“Complementarity Beyond the ICC: The AU’s Malabo Protocol”

Evelyn A. Ankumah; Executive Director of Africa Legal Aid (AFLA).

Complementarity is one of the key principles of the Rome Statute system for international criminal justice. Complementarity expresses the conviction that the ICC is, and should be, a court of last resort. This means that the ICC only has, or should only assume, jurisdiction when national courts are unable or unwilling to take responsibility for the prosecution and trial of alleged perpetrators of international crimes.

The ICC was never created as a court that would sit in the driver’s seat of the car that is expected to drive to the destination of criminal accountability. Quite clearly, the basic assumption underlying the Rome Statute is that the ICC, rather, sits in the back seat. It will, or should, only jump to the front seat when the driver – meaning a national criminal court or system – loses direction or simply refuses to drive in the direction of the desired place called: “criminal justice”.

That was the original idea when the Rome Statute of the International Criminal Court was negotiated in the late 1990s. In recent years, however, it appears that an African regional system would like to occupy the back seat of the car. The African Union is of the opinion that when national criminal courts or systems do not deliver, it should not be the ICC, but, rather, an African criminal tribunal or chamber who jumps into the driver’s seat and takes over responsibility.

That is the main idea behind the Malabo Protocol, which may be viewed as a form of “complementarity beyond the ICC”. What are we to make of this? In cases where national criminal systems do not drive to the desired destination, should we hire, as an alternative, an African, or an international driver?

Of the numerous questions that arise, I would like to address just two.

Firstly, to actually arrive at the destination desired by the victims of international crimes committed on African soil, it makes sense to have a preference for an African driver, who is much more aware of the bumpy roads on the African continent than their European, American, or OECD counterparts, who are more likely to get lost. The proposed criminal chamber of the African Court will have jurisdiction over crimes that would seem to constitute specific bumps in Africa’s road to justice. These include economic and environmental crimes. In fact, more than a decade ago, Africa Legal Aid (AFLA), in its ‘Cairo-Arusha Principles on Universal Jurisdiction in Respect of Gross Human Rights Offences: an African Perspectives’ advocated for the inclusion of some of these crimes in the criminal justice regime. The The Cairo Arusha Principles seek to expand the list of international crimes to include those that are of real and practical significance to Africa. The Principles have been coined ‘the voice of Africa on international criminal justice’. It is encouraging that principles initiated under AFLA’s auspices have found their way into an international treaty.

Secondly, however, there is a point that concerns confidence and trust, or rather, distrust. If we entrust international criminal justice to the African Union and the criminal tribunal or chamber it has in mind, will the tribunal ever be able to prosecute and try the persons who often bear the greatest responsibility for Africa’s atrocities? I am referring to the immunity provision in the Malabo Protocol that allows political leaders and their agents to escape the wings of justice. While the Malabo Protocol breaks new ground by expanding the list of crimes subject to international justice, it regrettably undermines this breakthrough by granting immunity to political leaders.

It is one thing to confer upon an African tribunal jurisdiction over crimes of specific relevance to Africa. However, the added value of this may be close to zero if the ‘big fish’ cannot be caught by the nets of the proposed tribunal. How can anyone take an African criminal court that cannot prosecute some of the main perpetrators of grave crimes committed in Africa seriously?

If the AU takes over the driver’s seat from national courts, we are not likely to ever arrive at the desired destination of criminal justice. The ICC still holds, and probably will assume, the responsibility to ensure criminal accountability. If the AU is serious about African justice for Africans, it should come up with something much better than the Malabo proposals.

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