This two-part series examines the Malabo Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR). When it comes into effect, the Malabo Protocol will empower the ACJHR to exercise jurisdiction over international crimes as well as introduce a regulatory scheme for corporate criminal liability. This is a milestone for the regional court and the African continent. Additionally, this is a significant innovation for international criminal law, which traditionally has not recognised the criminal liability of corporate entities

Chella, Jessie

English

University of the South Pacific Electronic Research Repository

1/26/2021 A Review of the Malabo Protocol on the Statute of the African Court of Justice and Human Rights – Part I: Jurisdiction over International …ilareporter.org.au/2021/01/a-review-of-the-malabo-protocol-on-the-statute-of-the-african-court-of-justice-and-human-rights-part-i-jurisdiction-over-intern… 1/7(http://ilareporter.org.au/)Home (http://ilareporter.org.au/)Events (http://ilareporter.org.au/category/event/)Submissions (http://ilareporter.org.au/submissions/)About (http://ilareporter.org.au/about/)Editorial Committee (http://ilareporter.org.au/editorial-committee/)A Review of the Malabo Protocol on the Statute of theAfrican Court of Justice and Human Rights – Part I:Jurisdiction over International Crimes – Jessie ChellaThis two-part series examines the Malabo Protocol on the Statute of the African Court of Justiceand Human Rights (ACJHR). When it comes into effect, the Malabo Protocol will empower theACJHR to exercise jurisdiction over international crimes as well as introduce a regulatory schemefor corporate criminal liability. This is a milestone for the regional court and the African continent.Additionally, this is a signi cant innovation for international criminal law, which traditionally hasnot recognised the criminal liability of corporate entities.Historical Development of the ACJHR As early as 1988, the Organisation for African Unity, later known as the African Union (AU),adopted the Protocol to the African Charter on Human and Peoples’ Rights(https://au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-establishment-1/26/2021 A Review of the Malabo Protocol on the Statute of the African Court of Justice and Human Rights – Part I: Jurisdiction over International …ilareporter.org.au/2021/01/a-review-of-the-malabo-protocol-on-the-statute-of-the-african-court-of-justice-and-human-rights-part-i-jurisdiction-over-intern… 2/7african-court-human-and), which laid the foundation for the establishment of the African Courton Human and Peoples’ Rights (ACHPR) in 2004. Currently, 30 of the 55 AU members have rati ed(https://au.int/en/treaties/1164) the ACHPR Protocol. In 2000, the AU also created the African Courtof Justice (ACJ). Later, in 2005, the AU established the African Court of Justice and Human Rights(ACJHR) by merging the ACHPR and the ACJ. Then in June 2014, the AU met in Malabo, Equatorial Guinea, at the twenty-third Ordinary Sessionof the Assembly. There it adopted the Protocol on Amendments to the Protocol on the Statute tothe African Court of Justice and Human Rights, commonly known as the Malabo Protocol(https://au.int/en/treaties/protocol-amendments-protocol-statute-african-court-justice-and-human-rights). The Malabo Protocol empowers the ACJHR with jurisdiction over internationalcrimes as well as introducing a regulatory scheme for corporate criminal liability. The international criminal law section of the ACJHR is off to a slow, rocky start. According toArticle 11 of the Malabo Protocol, the Protocol shall enter into force 30 days after 15 membersdeposit instruments of rati cation with the court. Of the 55 AU members, only 15 have signed(https://au.int/en/treaties/1164) the Protocol; none have rati ed it. International Crimes and Transboundary OffencesThe Malabo Protocol criminalises a wide range of offences. According to Article 28A(1), the ACJHRshall have power to try persons for the crimes of genocide, crimes against humanity, war crimes,the crime of unconstitutional change of government, piracy, terrorism, mercenarism, corruption,money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes,illicit exploitation of natural resources, and the crime of aggression. The elements of crime withrespect to these offenses are detailed in Articles 28B-M of the Malabo Protocol. Pursuant to Article28A(2), the ACJHR may ‘incorporate additional