About the African Court Research Initiative
It is undisputed that African States have played a crucial role in the development of international criminal justice. Over a decade after the adoption of the Rome Statute of the International Criminal Court (ICC), Africa has continued to be a major player in the pursuit of international criminal justice. African countries comprise the largest single group of States Parties to the ICC and, through the African Union (AU), they also adopted in June 2014 a protocol to establish the African Court of Justice and Human and Peoples Rights (African Court). This treaty (Malabo Protocol), which is not yet in force but has been signed by nine African states as of this writing, sets out the legal framework for the establishment of a regional court with general, human rights and criminal jurisdiction. With an unprecedented mandate that includes not only the investigation and prosecution of genocide, war crimes, crimes against humanity and the crime of unconstitutional change of government, it also includes a range of novel transnational crimes including corruption, toxic dumping, mercenarism, drug trafficking, illicit exploitation of resources and piracy. These and various other features of the African Court score a series of important firsts in the development of regional and international law.
The adoption of the so-called Malabo Protocol in June 2014 took shape as a private document that underwent minimal consultations. The Protocol did not benefit from much public scrutiny and rigorous international criminal law expert engagement. Its drafting also took place in the shadow of the tension in the ICC-Africa relationship, with some international criminal law experts in Africa and elsewhere seemingly refusing to engage the merits, or lack thereof, of the then draft AU instrument before it was adopted. Perhaps this was because of the perception that the African Court idea itself was an attempt to undermine the ICC.
Although it is historically inaccurate to attribute the AU’s new protocol to the more recent tension between a handful of vociferous African States such as Kenya and Sudan with the ICC, a number of serious shortcomings on some key legal and practical concerns have the ability to obfuscate the potential of the AU project for both the Africa region and the international community as a whole. From the need for further conceptual amendments to the provision on corporate criminal liability, to the need for further clarifications concerning the new crime of illicit exploitation of natural resources and the seemingly wide immunity for senior government officials and the lack of obvious complementarity with the ICC, there remain a panoply of timely research questions that will require substantive legal and policy analysis as well as strategic engagement.
The African Court Research Initiative (ACRI) was initiated with the goal of engaging THESE key legal and other research questions surrounding the African Court with the view to helping maximize the functionality of regional and international justice in Africa and beyond. We are ultimately committed to studying the future court and its relationship with national and international judicial mechanism, strengthening African judiciaries, examining the strengths and weaknesses of the proposed criminal chamber, exploring the possibilities of creating a more viable, legally sound and promising regional institution that has the potential of addressing a wide range of crimes not yet institutionally consolidated in Africa but that remain desperately needed for the foreseeable future. We are also hopeful that Africa’s experience, with the proposed court including the aspects of corporate criminal liability that was mooted at Rome during the 1998 treaty negotiations but failed to garner meaningful support, could open up a new anti-impunity frontier for the next phase of international criminal law’s development. Through such engagement, we aim to make practical and scholarly contributions to the cause of justice for the victims of gross crimes on the world’s second largest continent as well as internationally. It is anticipated that the outcome of our research will help to foster mutual understanding and support for the ICC and the future African Court going forward.
A special thanks to Carleton University and FIU-Law for their constant support in the African Court Research Initiative.