G(B) at all (though it does appear as a separate offence in the African Model Anti-Terrorism Law 2011), while financing any offence under the Malabo Protocol is found in the general provision on extended liability in article 28N. Only the ‘threat’ to commit terrorism is appropriately located in article 28G(B) (and does not appear in the general provision concerning all crimes).

Given this confusion, two interpretive approaches are available. The first would be to treat articles 28G(B) and 28N as mutually exclusive and regard the former as the only forms of extended liability applicable to terrorism. This straight-forward approach treats article 28G(B) as the more special law (lex specialis) relevant to terrorism, thus displacing the general provision applicable to other crimes, particularly given that most other crimes do not have their own specific modes of extended liability. As noted above, however, this would have the disadvantage of excluding one of the most important forms of extended liability for terrorism, namely terrorist financing, unless it can be characterized under some other mode (such as sponsoring, contributing to, or aiding).

The alternative approach is to consider, in the first instance, applying the terrorism-specific modes of extended liability in article 28G(B), then falling back on the general provision in article 28N to fill any gaps or plug any holes left by the former provision (for instance, concerning financing). The former provision remains the lex specialis but is flexibly supplemented (rather than displacing) by the latter.

In international law, there are three points of comparison for the Malabo Protocol. Firstly, the ICC Statute recognizes the following extended modes of criminal responsibility: commission and joint commission; ordering, soliciting, or inducing; aiding, abetting or assisting; intentionally contributing to the commission of a crime by a group; and attempt.Footnote ¹⁰¹

Secondly, most of the international counter-terrorism instruments recognize a number of bases of liability: (a) threats;Footnote ¹⁰² (b) attempts;Footnote ¹⁰³ (c) organizing or directing others;Footnote ¹⁰⁴ (d) participating as an accomplice;Footnote ¹⁰⁵ (e) knowingly assisting another to evade investigation, prosecution or punishment;Footnote ¹⁰⁶ (f) agreeing with one or more persons to commit an offence;Footnote ¹⁰⁷ or (g) otherwise contributing to or participating in the commission of an offence by a group.Footnote ¹⁰⁸ The latter mode is found in article 25(3)(d) of the ICC Statute, which was modelled on the Terrorist Bombings Convention 1997.Footnote ¹⁰⁹ The scope of extended criminal liability expanded over time.Footnote ¹¹⁰ Up to the 1990s, the sectoral treaties were limited to criminalizing commission, attempt, and participation. Since the Terrorist Bombings Convention 1997, it became an offence in new (and amended) treaties to organize or direct others to commit an offence, or to contribute in any other way to the commission of an offence by a group acting with a common purpose (article 2(3)).Footnote ¹¹¹

Thirdly, again in a terrorism-specific context, the UN Security Council has required states to bring to justice not only those who ‘perpetrate’ terrorist acts, but also those who participate in ‘financing, planning, preparation… or in supporting terrorist acts’.Footnote ¹¹² It has further required states to combat foreign terrorist fighters, namely by criminalizing those who (a) travel or attempt to travel to a foreign state for ‘for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training’; (b) finance such travel, or (c) organize, facilitate or recruit for such travel.Footnote ¹¹³ Finally, it has encouraged (but not required) states to prohibit incitement to terrorism.Footnote ¹¹⁴

D. Exclusion of Liberation or Self-Determination Struggles

Article 28G(C) of the Malabo Protocol provides that ‘the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts’. This exclusionary provision follows in the footsteps of the OAU Convention, the Arab League Convention, the OIC Convention, and the African Model Anti-Terrorism Law 2011. The OIC also continues to argue for the inclusion of such a provision in the UN Draft Comprehensive Terrorism Convention, while Pakistan (an OIC member) lodged a reservation upon signing the Terrorist Bombings Convention 1997 purporting to exclude self-determination movements from its application.

The provision is rooted in Africa’s historical experience of colonialism and decolonization struggles, as well as contemporary sympathizers for fellow travellers such as the Palestinians. Most African peoples have now attained independence, with the important exception of the people of Western Sahara, occupied by Morocco, and some small European possessions (such as the Spanish territories of Ceuta, Melilla and the Canary Islands near Morocco; Portuguese Madeira off the Moroccan coast; and the French Réunion off Madagascar). In this sense, in practice the provision may prove to be of largely symbolic value.

However, to the extent that African states become victims of foreign occupation (by other African states or foreign states), it will retain its significance. Africa has experienced a number of inter-state wars in recent years, including Uganda’s partial occupation of the Democratic Republic of the Congo, conflicts between Ethiopia and Eritrea, and foreign interventions in Libya. In this respect, article 28G(C) elaborates that liberation or self-determination struggles can include ‘armed struggle against colonialism, occupation, aggression and domination by foreign forces’.

The provision does not exempt liberation or self-determination struggles from other international or regional criminal liabilities, including for war crimes and crimes against humanity (including elsewhere under the Malabo Protocol). The provision does not, therefore, confer impunity on liberation movements, but reflects a political concern not to label and stigmatize such just causes as ‘terrorist’, even if their methods are excessive. Again, this reflects the acute sensitivities of the decolonization period, in which liberation forces were sometimes branded and delegitimized as ‘terrorists’ by colonial powers.

By contrast, none of the 18 or so international counter-terrorism treaties excludes liberation or self-determination violence, while regular UN General Assembly resolutions since the mid-1990s also do not exempt it. As such, certain conduct not regarded as terrorism under the Malabo Protocol may also still be criminal under transnational counter-terrorism instruments (regulating, for example, terrorist bombings, terrorist financing, nuclear terrorism, or attacks on targets such as diplomats, aircraft, airports, ships and maritime platforms, among others).

The precise legal scope of the provision must be determined by resort to the international law concepts it references. The term ‘peoples’ classically refers to the whole population of a colonized or occupied territory, rather than minority or indigenous groups forming a sub-set of it. A people may be represented by a movement recognized by the United Nations, or the relevant regional organization. The right of ‘self-determination’ entitles a people to ‘freely determine their political status and freely pursue their economic, social and cultural development’,Footnote ¹¹⁵ and African human rights law reiterates the right.Footnote ¹¹⁶ It can include a right to claim independent statehood, as well as other forms of political organization.

The provision further refers to ‘the struggle waged by peoples in accordance with the principles of international law’ (emphasis added). The latter qualifying phrase may be interpreted in two different ways. Firstly, it may refer to the international law right of peoples to wage a struggle for liberation or self-determination; that is, to the legal entitlement to pursue those goals. Secondly, it may refer to the legality of the means or methods by which a people struggles for those goals. Both are plausible interpretations and both limit the benefit of the provision to those acting lawfully (‘in accordance with’ international law). It is self-evident that the exclusionary provision cannot be claimed by those who do not enjoy a right of self-determination in the first place; it is more difficult to determine when a people entitled to self-determination would lose the benefit of the exclusionary provision because they utilized means or methods of struggle which were not in accordance with international law. (The Malabo Protocol’s other exclusionary provision, concerning armed conflict covered by IHL, excludes all hostile acts in conflict, not just those in conformity with IHL.)

The distinction is historically significant because of long running divisions amongst states within the United Nations about the permissible means of pursuing self-determination. Many decolonized states claimed that there existed a right of people to resort to armed struggle to secure self-determination, while primarily western states opposed such a right; an intermediate view held that liberation movements were entitled to use violence in response to violent repression of their self-determination right by a colonial power. Even if the former view were correct, it would still not exempt liberation fighters from other international criminal liabilities, including for war crimes, genocide or crimes against humanity. Again, on this approach the provision is more about political labelling than criminal liability per se.

Where such struggles involve armed conflicts under IHL, they will already be excluded by article 28G(D) of the Malabo Protocol (discussed below) – either as international conflicts between liberation forces and a state party to Additional Protocol I of 1977, or as non-international conflicts between state forces and a liberation movement qualifying as an organized armed group under IHL. Given the existence of a more specific exclusion for armed conflicts covered by IHL, article 28G(C) should be understood as excluding liberation or self-determination struggles that neither rise to the intensity of an non-international armed conflict, nor involve ‘organized armed groups’ participating in such conflicts.

Struggles beneath the intensity of armed conflict could include, for example, low level, sporadic or intermittent violence (including attacks on civilian or governmental personnel or objects), civil unrest or disorder, or violent protests, demonstrations, rallies and the like. Violence during armed conflicts by liberation movements that are not ‘organized armed groups’ could include, for example, the sporadic participation of civilians in hostilities, including individual resistance in occupied territory.

E. Exclusion of Acts Covered by IHL

The Malabo Protocol provides that ‘[t]he acts covered by international Humanitarian Law, committed during an international or non-international armed conflict by government forces or members of organized armed groups, shall not be considered as terrorist acts’ (article 28G(D)). In this respect it departs from the OAU Convention and instead follows the approach of the African Model Anti-Terrorism Law 2011. This is also consistent with the approach in recent international counter-terrorism treaties, which exclude the activities of armed forces during armed conflict, as those terms are understood under IHL, which are governed by that law.Footnote ¹¹⁷ The International Committee of the Red Cross has further endorsed this approach in the negotiations for the UN Draft Comprehensive Terrorism Convention.Footnote ¹¹⁸ The effect of the provision is to exclude such acts from being treated as terrorism and to defer to the special law (lex specialis) of IHL.

