How is the Tri-Partite Jurisdiction of the African Court innovative in international law practice and what is its significance?
The Malabo Protocol represents a significant innovation in international law, vesting – for the first time ever – three distinct branches of international law in a single court. Although officially a single court, the court will be divided into three autonomous sections, each with its own jurisdiction: (1) a General Affairs Section, (2) a Human and Peoples’ Rights Section, and (3) an International Criminal Law Section. The International Criminal Law Section is further divided into three chambers: (1) a Pre-Trial Chamber, (2) a Trial Chamber, and (3) an Appellate Chamber.
Combining these three jurisdictions – which in other regions are addressed by separate courts – will create a powerful opportunity for cross-fertilization on international law issues, as well an unprecedented ability to holistically ensure accountability for human rights violations and international crimes by States, individuals, and corporations. Although public international law, international human rights law, and international criminal law are often treated as separate and distinct branches of law, they are in fact highly inter-related. Many international crimes are derived from human rights violations – for example, several of the acts that may constitute crimes against humanity also constitute human rights violations (such as slavery, torture, and persecution) – and human rights norms such as the principle of legality have been incorporated into international criminal law and international humanitarian law. In recent years, both international criminal tribunals and human rights courts have increasingly referred to caselaw of the others in determining the elements of a crime or violation or whether a crime or violation was committed. The establishment of a court with jurisdiction over multiple bodies of international law will facilitate this cross-fertilization, enabling more robust judicial discussion on shared legal issues.
Contrary to the concerns of some scholars and practitioners, who have warned that the creation of an international criminal law section within the African Court will detract from its human rights mandate, this additional section will complement and strengthen the existing human rights jurisdiction of the Court by ensuring that the perpetrators of human rights abuses are held criminally accountable. Human rights law now recognizes that criminal prosecutions of human rights violators are an essential component of most rights. Ensuring both individual criminal and State responsibility is therefore necessary to comprehensively address human rights violations.
Finally, there has been considerable confusion about the appellate jurisdiction of the expanded African Court, and whether the appeals chamber – which is part of the criminal section and will be staffed by judges who are experts in international criminal law – will hear appeals from the General Affairs and Human Rights Section. A careful review of the history of the African Court and the language of the full Statute, however, clarifies that decisions of the General Affairs and Human Rights Sections cannot be appealed, but only revised. The appeals chamber has jurisdiction to hear appeals only from within the International Criminal Law section.