crimes to re ect developments in internationallaw’. Furthermore, Article 28A(3) provides that there shall be no statute of limitations regardingthe prosecution of crimes falling within the court’s jurisdiction. Most of the offences criminalised under the Malabo Protocol are well-established coreinternational crimes re ected in the Rome Statute (https://www.icc-cpi.int/resource-library/Pages/default.aspx) of the International Criminal Court (ICC). This includes genocide,crimes against humanity, and war crimes, for example. The perpetration of these coreinternational crimes is also prohibited by the legal instruments of the ad hoc tribunals and specialcourts. In Africa, these include the International Criminal Tribunal for Rwanda(https://unictr.irmct.org/en/documents/statute-and-creation) (ICTR) and the Sierra Leone SpecialCourt (http://www.rscsl.org/RSCSL-Documents.html) (SCSL).Arguably, the remaining offences provided in Articles 28E-28Lbis of the Malabo Protocol aretransnational crimes—for example, piracy, terrorism, and money laundering. These aretransboundary, i.e., crimes with a cross-border effect; they do not fall within international criminallaw jurisdiction. Their transnational nature is a radical departure from the typical coreinternational crimes ordinarily prohibited in international criminal law. They fall into de nitional1/26/2021 A Review of the Malabo Protocol on the Statute of the African Court of Justice and Human Rights – Part I: Jurisdiction over International …ilareporter.org.au/2021/01/a-review-of-the-malabo-protocol-on-the-statute-of-the-african-court-of-justice-and-human-rights-part-i-jurisdiction-over-intern… 3/7and theoretical grey areas, and as a result their inclusion in the Malabo Protocol has met withsome resistance. Academics caution the failure to distinguish international crimes from thosethat are ‘merely transnational in nature and only characterized as international crimes becausethey have universal jurisdiction fastened onto them(https://www.tandfonline.com/doi/full/10.1080/09744053.2014.883755)’ [p 37]. Granted, some of the ad hoc tribunals and special courts have prosecuted crimes that typically falloutside known core international crimes. However, these were hybrid ad hoc institutions; that is,institutions that adopted a blend of both international criminal law and domestic criminal law intheir legal instruments. Most of those crimes were not of the nature seen at the ACJHR. Forinstance, Article 5 of the SCSL Statute (http://www.rscsl.org/RSCSL-Documents.html) allowed forthe prosecution of offences relating to the wanton destruction of property under the MaliciousDamage Act, including setting  re to dwellings and other buildings.Tailor-made Provisions Suited for the African Context The Malabo Protocol also introduces a regulatory regime of corporate criminal liability, whichgoes beyond the criminalisation of core international crimes to include an extensive andambitious list of transnational crimes as described above. For example, Article 28L of the Protocolcriminalises the traf cking of hazardous waste. The dumping of toxic waste in African countriesby corporate actors has caused growing concern regarding the prevention of corporate humanrights abuses. Coupled with dysfunctional government policies on toxic waste management, thisissue has been plagued by the creation of ‘legal uncertainties and jurisdictional loopholes, withdevastating consequences (https://www.amnesty.org/en/latest/news/2012/09/report-slams-failure-prevent-toxic-waste-dumping-west-africa/).’ The inclusion of transnational crimes in the Protocol may be seen as a pragmatic approach toensuring that it is well equipped to deal with the African context for which it was designed. Forexample, Article 28Lbis of the Protocol prohibits illicit exploitation of natural resources if the act is‘of a serious nature affecting the stability of a state, region or the Union’. Of the seven actsprohibited in Article 28Lbis, some that may constitute illicit exploitation of natural resourcesinclude: ‘(a) concluding an agreement to exploit resources, in violation of the principle of peoples’sovereignty over their natural resources’; and, ‘(f) exploiting natural resources without complyingwith norms relating to the protection of the natural environment and the security of the peopleand the staff’. Many of Africa’s ongoing con icts are  nanced predominantly by the illicit trade