Is the African Union’s peace and justice sequencing consistent with international law?

The principle that accountability measures must sometimes be deferred in favor of more pressing peace considerations is widely accepted under international law.  For example, that principle was incorporated into the Rome Statute of the International Criminal Court in article 16, which permits investigations and prosecutions to be deferred an unlimited number of times if the United Nations Security Council determines the deferral is necessary to maintain or restore international peace and security. The Rome Statute has been ratified by 123 of the world’s countries, demonstrating the widespread acceptance of the principles enshrined in article 16.  The principle has been further endorsed by the practice of the United Nations Security Council, which has exercised that authority to defer potential investigations or prosecutions arising from UN peacemaking operations. And about two-thirds of the international community has supported the African Union’s requests for the deferral of the prosecution against Sudanese President Omar Al-Bashir, underscoring the widespread acceptance of this principle.

The Malabo Protocol addresses the issue of peace and justice sequencing in a more efficient way than the Rome Statute does. By granting the Peace and Security Council, along with the Assembly and Parliament, the authority to bring, and the possibility of intervening in, a case before any chamber of the African Court, the Malabo Protocol helps to ensure that decisions about whether and when to bring cases before the Court are informed by the African Union’s wider efforts to prevent, manage, and resolve conflicts on the Continent.  As the AU’s emerging transitional justice policy recognizes, criminal prosecutions, although important, are just one of many interventions that must be coordinated and carefully sequenced if there is to be a lasting transformation in countries emerging from mass atrocities.  The Malabo Protocol facilitates that coordination and sequencing by providing the chief peace and security institutions of the African Union—the Assembly, the Parliament, and the Peace and Security Council—a vital role in the initiation and continuation of cases. Concretely, where the threat or pursuit of criminal prosecutions may encourage peace by bringing parties to the table, the Assembly, the Parliament, or the Peace and Security Council will have the authority to make an early referral of a case to the African Court to pressure the relevant parties to negotiate.  By contrast, where prosecutions risk derailing peace processes by removing key actors critical to the negotiations or by encouraging parties to dig into the fighting in order to win at all costs, these institutions could delay referral of a case to the Court, thereby facilitating the search for a mediated political solution.

One key difference between the International Criminal Court and the expanded African Court is that decisions about referrals and deferrals of cases are placed in the hands of AU organs – namely the Assembly, the Parliament, and the Peace and Security Council – rather than the Security Council. Also, the independence of the African Court is maintained by leaving the final decision in the hands of the Court.  This ensures a less politicized process than that before the ICC, where Security Council decisions about deferrals are binding.