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African criminal court will complement ICC

Publish date: 07 October 2019
Issue Number: 844
Diary: IBA Legalbrief Africa
Category: International

‘To have any lasting impact, African states must live up to their legal and political obligations by implementing AU decisions. They cannot take a passive role while at the same time calling for the AU to oversee peace, security and justice.’ The University of Pretoria’s Dominique Mystris notes the African Court on Human and Peoples’ Rights is up and running, but the criminal law section – which will operate within the proposed African Court of Justice and Human Rights – is not yet in force. She says that is because member states have not ratified the Malabo Protocol – which introduced criminal jurisdiction through an International Criminal Law Section. In an analysis on The Conversation site, Mystris says one of the main concerns around the move to create a regional criminal court was that it would give the AU jurisdiction over international crimes, which could have a negative impact on the African human rights system. However, she believes the court would be a good idea as it would incorporate international and regional notions of justice; it would cover a wider range of crimes, including corporate criminal liability; it would address the underlying causes of conflict, which has been completely ignored by the international criminal justice system; and it gives Africa greater ownership of the justice process. ‘It will not replace the ICC; rather, it will be a complementary mechanism to ensure that justice is done,’ she adds. The criminal law section will prosecute the four ‘core’ international crimes of genocide, war crimes, crimes against humanity and the crime of aggression. These crimes are currently under the jurisdiction of the Rome Statute at the ICC. The section will also prosecute treaty-based crimes including the crime of unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking persons, trafficking in drugs, trafficking in hazardous waste, and the illicit exploitation of natural resources. Mystris says the issue of criminal liability has often put the AU at odds with the international criminal justice system. ‘The regional body has been of the view that criminal proceedings undermine peace and reconciliation. The belief has been that both judicial and non-judicial efforts are necessary for justice to be done.’ The AU believes that justice must contribute to peace and security, positively impact development, and promote reconciliation. While these aims have mostly been achieved through non-prosecutorial mechanisms, things will change with the placement of the International Criminal Law Section within the African Peace and Security Architecture. ‘By reinforcing criminal justice, the AU’s commitment to peace and security will be strengthened.’

Full analysis on The Conversation site