XV Edition GIZ Law Journal

AFRICAN UNION

AFRICAN UNION

A future African Court of Justice and Human Rights? The creation of an African Criminal Court is seriously envisioned. This is the project of the 2014 Malabo Protocol. Since 2008 there has been a plan to transform the African Court on Human and Peoples’ Rights, which has 30 member states 58 of the AU, into the African Court of Justice and Human Rights. The Malabo Protocol would extend the jurisdiction of this yet to be established court in order to include international crimes. It would be the first unified international court competent to judge violations of human rights (state responsibility) and international

One of the biggest controversy of the new Court is the foreseen immunity clause for sitting heads of state and senior government officials. This means that victims of international crimes would have to wait until the suspected perpetrator is out of office before he or she can be brought to trial. By contrast, at the ICC no one is above the law and can be sued regardless of holding an official function. The question remains whether the call for establishing a mandate for criminal matters at the African Court

including an immunity clause is used as a cloak for sitting officials and therefore will serve as a safe haven especially for those who have tendencies to unconstitutionally extend their terms. The GIZ, with commission from the BMZ, supports the African Court on Human and Peoples’ Rights since 2007 at its seat in Arusha/Tanzania, currently in the framework of the AU regional program ‘Support to the African Governance Architecture’ (AGA). Contact: Karin Pluberg (karin.pluberg@giz.de)”

crimes (individual responsibility). This merger could be a chance to develop a coherent jurisprudence, but it also holds the danger of commixture between criminal law and Human Rights law which could weaken the already existing and operating Human Rights Court. The Malabo Protocol requires 15 ratifications to come into effect and currently has only nine signatory countries. Even if it does come into existence, there are unanswered questions about its funding, human capacity as well as internal structure and scope of its mandate.

African Court of Justice and Human Rights (planned)

Prosecute individuals for international crimes (a.o. genocide, war crimes, piracy, terrorism, corruption, money laundering, mercenarism, illicit exploitation of natural resources ) and States for violation of Human and Peoples Rights

Mission

Members

Open to all Member States of the African Union

Legal base

Malabo Protocol (Protocol on the Statute of the African Court of Justice and Human rights)

Seat

Arusha, Tanzania

One chamber for Human Rights violations, one chamber for criminal matters & prosecution unit

Composition

Adopted in

2014, but not yet in force

Capacity of the AU to finance the newly established Court is unclear; AU organs are structurally underbudgeted Immunity clause for incumbent Head of States could lead to a gap in legal liability of individuals Mixture of criminal liability of individuals and responsibility of States for Human Rights violations under one jurisdiction could weaken the Human Rights protection system Unclear if Member States can separately ratify the new Courts’ Protocol without recognizing the mandate for Human Rights

Challenges

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58 Status as of March 2017.