Should the African Court and the ICC cooperate with a burden sharing approach or are there other ways to proceed in the pursuit of international justice?


The best way in which the two courts should cooperate in the pursuit of international justice should be a mix of complementarity, burden sharing approach and mutual reinforcing. The analysis of the statutes of the two courts shows that they have substantially different jurisdictions, much of which is not overlapping. For the jurisdictions that don’t overlap, the two courts should contribute to promoting accountability by ensuring that the broadest array of persons responsible for grave crimes can be prosecuted.

To the extent that the jurisdictions of the two courts overlap, burden sharing should prevail for two reasons. First, the ICC does not have the resources to pursue all cases over which it has jurisdiction. In this particular perspective, the ICC prosecutor has specifically encouraged regional initiatives aiming at prosecuting international crimes. Second, the existence of multiple fora provides victims with a choice of fora when their rights are violated.  This is important because the African Court or the ICC may have different advantages and constraints, leading victims to prefer one over another.

With regard to mutual reinforcing, the work of the two courts should contribute to the development of international jurisprudence.  International and regional bodies frequently cite the decisions of other jurisdictions that already have considered similar issues, drawing on their experience and insight. The African Court and the ICC should be expected to mutually reinforce through a harmonious development of international criminal law jurisprudence. In addition, because the African Court will be the first supra-national court vested with jurisdiction over certain crimes, such as unconstitutional changes of government, piracy and corruption or jurisdiction over corporations, it will have an opportunity to develop jurisprudence in these areas that other courts, including the ICC, might later find useful.