Does the recognition of immunities ratione personae before the African Court conflict with the Rome Statute for the ICC, customary international law, or the African domestic laws?
The Malabo Protocol has been unfairly and incorrectly criticized that it conflicts with Customary International Law, the Rome Statute for the ICC, or the African domestic laws, based almost entirely on its immunities provision. Article 46Abis provides that the African Court may not prosecute any sitting AU Head of State or Government, anybody acting or entitled to act as an AU Head of State or Government, or any other senior state official. As an initial matter, it is important to observe that the immunities recognized in Article 46A bis are a form of immunity ratione personae, meaning that the immunity attaches to the office and is possessed by the officeholder only so long as he or she remains in office.
Immunity ratione personae (also known as personal immunity) as opposed to immunity ratione materiae (also known as functional immunity), has traditionally been applied to those State agents with high-level responsibility for foreign affairs in order to ensure that these individuals can travel freely without harassment by other States, thereby promoting effective communications between States. However, because immunity ratione personae is designed to ensure that high-level officials can carry out their functions, its protections are temporary and end when the individual leaves office.
Immunity ratione personae is different from immunity ratione materiae, which attaches to official acts and prevents the prosecution of a government official for those acts, regardless of whether the individual continues to serve in office. This form of immunity recognizes that official acts are essentially acts of the State, rather than acts of the government official, and that a third State should not sit in judgment on those official acts through proceedings against the official who implemented the acts. Nonetheless, it is now widely acknowledged that immunity ratione materiae does not protect officials from prosecution for international crimes. Immunity ratione materiae begins when an individual enters office and covers official acts, except for international crimes, both while the official is in office and after he or she leaves office.
Immunities v. Customary International Law: Although it is beyond dispute that sitting heads of state and at least some incumbent senior state officials are entitled to immunity ratione personae in the courts of foreign states, some argue that these immunities are unavailable before international courts under customary international law. However, there is no evidence for the argument that customary international law immunities for sitting heads of state and other senior officials do not apply before international courts. In order to establish a rule of customary international law, there must be a general practice that is accepted as law (opinio juris). In fact, there is no general practice of prosecuting sitting heads of state or other incumbent high officials before international criminal courts, and certainly not a practice that is followed because it is believed to be a legal obligation. To the contrary, the foregoing evidence, including the lack of provisions addressing immunity in the statutes of international criminal tribunals and the lack of international prosecutions of incumbent officials, suggests the opposite—that the immunities of sitting heads of state and a limited group of other senior officials continues to apply before international criminal courts. Therefore, the recognition of immunities ratione personae before the African Court does not conflict with the Customary International Law.
Immunities v. the Rome Statute for the ICC: In addition to the customary law question, some scholars and commentators have raised concerns that Article 46A Bis of the Malabo Protocol violates, or conflicts with, the immunity provision in Article 27 of the Rome Statute. This misconstrues the effect of both provisions, as well as the relationship between the African Court and the ICC. Article 27 of the Rome Statute removes the immunity of government officials of states parties in proceedings before the ICC. By its own terms, it does not affect the availability of immunity before any other court, whether domestic, regional, or international. Meanwhile, Article 46A Bis of the Malabo Protocol provides that immunities for heads of state and certain other officials may be invoked before the African Court, but this provision does not—and cannot—affect the availability of immunity before any other court, whether the ICC or another. The fact that the African Court cannot try certain senior officials, including heads of state, does not prevent the ICC from prosecuting those same officials if it has jurisdiction. Likewise, the fact that the ICC may have authority to prosecute heads of state and senior state officials does not affect whether the African Court has that same authority.
Immunities v. African domestic laws: Several African countries including South Africa and Niger have domestic laws providing that all individuals, including government officials, shall be held criminally responsible for international crimes. However, these provisions do not affect the availability of customary law immunities because they concern an entirely different matter—criminal responsibility. These provisions are therefore not evidence of a customary law norm regarding immunities. Nor do they conflict with article 46A bis of the Malabo Protocol, which addresses immunity rather than criminal responsibility. Also, such domestic provisions apply to prosecutions only in domestic courts. The Malabo Protocol does not alter the availability or unavailability of immunities at the domestic level, and thus those countries remain free to prosecute their senior state officials, including heads of state, before their domestic courts. For all of these reasons, criticisms that the immunities provision of the Malabo Protocol is contrary to national laws are without merit.