1. Introduction
While the African Court on Human and Peoples’ Rights has been operating for over a decade from Arusha, Tanzania, parallel discussions have been ongoing on the development of, firstly, an African Court of Justice with a general international jurisdiction, and then, subsequently on merging this latter Court with the existing court and adding an international criminal law element to its work.
Although the Protocol to the African Charter on Human and Peoples’ Rights Establishing an African Court on Human and Peoples’ Rights (1998 Protocol) was adopted in 1998 and had the necessary number of 15 ratifications for it to come into force in January 2004, it took until November 2006 before the African Court on Human and Peoples’ Rights (ACHPR Court) was to become operational. One of the reasons for this delay was due to a recognition by States that with the advent of the AU a new judicial body was also envisaged by the Constitutive Act. The African Court of Justice (ACJ), provided for in Articles 5 and 18 of the Constitutive Act, was to be the ‘principal judicial organ of the African Union’ with jurisdiction over not only the Constitutive Act but also ‘the interpretation, application or validity of Union treaties and all subsidiary legal instruments adopted within the framework of the Union; any question of international law; all acts, decisions, regulations and directives of the organs of the Union; and all matters specifically provided for in any other agreements that States Parties may conclude among themselves or with the Union and which confer jurisdiction on the Court’.Footnote 1 There was a concern that it would not be financially viable for the AU to administer two courts, this ACJ and the ACHPR Court. Proposals therefore started for the creation of a protocol to merge the two courts and a decision was taken that in the meantime the ACHPR Court should become operational.Footnote 2
In parallel, discussions were also taking place on the continent on whether an African regional court should try Hissene Habré,Footnote 3 in part the response of African States to what they viewed to be a ‘blatant abuse of the principle of universal jurisdiction’Footnote 4 to indict African leaders before the ICC and European courts for international crimes, and the perceived African bias by the International Criminal Court towards Africa.Footnote 5
Combined with the desire to merge the ACHPR Court with the ACJ, and brought to a head with the indictment by the ICC of presidents and senior government officials including Al-Bashir of Sudan and Uhuru Kenyatta who would subsequently become President of Kenya,Footnote 6 the AU adopted in June 2014 the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the ‘Malabo Protocol’). This created an African Court of Justice and Human and Peoples’ Rights (ACtJHPR) setting out the details of its composition, jurisdiction and other issues in a Statute annexed to the Protocol (Statute of the ACtJHPR).Footnote 7
Most of the attention and discussion on the Malabo Protocol has centred around the ACtJHPR’s criminal jurisdiction and concerns, for example, with the immunity clause which provided that ‘[n]o 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’.Footnote 8 The human rights jurisdiction of the proposed Court has been less visible. This chapter will, firstly, provide an overview of the current ACHPR Court before moving on to consider the human rights jurisdiction of the proposed Court in the Malabo Protocol’s Statute of the ACtJHPR. It will conclude with some practical suggestions as to how to take the issues forward.
2. The Human Rights Jurisdiction of the ACHPR Court and its Limitations
As of November 2018, the ACHPR Court’s website refers to 165 applications from individuals, 12 from NGOs and 3 from the African Commission, for its contentious jurisdiction that have been submitted to it since its inception. These are against States, the AU, Pan-African Parliament, the African Commission on Human and Peoples’ Rights, and Mozambique Airlines. Of these, the Court found in a significant number of these cases that it lacked jurisdiction including for want of an Article 34(6) declaration by the State party,Footnote 9 by which they submit themselves to adjudication in communications filed by individuals and NGOs, because the individual or organization did not have standing,Footnote 10 or because the State had not ratified the Protocol,Footnote 11 or where it was brought against another actor, not a State.Footnote 12 It has held a number to be inadmissible,Footnote 13 and struck out others for the failure of the applicant to pursue the case.Footnote 14 For some where it has found no jurisdiction it has transferred cases to the African Commission.Footnote 15 It has decided on the merits, finding violations,Footnote 16 and ruled on provisional measures in several.Footnote 17 Other cases are pending. Public hearings have been held in several cases.Footnote 18 The Court’s advisory jurisdiction has been requested on thirteen occasions.Footnote 19 This is a light docket for the principal human rights judicial body in Africa and the Court itself has recognized the low ratification and declaration rate of States, which ‘if such a situation were allowed to continue, the entire system of judicial protection of human rights at the continental level, which the Court symbolizes, would be adversely affected’.Footnote 20
Article 3 of the ACHPR Court Protocol provides:
1. The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned.
2. In the event of a dispute as to whether the Court has jurisdiction, the Court shall decide.
An advisory jurisdiction is provided in Article 4 of the 1998 Protocol and the eleven member ACHPR Court has the capacity to reach an amicable settlement between the parties,Footnote 21 adopt provisional measuresFootnote 22 and to interpret its judgments which are binding.Footnote 23
There are several issues that have been the subject of some discussion with respect to the jurisdiction of the ACHPR Court. These relate principally to issues of standing in contentious and advisory cases, but also its broad jurisdiction.
3. The Issue of Standing in Contentious Cases
One of the main criticisms that has been directed towards the ACHPR Court Protocol was that it did not permit individuals or NGOs (the mainstay of the African Commission’s casework) to submit cases directly to the Court unless the State, in addition to ratifying the Protocol, also made a declaration under Article 34(6) of the Protocol to provide the Court with the jurisdiction to do so. For those eight States who have made this declaration,Footnote 24 jurisdiction on this basis is straightforward.Footnote 25 While there are an increasing number of cases that the Court has been able to deal with, many in relation to the host State Tanzania, Article 34(6) has inevitably limited the overall volume of cases the Court has and is likely to receive. As a result the issue of standing has been the focus of much of the debate on the African Court since its inception.Footnote 26 As the only other actors that Article 5 permits to submit cases to the Court are the African Commission, States and African intergovernmental organizations, and given States are unlikely to use an inter-State communication procedure, in reality this meant that the Court was, certainly in these early years, always going to be largely dependent on the African Commission for its workflow. The relationship with the Commission is complex, as will be discussed below, and it is not surprising that this was never going to be a fruitful source of the African Court’s caseload. Parallels can inevitably be drawn with the early years of the Inter-American Court.Footnote 27
Many of the early cases before the ACHPR Court have related to standing, specifically who can bring the case, and those where there has been a misunderstanding of the Court’s jurisdiction with respect to who the case can be brought against. Therefore, a considerable number of the cases before the Court, alleging violations of a variety of rights, have not succeeded because they are brought by individuals or NGOs against States which have not made a declaration under Article 34(6) of the Protocol.Footnote 28 There has been some rather innovative, albeit unsuccessful, attempts by some entrepreneurial lawyers to test the Court’s approach to the limitations of Article 5.Footnote 29
A few cases have tested the jurisdiction ratione personae with respect to the respondent, bringing cases against the AU organs;Footnote 30 and against a State which was not party to the AU Constitutive Act neither the Protocol.Footnote 31
4. Limits of the Advisory Jurisdiction
The ACHPR’s Court’s advisory jurisdictionFootnote 32 is provided in Article 4 of the 1998 Protocol:
1. At the request of a Member State of the OAU, the OAU, any of its organs, or any African organization recognized by the OAU, the Court may provide an opinion on any legal matter relating to the Charter or any other relevant human rights instruments, provided that the subject matter of the opinion is not related to a matter being examined by the Commission.
2. The Court shall give reasons for its advisory opinions provided that every judge shall be entitled to deliver a separate or dissenting decision.
Only one State (Mali) has requested an opinion,Footnote 33 and concerns as to whether the African Commission on Human and Peoples’ Rights and the African Committee on the Rights and Welfare of the Child are organs of the AU for the purposes of Article 4 are no longer an issue.Footnote 34 What is more interesting is the ability of NGOs to assert that they are ‘African organisations recognised by the [AU]’ for the purposes of Article 4 of the Protocol. In a series of Opinions adopted in 2017 the African Court closed this avenue for NGOs who had attempted to argue that as they had observer status before the African Commission on Human and Peoples’ Rights and that this Commission was an organ of the AU, they were hence ‘recognised’ by the AU. The African Court disagreed.Footnote 35
5. The Breadth of the Jurisdiction
The ACHPR Court has jurisdiction not only to rule on the interpretation and application of the African Charter on Human and Peoples’ Rights (hereinafter ‘African Charter’) and the Protocol establishing the Court, but also ‘any other relevant human rights instruments ratified by the States concerned’.Footnote 36 It is not uncommon for international and regional courts to draw upon each others’ jurisprudence and this is an approach that has been adopted similarly by the ACHPR Court in numerous cases.Footnote 37 However, Article 3 of the 1998 Protocol enables the ACHPR Court to go further to find not only violations of the African Charter but also, for example, violations of the International Covenant on Civil and Political Rights and ECOWAS Treaty.Footnote 38 In this regard it was willing to rule on violations of the ICCPR, even where the State has not ratified the Optional Protocol permitting the Human Rights Committee jurisdiction to examine individual complaints;Footnote 39 and having found a violation of a particular right in the African Charter has then gone on automatically to conclude that this was also a violation of the right in the ICCPR given that the latter ‘guarantees in the same manner’ the right in the African Charter.Footnote 40
The ACHPR Court’s interpretation of ratione lociFootnote 41 and temporis have been relatively uncontroversial. However, while it has found jurisdiction where there is a continuing violation,Footnote 42 overall it has not been consistent in terms of the relevant date which is taken to determine its jurisdiction. It has on some occasions held that the relevant date was the date of ratification of the Charter, even if the violations took place before the Protocol came into force: ‘by the time of the alleged violation, the Respondent had already ratified the Charter and was therefore bound by it. The Charter was operational and there was therefore already a duty on the Respondent at the time of the alleged violation to protect those rights’.Footnote 43 In contrast, it noted in other cases that there were a number of relevant dates: ‘those of the entry into force, with regard to the respondent State, of the Charter (21 October 1986), the Protocol (25 January 2004), and the Covenant (4 April 1999) as well as the optional declaration accepting the jurisdiction of the Court to hear applications from individuals or non-governmental organizations (25 January 2004)’.Footnote 44 It went on to find that given that the violation of the right to freedom of expression took place ‘on 10 May 2013 or well after the Respondent State had become Party to the Charter and the Covenant, and had made the declaration accepting the Court’s jurisdiction to receive applications from individuals or non-governmental organizations (NGOs). Consequently, the Court finds that it has the ratione temporis jurisdiction to hear the allegation of violation of the right to freedom of expression’.Footnote 45
6. The Malabo Protocol and Human Rights
The Malabo Protocol needs to be understood as a reflection of its political and legal history. Building upon the desire initially to merge the ACHPR Court with the ACJ, its articles inevitably, in part, are influenced by not only the Protocol Establishing the African Court on Human and Peoples’ Rights but also the Protocol on the Statute of the ACJ. The subsequent wish to extend the jurisdiction to including international crimes resulted in the drafters not only using these instruments and the ICJ Statute, for example, but also drawing heavily on the provisions of the Rome Statute, and the Statutes of the ICTR and ICTY. On the one hand this is positive: it reflects a willingness to learn from the existing courts and build upon examples of good practice. Indeed, there is evidence of incorporation of examples of good practice certainly in the criminal jurisdiction of the proposed Court.Footnote 46
But the human rights provisions largely reflect the ACHPR Protocol with some tweaks that do not necessarily suggest a coherence in the approach of the drafters to draw or build upon the experience of the ACHPR Court. This is not to say that the Malabo Protocol does not include some positive elements which should be commended, such as providing the new Court with more autonomy in determining its own budget than existing Court;Footnote 47 or consolidating the requirement for gender representation on the bench.Footnote 48 However, it is difficult to see overall that there is a consistent or strategic approach to increasing or enhancing the strength of the proposed Court’s human rights jurisdiction.
