How wide is the International Criminal Jurisdiction of the African Court and why should it matter?
Of all of the innovations in the Malabo Protocol, perhaps the most significant is the creation of a first of its kind regional criminal court with jurisdiction over core international crimes – which have traditionally been the subject matter of international criminal tribunals – as well as transnational crimes that, with very limited exceptions, have not previously been within the jurisdiction of any supra-national tribunal. Cases involving these crimes will be heard by the International Criminal Law Section. This Section will be divided into three chambers: a Pre-Trial Chamber, a Trial Chamber, and an Appellate Chamber.
Specifically, the crimes included in the Malabo Protocol for the Core International Crimes are Genocide, Crimes against humanity, War crimes, and the Crime of Aggression while the Transnational Crimes include unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, and illicit exploitation of natural resources.
The Malabo Protocol also permits the AU Assembly, upon the consensus of States Parties to the Protocol, to extend the jurisdiction of the African Court to cover additional crimes. Modes of liability for these crimes are specified in article 28N of the Malabo Protocol, and include inciting, instigating, organizing, directing, facilitating, financing, counseling or participating as a principal, co-principal, agent, or accomplice in any of the offenses listed above.
The establishment of a criminal chamber with jurisdiction over 10 transnational crimes provides the African region with a long-awaited criminal court dedicated to crimes of special concern to the continent. Since the 1970s, African States have been advocating for an international court to try such crimes, including apartheid, terrorism, and trafficking in hazardous wastes, among others, but these calls have not been heeded. The establishment of an expanded African Court with international criminal jurisdiction addresses this gap and allows Africa to take the lead in setting a new agenda in the field of international criminal law.
These transnational crimes are sufficiently serious to warrant supra-national prosecution. These crimes have had devastating effects on African States that are every bit as serious as the impact of the core international crimes and often lead to the commission of core international crimes as well. Their seriousness has been repeatedly recognized at both the regional and international level, with the UN recognizing many of them as threats to international peace and security and calling for a regional tribunal to prosecute at least one of them.
With respect to the content of the crimes themselves, the Malabo Protocol definitions closely mirror those in the major treaties on these subjects, such as the Genocide Convention, the Rome Statute of the ICC, and the African Charter on Democracy, Elections and Governance, and therefore closely adhere to the international law definitions of these crimes. This reliance on current treaty definitions, some of which are codifications of customary international law, ensures consistency between the jurisprudence of the African Court and current international law. To the extent these definitions vary from those in pre-existing conventions – particularly the Rome Statute – the vast majority of changes are based on customary international law developments that have arisen since those conventions were adopted, and the Malabo Protocol thus reflects the current state of international law. A handful of other changes – such as differences in the definition of the crime of aggression to encompass acts of aggression by non-State actors and the addition of some acts as war crimes – are innovations that better respond to the particular context of grave crimes on the African continent. For ease of reference, a side-by-side comparison of the provisions of the Malabo Protocol, the Rome Statute, and other applicable treaties on core international crimes is provided here.