The provision applies where there exists an international or non-international armed conflict. Those categories are defined by IHL, particularly the Geneva Conventions of 1949, Additional Protocols I and II of 1977, and customary IHL. An international conflict involves military hostilities between two or more states, or an occupation of foreign territory even in the absence of hostilities.Footnote ¹¹⁹ An international conflict can also be constituted by hostilities between a state party to Additional Protocol I of 1977 and a self-determination movement representing a people,Footnote ¹²⁰ as is the case between Morocco (occupying the Non-Self-Governing Territory of Western Sahara) and Polisario (representing the Saharawi people).Footnote ¹²¹

A non-international conflict exists where there are ‘intense’ military hostilities between a state and an organized armed group.Footnote ¹²² Such conflicts may include civil wars within a state’s territory or hostilities between a state and a non-state group on another state’s territory. It can also include hostilities between national liberation or self-determination forces and a state which is not a party to Protocol I.

The Malabo Protocol excludes acts committed only by government (armed) forces or organized armed groups. These are significant limitations. The exclusion of acts by ‘government forces’ must be interpreted to refer to state armed forces, which can include regular military personnel as well as militias or resistance movements ‘belonging’ to the state and which are under responsible command, respect IHL, carry weapons openly, and display an identifying insignia.Footnote ¹²³ It would not exclude acts by any government officials (such as civilian police or intelligence officers, or other public servants), or loosely affiliated paramilitaries not controlled by the state.

Likewise, only acts by ‘organized’ armed groups are excluded and again the provision refers to IHL concepts. Under IHL, factors relevant in considering whether a group is ‘organized’ include: the existence of a command structure, disciplinary rules and mechanisms, and a headquarters; control of territory; the ability of the group to procure, transport and distribute weapons and military equipment, and to recruit and militarily train fighters; the ability to plan, coordinate and carry out military operations, including troop movements and logistics; the ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements (such as cease-fire or peace accords).Footnote ¹²⁴ Also relevant are the number of fighters and designated zones of operation.Footnote ¹²⁵

On the above test, it is certainly possible for ‘terrorist’ organizations to constituted organized armed groups involved in a non-international armed conflict. However, individual civilians who take a direct part in hostilities, for instance by sporadically attacking state forces, but who are not part of an organized armed group, will not be covered by the exclusion. Likewise organized criminal violence by gangs or drug cartels will not be excluded.

Moreover, the provision excludes acts by government forces and organized armed groups only where ‘committed in the course’ of an armed conflict. The act must therefore have a nexus to the conflict; not every act of violence that occurs in an area affected by conflict is excluded. For instance, a government soldier on weekend recreational leave who murders someone would not be excluded under the provision.

The effect of the provision is to completely exclude the relevant acts from the crime of terrorism under the Malabo Protocol. The exclusion applies where acts are ‘covered by’ IHL, but is not limited to acts that are in conformity with IHL (as proposed by the OIC in current negotiations over the UN Draft Comprehensive Terrorism Convention). Thus acts which comply with or violate IHL are equally excluded. Thus proportionate, discriminate attacks directed only against military targets are exempted, but so are deliberate attacks on civilians or perfidiously feigning civilian status to mount a suicide bombing attack against state forces.

This does not mean that the Malabo Protocol confers impunity on those who violate IHL. Rather, acts in armed conflict are left to be regulated by IHL, other international criminal laws (such as those on genocide, torture and crimes against humanity, and international human rights law insofar as it applies, including extraterritorially). IHL already prohibits, and often criminalizes as war crimes, much terrorist-type conduct in armed conflict.Footnote ¹²⁶ This includes, for example, deliberate or indiscriminate attacks on civilians and civilian objects; reprisals; the use of prohibited weapons (including incendiaries, or chemical or biological weapons); perfidy; attacks on cultural property, objects indispensable to civilian survival, or works containing dangerous forces (including dams, dykes and nuclear facilities); or through illegal detention, torture or inhuman treatment. The Malabo Protocol brings many war crimes under IHL within the jurisdiction of the African Court.

The Malabo Protocol does not, however, contain a further exemption for state military forces in peacetime that is found in some recent international counter-terrorism treaties. Some of these treaties include an exception for the activities of military forces (in peacetime) when exercising their official functions.Footnote ¹²⁷ Official duties could include law enforcement, evacuation operations, peace operations, UN operations, or humanitarian relief.

F. Exclusion of Certain Defences

The Malabo Protocol follows the OAU Convention (article 3(2)), recent international counter-terrorism conventions,Footnote ¹²⁸ and UN resolutionsFootnote ¹²⁹ in proclaiming that ‘[p]olitical, philosophical, ideological, racial, ethnic, religious or other motives shall not be a justifiable defence against a terrorist act’ (article 28G(E)). The foremost effect of this provision in a criminal law instrument is to preclude such motives from being pleaded as a defence to a criminal charge, so as to justify the accused’s conduct and exonerate them from liability.

The wording of the provision would not, however, prevent a convicted person from explaining their motives by way of mitigation in sentencing. Pleas in mitigation are not ‘defences’ as such, but part of the ordinary criminal process of calibrating the punishment to fit the crime, considering all relevant circumstances. There is plainly a difference in moral and legal culpability, for example, between a rebel wounding a member of the Gestapo in an attempt to overthrow Hitler in Nazi Germany, and a Boko Haram Islamist in Nigeria conscripting child suicide bombers to indiscriminately kill civilians.

Ordinary criminal law defences remain unaffected. Strangely, the Malabo Protocol does not mention the availability of criminal law defences to crimes within the Court’s jurisdiction, other than to exclude the relevance of official position, affirm command responsibility, and exclude the defence of superior orders (article 46B(2)-(4)). By contrast, the ICC Statute affirms the grounds excluding criminal responsibility as including mental disease or defect, intoxication, self-defence, duress, and other grounds deriving from international law and general principles of law (article 31). For example, there have been cases where hijacking by persons escaping imminent threats of death or serious injury as a result of persecution abroad have been excused by a defence of necessity.Footnote ¹³⁰ The issues concerning defences that would be available to suspects have been taken up by a different author for a different chapter contained in this volume.

There are two further possible legal implications of the exclusion of political or other motives under the Malabo Protocol. First, the provision might suggest that the crime of terrorism should not be regarded as a ‘political’ offence for the purpose of refusing an extradition request. The Malabo Protocol does not otherwise expressly ‘depoliticize’ its terrorism offence for extradition purposes – unlike some recent international counter-terrorism treaties.Footnote ¹³¹ Contrarily, the absence of an express provision depoliticizing terrorism in the extradition context could indicate that the issue remains one to be determined by national law – as is the case under many of the earlier international counter-terrorism treaties. The latter approach is preferably because restrictions on protections (such as the political offence exception to extradition) should not be made by implication in the absence of express words.

Secondly, the provision could similarly have a bearing on whether an offence is treated as ‘serious non-political crime’ in considering whether to exclude a person from refugee protection under article 1F of the Refugee Convention 1951. Again, the Malabo Protocol does not expressly purport to exclude all terrorist offenders from refugee status. The exclusion of political motives as a criminal defence is certainly a relevant factor, but as in the extradition context, not determinative. The UNHCR cautions that every act labelled as ‘terrorism’ is not automatically excludable under article 1F(b); the test is whether it constitutes ‘serious non-political crime’ in the context and circumstances.Footnote ¹³²

Notably, the AU’s African Model Anti-Terrorism Law 2011 recommends that national laws exclude any act that is the result of ‘advocacy, protest, dissent or industrial action’ and which does not cause certain types of serious harm to people or property.Footnote ¹³³ Strictly such provision would operate as an exception to the definition of terrorism, rather than as a democratic protest ‘defence’. It would have the same effect of precluding criminal responsibility for terrorism. It remains to be seen whether such exclusion could be included in any Elements of Crimes of Rules of Procedure developed by the AU to give effect to the Malabo Protocol.

A. Mercenary Activities in Africa: The Return of Mercenaries in the Twentieth Century

The modern state system and ideals of national patriotism, which developed in Europe in the nineteenth century contributed to stigmatizing and marginalizing individuals fighting for money rather than for loyalty to their countries. It is for this reason that mercenaries and their activities had practically disappearedFootnote ² in Western European countries.

In Africa, however, commercial trading companies from European colonial countries with their own private military forces continued to seize the natural resources of the continent.Footnote ³ In the second half of the Twentieth century, the struggle of the African colonies for their independence, brought the private armies back again: they were actively involved in plundering the resources of the African continent and in fighting against the liberation movements for self-determination. Measures aimed at controlling and regulating their activities have been at the origin of the development of international and African regional treaties.Footnote ⁴

The actions carried out at the beginning by foreign mercenaries, often called soldiers of fortune or dogs of war, recruited to defend geopolitical interests of colonial powers as well as that of mining companies have soon turned into activities conducted by private military and security companies closely linked with the interests of the mining sector.Footnote ⁵ The traditional utilization of mercenaries has undergone a metamorphosis: old forms and new forms are presently intermingled.Footnote ⁶

The decolonization period of 1960 opposed Western European countries to peoples subjected to alien domination and exploitation in the Third World, particularly in Africa. Mercenaries were recruited by colonial powers to crush liberation movements fighting for their independence,Footnote ⁷ first in the former Belgian Congo followed by interventions in a large number of other African countries.Footnote ⁸ The right of peoples to self-determination became an important issue at the United Nations.

