Is an African Court with jurisdiction over international crimes a threat to the International Criminal Court?

One of the harshest criticisms of the Malabo Protocol is that it was designed to circumvent States’ obligations before the International Criminal Court.  This ahistorical narrative is not only incorrect – ignoring the long history of discussions about the need for an African criminal court to address crimes of particular concern to the continent, dating back to the 1970s – but also fails to appreciate the vast opportunity for the expanded African Court to complement, not displace, the ICC.

The desire to create a regional criminal court did not spring from dissatisfaction with the ICC’s treatment of situations in Africa.  To the contrary, the idea of an African criminal court dates back to at least the 1970s, when it was proposed during the drafting of the African Charter on Human and Peoples’ Rights as a way to address continent-specific criminal challenges, particularly apartheid.  More recently, as African scholars have observed, the idea of expanding the jurisdiction of the African Court arose out of three specific issues including the fulfillment of AU treaty obligations, the ability to try in the future similar cases to the prosecution of Hissene Abre and the perceived misuse of the principle of universal jurisdiction by European courts.

At least three reasons explain why the expanded African Court is intended to complement—not displace—the International Criminal Court. First, an African criminal court will reduce impunity by establishing a court with a substantially larger jurisdictional reach than the ICC.  For example, only the African Court has jurisdiction over transnational crimes, such as piracy, trafficking in persons, and unconstitutional changes of government, and only the African Court has jurisdiction over crimes committed by corporations.  Adding a criminal section to the African Court therefore represents an opportunity to prosecute perpetrators of serious crimes that cannot be reached by the ICC.

Second, because the criminal jurisdiction of the expanded African Court will be substantially larger than that of the ICC, there is little risk of competing State obligations to both institutions.  To the extent the jurisdictions of the two overlap – namely on core international crimes committed by individuals after the Malabo Protocol enters into force – States can mostly avoid the possibility of competing obligations by referring situations to only one, and not both, courts.  To the extent that both institutions pursue investigations and/or prosecutions related to the same incidents, such as because of a referral, pre-existing policies of the ICC to direct resources to cases not currently under investigation by another court will almost certainly mean that the ICC will investigate different perpetrators than the expanded African Court, avoiding any conflict.  Moreover, by pursuing different perpetrators responsible for the same incidents, the two courts will be able to prosecute a greater number of individuals, and therefore have a greater impact on the fight against impunity.

Finally, criticisms that the expanded African Court is a mechanism to “shield” certain perpetrators – primarily high-ranking government officials – from prosecution before the ICC is simply incorrect.  The ICC defers only to ongoing investigations and prosecutions.  The criminal section of the African Court, however, will not have jurisdiction over these officials, and thus will not commence any prosecution against them.  As such, these officials will remain subject to prosecution before the ICC.  The very idea of the criminal section as a “shield” misapprehends how the ICC functions.