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Published online by Cambridge University Press: 29 August 2017
One of the most interesting and controversial crimes that belong to the subject matter jurisdiction of the newly to be established African Criminal Chamber is undoubtedly the crime of unconstitutional change of government. This article explores the question why this offence is upgraded to the regional level of criminal law enforcement. After all, any criminalization of the conduct at a regional level and the concomitant inclusion of the offence in the jurisdiction of regional courts raises questions about the right of foreign intervention in internal political affairs and the curtailment of the right to rebel. The crime of unconstitutional change of government is tested against these principles and it is concluded that they do not impede criminalization, nor the elevation of the crime to a regional level. In search of a positive argument in defence of the inclusion of the crime within the jurisdiction of the African Court, I contend that the best explanation is that insurgencies are not contained to single states but are inclined to spread to other countries. In view of the specific African experience, where endemic conflicts have proved to be contagious, it is clear that states have a common interest in suppressing both the dynamic and static form of unconstitutional change of government.
1 2014 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, African Union Doc. STC/Legal/Min7(1) Rev. I (2014) (hereinafter ‘Malabo Protocol’).
2 2007 African Charter on Democracy, Elections and Governance (2007), available at www.achpr.org/instruments/charter-democracy/ (accessed 27 January 2017). For a brief historical survey of the development of the norms on unconstitutional changes of government in the African context see Kemp, G. and Kinyunyu, S., ‘The Crime of Unconstitutional Change of Government (Article 28E)’, in Werle, G. and Vormbaum, M. (eds.), The African Criminal Court: A Commentary on the Malabo Protocol: International Criminal Justice Series (2017)Google Scholar, Vol. 10, at 61–4.
3 See on this issue the fascinating article by Honoré, T., ‘The Right to Rebel’, (1988) 8 Oxford Journal of Legal Studies 34–54 CrossRefGoogle Scholar.
4 The Preamble of the African Charter on Democracy, Elections and Governance expresses the concern of the Member States of the African Union that ‘unconstitutional changes of governments are one of the essential causes of insecurity, instability and violent conflict in Africa’; see supra note 2. For a comprehensive overview of recent political turmoil in African countries and the dire consequences in their aftermath, see Shola Omotola, J., ‘Unconstitutional Changes of Government in Africa: What Implications for Democratic Consolidation?’, Nordiska Afrikainstitute Discussion Paper 70 (2011)Google Scholar.
5 The article primarily adopts a normative perspective. For a legal assessment of the provision in the Malabo Protocol on unconstitutional change of government, see Kemp and Kinyunyu, supra note 2, at 64–8.
6 Decision on the Merger of the African Court on Human and Peoples’ Rights and the Court of Justice of the African Union, African Union Doc. Assembly/AU/Dec.83(V) (2005).
7 For a condensed survey of the drafting history (until 2013) see Abass, A., ‘The Proposed International Criminal Jurisdiction for the African Court: Some Problematic Aspects’, (2013) 60 Netherlands International Law Review 27, at 28–31 CrossRefGoogle Scholar.
8 See, e.g., M. Du Plessis, ‘Implications of the AU decision to give the African Court jurisdiction over international crimes’, Institute for Security Studies: Paper 235 (June 2012), at 1 (‘The process [of creating a criminal chamber within the African Court] occurs against the backdrop of the African Union's open hostility to the International Criminal Court's focus on African situation’). See, extensively, Bhoke Murungu, C., ‘Towards a Criminal Chamber in the African Court of Justice and Human Rights’, (2011) 9 Journal of International Criminal Justice 1067 CrossRefGoogle Scholar, at 1068–79. The text of this paragraph is partially taken from an earlier publication, van der Wilt, H., ‘The African Court of Justice and Human and Peoples’ Rights and Complementarity’, in Werle, G. and Vormbaum, M. (eds.), The African Criminal Court – A Commentary on the Malabo Protocol (2016)Google Scholar, Chapter 11.
9 Murungu, supra note 8, at 1078. See also L.N. Sadat, ‘On the Shores of Lake Victoria: Africa and the Review Conference for the International Criminal Court’, Washington University in St. Louis School of Law: Legal Studies Research Paper No. 10-06-04 (2010), at 5–6.
10 Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), African Union Doc. Assembly/AU/13(XIII) (3 July 2009).
11 Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction, African Union Docs. Assembly/AU/14 (XI), Assembly/AU/Dec. 199(XI), (2008) paras. 3–5.