in naturalresources. For example, the  ndings (https://www.globalpolicy.org/global-taxes/41606- nal-report-of-the-un-panel-of-experts.html) of a UN Panel of Experts on the illicit trade in diamonds inAngola exempli es the kind of activity prohibited by Article 28Lbis of the Malabo Protocol. The UNPanel of Experts claim that businesses obtained vast amounts of diamonds from the notoriousrebel group known as the National Union for the Total Independence for Angola (UNITA). UNITAdid not have legal title in the diamonds, yet they sold the diamonds to corporations and1/26/2021 A Review of the Malabo Protocol on the Statute of the African Court of Justice and Human Rights – Part I: Jurisdiction over International …ilareporter.org.au/2021/01/a-review-of-the-malabo-protocol-on-the-statute-of-the-african-court-of-justice-and-human-rights-part-i-jurisdiction-over-intern… 4/7individuals, and then used the proceeds of sales to sustain their illegal activities. In this vein,academics have observed (https://heinonline.org/HOL/P?h=hein.journals/jicj8&i=316) that therehave been many instances where business entities operating in Africa should have been heldliable for the war crime of pillaging. Hence, the introduction of Article 28Lbis of the MalaboProtocol uniquely places the ACJHR to prosecute the illicit trade in natural resources, particularlywhere corporate entities are complicit in the perpetration of crimes. The transnational crimes prohibited under Articles 28E–28Lbis of the Malabo Protocol are yet tobe recognised and prohibited under international criminal law. This does not spell doom for theACJHR. Rather, it provides the court with an opportunity to address those types of criminaloffences which fall outside the purview of the ICC. Arguably, the ACJHR could be better placed asan innovative judicial institution that responds to a growing body of international norms.Challenges Facing the CourtThe ACJHR’s jurisdiction overlaps with the ICC. Both are established as permanent courts. TheACJHR is silent on the issue of complementary jurisdiction with the ICC, while the Rome Statute(which established the ICC) is silent on the issue of complementary jurisdiction with any regionalcourt. Both Article 1 and paragraph 10 of the Preamble of the Rome Statute stipulate that the Courtshall be complementary to national criminal jurisdictions. Furthermore, Article 46H of the MalaboProtocol states the ACJHR shall be complementary to national criminal jurisdictions and to courtsof the Regional Economic Communities. Both courts have international treaties empowering themto exercise jurisdiction over core international crimes. Of the 55 African states, 33 have rati ed theRome Statute, becoming State Parties to the ICC. These African states are likely to have competingobligations to both the ICC and the ACJHR. With respect to immunities, Article 46Abis provides that: No charges shall be commenced or continued before the Court against any serving AU Head ofState or Government, or anybody acting or entitled to act in such capacity, or other senior stateof cials based on their functions, during their tenure of of ce.The inclusion of a provision on immunities for serious crimes committed in violation ofinternational law has gravely alarmed (https://www.hrw.org/news/2014/05/12/joint-civil-society-letter-draft-protocol-amendments-protocol-statute-african-court) African civil societyorganisations and international organisations with a presence in Africa. Some academics havewarned (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2293988) that the ‘…regional courtwill only insulate the “dictators club” from facing international criminal justice’ [p 720]. On thispoint, the ACJHR stands alone; the legal instruments of the ICC along with ad hoc tribunals andspecial courts do not contain such limiting provisions. Another concern is the  nancing of the ACJHR. This is a concern given that over half of the court’sMember States are also State Parties to the Rome Statute. Financial obligations may be called intoquestion, causing members to pull resources from one court to support the other; as for which one1/26/2021 A Review of the Malabo Protocol on the Statute of the African Court of Justice and Human Rights – Part I: Jurisdiction over International …ilareporter.org.au/2021/01/a-review-of-the-malabo-protocol-on-the-statute-of-the-african-court-of-justice-and-human-rights-part-i-jurisdiction-over-intern… 