It would appear that international criminal justice is on the up. The International Criminal Court (ICC) delivered its first guilty verdict in the trial of Congolese warlord Thomas Lubanga; former Liberian President Charles Taylor met the same fate in the Special Court for Sierra Leone; and, closer to home, an SA court ordered the National Prosecuting Authority and police to investigate crimes against humanity committed in Zimbabwe. Last week, however, the AU gathered in Ethiopia to discuss a draft protocol which, if adopted, would extend the jurisdiction of the African Court to include criminal prosecutions of international crimes. An African criminal court, however, risks frustrating rather than furthering efforts at accountability.
A regional criminal court is not at first glance sinister. The rationale, is to create a forum in which perpetrators of serious international crimes committed in Africa are held accountable for their actions. The protocol is also not limited to the core international crimes of genocide, war crimes and crimes against humanity. New crimes are created to tackle contemporary problems facing the continent, such as corruption and unconstitutional change of governments. Conceptually, therefore, this endeavour may perhaps not be without merit.
But this may be more a case of the AU wanting an African criminal court than actually needing one. Its necessity would presuppose the absence of an existing mechanism to investigate and prosecute international crimes. This is not the case. The Rome Statute, which saw the creation of the ICC, embodies the international community’s commitment to prosecute perpetrators of serious international crimes. Endorsed by 121 countries, 33 of which are African, the ICC is a fully functional, state-created institution with a mandate to prosecute international crimes in cases where states are unable or unwilling to do it themselves.
Why is the AU intent on fast-tracking a process that simply cannot, given the legal, political and financial implications, be rushed? Perhaps the answer is the strained relationship between the AU and the ICC. The AU has more than once called on its member states not to co-operate with the ICC in arresting Sudanese President Omar al-Bashir. Or is it because the ICC is accused of targeting Africans? Or it could stem from dissatisfaction that countries such as China and the US, which are not party to the Rome Statute, but by virtue of their permanent veto-yielding seats on the UN Security Council have the power to refer non-ICC countries – Libya and Sudan – to the ICC, but will never be the subject of referrals themselves?
This may lead to the conclusion that the motives behind the move to create an African criminal court are questionable.
The AU also did not do itself any favours by limiting the flow of information regarding the protocol’s progress and restricting engagement and consultations to a select few. The apparent lack of transparency will not sit well with many.
Motives aside, there are more pressing concerns. Firstly, from a practical perspective, a regional criminal tribunal is extremely costly and resource-intensive. An average trial at the ICC, for example, costs about million (R166m). This is nearly double the approved budgets for the African Court and the African Commission combined. Money could be better spent elsewhere.
Secondly, the African Court, the continent’s human rights court, is still finding its feet and does not have unanimous state support. Expanding its jurisdiction will probably affect its potential to discharge its human rights mandate. The AU should therefore focus instead on strengthening and bolstering existing institutions instead of burdening them with additional and unnecessary challenges.
And third, the protocol inexplicably makes no mention of the Rome Statute or the ICC, despite more than half of Africa being party to it. This is a recipe for an international relations disaster.
The AU must remember that the ICC is a court of last resort and was never intended to be the primary forum for the investigation and prosecution of international crimes. The Rome Statute envisages states themselves taking the lead in the investigation and prosecution of serious international crimes. If Africa is serious about international criminal justice, it must take advantage of the ICC’s complementarity regime and dispense international justice at home.
SA, in this regard, set an example when the high court recently confirmed that the government was under a duty to investigate and prosecute international crimes.
Given its implications, an African criminal court is not the solution to the AU’s concerns. It should look to use the ICC instead of blaming it, bearing in mind that international criminal justice is not only secured in the international realm but perhaps most importantly within domestic jurisdictions.
Alan Wallis is the International Justice Project lawyer at the Southern African Litigation Centre.