7. Too Broad a Jurisdiction?
Article 28 of the Statute of the ACtJHPR provides:
The Court shall have jurisdiction over all cases and all legal disputes submitted to it in accordance with the present Statute which relate to:
(a) the interpretation and application of the Constitutive Act;
(b) the interpretation, application or validity of other Union Treaties and all subsidiary legal instruments adopted within the framework of the Union or the Organization of African Unity;
(c) the interpretation and the application of the African Charter, the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, or any other legal instrument relating to human rights, ratified by the States Parties concerned;
(d) the crimes contained in this Statute, subject to a right of appeal;
(e) any question of international law;
(f) all acts, decisions, regulations and directives of the organs of the Union;
(g) all matters specifically provided for in any other agreements that States Parties may conclude among themselves, or with the Union and which confer jurisdiction on the Court;
(h) the existence of any fact which, if established, would constitute a breach of an obligation owed to a State Party or to the Union;
(i) the nature or extent of the reparation to be made for the breach of an international obligation.
This therefore includes not only human and peoples’ rights but also international law and international criminal law. Many have criticized this breadth noting this is ‘unprecedented under international law’.Footnote 49 There are a number of issues that arise for its human rights jurisdiction.
Firstly, it is argued that by combining the three different jurisdictions into one Court the human rights mandate will be diluted. As has been evidenced in part by the discussions leading up to the adoption of the Malabo Protocol, many are concerned that criminal matters will be more visible, and human and peoples’ rights will be sidelined. Furthermore, it is argued that combining a court which is to determine not only State responsibility but also individual criminal responsibility, is unworkable,Footnote 50 not least because of the different standards of evidence that apply and the likelihood that the latter will take significantly more resources.Footnote 51
Secondly, there are also concerns that the legacy of the current ACtHPR and any experience it has acquired will be lost. Suggestions that there be a separate court for criminal trials,Footnote 52 or that States should be given the option of accepting only jurisdiction on general affairs, human rights or criminal matters,Footnote 53 were refused.
Finally, it is also argued that if States have to ratify a protocol providing a Court with the jurisdiction to try international crimes as well as human rights, they may refuse to ratify at all (whereas they may have ratified courts with distinct jurisdictions).Footnote 54
8. Structure of the Court and Number of Judges
The way in which the proposed ACtJHPR is structured raises a question as to whether there are sufficient numbers of judges able to deal with the human rights cases and a lack of clarity as to how this will be managed. The new court is to be composed of 16 judges.Footnote 55 Article 16 of the Statute of the ACtJHPR provides that there will be three sections for the new Court: general, human and peoples’ rights and international criminal law. Article 16(3) States that the ‘allocation of judges to the respective Sections and Chambers shall be determined by the Court in its Rules’. Furthermore, the ‘President and Vice President shall, in consultation with the Members of the Court and as provided for in the Rules of Court, assign Judges to the Sections’.Footnote 56 This would appear to be appropriate. However, there is inconsistency with Article 6 which provides that it is the Chairperson of the AU Commission which will separate out the lists of candidates into the different Sections prior to their actual election.Footnote 57 This implies that in practice the determination of which judges will sit in which Sections is determined not by the Court but by the AU. Although this may have been a formulation borrowed from the ICC, it raises certain challenges and will require careful consideration when judges are nominated.
Article 17 provides for the process for assignment of matters to Sections of the Court. Here the General Affairs Section appears to act as the default Section for the Court, in that ‘all cases … except those assigned to the Human and Peoples’ Rights Section and International Criminal Law Section’ will fall within its mandate. Given that similarly, the Human and Peoples’ Rights Section is competent to hear ‘all cases relating to human and peoples’ rights’ and the International Criminal Law Section is similarly competent to hear ‘all cases relating to the crimes specified in this Statute’, this is a broad approach and does not address the issue of where there is an overlap or where cases involve one or more elements of international law, human and peoples’ rights and international crimes.
9. Treaties Within the Court’s Jurisdiction
As noted above Article 28 of the Statute of the ACtJHPR provides a broad range of instruments upon which the ACtJHPR may be required to rule. In some respects this reflects the mandate of the current ACHPR Court as set out in Article 3 of the 1998 Protocol. Besides the concern, dealt with above, of combining a criminal and human rights jurisdiction, and leaving aside the debate around the breadth of the list of crimes provided for in the Statute of the ACtJHPR, and the possibility, as outlined in its Article 28(2)(A), for further crimes to be added,Footnote 58 Article 28 also refers to ‘other Union Treaties and all subsidiary legal instruments adopted within the framework of the Union or the Organization of African Unity’, as well as the ACHPR, ACRWC, Protocol on the Rights of Women in Africa, ‘or any other legal instrument relating to human rights, ratified by the States Parties concerned’ will be under its jurisdiction, in addition to the other documents referred to in sub-sections (e)-(i).Footnote 59 On the one hand, some have noted that this breadth is extensive and unworkable.Footnote 60 On the other, however, international courts such as the ICJ have shown themselves able to rule on an extensive range of international and indeed international human rights issues. The ACHPR Court itself does not appear to have been daunted by the potential for it to rule on other treaties beyond the African Charter and where it has been required to do so, has taken a pragmatic approach. It may be, therefore, that these provisions will in practice provide litigants with greater scope and the Court with greater freedom.
10. Standing
Judges of the current ACHPR Court have shown sympathy with the idea that individuals and NGOs should be able to access the Court directly,Footnote 61 but on the whole they have not considered that this is within the power of the Court to change given the restrictions of Articles 5 and 34(6). Rather they have viewed this as being an issue for the Member States to determine.Footnote 62
With respect to individuals and NGOs, the opportunity that the Malabo Protocol may have provided to increase access of individuals and NGOs directly to the Court proved unsuccessful. Articles 29 and 30 of the Statute of the ACtJHPR provide:
Entities Eligible to Submit Cases to the Court Article 29
1. The following entities shall be entitled to submit cases to the Court on any issue or dispute provided for in Article 28:
(a) State Parties to the present Protocol;
(b) The Assembly, the Peace and Security Council, the Parliament and other organs of the Union authorized by the Assembly;
(c) A staff member of the African Union on appeal, in a dispute and within the limits and under the terms and conditions laid down in the Staff Rules and Regulations of the Union;
(d) The Office of the Prosecutor.
2. The Court shall not be open to States, which are not members of the Union. The Court shall also have no jurisdiction to deal with a dispute involving a Member State that has not ratified the Protocol.
Article 30
Other Entities Eligible to Submit Cases to the Court
The following entities shall also be entitled to submit cases to the Court on any violation of a right guaranteed by the African Charter, by the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, or any other legal instrument relevant to human rights ratified by the States Parties concerned:
(a) State Parties to the present Protocol;
(b) the African Commission on Human and Peoples’ Rights;
(c) the African Committee of Experts on the Rights and Welfare of the Child;
(d) African Intergovernmental Organizations accredited to the Union or its organs;
(e) African National Human Rights Institutions;
(f) African individuals or African Non-Governmental Organizations with Observer Status with the African Union or its organs or institutions, but only with regard to a State that has made a Declaration accepting the competence of the Court to receive cases or applications submitted to it directly. The Court shall not receive any case or application involving a State Party which has not made a Declaration in accordance with Article 9(3) of this Protocol.
To be welcomed is that whereas the 1998 Protocol does not permit the African Committee on the Rights and Welfare of the Child nor NHRIs to submit cases to the Court, they are able to do so before the new ACtJHPR.
Unfortunately, however, limiting standing to ‘African individuals or African Non-governmental organizations’ which are defined in Article 1 as ‘Non-governmental Organizations at the sub-regional, regional or inter-African levels as well as those in the Diaspora as may be defined by the Executive Council’, raises questions about the potential for further restrictions on NGOs accessing the court. Whether international NGOs would fall within this definition is debatable. ‘African individuals’ are not defined in the preamble.
Similarly, Article 53 of the Statute of the ACtJHPR is more prescriptive than Article 4 of the 1998 Protocol with respect to the Court’s advisory jurisdiction. Article 53 reads:
1. The Court may give an advisory opinion on any legal question at the request of the Assembly, the Parliament, the Executive Council, the Peace and Security Council, the Economic, Social and Cultural Council (ECOSOCC), the Financial Institutions or any other organ of the Union as may be authorized by the Assembly.
2. A request for an advisory opinion shall be in writing and shall contain an exact Statement of the question upon which the opinion is required and shall be accompanied by all relevant documents.
3. A request for an advisory opinion must not be related to a pending application before the African Commission or the African Committee of Experts.
This appears to limit requests for advisory opinions only to organs of the AU and closes the door on NGOs and others having this capacity.
11. Remedies
The ACHPR Court has a broad remit under Article 27(1) to ‘make appropriate orders to remedy the violation including the payment of fair compensation or reparation’. Indeed, Article 27(1) requires that the Court ‘shall’ do so if a violation is found. Rule 63 of the Rules of Court provides that such an order can be part of the same decision finding the violation or ‘if circumstances so require, by a separate decision’.
