The African Union (AU) is considering whether to add jurisdiction to hear international criminal law cases in the future African Court of Justice and Human Rights, a merger of the human rights court and the court of justice. Drafters submitted a proposal to the AU in July 2012 to amend the 2008 Protocol on the Statute of the African Court of Justice and Human Rights (2008 Protocol) to include an international criminal law section along with both the pending general affairs and existing human rights sections. The 2008 Protocol still needs twelve more ratifications before the AU will merge the African Court on Human and Peoples’ Rights (Human Rights Court) with the African Court of Justice —the latter being a court established in the Constitutive Act of the African Union—under one body: the African Court of Justice and Human Rights. Under the proposed third section, the new combined Court would also have jurisdiction to hear criminal cases against individuals. However, the AU has delayed making a decision on the matter but plans to do so sometime this year. Although some have supported the proposal, other stakeholders have urged the AU to reconsider the proposed merger due to potential human rights ramifications.
Skeptics of the proposal have expressed fear that the expanded jurisdiction into international crimes would undermine the human rights progress made in the region. Frans Viljoen of the Centre for Human Rights at the University of Pretoria has argued that the disparate mandates between the proposed general affairs and human rights sections, both of which would hold states responsible, and the international criminal section, which would hold individuals responsible, would create a lack of uniformity in their operations. The three sections would require varied legal standards, intensities of fact-finding, and amounts of resources. These planned differences thus leave open the possibility that less expertise will be devoted to human rights and its importance will be diminished within the new system For example, the proposed protocol only calls for five human rights judges, as opposed to the current eleven that sit on the Human Rights Court, and it proposes that a general court of appeals—with judges that do not necessarily possess particularized human rights experience—hear cases from the human rights section.
The debate, however, also centers on the political tensions between the AU and the International Criminal Court (ICC) in The Hague. The ICC, which has jurisprudence that has come almost exclusively from situations in African countries, and the AU have often disagreed on how to handle cases. However, the AU has typically only resisted moves by the ICC to hold current leaders of African states accountable before the court, presumably due to the perceived negative impacts of ICC indictments against African heads of state in ongoing negotiations and peace processes for the AU. The AU Heads of State and Government decided in 2009 not to comply with the arrest warrant for Sudanese President Omar al-Bashir in order to promote peace in Sudan. In doing so, the AU encouraged further investigation into the addition of international criminal jurisdiction to the pan-African judicial system in light of the negative impact the indictment by an international court had on establishing peace in Sudan. More recently, the AU in 2011 took issue with the ICC’s charges against Moammar Qaddafi, the former Libyan leader, and stated at the 17th AU Summit that the arrest warrant for Qaddafi hindered progress toward negotiating a resolution in Libya.
In light of the already existing tensions between the AU and the ICC, it is unclear how the ICC will handle its overlap with the proposed court’s jurisdiction. The complementarity principle under the Rome Statute encourages domestic prosecution and only allows the ICC to investigate when the domestic judicial system fails to do so adequately, but the ICC has yet to extend this principle to regional criminal courts. Some proponents of the proposal, such as Chidi Anselm Odinkalu of the Open Society Justice Initiative, have endorsed the new court as a way to expand the complementarity principle to allow the AU a chance to respond to situations in African states and improve accountability in the pan-African system.
If the AU adopts a criminal jurisdiction addition to the African Court of Justice and Human Rights, the pan-African human rights system would be the first regional human rights system to adopt a court with an international criminal mandate, bringing with it new challenges. A major concern of adopting international criminal jurisdiction is the amount of resources required to protect witnesses, engage in extensive fact-finding, and maintain the three chambers: the pre-trial chamber, the trial chamber, and the appellate chamber. For a regional human rights system, stretching resources to meet these economic needs will be a challenge. Issues of jurisdictional overlap with the ICC and maintaining the strength of the current human rights mandate present additional challenges. How the AU deals with the difficulties that will come with a new international regional criminal court could negatively impact human rights in the region but could also set a precedent for other regional human rights systems to take on international criminal mandates.