Mercenary activities are specifically mentioned in instruments dealing with questions such as the development of Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the United Nations CharterFootnote ⁹ and the Definition of Aggression. United Nations has considered the use of mercenaries ‘as a means of violating human rights and impeding the exercise of the right of peoples to self-determination’.Footnote ¹⁰

In accordance with the Declaration on Principles: ‘Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State’.

Article 3 (g) of United Nations GA resolution 3314 (XXIX) states that ‘The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein’ can be considered as an act of aggression. This same text has been incorporated in the Amendments to the Rome Statute of the International Criminal Court, adopted in Kampala, 11 June 2010.Footnote ¹¹

The use of mercenaries by States to intervene in other countries’ affairs violates the ability of many Western European and Third World countries, who are UN Member States, to control private violence at the international level.Footnote ¹² This question is at the origin of the provisions contained in IHL and International and African Criminal Law treaties aimed at controlling mercenarism.Footnote ¹³

The international community continues to be divided on the issue of mercenarism, but particularly regarding the accountability and regulation of private military and security companies (PMSC) contracted by States to operate in zones of conflict or other countries’ affairs.Footnote ¹⁴ Such companies recruit highly trained military personnel; who often resign or take leave of absence to fulfil a given contract.Footnote ¹⁵

The Nigerian Civil War, which took place from 1967 to 1970 as consequence of the secession of Biafra from Nigeria, had a strong international involvement due to the oil resources, as had been before in the former Belgian Congo in 1960 for other mineral resources in the province of Katanga.

It is against this background that the Luanda Trial to judge foreign mercenaries recruited by the National Liberation Front of Angola (FNLA) to fight against the Popular Movement for the Liberation of Angola (MPLA) took place June–July 1976. The People’s Revolutionary Court of Angola pronounced four death sentences and condemned nine of those convicted to prison. The main charges against these foreigners were those of crime against peace and of being mercenaries.

Their indictment for being mercenaries relied on Angolan law based essentially on a number of United Nations resolutions on the matter of implementing the UN Declaration on the Granting of Independence to Colonial Countries and PeoplesFootnote ¹⁶ as well as UN GA res. 3103(XXVIII) on Basic Principles of the legal status of the combatants struggling against colonial and alien domination and racists régimes.Footnote ¹⁷ These Principles state that the use of mercenaries ‘is a criminal act and the mercenaries should be accordingly be punished as criminals.’Footnote ¹⁸

In Africa, the Organization of African Unity has taken a number of actions and adopted such instruments as the 1972 OAU Convention for the Elimination of Mercenaries in Africa,Footnote ¹⁹ which incorporated provisions of the United Nations resolutions mentioned above, and the 1977 OAU Convention for the Elimination of Mercenarism in Africa.Footnote ²⁰ The 1977 OAU Convention entered into force on 22 April 1985; with thirty-one States so far having ratified it. The 1977 Convention is based on a draft elaborated by the International Commission of Inquiry on Mercenaries that followed the Luanda Trial in 1976.

At the international level, during 1960 and 1970, Nigeria has been the main mover against mercenarism both in IHL and in ICL.

At the International Committee of the Red Cross Plenipotentiary Conference for the Adoption of Article 47 of Protocol I Additional to the Geneva Conventions of 1949, which took place from 1974 to 1977, Nigeria proposed for discussion that a person participating in an armed conflict to be considered or defined as a mercenary.Footnote ²¹

At the United Nations, Nigeria officially requested that the matter of mercenaries be discussed at the General Assembly. In 1989, based on a document elaborated by an Ad Hoc Committee, the UN General Assembly adopted the International Convention against the Recruitment, Use, Financing and Training of Mercenaries.

In Africa there have been over 330 armed conflicts for the period covering 1989–2014. The quasi totality of such armed conflicts with some rare exceptions, such as the conflict between Ethiopia and Eritrea, have been intrastate conflicts. One disturbing factor, reported by the Uppsala Conflict Data Program,Footnote ²² is the involvement of external actors in such conflicts.

This is not a new phenomenon. However, as we have witnessed in the past in different parts of the world, the proportion of foreign actors in intrastate armed conflicts, as proxies, freelancers, contractors, PMSCs, mercenaries, soldiers for hire, foreign fighters or any others is increasing. In 2014 the proportion of such actors was the highest since World War II.Footnote ²³

Considering the prevalent involvement of foreign military actors in the African continent the importance, therefore, of a good definition of mercenarism that would embrace all the different categories, or at least the most important ones, of foreign actors’ involvement in internal armed conflicts.

In 2014, the Assembly of Heads of State and Government of the AU adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights.

This important regional instrument broadens the jurisdiction of the new African Court of Justice and Human Rights (ACJHR) to 14 crimes under international law, including the crime of mercenarism and other transnational crimes often connected with mercenary activities such as terrorism, human trafficking, piracy, war crimes and illicit exploitation of natural resources.

The provisions contained in Article 28H of the 2014 African Union Protocol, proposing to the African Union Court a new text for its interpretation of the crime of mercenarism and application of the sanctions for the offences incurred, is a new attempt at the African regional level to deal with this phenomenon.Footnote ²⁴

Article 47 of Additional Protocol I to the Geneva Conventions of 1949 and Article 1 and 2 of the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries are the main sources of the new Article 28 H.

B. Article 28 H of the 2014 African Union ProtocolFootnote ²⁵

A. Limitations of Article 28 H of the 2014 African Union Protocol with Regard to the Definition of Mercenarism in Article 1 of the 1977 OAU Convention

Article 1. DEFINITION of the 1977 OAU Convention contains in its paragraph 2 a number of elements defining the crime of mercenarism that, regretfully, have not been included in Article 28 H of the 2014 African Protocol.

These refer to natural or juridical persons which: may be an ‘individual’, ‘group’, ‘association’, ‘representative of a State’ or ‘a State itself’.

The following activities covered by the crime of mercenarism included in sub-para. (a) of the 1977 OAU Convention Article 1 have not been retained either in Article 28 H. These are: ‘shelter’ (…), ‘organize’, (…) ‘assist’, (…) ‘equip’, (…) ‘promote, support or in any manner employ bands of mercenaries’, or activities such as: ‘enlists, enrolls or tries to enroll in the same bands’ which are much wider than the term ‘recruits’ embodied in Article 28 H.

Similarly, in Article 28 H the provision contained in the 1977 OAU Convention that ‘Any person, natural or juridical who commits the crime of mercenarism (…) commits an offence considered as crime against peace and security in Africa (…)’ has not been retained.

If the reference to juridical persons such as groups, associations had been included in the new definition of mercenarism of the 2014 AU Protocol it would have made it possible to implicate corporate responsibility and legally pursue not only individual mercenaries or employees of PMSCs but the companies themselves for mercenary activities.

B. Positive Aspects and Loopholes in Article 28 H of the 2014 African Union Protocol in Relation to Problems Arising from Activities Conducted by Private Military and Security Companies

The introduction by the African Union Protocol of the crime of mercenarism at the international/regional level of Africa is a very positive move indeed. Particularly because in 1991, the United Nations abandoned the recommendation by the International Law Commission to maintain it in the code of crimes against the peace and the security of mankind. This crime was not included either in the Rome Statute of the International Criminal Court of 1998 and, therefore, is not among the international crimes to be judged by the International Criminal Court.

It may be also noted that, once the 2014 Protocol is in force, the fact that Article 28 H of the AU 2014 Protocol integrates, with some changes, the provisions contained in Article 1.1 and 2. of the 1989 International Convention may facilitate its application, not only in the 31 African States who are presently parties to the 1977 OAU Convention for the elimination of mercenarism in Africa but also in 25 additional States parties to the 1989 International Convention.Footnote ⁶⁰ In this connection, the African Court will be in a position to interpret and apply a large array of regional and international instruments.

The new definition of merceranism in Article 28 H can be considered as a good effort to consolidate in one regional criminal instrument the regional norms already contained in the 1977 OUA Convention.Footnote ⁶¹ It is, however, more consistent with the definition of the 1989 International Convention on mercenaries which retains almost word by word those of IHL, Article 47 of Additional Protocol I.

There are, however, as mentioned above some major drawbacks. One of them springs from the integration of the definition of the 1989 International Convention.

Within this context, it may be noted that the IHL provisions of Article 47 that could have been pertinent for situations of international armed conflicts in the second half of Twentieth century, confronting regular armies, are not for the intrastate armed conflicts of the twenty-first century.

Article 28 H integrates in its provisions how the African Court, from a regional perspective, may consider activities committed by mercenaries. It does not spell out sufficiently clearly, however, the accountability and control of those activities carried out by a major actor: PMSCs.

Article 28 H has not incorporated the qualifications of the compensation, contained in the 1989 International Convention, which to ‘substantially in excess of that promised or paid to combatants of similar rank and function in the armed forces of the party’ or ‘significant’. This can be considered positive, for their inclusion would have made even more difficult to prove the motivation of a person concerning mercenarism.

However, in order for an individual to be accused of the crime of mercenarism Article 28 H, has kept the references to ‘direct participation’, included in the 1977 OAU Convention, regarding the involvement of an individual in ‘hostilities’ of an armed conflict or in a ‘concerted act of violence’. The 1989 International Convention did not foresee such prerequisites.