The ACHPR Court in its practice so far has been prepared to order a range of remedies and reparations from guarantees of non-repetition;Footnote 63 damages, both material and moralFootnote 64; costs and compensationFootnote 65; and publication and dissemination of the ACHPR’s judgment.Footnote 66 These orders have been made in some cases in the judgment itself,Footnote 67 and in others in a separate ruling on reparations.Footnote 68 In general it has held that ‘any violation of an international obligation that has caused harm entails the obligation to provide adequate reparation’, citing ICJ case law and that this is a principle of customary international law, and as provided for in Article 27(1) of the Protocol.Footnote 69 Applicants have to provide the necessary evidence to support their claims.Footnote 70
Article 45 of the Statute of the ACtJHPR does not make reference to the possibility of separate rulings on reparations.
12. Monitoring and Execution of Judgments
Article 43 of the Statute of the ACtHPR largely reflects Article 28 of the 1998 Protocol for the current ACHPR Court. Article 43 reads:
Judgments and Decisions
1. The Court shall render its judgment within ninety (90) days of having completed its deliberations.
2. All judgments shall State the reasons on which they are based.
3. The judgment shall contain the names of the Judges who have taken part in the decision.
4. The judgment shall be signed by all the Judges and certified by the Presiding Judge and the Registrar. It shall be read in open session, due notice having been given to the agents.
5. The Parties to the case shall be notified of the judgment of the Court and it shall be transmitted to the Member States and the Commission.
6. The Executive Council shall also be notified of the judgment and shall monitor its execution on behalf of the Assembly.
Furthermore, Article 46 reads:
Binding Force and Execution of Judgments
1. The decision of the Court shall be binding on the parties.
2. Subject to the provisions of Article 18 (as amended) and paragraph 3 of Article 41 of the Statute, the judgment of the Court is final.
3. The parties shall comply with the judgment made by the Court in any dispute to which they are parties within the time stipulated by the Court and shall guarantee its execution.
4. Where a party has failed to comply with a judgment, the Court shall refer the matter to the Assembly, which shall decide upon measures to be taken to give effect to that judgment.
5. The Assembly may impose sanctions by virtue of paragraph 2 of Article 23 of the Constitutive Act.
The ACHPR Court is still grappling with the exact nature of its role with respect to monitoring and execution of its judgments. Article 31 of the 1998 Protocol provides: ‘the Court shall submit to each regular session of the Assembly, a report on its work during the previous year. The report shall specify, in particular, the cases in which a State has not complied with the Court’s judgement’. In fact the current Court has also adopted other reports in the case of Libya identifying its failure to comply with an order for provisional measures.Footnote 71 The ACHPR Court has also suggested that it should be able to report not just once a year (which had become the practice) but to ‘each regular session of the Assembly’ as required under Article 31.Footnote 72
13. Legal Aid
Article 10(2) of the current ACHPR 1998 Protocol provides that ‘free legal representation may be provided where the interests of justice so require’. No such provision is provided for in the Statute of the ACtJHPR. Although there is reference to the possibility of legal assistance being funded from the Trust FundFootnote 73 in relation to ‘victims of human rights violations or their families’, the new Statute does not appear to reflect fully the work that the ACHPR Court has done on this issue.Footnote 74 On the other hand, the provisions provided a Defence Office in the criminal jurisdiction of the Court gives effect to the right to counsel for individual defendants in the criminal cases. It maybe, in that context and in light of the current protocol, the legal aid policy would still be maintained to increase the scope of possible human rights cases.
Practical and other challenges arising from its merging of human rights with other jurisdiction and how to address them.
As can be seen from the examples provided above, the Malabo Protocol may make some welcome amendments with respect to the human rights jurisdiction of the proposed Court which reflect the experience of the existing ACHPR Court, but in other respects the changes are more troubling. The question is what can now be done to work with the Malabo Protocol.
It is worth stressing that the Malabo Protocol is likely to take several years to come into force, even if the 15 States requiredFootnote 75 are willing to ratify it quickly. As of November 2018 there are only 11 signatories and no ratifications. There is considerable confusion, given the existence of not only the Malabo Protocol but also previous Protocols as well as the ACHPR Court 1998 Protocol that it is by no means clear for States which instrument they should be ratifying. In addition, the potential clash between compliance with the Rome Statute obligations and with the provisions of the Malabo Protocol around immunities in particular, as well as the steer given by the AU not to cooperate with the ICC may have prompted reluctance on some States to ratify.Footnote 76 This confusion, lack of clarity and timeframe can be exploited to ensure that if and when the Malabo Protocol does come into force, its human rights jurisdiction is stronger than currently reflected in its provisions.
14. Consolidating and Strengthening the Existing ACHPR Court
The ACHPR Court has continued to function during these negotiations and it will continue to function until the Malabo Protocol comes into force. A weak human rights court with a limited jurisprudence behind it and which has had little opportunity to explore the breadth of its mandate is less likely to leave much of a mark on the continent. If this time can be used to bolster the legacy of the ACHPR Court, some of the concerns with the human rights jurisdiction of the proposed ACtJHPR may become obsolete.
There are various ways this could be developed. Firstly, this could be through continuing strategic and other litigation on substantive rights, particularly those which the African Commission on Human and Peoples’ Rights has not also yet had the opportunity to consider. In addition, increasing use of the ACHPR Court’s advisory jurisdiction by AU organs, the African Commission and African Committee on the Rights and Welfare of the Child should be encouraged.
There is of course the issue of whether States should be encouraged to ratify the 1998 Protocol. At the very least the 22 that have already ratified but not made an Article 34(6) declaration should be encouraged to do so in order to ensure access by individuals and NGOs and thereby increase the likelihood of a fuller docket of the Court.Footnote 77
Furthermore, the relationship between the ACHPR Court and the African Commission on Human and Peoples’ Rights is fundamental to the future of the human rights courts on the continent. Article 2 of the 1998 Protocol provides for the ACHPR Court to complement the protective mandate of the African Commission. As noted above the African Commission is among one of the bodies entitled to submit a case directly to the ACHPR Court under Article 5 of the 1998 Protocol. Article 6 enables the Court to request the opinion of the African Commission when the former is deciding issues of admissibility and gives it the option of transferring cases to the Commission.Footnote 78 The 1998 Protocol and the Rules of the Court reflect the fact that the functioning of the ACHPR Court is intrinsically linked to that of the African Commission.
Besides simple matters such as the ACHPR Court requesting the African Commission’s clarification on whether the NGO has observer status before the Commission,Footnote 79 and whether the case is still pending before the Commission or has been withdrawn,Footnote 80 more importantly, the African Commission retains the power to submit cases to the Court directly through Article 5. Rule 118 of the Commission’s Rules of Procedure set out three situations in which cases may be submitted to the ACHPR: in the event of a failure to comply with its recommendations; failure to comply with its provisional measures; or if the situation is considered to be one of serious or massive violations. Although it has used this opportunity on very few occasionsFootnote 81 and has, it is argued, not necessarily thought through fully the implications of these cases before the Court, this issue is unlikely to go away before the proposed Court. Any clarity that can therefore be obtained at this stage in working through the instances where the African Commission will submit cases to the ACHPR Court can only be of assistance for any future court.
Conversely, there are numerous cases where the ACHPR Court has referred cases to the African Commission.Footnote 82 The grounds for doing so are not particularly clearly explained but raise a number of issues and the inconsistency and lack of clarity in the approach of the Court in this regard has been identified by one judge, Judge Fatsah Ouguergouz, who has issued numerous dissenting opinions repeating his concern with the way in which the Court has handled this issue.Footnote 83
The opportunity now to further articulate the criteria on which the ACHPR Court will refer cases to the African Commission should not be missed. As Ouguergouz notes, consideration of whether referral is done on the basis, for example, of alerting the Commission to a situation of serious or massive violations and thereby acting as a form of ‘early warning system’ for the African Commission, goes to the heart of what role both the ACHPR Court and the African Commission play in the African human rights system as a whole.Footnote 84
Similar considerations are also relevant to the relationship with the African Committee on the Rights and Welfare of the Child. Although the Malabo Protocol mentions this Committee only briefly, there is reference in Article 27 of the Statute of the ACtJHPR to the need for the Court to bear in mind its relationship of complementarity not only with the African Commission on Human and Peoples; Rights but also this Committee in the elaboration of its Rules.
Further work needs to be done on how the ACtHPR’s judgments will be monitored in terms of their implementation by States. The roles of the Assembly, Executive Council and other AU organs in this regard need to be transparent and considered. Further engagement with the Court and AU bodies on this issue will be of relevance to any new Court.
Finally, it is not at all clear that the current ACHPR Court is yet particularly well known. The confusion at its inception between it and the ACJ has continued and been exacerbated by the extended criminal jurisdiction and finally the Malabo Protocol itself. Arguably, only those with an intimate knowledge of the AU and these developments fully understood the context and which Court was actually operational. It is not clear that much has changed 10 years on, despite valiant efforts by organisations such as the Coalition for an African Court to increase the number of ratifications and declarations under Article 34(6).
15. Strengthening the Human Rights Machinery and Bodies on the Continent
Through its Human Rights Strategy the AU commits itself to enhancing:
Coordination and collaboration among AU and RECs organs and institutions and Member States;
Strengthen the capacity of AU and RECs institutions with a human rights mandate; Accelerate ratification of human rights instruments;
Ensure effective implementation of human rights instruments and decisions;
Increase promotion and popularization of African human rights norms.Footnote 85
This is to be achieved through, among other things, ‘strengthened capacity of institutions at continental, regional and national Levels’.Footnote 86
Besides the ACHPR Court, it is also important that sight is not lost of the African Commission, not least because regardless of what will happen to the Court, the Commission’s mandate is unaffected. In addition, there are a range of other organs and bodies in the AU which have a role in human rights. This includes not just, for example, the Peace and Security Council or Pan-African Parliament, but also the African Peer Review Mechanism and ECOSOCC.
The opportunities missed, when the OAU transformed into the AU, for the development of a coherent overall strategy for engagement between the AU human rights bodies and instruments, could be taken up now. This could include revisiting the AU’s Human Rights Strategy and specifically to ‘consolidate and review co-ordination, complementarities and subsidiarity gaps and overlaps in the African human rights system, as well as reform of affected instruments in the human rights framework for policy decision and action to be taken’.Footnote 87 Continued regularly engagement between the relevant organs could also be accompanied by mapping out respective roles and relationships. It is imperative that the AU organs respect the independence of both the African Commission and the African Court and do not continue along the path they appear to be treading with the adoption in July 2018 of a decision calling into question decisions of the Commission and signaling a shift towards greater interference by the AU political organs in their work.Footnote 88
Lastly, one should not forget some fundamental principles underlying the establishment of any new or expanded court. These include not only a focus on the rights of victims, whether from an international criminal or human rights law perspective, but also the importance of an independent, robust and experienced bench.