12 Assembly/AU/Dec. 199(XI), supra note 11, para. 5(iv). For a seminal analysis of the question of whether allegations of neo-colonialism are borne out by the facts see R.J. Schuerch, ‘The International Criminal Court at the Mercy of Powerful States: How the Rome Statute Promotes Legal Neo-Colonialism’, University of Amsterdam, PhD Thesis (2016).
13 In a similar vein see Ssenyonjo, M., ‘The Rise of the African Union Opposition to the International Criminal Court's Investigations and Prosecutions of African Leaders’, (2013) 13 International Criminal Law Review 385 CrossRefGoogle Scholar, at 415–16 (identifying objections against universal jurisdiction and the displeasure with the ICC's strategy as two of the four factors giving impetus to the African Union's decision).
14 Malabo Protocol, supra note 1, Preamble para. 13.
15 ‘African leaders plan mass withdrawal from international criminal court’, The Guardian, 31 January 2017, available at www.theguardian.com/law/2017/jan/31/african-leaders-plan-mass-withdrawal-from-international-criminal-court (accessed 11 April 2017).
16 Art. 28A mentions: genocide, crimes against humanity, war crimes, the crime of unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, illicit exploitation of natural resources and the crime of aggression. Malabo Protocol, supra note 1, Art. 28A.
17 On these issues see generally van der Wilt, supra note 8.
18 Compare the second item of the Malabo Protocol Preamble to the Rome Statute, which reads ‘Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of mankind’.
19 For legal analyses of aggression as an international crime see (amongst many others) Clark, R.S., ‘The crime of aggression’, in Stahn, C. and Sluiter, G. (eds.) The Emerging Practice of the International Criminal Court (2009), at 709–23Google Scholar; M. de Hoon, ‘The Law and Politics of the Crime of Aggression’, Free University of Amsterdam, PhD Thesis (2015); G. Kemp, Individual Criminal Liability for the International Crime of Aggression (2016).
20 The Special Tribunal for Lebanon defined the mens rea required for terrorism as the intent to spread fear among the population or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it. Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-1-01/I/AC/R176bis, A.Ch., 16 February 2011, paras. 83, 85. The EU Council's definition adds further possible aims of terrorists, EU Council Framework Dec. 2002/475/JHA on Combating Terrorism, Official Journal of the European Communities, No. L 164 (22 June 2002), at 3 (‘seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation’ (Art. 1, s. 1)).
21 It might be observed that ‘mercenarism’ – a familiar scourge in African countries – is a separate crime under the Malabo Protocol. See supra note 1, Art. 28H.
22 Shola Omotola, supra note 4, at 25–7.
23 For similar apprehensions see Abass, A., ‘Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges’, (2013) 24 (3) European Journal of International Law 933 CrossRefGoogle Scholar, at 941.
24 Prosecutor v. Katanga and Ngudjolo Chui, Judgment on the Appeal of Mr Germain Katanga against the Oral Dec. of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ICC-01/04-01/07-1497, A.Ch., 25 September 2009, paras. 75–9.
25 Prosecutor v. Thomas Lubanga Dyilo, Decision concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo, ICC-01/04-01/06-8-Corr, PTC I, 24 February 2006, para. 31.
26 Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, ICC-01/09-02/11, PTC II, 30 May 2011, para. 46.
27 Ibid., para. 49.
28 Ibid., para. 66.
29 Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Decision on the admissibility of the case against Abdullah Al-Senussi, ICC-01/11-01/11, PTC I, 11 October 2013, para. 71 (emphasis added).
30 Ibid., para. 165.
31 Ibid., para. 166.
32 Prosecutor v. Simone Gbagbo, Decision on Côte d'Ivoire's challenge to the admissibility of the case against Simone Gbagbo, ICC-02/11-01/12-47-Red., PTC I, 11 December 2014.
33 Ibid., para.73.
34 Prosecutor v. Simone Gbagbo, ‘Version publique expurgée Document à l'appui de l'appel de la république de Côte d'Ivoire sur la décision de la Chambre préliminaire I «Relative à l'exception d'irrecevabilité soulevée par la Côte d'Ivoire s'agissant de l'affaire concernant Simone Gbagbo’, ICC-02/11-01/12-54-Red, République de Côte d'Ivoire, 9 January 2015, para. 66: ‘Plusieurs des infractions précitées doivent être analysées en des actes préparatoires ou en des actes fournissant les moyens nécessaires à la commission d'autres crimes’.
35 Prosecutor v. Simone Gbagbo, Judgment on the appeal of Côte d'Ivoire against the decision of Pre-Trial Chamber I of 11 December 2014 entitled ‘Decision on Côte d'Ivoire's challenge to the admissibility of the case against Simone Gbagbo’, ICC-02/11-01/12 OA, A.Ch., 27 May 2015, para. 101.