Also, to be regretted is the fact that the definition of Article 28 H has not kept provisions contained in Article 1 of the 1977 OAU Convention relating to natural or juridical persons; and a number of additional activities such as sheltering, organizing, assisting, equipping, promoting, or employing band of mercenaries and can be considered a major drawback. These elements have been excluded from that definition as well as the reference in the Convention that the offence of mercenarism can also be considered as a crime against peace and security in Africa.

Mercenarism is a complex phenomenon encompassing not only direct participation in the acts stipulated in the international treaties dealing with the problem but in many other dimensions such as involvement in illicit exploitation of natural resources, illicit trafficking and activities of PMSC. The reports of the UN Special Rapporteur on the use of mercenaries have often mentioned the link between mercenarism and terrorism, trafficking in migrants and women, trafficking in weapons and taking forcible control of valuable natural resources.Footnote ⁶²

With regard to terrorism and illicit trafficking it appears that the ‘Islamic State (ISIS)’ has been recruiting ‘foreign fighters’Footnote ⁶³ (a term that recalls the foreign mercenaries of the 1960s) from many Western countries.Footnote ⁶⁴ ISIS largely finances itself from the terrorist activities of this non-State armed groups that are the foreign fighters, such as the illicit trafficking in weapons and natural resources (oil); in the trafficking of refugees and migrants, and in the kidnapping of rich Syrians whose families pay their ransom.Footnote ⁶⁵

In this connection, it should be underlined that when the African Court of Justice and Human Rights enters into force, its Judges will be in a position to establish the links between offences defined in its Statute, such as the crimes of terrorism, piracy, trafficking in persons, illicit exploitation of natural resources or aggression with the crime of mercenarism, as an aggravating circumstance, if the first crime has been committed by individuals that fulfil all the conditions contained in Article 28 H. This is also a very positive aspect.

In a number of intrastate conflicts in Africa, such as Angola, Sierra Leone, Liberia and Zaire/Democratic Republic of Congo the illicit exploitation of natural resources by armed groups and mercenaries has been a major factor.Footnote ⁶⁶

The Judges of the Court, however, might not be able to establish such a link if a PMSC has committed the crime.

The United Nations Special Rapporteur on the use of mercenaries attempted without success to cover all such complex activities, including PMSCs involvement, into a revised definition of mercenaries contained in the 1989 International Convention proposing that that instrument be amended.

His recommendations have not been followed by any of the States parties to the Convention, given the lack of enthusiasm of the international community for that treaty which continues to have a low rate of ratification.

The UN Working Group on the use of mercenaries, which took over the mandate of the Special Rapporteur in 2005, did not follow this path. Indeed, it considered that it was fruitless to concentrate its efforts at trying to arrive at a definition of mercenarism, which presents many loopholes exploited by the Western States from where these companies operate.

Instead, it considered that given the large-scale involvement of PMSC, particularly in the Afghan and Iraq armed conflicts, their activities ought to be regulated and monitored at the international, regional and national level by an international legal binding instrument.

Such instrument ought to indicate what activities individuals, employees and PMSC may carry out and what activities are to be proscribed by the State as the only authority holding the monopoly of the use of force.Footnote ⁶⁷

While continuing to promote the ratification of the 1989 International Convention, the Working Group concentrated mainly on the activities carried out by PMSCs. It has drafted a new proposed instrument, separate from those that regulate the activities of mercenaries. This draft instrument aims at controlling the use of force internationally by the private sector.Footnote ⁶⁸

The problem of defining mercenarism is tied up with political problems associated with the unwillingness of States to prohibit the use of mercenaries. Western States, which have resisted attempts to label PMSCs as mercenaries, are not willing either to accept that PMSCs be regulated and monitored by a binding international instrument.Footnote ⁶⁹

Instead, they have promoted parallel international initiatives with the Swiss Government, the International Committee of the Red CrossFootnote ⁷⁰ and the Geneva Centre for the Democratic Control of Armed Forces (DCAF) aimed at developing a not binding International Code of Conduct that is acceptable to PMSCs.Footnote ⁷¹

As already mentioned above, no specific legislation regarding PMSCs has been adopted in any of the African countries surveyed by UN Working Group on the use of mercenaries.Footnote ⁷²

One exception is Angola following the Luanda Trial that condemned nine mercenaries to prison sentences and three executions for fighting in the National Liberation Front of Angola (FNLA) against the Popular Movement for the Liberation of Angola (MPLA) and also put in motion measures for adopting African regional instruments regarding mercenaries. The other is South Africa, which has convicted six of the eight individuals who have been charged with the crime of mercenarism.Footnote ⁷³

So far no African State has mentioned either specific legislation prohibiting mercenary activities or specific convictions in their replies to the United Nations’ request through the UN Working Group on the use of mercenaries for its database following the proposal made by the UN Human Rights Council on this matter.Footnote ⁷⁴

A. Bribery in the Public Sector

Article 28I(1)(a) addresses so-called passive bribery and provides that an act of corruption is:

The act of corruption can be undertaken by a variety of individuals. The term ‘public official’ is not defined but presumably the intention was to follow the definition provided in Article 1 of the AU Anti-Corruption Convention, i.e.:

This seems wide enough to also encompass members of the military: a particularly significant point given the instances of grand corruption involving senior officers.Footnote ¹⁷

Given that the Statute requires the act of corruption to be of a ‘serious nature’, in practice it is likely that the Court will inevitably focus attention on those in the highest echelons of government and the military. The drafters of the Statute were clearly aware that corruption-related offences often involve others individuals and entities. Thus, unlike the UNCAC and the AU Convention, the Article also specifically extends liability to family members of the public official. Cases such as that involving members of the Abacha family (see Section 4 below), highlight the potential importance of this extended jurisdiction. However, there is no indication as to who is included in the term ‘family member’. Here a potentially helpful definition is provided by the FATF i.e.: ‘individuals who are related to a public official either directly (consanguinity) or through marriage or similar (civil) forms of partnership’.Footnote ¹⁸

The scope of the term ‘any other person’ is also not indicated. Here the definition provided by the FATF of a ‘close associate’ is helpful, i.e.: ‘individuals who are closely connected to a public official, either socially or professionally’.Footnote ¹⁹ This emphasises the ‘you can’t do it alone’ principle i.e. the reality that grand corruption requires the active assistance, willing or otherwise, of other senior public officials and/or influential individuals.Footnote ²⁰

The passive bribery offence consists of ‘the solicitation or acceptance of goods of monetary value or other benefit … in exchange for any act or omission in the performance of [the public official’s] public functions’. A ‘benefit’ is widely defined so as to include a gift, favour (presumably including a sexual favour), promise or advantage.Footnote ²¹ There must also be a causal link between the paying of the bribe and the action or failure to act on the part of the public official. The benefit can be for the public official or for any other person or entity. This reflects the reality that bribe payments are often paid to third parties. This includes through the use of off-shore companies and trusts which allow the bribe-taker to conceal their beneficial ownership and control of the proceeds of corruption.

Article 28(I)1(b) addresses active bribery i.e.

Here the offering or granting of the corrupt payment must be for the benefit of another person or entity. The inclusion of an ‘entity’ is potentially of considerable importance owing to the continued problem of combating the bribery of public officials by corporate entities. Several international efforts seek to address this problem, albeit with limited success. Thus the OECD Anti-Bribery ConventionFootnote ²³ requires Parties to criminalise the bribery of foreign public officials. Whilst all have done so, there remains a marked reluctance on the part of many of them to prosecute the bribe-payers.Footnote ²⁴ On rare occasions, prosecutions in victim states have led to the conviction of some foreign companies for bribery. For example, Acres International (a Canadian company) and Lahmeyer International (a German company) were both convicted in the Lesotho High Court of bribery in connection with the obtaining of contracts for the Lesotho Highlands Water project.Footnote ²⁵

Given that Article 46C provides that the Court has jurisdiction over legal persons, there is seemingly no reason why a foreign company cannot be subject to prosecution for bribery. However, to what extent this may constitute an additional deterrent to undertaking such activity is questionable. In practice, it is the threat of prosecution/conviction and possible subsequent debarment that has led to even the most powerful companies agreeing to settlements with prosecutors in which they agree to pay a fine in exchange for either a conviction for a non–corruption related offence or an agreement not to prosecute.Footnote ²⁶

B. Bribery in the Private Sector

Article 28I(1)(e) provides that an act of corruption is:

In contrast to the bribery provisions regarding the public sector, this provision combines both active and passive bribery. It also refers to any ‘undue advantage’ rather than a ‘benefit’: a phrase that also appears in the trading in influence provision in Article 28I(1)(f). The term is not defined but it appears in several other anti-corruption instruments, including the UNCAC and Council of Europe Criminal Law Convention on CorruptionFootnote ²⁷ albeit without any definition. However both the Legislative Guide to the UNCACFootnote ²⁸ (the Legislative Guide) and the Explanatory Report on the Criminal Law Convention on Corruption (the CoE Explanatory Report),Footnote ²⁹ provide some assistance as to its meaning. The Legislative Guide indicates that an undue advantage may be something tangible or intangible, whether pecuniary or non-pecuniary and that it does not have to be given immediately or directly to the official. However, the undue advantage or bribe must be linked to the official’s duties.Footnote ³⁰

The CoE Explanatory Report also notes that the:

The Report also suggests that the word ‘undue’ should be interpreted as something that ‘the recipient is not lawfully entitled to accept or receive’. It adds that ‘[f]or the drafters of the Convention, the adjective ‘undue’ aims at excluding advantages permitted by the law or administrative rules as well as minimum gifts, gifts of very low value or socially acceptable gifts’.Footnote ³²

It is not clear as to why Article 28I does not adopt a consistent terminology in respect of a key element of the offences. However, in essence, there is seemingly considerable overlap between both approaches.

