How will the African Court interact with the International Criminal Court and Regional Economic Courts?

Consistent with the statutes of other regional and international courts, the Malabo Protocol enshrines the concept of complementarity, meaning that the court is designed to supplement—not displace—the work of national, sub-regional, and international courts to hold accountable perpetrators of grave crimes.  The importance of the complementarity concept is highlighted in provisions throughout the Malabo Protocol, from the preamble to the substantive articles (arts. 46H,46I). For example, the preamble states that the “present protocol will complement national, regional, and continental bodies and institutions in preventing serious and massive violations of human and peoples’ rights in keeping with Article 58 of the Charter and ensuring accountability for them wherever they occur.”

One of the significant innovations of the Malabo Protocol is that it explicitly provides for complementarity not only with respect to national courts, but also with respect to regional African courts.  Although other tribunals—such as the ICC—have complementarity provisions in their statutes, all are limited to complementarity with State courts.

At the moment, none of the courts of the African regional economic communities have jurisdiction over international crimes.  There are, however, several regional courts whose jurisdiction could be so enlarged, including the ECOWAS Community Court of Justice and the East African Court of Justice. Once a regional court is vested with criminal jurisdiction, the African Court will be able to take a case only if both the relevant State and the relevant regional court fail to investigate and prosecute. These provisions ensure that the African Court remains a court of “last resort”—meaning that the Court will step in to try a case only where no State or regional court is pursuing, or previously pursued, the case.

In contrast to the provisions on complementarity with state and regional courts, no provision of the protocol explicitly addresses the relationship between the African Court of Justice and Human and Peoples’ Rights and the International Criminal Court. Despite this omission, the expanded African Court is intended to complement—not displace—the International Criminal Court. These two courts have substantially different jurisdictions, much of which is not overlapping.  The existence of two courts will therefore promote accountability by ensuring that the broadest array of persons responsible for grave crimes can be prosecuted.  To the extent the jurisdictions of the two courts overlap, the provisions of both the Rome Statute and the Malabo Protocol are adequate to ensure that there would be no competing obligations on States and that no person is tried twice for the same conduct before both courts.  In fact, the Malabo Protocol’s non bis in idem provision (art.46I), which refers to any court, would plainly prohibit the African Court from trying any person for the same conduct for which that person was already tried before the ICC, unless one of the specific exceptions were satisfied. Also, article 46L of the Malabo Protocol permits the African Court to seek the cooperation or assistance of any international court, including the ICC. The silence of the Malabo Protocol on the relationship between the African Court and the ICC is not, therefore, a concern, but rather an opportunity for the two courts to determine for themselves the best way for them to work together.