Does the Immunity clause in the Malabo Protocol for the African Court mean impunity for those who commit serious crimes in Africa? How do we know that the African Court will not just be a sham for leaders wanting to evade justice?
By far, the most controversial provision in the Malabo Protocol has been the immunities provision, which has been harshly criticized as contrary to international law and a blatant attempt to shield African leaders, thereby increasing impunity on the continent. According to this argument, because international crimes such as genocide and crimes against humanity are typically “massive, systemic crimes . . . perpetrated by those who wield [the] greatest power,” recognizing the immunities of political leaders protects “those are most likely to commit these crimes.” The immunities provision also risks increasing the incidence of atrocity crimes by “giving leaders license to commit crimes” and “encouraging those accused of the crimes to cling to their positions to avoid facing the law.”
Contrary to the concerns described above, the vast majority of the crimes of the Malabo Protocol are not perpetrated by senior state officials but rather by private citizens. For example, piracy, mercenarism, trafficking in persons, trafficking in drugs, and terrorisms are generally committed by organized criminal groups, not government officials. There can be no question that the Malabo Protocol reduces impunity for such crimes. Other crimes, such as trafficking in hazardous wastes, are frequently committed by corporate entities, and the Malabo Protocol likewise reduces impunity with respect to these crimes because it is the first international court statute to include corporate criminal liability.
Criticism of the immunities provision has therefore focused on just a few crimes, such as UCG and corruption, which can be perpetrated by senior state officials. Yet this criticism misses the forest for the trees. These crimes can be committed by a wide variety of persons, including mercenaries, armed dissidents and rebels, and low-level army officials. Indeed, of the six acts constituting UCG, at least three – use of mercenaries; coup d’état; and use of armed dissidents, rebels, or political assassination – are much more likely to be committed by these other actors than by senior state officials. At the moment, however, none of these perpetrators can be held responsible in a supra-national court because there is no court with jurisdiction over this crime. Ratification of the Malabo Protocol will, for the first time, provide a forum for the prosecution of such cases and therefore dramatically increase accountability for a wide array of perpetrators. Moreover, even if these perpetrators seize power, under customary international law, immunity would likely not attach so long as their “government” remained unrecognized. As for the remaining acts constituting the crime of UCG, although the African Court would not be able to prosecute heads of state and other senior state officials during their tenure in office, they could be held accountable after leaving office.
The Malabo Protocol does not increase impunity for core international crimes because the Malabo Protocol does not alter the availability of immunities before domestic courts or the ICC. Senior state officials, including heads of state, will continue to be just as accountable in these other courts after ratification of the Malabo Protocol as they are now. The argument that senior leaders will be encouraged – any more than they currently are – to cling to their positions to avoid prosecutions is therefore incorrect.
Furthermore, the Malabo Protocol represents a dramatic expansion in the fight against impunity. By raising 10 additional crimes to the international level and extending criminal liability to corporations, the Malabo Protocol ensures that many more perpetrators of serious crimes affecting the well-being of millions of Africans can be held accountable in a supra-national forum. No other regional or international court has jurisdiction over these crimes or over corporate perpetrators. The AU’s decision to create a regional criminal court with jurisdiction over substantially more crimes than the ICC demonstrates its commitment to ending impunity.