Curiously, there is no indication as to the requisite mens rea for the bribery offences. Other international anti-corruption instruments require proof that the act was ‘committed intentionally’ and arguably the Court should follow this lead.Footnote ³³

As regards corporate criminal liability, Article 46C provides that:

It adds that corporate knowledge of the commission of the offence ‘may be established by proof that the actual or constructive knowledge of the relevant information was possessed within the corporation’.

C. Abuse of Functions

Article 28I(1)(c) addresses the offence of the abuse of functions in the following terms:

The Article is taken verbatim from the AU Convention. It is essentially a ‘quality control’ provision that addresses a serious breach of duty or abuse of functions where the act or omission goes beyond the need for mere disciplinary action against a public official. Such a provision is potentially extremely useful in that it can encompass a range of ‘misconduct in public office’ scenarios. For example where a public official awards a lucrative government contract to a company of which s/he is a secret beneficiary; or arranges for the sale of government land to a company owned or controlled by his/her family at a price far below the market value; or the improper disclosure by a public or private sector official of classified or privileged information.Footnote ³⁴

Unlike the bribery provisions, the Article refers to a benefit being for the public official or a ‘third party’.Footnote ³⁵ Presumably this term is intended to have the same meaning as ‘for another person or entity’ and it is surprising that once again the drafters did not adopt a uniform approach.

D. Trading in Influence

Article 28I(1)(f) provides for the offence of trading in influence in the following terms:

The elements of the offence are essentially the same as the private sector bribery provisions save for the fact that it involves the use of real or supposed influence in order to obtain an undue advantage for a third person from performing functions in the public or private sector. As paragraph 64 of the CoE Explanatory Report puts it:

Thus, unlike bribery, the influence peddlers are ‘outsiders’ who cannot take decisions themselves but misuse their real or alleged influence on other persons. Here family members of the official are the obvious ‘peddlers’ in this respect.

The exercise in influence, whether successful or otherwise, must be in consideration of an undue advantageFootnote ³⁷ whilst the improper influence applies to the decision making of any person performing functions in either the public or private sectors.

E. Illicit Enrichment

Article 28I(1)(g) provides that ‘Illicit enrichment’ is an act of corruption. For the purposes of the Statute this means:

Extending the scope of the offence to ‘any other person’ presumably is meant to include family members or persons associated with a public official or even to a company owned or controlled by that public official. This is a sensible step in that it reflects the reality that bribes are often paid to such persons.

The wording suggests that once the prosecution has proved that the accused has enjoyed a ‘significant increase’ in his/her assets, the legal burden rests on that person to provide a reasonable explanation to the court as to how the assets were acquired or otherwise face conviction. Given the challenges of prosecuting corruption successfully, such an approach has much value.

However, such a provision affects the presumption of innocence enshrined in fair trial provisions in the African Charter on Human and Peoples’ Rights.Footnote ³⁹ Further, Article 46A provides for the ‘Rights of the Accused’ and specifically states that ‘The accused shall be presumed innocent until proven guilty according to the provisions of this Statute’. It may therefore be necessary to read down the provision so as to place the evidentiary rather than a legal burden on the accused.Footnote ⁴⁰

F. Diversion of State Assets

The history of the looting of state funds by leaders and their families makes Article 28I(1)(d) of particular significance. This crime is defined as follows:

Such an offence covers a wide range of activities including fraud, obtaining by deception, embezzlement and theft by public servant.

G. Money Laundering

Article 28A provides that the Court has the power to try persons for the crime of money laundering. Article 28I bis divides money laundering into three stages:Footnote ⁴¹

1. (i) The placement stage: i.e. the ‘Conversion, transfer or disposal of property, knowing that such property is the proceeds of corruption or related offences for the purpose of concealing or disguising the illicit origin of the property or of helping any person who is involved in the commission of the offence to evade the legal consequences of his or her action’;

2. (ii) The layering stage: i.e. the ‘Concealment or disguise of the true nature, source, location, disposition, movement or ownership of or rights with respect to property which is the proceeds of corruption or related offences…’; and

3. (iii) The integration stage: i.e. the ‘Acquisition, possession or use of property with the knowledge at the time of receipt, that such property is the proceeds of corruption or related offences’.

Whilst a separate offence for the purposes of the Statute, the Article applies only to the predicate offence of ‘corruption’.Footnote ⁴² Addressing the link between corruption and money laundering is now seen as an international imperative.Footnote ⁴³ All African States are part of the FATF ‘family’ either as members of the main body or of a FATF-style regional body. In 2012, the FATF Recommendations were publishedFootnote ⁴⁴ which set out the framework for anti-money laundering efforts and which are of universal application. They provide a complete set of counter-measures against money laundering covering the criminal justice system and law enforcement, the financial system and international cooperation. In particular they require all states to implement a series of anti-money laundering measures including putting in place effective criminal laws.Footnote ⁴⁵ A rigorous system of peer review has ensured that most African states have the required legislation in place. This means that any state through which the proceeds of corruption are laundered has the power to prosecute the launderers.

A. Evidence Gathering

Investigations into grand corruption cases, the laundering of the proceeds of crime and their recovery will almost inevitably require assistance from both the victim state and other states both within and outside of Africa. Article 46L(1) therefore requires States Parties to ‘co-operate with the Court in the investigation and prosecution of persons accused of committing the crimes defined by this Statute’.

The secrecy surrounding such offences together with the power of senior public officials to ‘control the controls’, means that evidence gathering within the victim state may be extremely challenging. Much may depend upon the assistance (or otherwise) of national anti-corruption commissions and financial forensics and intelligence units.

In addition, whistle-blowers may play a key role in revealing the wrongdoing. This calls for effective protection provisions for those individuals reporting corruption or giving evidence before the Court. Here the introduction of rules providing for the ‘non-disclosure or limitations on the disclosure of information concerning the identity of witnesses’ might be considered.Footnote ⁴⁶ This will require the Court to perform a difficult balancing act between admitting potentially vital evidence from anonymous witnesses whilst at the same time protecting the right of accused persons to confront their accusers.Footnote ⁴⁷ Whether the Court will be in a position to offer effective protection to individual whistle-blowers is also unclear. The development of ‘super-whistle-blowers’ as epitomised by the leaking of the Panama Papers, may prove to be a more effective source of information and evidence for the Court.

As regards evidence located outside the victim state, the Court is empowered ‘to seek the co-operation or assistance of regional or international courts, non-States Parties or co-operating partners of the African Union and may conclude Agreements for that purpose’.Footnote ⁴⁸ Article 46L(2) provides that:

It is surprising that the provision omits specific reference to the power to require the production of relevant documents and records, including government, bank, financial, corporate or business records. Secrecy lies at the heart of corruption and money laundering and documentary evidence of this nature is almost invariably essential to a successful investigation and prosecution.Footnote ⁴⁹

The lack of clear provisions as to the procedure for obtaining such assistance is a matter of concern. It is essential that investigators have the power to obtain rapidly relevant evidence located in other states (or prevent its destruction) or to seek the freezing of the proceeds of crime before they are moved to another jurisdiction(s). Whilst the Office of the Prosecutor may seek additional information from States and others,Footnote ⁵⁰ the power to make a formal mutual legal assistance request is seemingly only available to the Court under Article 46L. The power of the Office of the Prosecutor to seek mutual legal assistance from the start of an investigation is an absolute necessity.Footnote ⁵¹

There is clearly much work to be done on addressing the area of mutual legal assistance especially in relation to corruption and money laundering offences. The very detailed provisions on mutual legal assistance contained in the UNCAC can provide a helpful model here.Footnote ⁵²

B. Penalties and Asset Recovery

The Court can impose ‘prison sentences and/or pecuniary fines’.Footnote ⁵³

Given that the object of corruption and money laundering is for the offender(s) to enjoy the fruits of their criminality, the power to order the forfeiture of proceeds of crime is attractive. In this respect, Article 43A(5) provides that the Court may also order ‘the forfeiture of any property, proceeds or any asset acquired unlawfully or by criminal conduct, and their return to their rightful owner or to an appropriate Member State’. This reflects the fact both the UNCAC and AU Convention have strong provisions requiring States Parties to have in place asset recovery mechanisms, with the return of assets being a fundamental principle of the UNCAC.Footnote ⁵⁴

Article 43A is complemented by Article 45(2) which provides that:

A system of conviction-based asset forfeiture is attractive in that offenders are subject to a criminal conviction, face a prison sentence and, as part of their sentence, are also liable to an order for the confiscation of their proceeds of corruption. However such a system is premised on a criminal conviction. In practice, this may not be possible. Setting aside the very real challenges of proving the case to the criminal standard, a prosecution will be impossible where the suspect is unavailable (dead, unfit to stand trial, outside the jurisdiction etc.) or subject to the immunity provision.Footnote ⁵⁵

Given these realities, limiting the Court to a conviction-based asset recovery mechanism is unnecessary and out dated and the provisions in the Statute are likely to prove of little value in practice. The use of non-criminal asset forfeiture is now increasingly common as this allows action to be taken directly against the proceeds of crime without the need for a criminal conviction, thus avoiding the immunity provision in the Statute.Footnote ⁵⁶ In addition, a state may bring a civil action against a wide range of individuals and entities involved in the corruption schemes and/or laundering of the proceeds of crime. This has also proved effective and again such a power might have been provided to the Court.Footnote ⁵⁷ As discussed below, some of those involved in grand corruption cases are now seeking to reach settlements with prosecutors which involve the return of (at least part of) the proceeds of corruption in exchange for an agreement to defer or withdraw a prosecution.Footnote ⁵⁸ Whether this power is available to the Office of the Prosecutor is unclear but it is one which might be usefully explored.

