By Andrew W. Maki
“Extending the jurisdiction of the African Court on Human and Peoples’ Rights to cover international crimes would undermine justice and accountability on the continent,” asserted a coalition of eight prominent international human rights groups in an expert opinion published December 17, 2009. The statement came in response to a February 2009 decision made by the Assembly of the African Union during its 12th Ordinary Session. The decision pertained to a perceived abuse of the principle of universal jurisdiction, a repeated topic of concern within the Assembly.
On this occasion, the Assembly’s objection pertained to France’s November 2008 arrest of Rose Kabuye, the Chief of Protocol to the President of Rwanda and former officer in the Rwandan Patriotic Front, for her alleged involvement in the assassination of former Rwandan President Juvenal Habyarimana. The Assembly criticized the arrest as an example of “exercise of power by strong states over weak states,” and in response formally requested:
“the [African Union] Commission, in consultation with the African Commission on Human and Peoples’ Rights, and the African Court on Human and Peoples’ Rights, to examine the implications of the Court being empowered to try international crimes such as genocide, crimes against humanity and war crimes, and report thereon to the Assembly in 2010.”
However, as the authors of the expert opinion assert, any extension of the subject matter jurisdiction of the Court must be “compatible with the United Nations (UN) Charter and, by implication, the Rome Statute of the ICC.” Meeting this standard could be very difficult.
In addition to needing significantly increased financial and diplomatic resources to support the enlarged expertise and institutional capacity of an expanded jurisdiction, the Court would also require a bolstered norm of compliance and cooperation by AU Member States. The current low rate of compliance with decisions rendered by sub-regional African courts and the African Commission on Human and Peoples’ Rights suggests that adherence to decisions by the Court in contentious criminal cases would not be easily achieved. Consequently, contrary to the obligation of AU Member States to condemn and reject impunity as required by Article 4 of the AU Constitutive Act, enlarging the jurisdiction of the Court could widen the impunity gap for individuals responsible for egregious crimes.
However, expanding the jurisdiction of the Court is not the sole means available to bolster the credibility of the African regional human rights system. Improving compliance and cooperation within the current legal framework could also minimize the frequency with which foreign courts invoke universal jurisdiction over African nationals for international crimes. Additionally, as the largest regional group within the Assembly of States Parties to the Rome Statute of the ICC, AU Member States could exert greater influence within the ICC by enhancing their engagement in it. Therefore, in anticipation of the AU Commission’s recommendations, AU Member States must demonstrate their commitment to international justice by prioritizing a norm of compliance and cooperation.
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