Building on work that the AU has already done to improve the pool of candidates for judges on the ACHPR Court and clarifying criteria for appointment it is hoped has dissuaded States from nominating and electing individuals who hold positions which will be incompatible with being a member of the judiciary. If these policies and procedures can be made more robust with respect to the existing ACHPR Court as well as the African Commission and African Committee of Experts on the Rights and Welfare of the Child, it is hoped by the time the Malabo Protocol comes into force they will be well established in practice.
16. Conclusion
Practically taking these issues forward with respect to the human rights jurisdiction requires not only working with the existing ACHPR Court, but also engagement with the AU, other bodies at the regional as well as the sub-regional and national levels. One of the challenges is that this requires consideration not just of human rights but also international law and international criminal law, and therefore necessitates conversations with and among a range of what are often seen as different groups of organizations and sectors.
Amending the provisions of the Malabo Protocol, on the face of it, does not appear to be too onerous a procedure, requiring either that the Court itself proposes amendments, or a State party ‘makes a written request to that effect to the Chairperson of the Commission. The Assembly may adopt, by simple majority, the draft amendment after all the States parties to the present Protocol have been duly informed of it and the Court has given its opinion on the amendment’.Footnote 89 In practice this is likely to be extremely difficult and there may be little appetite now for further amendments. In addition, opening up the text of the Protocol also opens the possibility that the result may be less favourable than the current provisions.
The drafters of the Malabo Protocol were willing to draw upon examples of good practice in other international and regional courts. States and civil society organizations can take advantage of this positive approach and use the occasion to develop softer tools, including first drafts of Rules of the Court, practice directions, guidelines, polices and memoranda of understanding. This may also provide further opportunities for the experience of the ACHPR Court to be incorporated into documents for the new court. Furthermore, referring to examples from the domestic courts in Africa, something the drafters of the Malabo Protocol did not appear to do, should also be considered.
Many hope that the Malabo Protocol, for its many flaws, might slip into obscurity and never come into force. At the very least, even if it is in the shadow of the highly ambitious establishment of a regional court, there is now a chance for some consolidation and strengthening of what the continent already has. It would be a shame if this opportunity were not taken.
1. Introduction
Until quite recently, domestic criminal law and institutions were regarded as primary tools for the effective enforcement of the African Charter on Human and Peoples’ Rights (African Charter) and other human rights treaties relevant to Africa, as far as criminal justice is concerned.Footnote 1 Today, Africa is expanding its frontiers by exploring new paths to enhance protection of human and peoples’ rights. In 2014, the African Union (AU) Assembly of Heads of State and Government adopted the Malabo Protocol on the Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol)Footnote 2 which is posed to be a major contribution to the development of international law. The Protocol sets up a ‘megacourt’ since, for the first time, an international court will have jurisdiction on both human rights, international/African criminal matters and general affairs of international law. While this is a salutary and innovative initiative, the future court, in this particular format, will certainly face challenges, which could undermine its effectiveness.
However, the major innovation of the Malabo Protocol is undoubtedly the institution of the first ever regional criminal court, with jurisdiction on international crimes and serious crimes of African international law.Footnote 3 This chapter will then focus on the Criminal Section of the future Court in order to explore its relationship with the existing human rights mechanisms in Africa, as well as its potential contribution to the protection of human and peoples’ rights on the continent. In fact, the chapter argues that the new African Criminal Court (ACC) should be embedded within the broader system of human rights protection in Africa. Therefore, the chapter sheds some light on legal issues at the intersection of human rights and international criminal law in the African context. Then, Section 2 briefly addresses the general question of the relationship between (international) criminal law and human rights law. Section 3 explores the Criminal Section’s interactions with the major African human rights mechanisms. Section 4 concludes by putting forward the theory of mutual reinforcement between different entities for a better strengthening of the African human rights system.
2. A Complex Relationship between (International) Criminal Law and Human Rights
Analyzing the relationship between criminal law and human rights is the starting point towards a better understanding of the relationship between the future ACC and other human rights mechanisms on the continent. In fact, (international) criminal law (ICL) and international human rights law (IHRL) have been cohabitating since time immemorial. Their relationship is sometimes harmonious, and other times tense.
A. A Harmonious Relationship between Criminal and Human Rights Law
International criminal law and human rights law have both matured and developed in the context of mass atrocities committed during the twentieth century, which have culminated in the perpetration of the Holocaust of Jews by the Nazis during the Second World War, the genocide in Rwanda, the ethnic cleansing in the Balkans and other mass criminality in other parts of the world. Both branches of law make the same call: ending impunity of perpetrators of core crimes, which also correspond partly to serious violations of human rights. It is therefore understandable that ICL and IHRL share the same goals and are, to some extent, mutually reinforcing. For instance, in certain areas such as due process, both branches of international law protect the same values. They both enshrine the same fundamental principles that are the tenets for fairness of proceedings. Both ICL and IHRL instruments, for example, provide for the principle of legality, the principle of non-retroactivity, the presumption of innocence, etc.Footnote 4 In some circles, it seems like both branches of international law are of the same nature. They are presented as the two sides of the same coin. To that effect, international criminal law is viewed at times as ‘an outgrowth of human rights law and celebrated as one of the most significant developments in the struggle to hold human rights violators accountable.’Footnote 5
Similarly, ICL and IHRL reinforce each other; which allow each branch to reach its potential and fulfil its purpose. Before the development of the ICL discipline, most human rights treaties relied on domestic criminal law and institutions to ensure their effective enforcement. This fully explains why most human rights instruments request States parties to criminalize some acts deemed to be human rights violations.Footnote 6 Likewise, the former are duty-bound to investigate human rights violations, prosecute and eventually punish persons responsible for rights violations in accordance with their criminal laws.Footnote 7
The development of ICL has provided a valuable tool to complement human rights law and to reinforce its application. For instance, the creation of international and internationalized criminal courts relevant to AfricaFootnote 8 have contributed to protect and uphold human rights enshrined in the African Charter on Human and Peoples’ Rights (African Charter) and other human rights treaties relevant to Africa. Therefore, ICL has also contributed in supplementing the domestic criminal law and institutions which were regarded as primary tools for the effective enforcement of human rights instruments.
Moreover, the criminalization of systematic and serious human rights violations is a continuation of the human rights struggle by other means. Professor Mégret somewhat emphasizes this by stating that ‘the apex of the human rights movement comes in the form of a tribunal that is not a human rights tribunal properly so-called.’Footnote 9 This explains the critical role the human rights community plays, both at national or international level,Footnote 10 to ensure that perpetrators of human rights violations do not go unpunished. However, it seems peculiar that the African human rights community, especially civil society organizations, did not support nor promote the idea of an African regional criminal court in the beginning!Footnote 11 In fact they opposed the idea perhaps due to the context in which it has been nurtured, i.e. the tension between AU and the International Criminal Court (ICC). Consequently, they complained of having been sidelined in the discussion leading to the adoption of the Malabo Protocol.
Finally, ICL has strengthened the human rights regime in two ways at least. Firstly, the criminalization and elevation of serious human rights violations, whether committed in peacetime or wartime, to the level of international crimes confirm that they are an affront to the entire humanity, not simply a matter for the individual victims. For example, torture constitutes an international crime punishable either as a crime against humanity,Footnote 12, a war crimeFootnote 13 or even genocideFootnote 14 if the legal ingredients are present. Secondly, ICL plays a protective role of human rights. For example, the international criminal law’s affirmation of the principle that serious human rights violations amounting to international crimes are not subject to statutory limitationsFootnote 15. Thus, it further reinforces the human rights regime and upholds human dignity.
In return, IHRL has contributed to the development and the humanization of ICL. Even if this is not obvious at the first glance, it is important to underline that human rights law provides the parameters within which international criminal law is implemented.Footnote 16 For instance, IHRL constrains key players in the area of the international justice to act within its confines. It is not trivial that the Rome Statute prescribes that applicable law before the ICC ‘must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.’Footnote 17 For Professor Mégret, human rights law constitutes the ‘constitutional’ framework of reference that prevents international criminal law from derailing into an illiberal system.Footnote 18 Therefore, human rights law has the potential to act as a guideline to teleological interpretations of international criminal law.Footnote 19 Additionally, needless to say that due process, which is an important characteristic of a rule of law society, is as much a concern for IHRL as it is for ICL. IHRL fixes the parameters of due process in criminal proceedings. Today, due process standards go beyond respect of the rights of the accused to include those of the victims, which have, quite recently, infiltrated the international criminal proceedings.Footnote 20
B. A Suspicious Relationship between Criminal and Human Rights Law
The apparent convergence of the two disciplines is also marred with tensions, at times confrontation. Criminal law is sometimes suspected to be a violator of human rights standards. In fact, criminalizing a certain conduct, either as an act or an omission, entails a restriction of rights, at least the right to liberty, personal autonomy, etc. In this spirit, the primary role of human rights law is to afford protection to human rights holders from criminal law.Footnote 21 In order to minimize the negative impact of criminal law on human rights, most international and regional human rights treaties contain protective provisions aimed at securing rights. For instance, there are provisions aimed at ensuring fair trial guarantees to persons suspected or accused of perpetrating crimes.Footnote 22 This demonstrates that human rights doctrine entertains a suspicion towards criminal law and it therefore supports a human right law intervention in order to ensure protection and to humanize criminal proceedings.
Similarly, it is to be noted that sometimes there is a normative tension between the two disciplines. For instance, the ICL position on the right to habeas corpus or provisional release differs from that of IHRL. ICL places a heavy burden of proof on the accused who has to demonstrate exceptional circumstances justifying his/her provisional release.Footnote 23 This contradicts the philosophy of human rights according to which detention is an exception and liberty the principle!Footnote 24
International criminal norms do also constrain the applicability of human rights law. For example, the principle of non-retroactivity may be a limitation to the enjoyment of human rights, especially the rights of victims. The latter cannot be vindicated for some particular harmful conducts which were not considered criminal at the time they were committed. For instance, discovering new crimes may be in the interests of the rights of victims, while the accused will successfully argue that this violates the right not to be tried for a crime that did not exist at the time the acts were committed. Similarly, when the accused has not been formally charged for such conduct by the prosecution, criminal judges are not allowed to make a determination of culpability for that in the course of a trial on other counts.Footnote 25 The rights of the accused will then trump those of the victims in this particular instance.