A. The ‘Serious Nature’ of the Acts

Of the fourteen offences included in the Statute, ‘corruption’ is only one of two which includes as a prerequisite that the acts are of ‘a serious nature affecting the stability of a state, region or the Union’.Footnote ⁵⁹ Given the prevalence of grand corruption and the need to prevent a flood of cases, it is perhaps understandable for a restriction to be placed on cases coming before the Court. However it is not clear as to why it is not simply left to the Court to determine which cases it chooses to pursue.

The well-known deleterious consequences of ‘grand corruption’ potentially make any such case one of a serious nature. The additional element which triggers a decision by the Court is that the act(s) of corruption affects the stability of a state, region or the Union. The interpretation of the italicised words is important. Does the phrase require evidence that the corruption-related activity has led to the actual destabilisation (whatever that means) of the State or is it in respect of a potential threat to its stability? The evil of grand corruption is that it often threatens the political and/or economic stability of a state. This is emphasised in the Preamble to the UNCAC where the States Parties to the Convention express their concern ‘… about the seriousness of the problems and threats posed by corruption to the stability and security of societies …’ and further express their concern:

In the light of the UNCAC Preamble, it is hoped that the Court will adopt a flexible interpretation of ‘stability’. It is surprising that the drafters of Article 28I did not see fit to do so.

There is a further difficulty as to how the fact of the ‘instability’ is to be proved. This is presumably a matter for the Court to determineFootnote ⁶⁰ but any case may get bogged down in preliminary arguments over this issue.

The scope of a ‘region’ is nowhere explained. Given the positioning of the word after ‘state’, the drafters presumably meant to refer to a geographical area that includes multiple jurisdictions.Footnote ⁶¹ This might cover a case, for example, involving senior military officers who loot vast sums of money allocated for defence equipment required to fight a terrorist group in the country. Their failure to provide the necessary equipment then enables the terrorist group to extend their activities into neighbouring states.Footnote ⁶²

Corruption on the part of officials of international organisations is another area of concern. Whether such officials are covered by the term ‘public official’ in Article 28I is uncertain. Equally uncertain is how an act of corruption can affect the stability of the African Union.

The money laundering offence does not include this requirement.Footnote ⁶³ This is significant, especially given the increasing international efforts of the FATF and G20 to combat corruption-related money laundering.Footnote ⁶⁴ Given their focus on requiring transparency as to the beneficial ownership of companies and trusts coupled with the impact of the ‘super-whistle-blowers’, the money laundering offence arguably holds out a greater promise of a successful prosecution than the corruption-related offences.

B. The Immunity Provision

The impact of the Court is significantly reduced by the general immunity provision in Article 46A. This provides that:

In practice this effectively excludes the jurisdiction of the court from hearing cases relating to acts of corruption or money laundering involving senior state officials during their tenure of office.Footnote ⁶⁵ The Statute provides no indication as to the scope of the term ‘senior state officials’ but inevitably it will protect those who are most likely to be involved in grand corruption as well as encouraging them to remain in office for as long as possible.Footnote ⁶⁶

Whilst constitutional immunity is commonplace in customary international law for serving heads of state and government, extending immunity to ‘senior state officials’ is extremely unusual and has resulted in considerable criticism. For example Amnesty International asserts that the immunity clause essentially promotes and strengthens the culture of impunity that is already entrenched in most African countries and stands to bring the whole statute into disrepute ‘as it will be portrayed (and may indeed have been intended) as a way to protect senior politicians from accountability for their crimes’.Footnote ⁶⁷ However, as noted above, the corruption-related offences also apply to a range of other individuals and entities who are not subject to the immunity clause. It means that family members, the bribe-payers or those who trade in influence as well as those who launder the proceeds of corruption are all liable to prosecution. Given the ‘you can’t do it alone’ principle and their often close involvement in grand corruption, the power to prosecute such persons is a potentially a valuable addition to the work of the Court.Footnote ⁶⁸

As regards the private sector, Article 46C provides the Court with jurisdiction over legal persons, with the exception of states. Further it is empowered to exercise its jurisdiction where, inter alia, ‘the victim of the crime is a national of that State’ or where the case involves ‘Extraterritorial acts by non-nationals which threaten a vital interest of that State’.Footnote ⁶⁹ This suggests the possibility, for example, of the prosecution of a company (or its agents) from within or outside Africa for the bribery of a foreign public official. Of course, this is subject to the ‘act of corruption’ being of a ‘serious nature affecting the stability of the State’ (Article 28I(1)) as well as threatening ‘a vital interest of that State’ (Article 46E bis).

A. The Obiang Case

Teodoro Nguema Obiang Mangue (Obiang) is First Vice-President of Equatorial Guinea.Footnote ⁷² In 2014 his criminal activities were described in a United States Department of Justice press release as follows:

The press release continues:

B. The Abacha Case

Sani Abacha seized power in a military coup in Nigeria in 1993 and until his death in 1998 he and his family were involved in the widespread looting of state assets with estimates varying between US$3 billion and US$5 billion. As with the Obiang case, the scale of the grand corruption was enough to satisfy the ‘serious nature’ requirement of Article 28I. In 2005 the Federal Supreme Court in Switzerland ruledFootnote ⁷⁷ that $480 million should be returned to Nigeria ‘as obviously of criminal origin’ and also found that the Abacha family and their accomplices were a ‘criminal organisation’.Footnote ⁷⁸ In 2010, an Indian national, Raj Bhojwani was convicted in Jersey of money laundering in connection with the Abacha case and sentenced to six years imprisonment.Footnote ⁷⁹

C. The Chiluba Case

Between 1991 and 2001 Frederick Chiluba was President of Zambia. During his period in office he was involved in the large-scale looting of state assets and these were laundered on a global scale. He was assisted by numerous senior public officials, lawyers and corporate entities.Footnote ⁸¹ Upon leaving office, his successor, Levy Mwanawasa, established a Task Force on Corruption to investigate the case and a prosecution was launched in 2004 with Chiluba being charged with several counts of theft by a public servant. In 2008, Mwanawasa died in office and was succeeded by Rupiah Banda who was known to be more supportive of Chiluba. In 2009 Chiluba was acquitted in the Lusaka Magistrate’ Court on all charges, a verdict that was greeted with much scepticism by civil society organisations.Footnote ⁸²

A. Punishing Those Who Commit Acts of Corruption

African states have an appalling record of tackling grand corruption. As noted earlier, there have been very few prosecutions of senior public officials (and even fewer successful prosecutions). Further, several key states have not ratified the AU Convention whilst others have not incorporated the UNCAC provisions into their domestic law. The fundamental challenge is to generate the political will on the part of African leaders to ‘persuade’ them of the need to take active steps to combat corruption. Whether the Court has the persuasive power to do so through the use of the criminal law is debatable.

The approach in Article 28I of dividing ‘corruption’ into a series of separate offences is helpful. It highlights its multi-faceted nature and addresses the key conduct that constitutes ‘grand corruption’. It also provides prosecutors with a range of possible charges. Yet the limitations contained in Article 28I are disappointing and serve only to undermine the anti-corruption mandate of the Court.

The requirement that the act of corruption is of a ‘serious nature affecting the stability of a state, region or the Union’ seems to serve little purpose other than to severely limit the cases which can be heard by the Court. No doubt much time and energy will be wasted on arguments as to the meaning and scope of this obscure phrase.

The immunity clause represents an even more serious challenge for the Court. As Amnesty International points out, it ‘promotes and strengthens the culture of impunity that is already entrenched in most African countries…’.Footnote ⁹⁰ In essence it protects (at least during their time in office) senior public officials from being accountable for their crimes.

On the face of it, these effectively undermine the power of the Court to punish those who commit acts of corruption. However, the linking of corruption to money laundering provides a possible escape route. The fact is that the proceeds of grand corruption are inevitably laundered both domestically and internationally, thus potentially giving rise to money laundering charges. This is significant in that the money laundering offence does not have the ‘serious nature’ limitation attaching to it. Further such a charge may also help investigators avoid the secrecy surrounding grand corruption in that information about, and evidence of, money laundering can be obtained from outside the victim state and thus beyond the control of the suspects.Footnote ⁹¹

As regards the immunity provision, this does not offer any protection to the wide range of individuals and entities who also fall within the scope of the corruption and money laundering offences. This includes the bribe-payers, including multi-national corporations, as well as family members of the corrupt senior public official.

In essence, despite the serious limitations in the Statute, a successful prosecution for corruption or money laundering of those involved with the senior public official(s) in their grand corruption schemes is feasible. This will provide the ‘teeth’ that the Court will otherwise lack.

