The Coalition’s submission on the implications of the African Court to have jurisdiction on international crimes
The Coalition together with several organisations including the East Africa Law Society, the Darfur Consortium, Open Society Justice Initiative and the Southern Africa Litigation Centre prepared a submission on the implications of the extension of jurisdiction of the African Court to include international crimes for consideration at the January 2010 AU Summit.
At the February 2009 AU Summit, the Assembly of Heads of State and Government requested the African Court to examine the implications of the extension of jurisdiction to include international crimes such as genocide and crimes against humanity and to report to it in 2010. This request was in the context of the AU Assembly’s decision on the abuse of the principle of universal jurisdiction.
The authors argue that it would not be appropriate for the African Court to have jurisdiction over international crimes. The African Charter on Human and Peoples’ Rights, the legal instrument on which the African Court is based, does not make provision for a mechanism to address international crimes such as crimes against humanity and genocide. The African Charter is centred on holding States responsible for human rights violations. The African human rights system is incompatible with responding to individual accountability for international crimes.
Furthermore, compliance and co-operation with regional courts and tribunals is evolving in Africa. There have been instances of non-compliance with judgments of regional courts. For a regional court to prosecute international crimes, it will require the full co-operation from African States – crucial in the effectiveness of the court.
Accommodating criminal jurisdiction would require an overhaul of the current legal and institutional framework of the African Court. For example, the establishment of a prosecutorial division, witness protection services, and detention facilities for suspects will be required.
The Africa Court is a young institution that is yet to prove itself in the protection of human rights. Rather than extending its jurisdiction, the African Court can complement the work of the International Criminal Court in various ways.
The African Court can contribute to preventing mass human rights violations in Africa such as determining State responsibility for them. In turn, African States can support the African Court in establishing a regional norm of legality and compliance with decisions of regional courts.