5/7Model the Pandemic, Model the World: Which World? Whose World? – Fleur Johns(http://ilareporter.org.au/2020/12/model-the-pandemic-model-the-world-which-world-whose-world- eur-johns/)Disinformation in international forums: the civil society loophole – Szabina Horvath(http://ilareporter.org.au/2021/01/disinformation-in-international-forums-the-civil-society-loophole-szabina-horvath/)remains to be seen. A deeply problematic factor is the number of African states that failed tohonour their  nancial obligations in the Hissene Habré trial (https://theconversation.com/the-trial-of-hisse-ne-habre-a-pivotal-case-for-international-justice-in-africa-61052) held in Senegal,despite pledging funds for the establishment of the Extraordinary African Chambers. That trialinvolved the prosecution of Habré, former Head of State of Chad, for international crimesperpetrated during his of cial tenure. Critics argue (https://academic.oup.com/jicj/article-abstract/9/5/1067/2188970) that if these states failed to support one case of great signi cance forthe continent, what more could they do to support the ACJHR? Furthermore, the court’s parent body, the AU, has equally been under  re for continuallyestablishing additional institutions yet failing to garner resources for its own operations. The AUis heavily reliant on international donor funds, and in some instances, these donors are reportedto have threatened to pull resources(https://www.amnesty.org/en/documents/afr01/6137/2017/en/) if the ACJHR continues to hold onto the Article 46Abis Malabo Protocol immunity provisions. Dr Jessie Chella is a Lecturer with the School of Law, The University of the South Paci c, Vanuatu.(Jessie.Chella@usp.ac.fj). Jessie holds a PhD and LLM (by Research) from Bond University,Australia, specialising in international criminal law. She is admitted as a Solicitor in New SouthWales, Australia, as well as Assistant to Counsel at the International Criminal Court in theNetherlands.1/26/2021 A Review of the Malabo Protocol on the Statute of the African Court of Justice and Human Rights – Part I: Jurisdiction over International …ilareporter.org.au/2021/01/a-review-of-the-malabo-protocol-on-the-statute-of-the-african-court-of-justice-and-human-rights-part-i-jurisdiction-over-intern… 6/7The of cial blog of the International Law Association (Australian Branch) (http://ila.org.au/).Molly ThomasJosephine Dooley Crystal Ji Adaena Sinclair-Blakemore Stephanie Triefus Tess Van GeelenName Email*Editor-in-ChiefAssistant EditorsSubscribe for email alerts1/26/2021 A Review of the Malabo Protocol on the Statute of the African Court of Justice and Human Rights – Part I: Jurisdiction over International …ilareporter.org.au/2021/01/a-review-of-the-malabo-protocol-on-the-statute-of-the-african-court-of-justice-and-human-rights-part-i-jurisdiction-over-intern… 7/7SubscribeTo sign up for a bimonthly email digest of recent posts to the ILA Reporter, please enter your details above.Interview on the Elgar Companion to the Hague Conference on Private International Law – Part 2(http://ilareporter.org.au/2021/01/interview-on-the-elgar-companion-to-the-hague-conference-on-private-international-law-part-2/)Deep seabed mining: Time to get our regulatory ducks in a row — Tess Van Geelen(http://ilareporter.org.au/2021/01/deep-seabed-mining-time-to-get-our-regulatory-ducks-in-a-row-tess-van-geelen/)Disinformation in international forums: the civil society loophole – Szabina Horvath(http://ilareporter.org.au/2021/01/disinformation-in-international-forums-the-civil-society-loophole-szabina-horvath/)A Review of the Malabo Protocol on the Statute of the African Court of Justice and Human Rights – Part I:Jurisdiction over International Crimes – Jessie Chella (http://ilareporter.org.au/2021/01/a-review-of-the-malabo-protocol-on-the-statute-of-the-african-court-of-justice-and-human-rights-part-i-jurisdiction-over-international-crimes-jessie-chella/)Model the Pandemic, Model the World: Which World? 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A Review of the Malabo Protocol on the Statute of the African Court of Justice and Human Rights – Part I: Jurisdiction over International Crimes

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A Review of the Malabo Protocol on the Statute of the African Court of Justice and Human Rights – Part I: Jurisdiction over International Crimes

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