A potential practical problem concerns the obtaining of effective international cooperation. This is an essential prerequisite in prosecuting the corruption offences and money laundering. The Court will need to establish a procedure for seeking mutual legal assistance both for the purposes of the trial and for enabling prosecutors at the earliest available opportunity to obtain evidence and to freeze the suspected proceeds of crime no matter where in the world the evidence or proceeds are located.

B. Asset Recovery

Taking away the profit is the key strategy in the fight against corruption. This is emphasised in Article 51 of the UNCAC which makes the return of assets a ‘fundamental principle’ of the Convention. The development of the Stolen Assets Recovery Initiative (StAR) further emphasises its importance.Footnote ⁹²

Providing the Court with the power to order the forfeiture of the proceeds of corruption and their return to their rightful owners is therefore welcome. However, setting aside the practical challenges of making asset recovery effective, restricting the power to conviction-based asset forfeiture is disappointing and significantly reduces the usefulness of the Court. It is unfortunate that more thought was not given to providing the Court with the power to recover stolen assets through a system of non–conviction based asset forfeiture or to extend its power to order reparations to the victims of corruption without the need for a criminal conviction.

A possible way forward is to provide prosecutors with the power to agree settlements with the criminals (albeit with judicial approval) in which the return of the proceeds of corruption to the people of the victim state takes place in exchange for the withdrawal of criminal charges. This approach has led to a series of ‘deals’ with senior African public officials, perhaps the most notable being that involving Teodoro Obiang. Here this approach neatly avoided the immunity provision in the Constitution of Equatorial Guinea and has led to the recovery of millions of dollars-worth of stolen assets and the repatriation of significant sums to the people of Equatorial Guinea. Similarly corporate bribe-payers have agreed to pay hundreds of millions of dollars to settle corruption cases.

C. The Way Forward

Overall the discussion in this chapter indicates that the Court faces significant challenges if it is to contribute effectively to the vital challenges of prosecuting grand corruption and obtaining the return of stolen assets. However, it has been argued that linking the corruption offences to that of money laundering at least offers the opportunity for the Court to make some progress. Even so, given that its jurisdiction is in respect of crimes committed after the entry into force of the Statute, it may be many years before its effectiveness will become apparent.

Reliance on the criminal law alone to combat corruption is both out dated and unrealistic. Further it may be questioned as to whether such a jurisdiction for the Court is even necessary. Developing an African court to address African problems is an admirable objective. Replacing the ICC with an African court is understandable and has some merit. Yet corruption is not within the mandate of the ICC and is very different to the international crimes set out in Article 28A.

The reality is that every day, millions of people throughout Africa are the victims of corruption and that addressing the problem effectively calls not for just an African response but a global response. This is starkly demonstrated with the release of the Panama Papers which highlighted the involvement of states around the world in facilitating the laundering of the proceeds of corruption and which provide unprecedented information about those responsible for grand corruption. Further, information is being provided by multinational corporations to investigators detailing their involvement in the bribery of African public officials and identifying the bribe-takers. Today there is unprecedented action on the part of many states to take effective action against African kleptocrats and those assisting them. Whether the Court will be able to contribute meaningfully to these global efforts to combat corruption and money laundering remains to be seen.

A. The Principle of Nullum Crimen Sine Lege

Given that the African Court would be the first international criminal court to exercise jurisdiction over money laundering, defence counsel can be expected to challenge the legality of the Court’s jurisdiction on the basis of the principle of nullum crimen sine lege. Defence counsel might argue, for example, that the African Court lacks jurisdiction over money laundering because the offence has not been criminalized under international law, customary or conventional. A number of international treaties include provisions on money laundering (e.g. the 1988 Vienna Convention and UNTOC), but these treaties do not enjoy universal participation among African states and cannot be viewed as evidence of custom, for reasons explained below. Moreover, these treaties also do not, by themselves, create international criminal responsibility, as they only require states to criminalize money laundering under domestic, as opposed to international law.

But prosecutors should be able to overcome jurisdictional challenges based on the principle of legality by arguing that Article 28Ibis not only sets out the Court’s subject matter jurisdiction, but also provides the applicable law.Footnote ³² In other words, this provision is both jurisdictional and substantive. This would not be a novel legal argument. In fact, scholars have made the same arguments about Articles 6, 7, 8, and 8bis of the Rome Statute of the ICC, which respectively concern genocide, crimes against humanity, war crimes, and aggression.Footnote ³³ These provisions do not entirely conform with customary international law. But because the articles themselves criminalize the crimes over which the Court enjoys jurisdiction and they only apply prospectively, the principle of nullum crimen sine lege does not pose problems. This approach to the Rome Statute is supported by Article 21 concerning applicable law. This provision requires the Court to apply the Statute ‘in the first place’, along with the Elements of Crimes and the Rules of Evidence, before applying ‘in the second place’ custom or treaty law. Unlike the Rome Statute, the Amended Protocol does not contain any provision on applicable law. But the absence of such a provision would not preclude arguments that the provisions on the international criminal jurisdiction of the African Court effectively conflate jurisdiction and applicable law.

Interpreting Article 28Ibis of the Amended Protocol as a substantive provision is, in fact, the only workable approach to the offence of money laundering. If prosecuting money laundering at the African Court is to be viable in practice, then the provision itself must be understood as stating the applicable law because of the absence of any customary international law prohibiting money laundering. The existence of numerous treaty provisions that require the criminalization of money laundering does not evidence the existence of a parallel customary norm, despite the fact that some of these treaties enjoy high ratification levels. While state practice in criminalizing money laundering may be widespread, this practice appears to stem, at least in part, from states’ treaty obligations, and not from a freestanding sense of legal obligation to do so, which would be required for the requisite opinio juris. In addition, the 40 Recommendations on money laundering and terrorist financing issued by the FATF also cannot be taken as evidence of a customary norm prohibiting money laundering. The FATF 40 Recommendations comprise a non-binding instrument. Compliance with the anti-money laundering norms set out in the Recommendations reveals nothing about whether states have a freestanding sense of legal obligation. Instead, FATF has brought about widespread implementation of anti-money laundering laws through political and economic pressure, and by encouraging states to comply with their existing treaty obligations under the 1988 Vienna Convention and UNTOC.

The absence of a customary prohibition on money laundering is, in essence, irrelevant for the jurisdiction of the African Court. When drafting the constituent instrument of a judicial institution such as the African Court, states may vest it with whatever jurisdiction they choose, and they can also authorize it to apply any law of their choosing (subject to the principle of legality).Footnote ³⁴ The subject matter jurisdiction and applicable law of international courts and tribunals do not necessarily depend on existing customary or treaty law, but may be determined by the constituent instrument itself. Nor must the subject matter jurisdiction of international criminal courts be limited to serious or grave crimes – a category into which offences like corruption and money laundering may or may not fall, depending partly on how we understand terms like serious and grave.Footnote ³⁵ While the ICC is indeed limited to ‘the most serious crimes of international concern,’ this may be understood as a policy decision made by the drafters of the Rome Statute, and not as the consequence of any legal requirement.Footnote ³⁶

As a result of the fact that the Amended Protocol not only establishes jurisdiction over money laundering but also sets forth the applicable law, it may be understood as a treaty that creates international legal obligations for individuals. While treaties that directly impose obligations on individuals or legal persons are relatively rare in the international legal system, they are not unheard of (see e.g. the 1949 Geneva Conventions).Footnote ³⁷ But in order to avoid binding individuals or legal persons in states that did not consent to the Amended Protocol, the jurisdictional scope of the money laundering provision would have to be limited in practice to offences that occurred on the territory of states parties, or offences committed by the nationals of states parties.Footnote ³⁸ The exercise of jurisdiction over offences committed by non-nationals outside of the territory of states parties to the Amended Protocol would therefore run afoul of the principle of legality.Footnote ³⁹

This approach to the Amended Protocol, as a substantive as well as jurisdictional provision, is workable due to the fact that Article 28Ibis is relatively detailed. This provision closely resembles the money laundering provision in the 1988 Vienna Convention, which has formed the basis for all subsequent treaty provisions on money laundering. These treaty provisions are not necessarily less detailed than domestic statutory provisions on money laundering, and they could form a sufficient basis for giving individuals and legal entities notice of the actus reus, or the conduct that constitutes a criminal offence. This approach to Article 28Ibis is also viable because the temporal jurisdiction of the African Court is not retroactive.Footnote ⁴⁰ If the applicable law set out in Article 28Ibis could apply retroactively, then this would indeed pose a problem with respect to the principle of legality.

Finally, Article 28Ibis does, however, fail to stipulate a mens rea requirement in its chapeau, unlike the 1988 Vienna Convention, UNTOC, and UNCAC, which all require states parties to criminalize conduct that was ‘committed intentionally’. The omission of a mens rea requirement could prove problematic from the perspective of the principle of legality, unless prosecutors and judges at the African Court engage in some creative treaty interpretation. The use of the word ‘knowing’ in Article 28Ibis(i) and the phrase ‘with the knowledge’ in Article 28Ibis(ii) could, for instance, be taken as indications that the conduct set out in this provision must be committed intentionally. But if such arguments fail to persuade the judges, then this apparent drafting error – which also plagues the other transnational criminal law provisions – could indeed prevent the prosecution of money laundering, along with many other offences set out in the Amended Protocol.