Despite the paradoxical nature of international criminal law, both as human rights protector and violator,Footnote 26 this branch and human rights law reinforce each other and there is a deep interconnection between them. The above overview of the interaction between ICL and IHRL provides the framework that helps to conceptualize and understand the relationship between their distinctive enforcement mechanisms in the African context.
3. Devising a Relationship Between the Criminal Law Section and the African Human Rights Mechanisms
The core argument of this chapter is that the ACJHR’s Criminal Law Section is an addition to the African human rights mechanisms and therefore serves the same cause. Henceforth, entities pursuing the same objective – human rights protection – should not be competing but they should respectfully complement one another. The principle of complementarity, and to a certain extent the principle of comity, can guide the relationship between the ACC and the human rights mechanisms.
A. Complementarity as a Guiding Principle
Complementarity as it is used in this chapter should not be taken in its technical sense provided for in ICL, especially the Rome Statute.Footnote 27 Here, it is used in its ordinary and plain meaning referring to ‘a relationship or situation in which two or more different things improve or emphasize each other’s qualities’Footnote 28 or ‘the state of working usefully together’.Footnote 29 In concrete terms, in order for them to achieve their goals or objectives, I suggest that the future ACC and the existing human rights mechanisms will be of assistance to one another, both at the institutional and the jurisprudential level.
1. Complementarity at the Institutional Level
The current African human rights system is conceived in accordance with the Westphalian philosophy. According to the latter, founded in a state-centric law approach, only States are the duty-bearers of international obligations. Only they can be found responsible for human rights violations, including those committed by non-state actors (NSAs) and individuals.Footnote 30 So the three main pillars of the African human rights systemFootnote 31 are competent to only determine State responsibility for human rights violations. In traditional IHRL, NSAs and individuals cannot be held accountable for human rights violations, except indirectly in accordance with domestic laws of member State Parties to relevant instruments. However, the new Malabo Protocol innovates in that it enshrines the principle of individual and corporate criminal responsibility,Footnote 32 making the future mechanism be the first international court equipped with corporate criminal jurisdiction. This is laudable given the fact that NSAs and individuals nowadays are involved in perpetration of human rights violations amounting to international crimes (child soldier recruitment or conscription and use in armed conflicts, child labour, human trafficking, etc.). The fact that the Criminal Section is empowered to prosecute individuals and corporate entities is a major complement to the African human rights mechanisms. It will actually expand the scope and the reach of the latter. Therefore, the Malabo Protocol helps to send the message IHRL is not sending: individuals and corporations, like States, can be held responsible for human rights violations. They can be directly prosecuted and take the blame themselves instead of blaming their national state for their actions.Footnote 33
The fact that the existing human rights mechanisms are not empowered to prosecute persons responsible for human rights violations is a major impediment to their efforts aimed at achieving victims’ justice. One has to rely on States’ apparatuses to ensure that perpetrators are effectively prosecuted and punished, which is not often the case. The creation of the ACC will strengthen the African system of human rights by enhancing the African capacity to provide remedies for human rights violations.Footnote 34 Therefore, the International Criminal Law Section is not a replacement but an important addition to the African human rights architecture. It is a necessary component in the African struggle for the promotion and the protection of human rights; it adds a second layer on the human rights protection shield in Africa.
However, the new criminalization of gross human rights violations on the continent does not necessarily guarantee the improvement of the human rights situation. One has to understand that the ACC is not a panacea. Like any other criminal tribunal, it has its own and inherent limitations in terms of its resources, methods and objectives that will constrain its functioning. For instance, none can expect it to dig into the root-causes of massive and serious human rights violations, i.e. the systemic and structural problems that give rise to them, as this may not be relevant to its final objective, which is to determine guilt or innocence of the accused individual. That is why other less constrained institutions such as the African Commission and the future Court’s Human Rights Section will still be relevant and well-positioned to address the root-causes of human rights violations. However, to better address situations of serious human rights violations requires a complementary approach of criminal and human rights justice.
2. The International Criminal Law Section and the African Commission on Human and People’ Rights
The African Court, as it stands today, entertains a special and statutory working relationship with its sister institution, the African Commission on Human and Peoples’ Rights (ACHPR). In fact, the Court has been created to complement the protective role of the Commission.Footnote 35 The modalities of this relationship are provided for in the rules of procedure of both institutions,Footnote 36 and they are refined in annual statutory meetings between the Court and the Commission.Footnote 37 The Criminal Law Section will certainly capitalize on this existing practice, looking at the Commission as a special partner. The partnership between the Criminal Law Section and the African Commission is founded on necessity and it is justified by mutual reinforcement for better effectiveness.
(a) The African Commission Complements the Criminal Law Section
Being a trailblazer in the field of human and peoples’ rights in Africa, the quasi-judicial African Commission has developed methods to improve the enjoyment of human rights on the continent. It is now equipped with impressive tools and expertise that the Criminal Section can take advantage of, being the newcomer in this domain. In this regard, the Commission can assist the Section in many areas, including evidence gathering and the implementation of its decisions and judgments, contributing therefore to its mission to end impunity and ensure justice for victims of gross human rights violations.
(i) The African Commission as an ‘Investigator’ for the Criminal Section
The African Commission enjoys investigative powers which are exercised in a variety of ways. The Commission can conduct fact-finding missions, proprio motuFootnote 38 or at the request of AU policy organs.Footnote 39 Fact-finding missions are important tools to gather facts and evidence of gross human rights violations. By conducting fact-finding missions, one needs to keep in mind that the objective of the Commission is not for the purpose of criminal prosecutions but rather denunciation, monitoring and advocacy for proper respect and protection of human rights. At the same time, fact-finding missions, most of the time, do reach substantive findings, e.g., the perpetration of international crimes such as crimes against humanity, war crimes and even genocide sometimes.Footnote 40 Moreover, material and testimonial evidence is collected, along with a list of potential suspects sometimes.
Similarly, through the protective mandate of the African Commission, the amount of information provided by parties to a communication, along with its own information gathering mechanism make the Commission get a big picture and the full scope of human rights violations in a particular situation.
The question that arises then is to what extent the information gathered and the evidence collected through fact-finding missions and during the examination of communications (cases) can be useful to the Criminal Section? Certainly, they are not irrelevant. First of all, it should be reminded that in virtually every situation, human rights professionals, including those from the Commission, arrive on the field long-time before criminal investigators and other analysts deployed in the name of an international, hybrid or regional court. Being the first ones to show up, most of the time when the situation is still dire, human rights experts experience dramatic situations and can collect valuable information including fresh evidence of potential crimes. Criminal investigators and analysts on their part are deployed years after the perpetration of the crimes. It is then understandable that the first source for their work is to be those reports and other open materials from human rights professionals.Footnote 41
Similarly, one can anticipate that the Criminal Section will seriously consider and even rely on the work of the African Commission. The latter can share information at its disposal with the former. This is imperative and advisable considering that the Commission uses a flexible methodology, which enables its staff and members to get access to valuable sources of information, in a non-adversarial or suspicious environment. Also, the Commission has a network of informants and collaborators, either within governmental structures or within the civil society community, which are key sources of information. Henceforth, as Bergsmo and Whiley hold, ‘(…) human rights organizations are often well placed to contribute to the analysis and further investigation of the crime base upon which any given inquiry and investigation must in large part rest. Knowledgeable human rights professionals also tend to have a detailed understanding of the conflict in question, its main actors and the chronology of relevant patterns of events which can aid criminal investigation services in their analysis of the allegations of crimes and subsequent prioritization or selection of cases for prosecution.’Footnote 42 The information provided by human rights professionals can therefore be useful and/or constitute a starting point for investigations. It can also help in case selection or the establishment of contextual elements of crimes when it is necessary.
The Criminal Section’s investigators will however keep in mind that the evidence was not primarily collected for criminal purposes. Therefore, a question arises whether or not the Commission’s generated evidence can be used in court as such and/or, related to this, whether a member or staff of the Commission can appear before the Criminal Section as a witness. And if yes, under what conditions this can take place? In the absence of any indication in the Malabo Protocol or other basic legal instruments, one can explore and seek guidance from the international case law and practice. In the Situation of the Democratic Republic of Congo, ICC investigations and prosecutions were made possible because of the information the Prosecutor’s Office got from different organizations, mostly from the United Nations. For the most part, documents and other material received from the UN, especially the UN peacekeeping Mission in Congo (MONUC) were handed to the Prosecutor’s Office under the condition of confidentiality, pursuant to prior agreements between the UN and ICC.Footnote 43 Under the Relationship Agreement between the International Criminal Court and the United Nations, ‘The United Nations and the Prosecutor may agree that the United Nations provide documents or information to the Prosecutor on condition of confidentiality and solely for the purpose of generating new evidence and that such documents or information shall not be disclosed to other organs of the Court or to third parties, at any stage of the proceedings or thereafter, without the consent of the United Nations.’Footnote 44 It is worth mentioning that confidentiality is not absolute; it can be waived by the UN or the relevant UN programme or agency and disclosure of the evidence is possible upon their consent.Footnote 45
However, in such situation, the Prosecutor finds himself in a dilemma because on one hand he is bound by the confidentiality towards the information providerFootnote 46 and, on the other hand, he is under the duty to disclose evidence in his possession or control to the defence, especially exculpatory evidence, in the name of fairness and respect for fair trial rights of the accused persons.Footnote 47 Therefore, which duty takes precedence in this kind of situation? This issue was dealt with and settled in Lubanga case where the Prosecutor was unable to disclose to the defence more than 200 documents that contain potentially exculpatory information or evidence that is potentially material to the preparation of the defence because the Prosecutor had obtained the documents on condition of confidentiality.Footnote 48 While the Trial Chamber was of the opinion that the Prosecutor should disclose relevant evidence, the Appeals Chamber took a different approach when it holds that ‘If the Prosecutor has obtained potentially exculpatory material on the condition of confidentiality pursuant to article 54 (3) (e) of the Statute, the final assessment as to whether the material in the possession or control of the Prosecutor would have to be disclosed pursuant to article 67 (2) of the Statute, had it not been obtained on the condition of confidentiality, will have to be carried out by the Trial Chamber and therefore the Chamber should receive the material. The Trial Chamber (as well as any other Chamber of this Court, including this Appeals Chamber) will have to respect the confidentiality agreement and cannot order the disclosure of the material to the defence without the prior consent of the information provider.’Footnote 49 Therefore, although confidentiality is a paramount principle, which can assist the Prosecutor discharge its mandate derived from the ICC Statute, at the same time, it should not be to the expense of fairness of the proceedings.