36 D. Connett, ‘Laurent Gbagbo trial: Ivory Coast's ex-President “used rape and murder” against rivals, ICC told’, Independent, 28 January 2016, available at www.independent.co.uk/news/world/europe/laurent-gbagbo-trial-ivory-coast-s-ex-president-used-rape-and-murder-against-rivals-icc-told-a6840456.html (accessed 25 July 2016).
37 Honoré, supra note 3, at 34.
38 Compare Honoré, supra note 3, at 35 (identifying recognition and remedy as necessary features of rights, distinguishing them from mere aspirations).
39 Honoré, supra note 3, at 42.
40 Dunér, B., ‘Rebellion: The Ultimate Human Right?’, (2005) 9 (2) International Journal of Human Rights 247 CrossRefGoogle Scholar, at 253 (pointing out that ‘Several countries made it clear that they did not want to see rebellion as a right’).
41 Calvin, J., ‘Calvani Opera’, in Baum, G. et al. (eds.), Corpus Reformatorum (1863-1900)Google Scholar, Vol. 29, at 557, 636–7, quoted in S.S. Wolin, Politics and Vision: Expanded Edition (2004), at 169.
42 Wolin, supra note 41, at 169.
43 Locke, J., Two Treatises of Government, Laslett, Peter (ed.) (1965)Google Scholar, Second Treatise, para. 151.
44 Ibid., para. 155.
45 Ibid., para. 169.
46 Ibid.
47 Translation by the author.
48 Dunér, supra note 40, at 255.
49 On the distinction between parochial and universal interests as the foundation of the difference between domestic and international (criminal) law, see generally Fletcher, G., ‘Parochial versus Universal Criminal Law’, (2005) 3 Journal of International Criminal Justice 20–34 CrossRefGoogle Scholar.
50 Compare, amongst others, Cassese, A. et al. (eds.), Cassese's International Criminal Law (2013), at 20 CrossRefGoogle Scholar.
51 Abass, supra note 7, at 34.
52 See, for a general analysis on regional customary law and its relationship with general customary law, D'Amato, A., ‘The Concept of Special Custom in International Law’, Northwestern University School of Law Faculty Working Paper 116 (2010)Google Scholar, available at scholarlycommons.law.northwestern.edu/facultyworkingpaers/116 (accessed 23 January 2017).
53 For an extensive analysis of these regional suppression treaties see van der Wilt, H., ‘On Regional Criminal Courts as Representatives of Political Communities’, in Heller, K.J. et al. (eds.), The Oxford Handbook of International Criminal Law (forthcoming)Google Scholar.
54 See also 1948 Charter of the Organization of American States, 119 UNTS 1609 (1952), Art. 15 (‘No State or group of States has the right to intervene directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other State’).
55 Compare Novogrod, J.C., ‘Internal Strife. Self-Determination and World Order’, in Cherif Bassiouni, M. (ed.) International Terrorism and Political Crimes (1975)Google Scholar, at 103 (‘During rebellion there is no dispute that assistance may be given to the legitimate government upon request, but, contrarily, none may be given to the rebels’; later adding that ‘it is not surprising that even when the revolt becomes somewhat more sustained in time and place and is organized under responsible leaders, the resulting insurgency still does affect the rule that the established government may be assisted but the insurgents may not’). See also M.N. Shaw, International Law (2008), at 1152 (‘The reverse side of the proposition – that states are allowed to seek the assistance of other states in the suppression of rebellion – is that aid to rebels is contrary to international law’).
56 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Judgment of 27 June 1986, [1986] ICJ Rep. 14, para. 242.
57 Novogrod, supra note 55, at 103.
58 Novogrod, supra note 55, at 105–6 (‘Implicit in the permissibility of assistance to the lawful government during rebellion and insurgency is the understanding that such aid is based on the express or tacit consent of the strife-torn state. Without the requisite consent of the incumbent government, any assistance thrust upon it would be unwarranted interference in its internal affairs’). See also Shaw, supra note 54, at 1151 (‘It would appear that in general outside aid to the government authorities to repress a revolt is perfectly legitimate, provided, of course, it was requested by the government’) (emphasis added).