B. The Scope of the Court’s Jurisdiction over the Offence of Money Laundering

Assuming that the principle of legality would not pose an insurmountable problem for prosecutors at the African Court with respect to the offence of money laundering, the scope of the offence set out in the Amended Protocol would nevertheless limit the provision’s practical application. The offence of money laundering, as it appears in the Amended Protocol, is more limited than the offence as it appears in the more recent universal treaties, UNTOC and UNCAC, because it designates only ‘corruption or related offences’ as predicate offences. The term predicate offence refers to an offence that generates proceeds that may become the subject of a money laundering offence.Footnote ⁴¹ Both UNTOC and UNCAC contain money laundering provisions that refer broadly to ‘the proceeds of crime’, without imposing limits on the type of crime.Footnote ⁴² The Amended Protocol, by contrast, adopts the approach of the AU Convention, which limits the predicate offence to ‘corruption or related offences’.Footnote ⁴³ By confining the predicate offences to corruption or related offences, as opposed to criminal offences generally, the Amended Protocol greatly restricts the applicable scope of Article 28Ibis. In addition, the meaning of ‘related offences’ is uncertain in the context of both the Amended Protocol and the AU Convention, although it may be understood, at least in part, as a reference to crimes such as the use or concealment of proceeds derived from acts of corruption.Footnote ⁴⁴

In restricting the predicate offences for money laundering in this manner, the Amended Protocol not only departs from UNTOC and UNCAC, but it also runs contrary to the FATF 40 Recommendations. FATF Recommendation 3 indicates that states ‘should apply the crime of money laundering to all serious offences, with a view to including the widest range of predicate offences’. An interpretive note further explains that states may describe predicate offences as ‘all offences’, or by reference to a list of predicate offences or a particular threshold, such as serious offences or offences that attract a certain penalty.Footnote ⁴⁵ Without a drafting history for the Amended Protocol, it is difficult to appreciate what might have inspired this decision to limit money laundering to proceeds derived from corruption or related offences. From a policy perspective, it is also difficult to justify the limited scope of Art 28Ibis in light of the well-known links between money laundering and the other international and transnational crimes set out in the Amended Protocol, such as war crimes and crimes against humanity, piracy, terrorism, drug trafficking, human trafficking, and the illicit exploitation of natural resources. As noted in Section 2 of this chapter, for example, money laundering has been linked to the illicit exploitation of natural resources in both Sierra Leone and the DRC. Yet laundering the proceeds of such illicit exploitation would fall outside of the scope of Article 28Ibis.

It is also difficult to appreciate why the drafters decided to conclude Article 28Ibis with a safeguard clause which provides that ‘[n]othing in this article shall be interpreted as prejudicing the power of the Court to make a determination as to the seriousness of any act or offence’.Footnote ⁴⁶ This provision would be logical if this Article described predicate offences by reference to a threshold of seriousness. Given that sub-paragraph 1 defines predicate offences not as serious offences, but as corruption or related offences, it is unclear why the African Court would have an interest in safeguarding its authority to determine the ‘seriousness of any act or offence’. Because the Amended Protocol limits predicate offences to ‘corruption or related offences’, this clause appears to be overbroad in preserving the Court’s power to make threshold determinations as to the seriousness of ‘any act or offence’.

Sub-paragraph 2 of Article 28Ibis would have been easier to explain if it had preserved the African Court’s authority to determine what qualifies as a serious corruption offence. Article 28I, which concerns corruption, limits the scope of corruption offences to acts ‘of a serious nature affecting the stability of a state, region or the Union’.Footnote ⁴⁷ This clause has no origins in other international or regional anti-corruption treaties. Nor does similar qualifying language appear in any of the other transnational criminal law provisions in the Amended Protocol, except for the offence of illicit exploitation of natural resources, set out in Article 28Lbis.Footnote ⁴⁸ The terms ‘serious’, ‘stability’ and ‘region’ are undefined and open to debate, and therefore likely to result in preliminary challenges by those accused of corruption.Footnote ⁴⁹ For unknown reasons, the drafters of the Amended Protocol apparently considered it necessary to limit the scope of only the corruption offences and the offence of illicit exploitation of natural resources. None of the other transnational criminal law offences, which could also result in prosecutions of relatively minor infractions as well as more major violations, have a seriousness threshold. Perhaps, in the eyes of the drafters, any violations, however minor, of the other transnational criminal law offences would potentially be suitable for prosecution by the African Court, while this would not be the case for instances of petty corruption, for example. Alternatively, the drafters may have had concerns about giving the Prosecution unfettered discretion to bring corruption charges in particular. But without travaux préparatoires for the Amended Protocol, these possible explanations remain speculative.

The inclusion of a seriousness threshold for corruption and illicit exploitation of natural resources, but not for any of the other transnational crimes, is questionable. In light of the sheer frequency with which crimes like drug trafficking and trafficking in persons are committed in Africa, the other provisions covering transnational crimes arguably could have also benefited from a threshold of some sort. During the drafting of the Rome Statute, by contrast, concerns about flooding the ICC with the prosecution of offences like drug trafficking led, in part, to exclusion of transnational crimes from the Rome Statute.Footnote ⁵⁰ In addition, the prosecution of the remaining four offences – war crimes, crimes against humanity, genocide, and aggression – is limited to ‘the most serious crimes of concern to the international community as a whole’. Regardless of the reasons why the drafters limited the African Court’s jurisdiction over corruption, the effect is to limit the Court’s jurisdiction over money laundering as well as corruption, as the scope of the money laundering provision depends in part on the scope of its predicate offence, corruption.

C. Application of Jurisdictional Preconditions to the Offence of Money Laundering

The African Court’s exercise of jurisdiction over the offence of money laundering would also be limited by the fact that only two out of the four general preconditions for the Court’s exercise of jurisdiction, set out in Article 46Ebis, would apply to this offence. Article 46Ebis(2), which suffers from its own drafting problems, appears to provide for the exercise of jurisdiction by the African Court on the basis of (a) territoriality, (b) active personality, (c) passive personality, and (d) the protective principle, which covers extraterritorial acts that threaten a vital interest of a state party.Footnote ⁵¹ Though Article 46Ebis(2) curiously omits any reference to states parties, it appears that this provision is meant to provide for the Court’s exercise of jurisdiction over crimes committed on the territory of a state party and by a national of a state party, in addition to crimes that victimize the nationals of a state party or threaten the vital interests of a state party.Footnote ⁵² In the case of money laundering, however, only the territoriality and active personality principles are applicable.

The protective principle is inapplicable in the money laundering context on account of the principle of legality. As mentioned above, the principle of nullum crimen sine lege would be violated by the application of Article 28Ibis to nationals of non-states parties for acts committed outside of the territory of a state party to the Amended Protocol. Because the Amended Protocol sets out the substantive law on money laundering (in the absence of customary law), the Court’s exercise of jurisdiction is limited to conduct that takes place on the territory of a state party, and/or by one of its nationals. As a consequence, extraterritorial acts of money laundering by non-nationals fall outside of the jurisdiction of the Court, even where they threaten a vital interest of a state party.Footnote ⁵³

In addition, the jurisdictional precondition based on the protective principle, or the nationality of the victim of the crime, would also be of little relevance in the case of money laundering. Article 46Ebis(2)(c) provides that the Court may exercise jurisdiction ‘when the victim of the crime is a national’ of a state party. The commission of many of the offences set out in the Amended Protocol would produce identifiable victims, such as trafficked persons, the crew or passengers detained by pirates, and persons killed or injured by acts of terrorism. In the case of money laundering, however, identifying victims would be a difficult, if not impossible task in many instances. This is not to argue that money laundering is a ‘victimless crime’. Rather, the identification of victims or persons affected by the offence of money laundering is not a straightforward or even feasible task, as it might be in the case of crimes involving death or injury, for example.

In seeking to identify the victims of an act of money laundering, the African Court would have to identify the victims of the predicate offence of corruption or related offences. While disposing of the proceeds of crime may not, in itself, produce victims, the predicate crime of corruption may indeed cause harm to persons or legal entities. But acts of corruption ‘of a serious nature affecting the stability of a state, region or the Union’ are likely to generate an exceptionally wide range of potential victims. Acts of corruption that would actually have such an impact on stability (whether political, economic, legal, etc.) are likely to have innumerable victims among the population of a state, region, or the African continent. Corrupt conduct that entails such consequences is inherently unlikely to have affected a discrete number of persons who may be identified by the African Court for jurisdictional purposes. Even if this were the case, difficult questions might arise as to who or what ought to qualify as a victim in the first place (a term that the Amended Protocol does not define). In light of these conceptual challenges, the jurisdictional precondition based on the nationality of the victim is likely to be unworkable in the context of the money laundering offence, limited as it is to predicate crimes involving corrupt acts (or related offences) of a serious nature.

The jurisdictional preconditions for money laundering would therefore be limited to acts on the territory of a state party, and acts by a national of a state party.Footnote ⁵⁴ The full scope of the African Court’s territorial jurisdiction may, however, still be an open question in the context of money laundering. Would acts of money laundering that are begun in a state party and completed in a non-state party such as Switzerland, fall under the scope of its territorial jurisdiction? Such an interpretation would give the African Court a significantly greater capacity to prosecute money laundering, which is likely to involve cross border transactions in which money flows from Africa to international banking centres outside of Africa.