Regarding the possibility of UN staff or officials posed to appear as witnesses before the ICC, it should first be stressed that they enjoy privileges and immunities, including the immunity from legal process in respect of all words spoken or written and all acts performed by them in the performance of their mission for the United Nations.Footnote 50 As the privileges and immunities are enjoyed in the interests of the United Nations and continue to exist notwithstanding the fact that the holder is no longer employed on any such mission, then the UN Secretary General has ‘the right and the duty to waive those immunities in any case where, in his opinion, they can be waived without prejudice to those interests.’Footnote 51 The law and protocols require that their immunity be waived by the employer organization. For instance, in the same Lubanga case, the immunity of a former Special Rapporteur for the UN Commission on Human Rights in Congo was waived by the UN in order for him to testify as an expert witness before the ICC, pursuant to a court order.Footnote 52 Sometimes, the UN can still appoint a representative before the ICC to assist the employee or official during its testimony.Footnote 53
If we apply this to the relationship between the African Commission and the future Criminal Section, the former is undoubtedly a potential information provider to the latter, given its standing as human rights promoter and protector on the continent for the last 30 years.Footnote 54 So, to what extent is the Commission prepared to play its role of an indirect investigator for the Criminal Section? Like the UN, it does not need to receive a special mandate as such; the investigative powers of the Commission derive straight from its mandate as defined by the African Charter.Footnote 55 However, there will be a need to adjust its modus operandi in consideration of its potential indirect investigator status. For instance, the Commission will need to revisit how it carries out its fact-finding missions, for its factual and legal findings to be relevant to the work of the Criminal Section. They are supposed to be conducted in a more rigorous manner than mere promotional field visits. The latter are more or less a diplomatic exercise aimed at sensitizing the visited State Party on the mission and mandate of the Commission; the latter gets also informed on the State’s human rights best practices and challenges. Which means, fact-finding missions need to be planned properly so as to distinguish them from promotional missions and to clearly outline the objective of collecting evidence of serious human rights violations amounting to international crimes. For that purpose, fact-finding missions need to be carried out in a relatively reasonable timespan. It is to be noted that whether fact-finding missions are initiated proprio motu by the Commission or requested by the AU policy organs, they have been conducted in a few days,Footnote 56 casting doubt over the quality and substance of the evidence that can reasonably be collected during that time span. Fact-finding missions should then be taken seriously; time and resources should be devoted to them for better results.Footnote 57
Moreover, the Commission will need to adopt a clear policy guiding its relationship with the future Criminal Section. The policy should explain why collaboration in a human rights friendly initiative well-warranted; it should also address, inter alia, the issue of its members or staff testifying as expert witnesses, the question around the kind of information that can be shared, when, how and under what conditions (e.g. confidentiality), etc. Later on, building on the UN-ICC relationship agreement as an example, a special agreement should be established between the African Commission and the Criminal Section, which will regulate the complementarity in the particular context of criminal proceedings.
Whether the information or evidence gathered from the ACHPR will actually be used before the Criminal Section, as well as its attached value, will depend on a range of factors. One, the criminal investigators must find it relevant to a potential case; and, due regard must be shown to the accused’s fair trial rights. While the information can be used in court provided it is relevant and reliable, the Prosecutor should be conscious that some of its evidence may have been collected by ACHPR in violations of suspects’ fundamental rights. Most of the time, suspects may be interviewed by human rights professionals but they have no clue that their testimony will be used against them in court. Similarly, third party witnesses may testify against some individuals without full knowledge that they are collaborating in disguised criminal investigations. The information gathered from third party witnesses will be relayed to criminal investigators without giving suspects an opportunity to say something or to rebut it. Therefore, when adducing that evidence, the Prosecutor should do it in a manner consistent with the rights of the accused. For instance, the disclosure rule should be respected and the accused should get the entire document or conversation for his/her own perusal. Otherwise the proceedings may derail and even collapse, as was the case in Lubanga and Gbagbo.
Regarding the value of information and evidence obtained from the ACHPR, the defence can oppose the reliance on materials from external sources. But, as the single judge sitting in the Gbagbo case held, ‘there does not exist in the applicable law any impediment to the use of such material, or any requirement that it be corroborated.’Footnote 58 However, he was of the opinion that those materials from external sources are not of conclusive evidentiary value by themselves. The court must analyse all the material placed before it, in order to determine what weight must be given to each.Footnote 59
In brief, although the ACHPR cannot carry out criminal investigations or prosecutions, it can nevertheless gather facts and other material evidencing serious human rights violations.Footnote 60 Henceforth, the Criminal Law Section may take over the task and substantially rely on information collected by ACHPR. It is to be reminded that the future Criminal Section Investigation team will not big enough to cover each corner of hot spots, i.e. crisis/conflict zones. The Section will not be therefore benefit from the expertise and the work of the African Commission. Similarly, it can rely on its expertise, experience and network to ensure implementation or follow-up of the Section’s orders and judgments.
(ii) The African Commission as an (Enforcement Agent) of the Criminal Section’s Decisions and Judgments
The Criminal Section, like any other international criminal court, will rely on State cooperation to enforce its decisions. Since it will not be equipped with a police force or penitentiary facilities for instance, States parties to the Malabo Protocol will certainly be called upon to assist the court to enforce its orders and judgments.Footnote 61 In the real life, States rarely comply with court orders which risk political implications as exemplified by the arrest warrant issued by the ICC against President Al Bashir of Sudan.Footnote 62 Furthermore, they resist and often defy orders or sanctions, which concern them directly or indirectly.Footnote 63 The Criminal Section may suffer the same fate as other African institutions in terms of non-compliance with its orders or sanctions. Existing human rights mechanisms, the African Commission in particular, can contribute to ensure follow-up of and compliance with its decisions. This can be done in different ways. In the course of the execution of its promotional mandate, Commissioners can raise questions about the visited State Party’s level of compliance with decisions of the Criminal Section. The Commission can also use its extensive networks to lobby States institutions and monitor compliance during its promotional visits. Similarly, during the examination of periodic reports, special mechanisms holders or the entire commission can pose questions and push State representatives to respond and make their position known publicly.
(iii) The African Commission as an Agent of the International Criminal Justice System
One of the main objectives of the whole international criminal justice system is to ensure justice for victims. A web of judicial, quasi-judicial and non-judicial institutions concur to the attainment of that objective. The African Commission is part of that community of justice-prone institutions; it contributes to ensure criminal accountability of perpetrators of gross human rights violations. For instance, once a State party is found responsible for Charter violations that amount to international crimes, at the conclusion of its protective proceedings by the way of communications, the African Commission orders investigations and/or prosecutions as a form of remedy.Footnote 64 Furthermore, it will ensure that its orders and decisions are complied with. In so doing, the quasi-judicial organ exercises a quasi-criminal jurisdictionFootnote 65 and henceforth pursues the objectives of eradicating the impunity of mass atrocities, ensuring justice for victims and preventing further serious violations. By requiring investigations and prosecutions of serious human rights violations amounting to international crimes for instance, ACHPR is immensely contributing to the achievement of the goals of the international criminal justice system, as represented here by the Criminal Law Section. In a sense, ACHPR does also share the same goal with the Criminal Law Section: ending impunity of mass atrocities and ensuring justice for victims.
(b) The Criminal Law Section Complements ACHPR
The African Commission constantly expresses its concerns regarding the suffering of victims of serious human rights violations as well as the impunity that the perpetrators of the said abuses continue to enjoy.Footnote 66 In order to address this situation, as it has been highlighted above, the Commission, at its level, usually requests States to investigate and prosecute serious human rights violations. Alternatively, it draws the attention of the Assembly of the AU Heads of State and Government, in accordance with art. 58 of the African CharterFootnote 67. However, it is to be noted that this approach is not particularly effective, given the level of impunity of atrocity crimes and also the fact that States rarely conform to the Commission’s decisions. Mindful of this, the Commission has been welcoming the creation of international criminal tribunals and calling upon African States to rapidly ratify their respective constitutive instruments.Footnote 68 The Commission’s vision and expectation of the role of the criminal courts is that they will enhance and immensely contribute to the protection of human and peoples’ rights on the continent.Footnote 69 It is within this perspective that I submit, as it has been highlighted above, that the Criminal Section contributes to further protection of human rights in Africa. In fact, it complements well the protective work of the Commission by providing an additional layer to current continental criminal apparatus whose pillars are constituted of domestic courts. In this perspective, the Criminal Section can then strengthen the African criminal infrastructure against the impunity of massive or serious human rights violations.
3. The International Criminal Law Section and Other Court’s Sections
(a) Building a Systemic Internal Harmony
It has been mentioned earlier that the Malabo Protocol sets up an impressive judicial structure equipped with three distinct sections: the Human and Peoples’ Rights Section; the General Affairs Section and the International Criminal Law Section.Footnote 70 Each section is endowed with a special jurisdiction; each one is reasonably expected to have its special rules of procedure, which will differ from a section to another. For instance, the criminal court does not abide by the exhaustion of local remedies while this is a requirement for the human rights and general sections. Also, the methods and purpose of each section differ substantially. The Criminal Section’s purpose, for example, is to determine the individual criminal responsibility while the Human Rights and General Affairs Sections determine state responsibility for the violations of international law. In short, each section of the Malabo ‘megacourt’ is, in itself, a ‘mini-court’, with a particular set of international law rules to apply and interpret. This may present, at the face of it, the risk of fragmentation of the applicable law because there is no supremacy or primacy of a section over the others. The lack of a hierarchical relationship raises the question of how to ensure an internal legal harmonization, at least in the areas of convergence. A reading into Article 33(3)(c) of the Vienna Convention on the Law of Treaties, which provides for the method of systemic integration, may offer a way to explore. In accordance with the latter method, ‘each instrument of international law must be interpreted and applied in a manner that safeguards harmony within the broader normative environment.’ The method is highly regarded by the International Law Commission ‘as one of the main tools for counteracting the normative fragmentation of international law. It is widely regarded as one of the main channels that enable the concurrence between special and general international law.’Footnote 71 Likewise, the fact that the different sections of the Africa Court are not stand-alone entities is a potential way to avoid fragmentation and instead consolidate the system.