59 Novogrod, supra note 55, at 107.
60 Garner, J., ‘Editorial Comment: Questions of International Law in the Spanish Civil War’, (1937) 31 American Journal of International Law 66 CrossRefGoogle Scholar, at 69 (‘It – the foreign state – loses the right which it had during the period of insurgency to assist the legitimate government and henceforth must treat both belligerents alike’). See Shaw, supra note 55, at 1150 (asserting ‘[o]nce the rebels have been accepted by other states as belligerents . . . the rules governing the conduct of hostilities become applicable to both sides, so that, for example, the recognizing states must then adopt a position of neutrality’).
61 See the headlines in ‘Military intervention looms as Jammeh clings to power’, Al Jazeera, 19 January 2017, available at www.aljazeera.com/news/2017/01/gambia-jammeh-military-intervention-170119035928489.html (accessed 23 January 2017).
62 Shaw, supra note 55, at 1158.
63 Compare D. Tladi, ‘Immunities (Article 46Abis)’, in Werle and Vormbaum, supra note 2, at 207 (‘Although Art. 46Abis could be read as establishing two categories of immunities, namely immunity ratione materiae and immunity ratione personae, on balance it appears that this second alternative is likely what was meant by the African Union’).
64 On immunities and international criminal law in general: Akande, D., ‘International Law Immunities and the International Criminal Court’, (2004) 98 American Journal of International Law 407–33CrossRefGoogle Scholar; Cassese, A., ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case’, (2002) 13 European Journal of International Law 853–75Google Scholar. In relation to the Al Bashir-case see Akande, D., ‘The legal nature of the Security Council Referrals to the ICC and its impact on Bashir's immunities’, (2009) 7 Journal of International Criminal Justice 333–52CrossRefGoogle Scholar; Gaeta, P., ‘Does President Al Bashir enjoy immunity from arrest?’, (2009) 7 Journal of International Criminal Justice 315–32CrossRefGoogle Scholar; Tladi, D., ‘The ICC decisions in Chad and Malawi: On cooperation, immunities and Art. 98’, (2013) 11 Journal of International Criminal Justice 199–221 CrossRefGoogle Scholar. On the contested provision in the Malabo Protocol see Tladi, D., ‘The immunity provision in the AU Amendment Protocol: Separating the (doctrinal) wheat from the (normative) chaff’, (2015) 13 Journal of International Criminal Justice 3–17 CrossRefGoogle Scholar.
66 L. May, Aggression and Crimes against Peace (2008), at 223–5.
67 Von Clausewitz, K., On War (translated by Howard, M. and Paret, P.) (1976), at 76 Google Scholar.
68 Ibid., at 75–6.
69 For a vivid discussion of von Clausewitz’ arguments see M. Walzer, Just and Unjust Wars (2000), at 23. Walzer, however, does not agree with Von Clausewitz's grim and fatalistic view. As war is a social construction, it is, in Walzer's opinion, possible to modify and temperate warfare. Ibid., at 25.
70 G. Best, War & Law since 1945 (1994), at 54. Best explains how the urge in the interbellum to get rid of war altogether was in effect conducive to a neglect of the improvement of the jus in bello: ‘So profound and unsettling, however, was the impression made upon that generation of survivors by, as they called it, the Great War, that their consequent responses went far beyond such patching of the jus in bello. It was no doubt desirable that war should never again be fought in ways as beastly as those in which the Great War had specialized. But how much more desirable that great wars should never happen again and that the use of armed force among States, so far as it could not be absolutely prevented, should be controlled to serve the common good!’
71 For a chilling account see M. Meredith, The State of Africa; A History of Fifty Years of Independence (2006), at 524–45. As Meredith observes, ‘One province after another joined the rebellion. Not only were Rwanda and Uganda involved in the campaign but Angola too, long resentful of Mobutu's support for the Angolan rebel leader Jonas Savimbi’, ibid., at 535.
72 In a recent Resolution, the Security Council noted that the LRA ‘is still engaged in or providing support for acts that undermine the peace, stability or security of the CAR’; UN Doc. S/RES/2262 (2016), para. 12.
73 Prosecutor v. Al Gaddafi and Al Senussi, supra note 29, para. 70 (‘Following the events in Tunisia and Egypt which led to the departure of their respective Presidents in the early months of 2011, a State policy was designed . . . aimed at deterring and quelling the demonstrations of civilians against the regime of Gaddafi’).
74 Compare with Meredith, supra note 71, at 550 (‘The dominant role played by the Krahn, particularly in suppressing dissent, provoked tribal animosities that had long lain dormant. The eventual consequence was civil war. It was a war that was not confined to Liberia but spread into neighbouring countries, engulfing the whole region in conflict’).
75 The Trial of German Major War Criminals. Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22 (22 August–1 October 1946), at 421.
76 Ibid.