So, although each section of the megacourt will be interpreting and applying different instruments, it is expected that each section will resort to the method of systemic integration to interpret treaties and other instruments relevant to its mission and area of specialization. In order to cement the expected systemic legal coherence at the African court, the next section analyses the intimate and unavoidable relationship between the Criminal Law and the Human Rights Sections.
(b) Relationship Between the Criminal Law Section and the Human Rights Section of the Court
At the outset, it is important to note that the Criminal Law Section and the Human Rights Section are distinct despite the close relationship between international criminal law and human rights law as explored in Section 2. If one considers the methods and the objectives of each section, the procedure before the Criminal Section aims at fostering individual responsibility, while the human rights procedure pursues the determination of State responsibility for human rights violations. However, the two procedures can mutually reinforce each other. First of all, the Human Rights Section, like the ACHPR, will be exercising what an author calls ‘quasi-criminal jurisdiction’Footnote 72 because it can order, as remedies, States parties responsible for violations to investigate and prosecute international crimes. Thereafter, the Section will ensure and monitor States’ compliance with its orders. In so doing, the Human Rights Section will be complementing the efforts the Criminal Law Section will be deploying to ensure that the impunity gap is closed and that justice is done for the victims of serious human rights violations amounting to international crimes.
Also, the complementarity of the Human Rights Section can go beyond that and be much more direct. For instance, in the course of its proceedings, if the Human Rights Section gets ample information that can evidence a possible perpetration of international crimes, can it seize the Criminal Law Section? Although it will not technically be called a referral, nothing forbids the HR Section to forward information and documents to the Office of the Prosecutor (OTP) of the Criminal Law Section. While the evidence collected may not necessarily be conclusive, one would expect the Prosecutor to weigh it with other information and documents at his/her disposal in order to reach the conclusion on the possibility of conducting either a preliminary examination or a proper investigation into a situation. Thus, the Human Rights Section is a potential investigator agent for the Criminal Section.
Finally, the last question that warrants some attention is this: should the Human Rights Section play a supervisory role on the Criminal Section’s decisions, which are alleged to constitute violations of human rights? As paradoxical as it may sound, it is not impossible for a court to act in violation of fundamental rights of the accused as evidenced in the Barayagwiza case.Footnote 73 Therefore, the Criminal Law Section can potentially be in the same position as ICTR. However, in general, international criminal courts are not under any external supervision by a constitutional or human rights court, in contrast to national criminal courts and (criminal) authorities, which are generally supervised by a domestic constitutional court and an international or regional human rights mechanism, either a court or a quasi-judicial entity. However, in IHRL, as well as in modern international criminal law, international criminal courts, like States, have a legal duty to respect and uphold fundamental human rights, especially those of individuals under their effective control. In fact, as international organizations are endowed with an international legal personality,Footnote 74 international criminal tribunals are subjects of international law and, therefore, are bound by general rules of international law, including IHRL.Footnote 75 For example, according to the Rome Statute regime, the applicable law before the ICC ‘must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.’Footnote 76 Although there is no similar general provision in the Malabo Protocol, the Criminal Section will not be excused from the same legal obligation. At a minimum, the Section must uphold and enforce fair trial rights of the accused. Likewise, since the Criminal Section will have people in its detention centre pending trials or resettlement in domestic prisons once a final guilt verdict has been handed down, detainees’ rights must be respected. In fact, the then–Second Vice President of the ICC once made a comparison when he stated that, ‘(…) under certain circumstances, the ICC is in a comparable position as States in that it has to respect the human rights of individuals under its effective control.’Footnote 77 The same applies for the Criminal Section.
In case of violations of their rights by the Criminal Section, the accused shall be entitled to remedies, including those of a judicial nature. The question that arises then is before which forum this right to remedy can be invoked? Possible venues such as the African Commission or international human rights mechanisms are not in line since the Criminal Section is not a state, albeit being in comparable situation, to some extent. One of the relevant forums to address the situation is the Appeals Chamber of the court.Footnote 78 But what is interesting from an academic perspective is whether or not the Human Rights Section of the court could constitute such a venue for remedying human rights violations perpetrated by the Criminal Section. First of all, referring or reviewing the conduct of a court before another court, as far as human rights are concerned, is not a new phenomenon. The European Court on Human Rights has regularly been seized of cases alleging violation of human rights.Footnote 79 In our case study, the Malabo Protocol seems to support such a possibility when it provides that ‘the Human Rights Section shall be competent to hear all cases relating to human and peoples’ rights.’Footnote 80 However, a closer reading of the Protocol may suggest otherwise. For instance, decisions of the Criminal Section are deemed to be decisions of the Court in accordance with the spirit of Article 9(2) of the Protocol which provides that ‘a judgment given by any chamber shall be considered as rendered by the Court’. Likewise, as far as criminal jurisdiction is concerned, the decisions of the appellate chamber shall be final.Footnote 81
The matter will further be complicated by the fact that the Criminal Section is not a State; only States are justiciable before human rights bodies, including the Human Rights Section. Even before the European Court of Human Rights, all successful cases were directed against States. Cases against international organizations have been declared inadmissible sometimes because the functional immunity regime comes into play in the proceedings.Footnote 82 In our case study, the Criminal Section is an organ of an international organization (AU)Footnote 83 and as such it is not linked to a particular State to which its conduct violating human rights can be attributed. So, if the Criminal Section were to find itself a respondent party before the Human Rights Section, it is possible that it can also invoke the immunity regime that applies to international organizations against all forms of prosecutions, either criminal or civil.
In conclusion, Articles 7 and 17(3) should be read with due regard to the ratione personae jurisdiction of the Human Rights Section which extends only to States. One can then assume the above-mentioned provisions are finally conceived that way only for purposes of division of labour between the Court’s sections. So, if the accused has been able to complain of his or her human rights situation up to the appellate chamber, then the latter’s decisions should not be subjected to review by the Human Rights Section. It is to be presumed that the entire Court would have already exhausted its jurisdiction in this regard. However, it is important for the Criminal Law Section to build bridges with other human rights mechanisms in order to ensure legal harmony and prevent fragmentation of applicable rules.
4. Towards a Theory of Judicial Dialogue between Human Rights Mechanisms and the Criminal Section
A. Plural Entities and the Risk of Legal Fragmentation
The expansion of the African judicial and quasi-judicial infrastructure for the promotion and protection of human rights poses a particular challenge for the entire system: how can we ensure that this proliferation is not detrimental to the cause it is supposed to serve and that all those institutions are mutually reinforcing in order to maintain some degree of legal coherence instead of competing for hegemonic power? In this last section, I argue that the new Criminal Section and existing human rights mechanisms should engage in a judicial dialogue posed to avoid fragmentation of applicable law and to enhance the coherence and legitimacy of the system. In the absence of clear ‘rules of relationship’,Footnote 84 i.e. rules of international law that clarify the interrelationship between different mechanisms, and in the absence of any form of hierarchical order, the judicial dialogue may prove difficult to achieve and sustain. Pessimistic voices claim that international courts are in a competitive battle. Koskenniemi and Leino posit that international tribunals are ‘involved in a hegemonic struggle in which each hopes to have its special interests identified with the general interest.’Footnote 85 For Justice Guillaume, the former President of the International Court of Justice, each court ‘has a tendency to go its own separate way’Footnote 86 to the point that even the interjudicial dialogue is insufficient to resolve potential inconsistencies. The ICTY in the Tadić jurisdiction decision went further and set the alarm: ‘International law, because it lacks a centralized structure, does not provide for an integrated judicial system operating an orderly division of labour among a number of tribunals, where certain aspects or components of jurisdiction as a power could be centralized or vested in one of them but not the others. In international law, every tribunal is a self-contained system (unless otherwise provided).’Footnote 87
However, there are optimistic voices who claim that the mere increase of tribunals and other adjudicatory mechanisms does not necessarily lead to fragmentation. As alluded to earlier, if different judicial and quasi-judicial entities resort to the method of systemic integration while interpreting and applying their founding instruments, they can easily counter the normative fragmentation risk.Footnote 88 In practice, international criminal courts and human rights judicial or quasi-judicial institutions are in constant dialogue despite the Tadić holding which provoked fragmentation anxiety. In fact, it is not unusual for a criminal court to face a human rights issue;Footnote 89 similarly, human rights mechanisms do also face international criminal law related issues.Footnote 90 It is therefore conceivable and highly probable that each entity will resort to the work and jurisprudence of the other. I anticipate that the Criminal Section will not deviate from this practice. However, in the absence of hierarchy among institutions, the question that arises relates to the value and weight of the case law of each one vis-à-vis the others. I will briefly examine the existing practice and determine how the Criminal Section will use the jurisprudence of other human rights mechanisms and vice-versa.
B. Judicial Dialogue in Practice among International Legal Entities
The necessity for judicial dialogue at the international level derived out of necessity due to the lack of rules of relationships between international tribunals and human rights courts and supervisory bodies. The Tadić holding emphasizes on the ‘the separateness and equality of diverse international tribunals’.Footnote 91 The fact that each tribunal is a self-contained systemFootnote 92 is much telling about the horizontality of international judicial and quasi-judicial institutions. However, horizontality does not preclude any cross-reference or judicial dialogue between them. In fact, as Teitel and Howse argue,
what the Tadić court was resisting in its reference to ‘self-contained systems’ was the hegemony or binding authority of an external tribunal. It could not accept the notion that the material of that tribunal be treated as stare decisis rather than as part of the normative material to be considered in solving the legal problem at hand within the parameters of the regime to which the tribunal solving the problem was charged in its mandate.’Footnote 93
Henceforth, decisions of an international judicial institution are not binding upon other international tribunals or quasi-judicial mechanisms such as the human rights supervisory bodies. However, they don’t lack authority. Regarding decisions and jurisprudence from human rights treaty bodies, the ICTR held that they ‘are persuasive authority which may be of assistance in applying and interpreting the Tribunal’s applicable law. Thus, they are not binding of their own accord on the Tribunal. They are, however, authoritative as evidence of international custom.’Footnote 94
The concept ‘persuasive authority’ may look ambiguous. Schauer thinks that the term ‘optional authority’ would fit better than ‘persuasive authority’.Footnote 95 Thus, for him, ‘persuasive authority’ seems to be interchangeable with the terms ‘inspiration’, ‘basis for discussion’, ‘assistance’, ‘orientation’, or ‘interpretive guidance’.Footnote 96 In the literature and in the understanding of the international courts, it means that judges and other decision-makers are not required to follow the result or reasoning of other judges’ decisions, but have a choice whether to use the authority or not.Footnote 97 A judge or court will make a reference to a decision or judgment only if he finds its reasoning persuasive.Footnote 98 For international criminal courts, Geneus argue that whenever faced with a human rights issue, they are obligated to consult the jurisprudence of the European Court of Human Rights, and, after a thorough review, they can decide whether they are persuaded by its reasoning or whether they want to deviate from it and re-interpret the human rights standard.Footnote 99 If a court is persuaded by the decision, it will decide how to translate a particular norm in the context of criminal proceedings, keeping in mind the delicate balance between accused’s fair trial rights and public interest. This was for example the case in Furundžija where the ICTY relied on the definition of torture as provided for in the Convention against torture, considering it as reflecting customary international law.Footnote 100
Many authors warn against a direct transplantation of norms or concepts originating from another branch of international law. For instance, the legal norm or concept must be translated from the language of the original legal system into the language of the receiving one.Footnote 101 Contextualization becomes relevant because ‘judges would have to apply their own founding statutes and there may be limits to how far decisions originating from different statutes may be transposable’.Footnote 102 Thus,
importing a human rights norm into international criminal law requires an assessment of whether such norm shares the same concerns, serves the same aims and is grounded on legal principles which are corner-stones of international criminal law. Because human rights instruments ultimately aim at protecting the individual against the abuse of state power, the definition of crimes under human rights law cannot be automatically transposed on international criminal law where the relationship is private in the sense that the individual is opposed to other individuals.Footnote 103
If a court decides to depart from interpretations of human rights norms, it should carefully explain and provide a sound justification of the deviation, given the fact that those interpretations from human rights bodies prove to be authoritative. For instance, the high degree of persuasiveness attached to the case law of the European Court of Human Rights, which, according to Geneuss, ‘carries the weight of “directory authority”Footnote 104 any “re-interpretation” of a straightforward (autonomous) interpretation of specific terms that determine the scope of applicability of a human rights norm by the ECtHR, like criminal charge, witness or penalty, seems to be possible only in very exceptional circumstances’.Footnote 105 For example, ‘in regard to a re-interpretation of a generalizable juridical test, on the other hand, ICTs [International criminal tribunals] must identify the factors used by the ECtHR. Then ICTs can add additional factors that reflect the unique context in which they operate and might omit those factors that are not relevant because they only matter in the domestic context.Footnote 106
Borda distinguishes situations where departure is warranted: when an international criminal court considers that a human rights body has erred on a legal point in its decisionFootnote 107 or in the interests of justice when a particular norm needs to be adapted to the contextual background of the case.Footnote 108 In any case, the principle of judicial comity among institutions is usually respected to the point that it is rare to notice a ‘frontal’ collision of courts in their decisions, at the exception of the Tadić (ICTY) and Nicaragua (ICJ) cases which articulate different tests of attribution of State responsibility for acts committed by non-states actors acting under their control.Footnote 109 Therefore, for Miller, a court will respect the jurisdiction of others and will be ‘reluctant to show its disrespect for another by distinguishing or explicitly disagreeing with its decisions.’Footnote 110 Romano reinforces this point by arguing that
if judges of one court feel differently from those of another court on a given point of law, out of judicial comity they will often simply omit to take cognizance of judgments that do not support the reasoning chosen. Citing to say ‘they got it wrong’ will generally be avoided, and probably even severely frowned upon … Likewise, whenever judges of one court feel the need to depart from established case law or practices propound followed by other courts, they will usually try to avoid arguments on the merits of the other court’s decision-making. Rather, they will stress differences in the respective constitutive instruments and missions.Footnote 111
However, under the disguise of ‘uniqueness’, ‘specificity’ or ‘distinctiveness’ of international criminal courts, comity does not forbid a re-interpretation of human rights norms developed by human rights courts and supervisory bodies to the point that they develop their own human rights standards.Footnote 112 This hard deviation is a double-edge sword. It can enhance or undermine legal protections of the accused.Footnote 113 For instance, international tribunals’ stance on the right to habeas corpus or provisional release is particularly instructive. While human rights bodies emphasize on the right to liberty to be upheld, even in criminal proceedings unless special circumstances justify detention,Footnote 114 international criminal courts reverse the burden of proof by requiring the accused to demonstrate exceptional circumstances justifying provisional release,Footnote 115 making ‘detention appears to be the rule and provisional release the exception’.Footnote 116 The justification for this departure lies in the particularly odious and complex nature of the crimes prosecuted before international criminal tribunals and the special circumstances under which they function, particularly their reliance to state cooperation.Footnote 117 Similarly, in the Kunarac case, ICTY departed from the torture rule provided for in human rights law by holding that a person acting in his private interests can be held accountable.Footnote 118
In case of departure, ‘an earlier interpretation by a sister court would not, generally, be formally overruled and, in principle, both would therefore remain valid.’Footnote 119 Therefore, two decisions of equal legal force but containing different interpretation of the same standard may co-exist, given the fact that each court is a self-contained institution, which precludes any kind of precedence of any on the other. This can give rise to fragmentation and potential conflict and insecurity to accused persons and practitioners.
It has been highlighted earlier that human rights norms and case law developed by human rights bodies are not binding on international criminal courts. They are of persuasive authority and international courts can take them as a starting pointFootnote 120 in order to justify their specific interpretations of human rights norms, based on the nature and content of the human right in question placed within the context in which international criminal courts operate.Footnote 121 I submit that a justice and fairness-oriented approach would prevent a demarcation very detrimental to the human rights of the accused persons. In fact, in order to put it into practice, it is now well settled that international courts founding legal instruments include an explicit and unequivocal obligation to interpret and apply their applicable law in a manner consistent with ‘internationally recognized human rights’,Footnote 122 contrary to the ad hoc tribunals, which do not have an explicit statutory obligation to adhere to IHRL.
C. Whither Judicial Dialogue between the Criminal Law Section and Human Rights Mechanisms?
Finally, how can we translate the above principles around the judicial dialogue among international judicial and quasi-judicial human rights and criminal institutions, in the African context? Concretely, being the last born, will the Criminal Section simply transplant norms and principles adopted by pre-existing African human rights mechanisms throughout their work? In the alternative, to what extent the Criminal Section may depart from interpretations made by human rights mechanisms? This section addresses these questions.
The relationship between the Criminal Section and existing African human rights mechanisms should rest on the same principles developed above which guide the relationship between international criminal courts and human rights courts and supervisory bodies. In a nutshell, one can expect the Section to take into account the case law developed by the current African Court on Human and Peoples’ Rights, the RECs courts and the ACHPR as well. While the case law should not be binding on the Section, it nevertheless carries with it an important persuasive value. The Section cannot afford to ignore the existing norms and principles set up by authoritative institutions on the continent. However, none can expect a direct transplant of the said human rights principles and norms in the criminal proceedings. At a minimum, their application and interpretation should be contextualized in view of the specificity of the methods and purposes of the Criminal Section.
A problem may arise with the African Commission’s decisions. What is the value of the latter in the eyes of the Criminal Section? Should this entity also consider them as persuasive or simply depart from them, the reason being that they have been engineered by a non-judicial body? In my view, it is not advisable for the Section to go this road. Instead, it should follow the footsteps of the current continental human rights court which considers the Commission’s decisions as persuasive. In practice, the current Human Rights Court regularly cites the Commission’s decisions on different issues such as exhaustion of local remedies, fair trial rights, etc. Therefore, the Criminal Section should not easily dismiss the persuasiveness of African Commission’s decisions, arguing the quasi-judicial nature of the institution. But for the sake of contextualization, no rule forbids the Criminal Section to adopt a different interpretation of human rights issues.
On the other hand, we expect human rights mechanisms to also reference or draw inspiration from the case law of the Criminal Section when they will be dealing with human rights violations amounting to international crimes. This is not new on the continent. For instance, the ECOWAS Court exercising its human rights jurisdiction in the Hadijatou Mani slavery case did refer to ICTY jurisprudence in Kunarac case and endorsed the tribunal’s ‘indicators’ of modern day slavery essentially involving the nature and degree of control, physical and psychological, over the individual.Footnote 123
In conclusion, the Criminal Section and other African human rights mechanisms should engage in a judicial dialogue instead of each one stubbornly acting as a self-contained entity without any regard to other institutions with similar goals. Actually, the Human Rights Strategy for Africa makes the same call for collaboration.Footnote 124 This is a win-win deal, which is posed to strengthen each entity and assist it in reaching its potentials. Therefore, cross-fertilization and cross-referencing between the Criminal Section and Human Rights Mechanisms ‘either at the standard-setting level or at the interpretation stage’ will avert fragmentation but also will meet the challenges posed to the African law where judicial and quasi-judicial entities interact. It will maintain its normative unity.
5. Conclusion
The creation of an ACC is undoubtedly a major breakthrough in the fight against impunity of serious violations of human rights on the African continent. The Criminal Section of the ACJHR is an important and indispensable addition to the existing human rights institutions operating at the continental, sub-regional or national level. In fact, it was the missing link towards strengthening of the African human rights architecture. Contrary to other continental human rights mechanisms, it is tasked with the determination of the individual and corporate criminal responsibility. This ever-lacking pillar at regional level will undoubtedly complement the actual system entrusted with the power to only determine states’ responsibility for human rights violations. This will contribute towards the convergence between state and the individual responsibility for human rights violations. However, it is important to conceive the Criminal Law Section in more functional and utilitarian terms, as a preventive tool instead of being merely reactive to serious human rights violations.
However, the new criminalization of gross human rights violations on the continent does not necessarily guarantee the improvement of the human rights situation; but at the same time, this chapter contends that the new criminal law section will enhance the capacity of the human rights system to ensure protection of human rights. The Section is therefore an integral part of the struggle against human rights violations. It is part and parcel of the human rights architecture. Although proliferation of mechanisms can spread some fears of fragmenting African human rights standards and law, this chapter has showed that the risk can be mitigated or avoided through cross-referencing between relevant institutions, guided/informed by the principles of complementarity and comity. In this regard, the African criminal Section should apply and interpret its relevant instruments in a way compatible with the existing human rights case law. This will be a major contribution to the normative unity and harmony of African human rights law instead of promoting its disintegration.
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