III. Structure and Jurisdiction of the AU’s Judicial Organs

To effectively assess how the AU’s judicial organs can promote complementarity, I first examine the jurisdiction, powers, and operationality of these organs to determine what strategies they can feasibly implement. While a number of different judicial organs have been developed and proposed by the AU Assembly, only two are operational today: the African Commission on Human and Peoples’ Rights (ACHPR); and The African Court of Human and Peoples’ Rights (ACtHPR). In 1986, the Organization of African Unity, the predecessor of the AU, passed the African Charter on Human and Peoples’ Rights (the Charter) creating the first African continental quasi-judicial body—the ACHPR.9 The Charter is the first human rights protection mechanism in Africa and remains in force today.10 The ACHPR is an instrument of human rights law and its mandate includes interpretating the Charter, as well as the promotion and protection of human and peoples’ rights.11 Under the promotional mandate, the commission is responsible for researching and investigating African problems in the field of human rights and hosting seminars, symposia, and conferences to disseminate this information.12 Under the protective mandate, the commission hears complaints about State violations of human rights submitted by individuals, State parties, and NGOs, and issues recommendations.13 Significantly, while the ACHPR conducts legal investigations and analyses, it does not have any binding legal authority.14

In 2000, the Constitutive Act of 2000 formally established the AU.15 The act provided for two judicial orgrans, the ACHPR and the Court of Justice of the African Union (CJAU).16 The ACHPR continued to perform its quasi-judicial functions while the CJAU was never operationalized.17 Recognizing the need for a human rights court with binding legal authority, in 2004, the AU amended the Charter to create the ACtHPR.18 The ACtHPR complements the ACHPR’s protective mandate by hearing complaints about State actions that threaten human rights and issuing binding legal decisions. The ACtHPR has jurisdiction over all cases and disputes concerning the Charter, and any relevant human rights law enacted or ratified by member States.19 Importantly, because both the ACHPR and ACtHPR only examine whether States have committed human rights abuses, they do not engage in individual criminal prosecution.20

Since 2004, two significant changes to the structure and powers of AU’s judicial organs were proposed but not ratified. First, in 2008, the AU adopted the Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR) which merged the ACtHPR with the non-operational CJAU to create the ACJHR.21 The merger was motivated by a desire to centralize and streamline the AU’s judicial operations through the creation of a single court.22 However, because only eight AU member States have ratified the Protocol, the merger has not officially occurred and the ACJHR has not been operationalized.23

Second, throughout the early 2000s, a number of AU member States identified the need for a regional court with jurisdiction to criminally prosecute individuals for the grave international crimes in the Rome Statute.24 This may have been motivated in part by the regional movement to pull out of the ICC amid accusations that the court was unfairly targeting African States.25 In 2014, AU member States drafted the Protocol on Amendments to the Protocol on the Statute of the ACJHR (Malabo Protocol) to empower the ACJHR to prosecute individuals for international crimes including genocide, crimes against humanity, war crimes, the crime of aggression, terrorism and more.26 The Malabo Protocol would, in theory, promote complementarity by empowering the ACJHR to prosecute African individuals for international crimes locally (rather than referring these cases to the ICC) when national jurisdictions are unwilling or unable to do so. However, to date, only fifteen AU member States have signed the Malabo Protocol, and none have ratified it.27 Given that neither the Protocol on the Statute of the ACJHR nor the Malabo Protocol have been ratified, it is unlikely that the AU will have an operational regional court with the authority to prosecute individuals in the near future. Thus, the AU’s only operational judicial organs, the ACHPR and ACtHPR, must work within their mandates to promote complementarity in Africa without trying individual cases.

IV. How the AU and its Judicial Organs Can Promote Positive Complementarity

The ACHPR and ACtHPR’s current mandates can be utilized to advance positive complementarity. As organs of human rights law, the ACHPR and ACtHPR undoubtedly have different purposes than the ICC or domestic criminal institutions. However, international human rights law and international criminal law share the common goal of deterring and ending impunity for mass atrocities and serious violations of human rights.28 As Pacifique Manirakiza explains:

[T]he creation of international and internationalized criminal courts relevant to Africa have contributed to protect and uphold human rights enshrined in the African Charter on Human and Peoples’ Rights (African Charter) and other human rights treaties relevant to Africa.29

Recognizing the interconnectedness of international criminal and human rights law, the ACHPR and ACtHPR can work within their human rights-based mandates to promote complementarity through Fact-finding Missions and Evidence-gathering, Support for National Legislative and Judicial Efforts, and Procedures and Jurisprudence that Reinforce Long-Term Domestic Efforts to Advance Human Rights.

A. Fact-finding Missions and Evidence-gathering

The ACHPR can utilize the evidence gathered during fact-finding missions conducted within its promotional mandate to aid domestic investigations and prosecutions. Under Article 45 of the Charter, the ACHPR may conduct fact-finding missions to collect documents, and undertake studies of human rights abuses on its own initiative or at the request of other AU organs.30 While these missions are not conducted for the purpose of individual criminal prosecutions, they often yield findings that could be used to inform domestic judicial proceedings. For example, a 2013 ACHPR fact-finding mission in Mali uncovered evidence of crimes against humanity in the Aguel’hoc and Diabali attacks as well as the rape of women and girls throughout the crisis.31 ACHPR fact-finding missions typically include meetings with government officials, local authorities, and human rights-based civil society groups and NGOs as well as interviews with victims, witnesses, and sometimes rebel factions.32 The information gathered during these missions could be used to identify perpetrators, build an evidentiary basis for their arrest and indictment, and eventually prosecute them. Where the ACHPR is confident that a State with jurisdiction is capable of arresting and prosecuting perpetrators, as well as guaranteeing victim and witness safety, it should share this evidence.

With this, the ACHPR can utilize its existing relationships with human rights NGOs across Africa to facilitate evidence-gathering in the wake of mass atrocities. Human rights professionals are often best positioned to record evidence of serious international crimes because they are present during or in the immediate wake of mass violence while other criminal law actors are not.33 Investigators and court representatives, for instance, typically do not visit the site of the crime until months or years after the fact.34 International law scholars Morten Bergsmo and William Wiley propose that where it is safe to do so and human rights officials are properly trained, they should interview witnesses and document possible crime scenes by taking photographs or videos, drafting factual reports, properly handling physical evidence, and securing the scene.35 Bergsmo and Wiley likewise suggest that human rights officials can provide valuable testimony as linkage or expert witnesses at trial.36 The ACHPR interacts with a myriad of human rights organizations in Africa, including 151 NGOs that have been granted observer status to the commission.37 The ACHPR should utilize its existing NGO network to expedite and improve the collection of physical evidence as well as first or secondhand testimony following mass atrocities. Gathering evidence through sources closer to an alleged crime will help ensure domestic or international prosecutors have a sufficient evidentiary basis to charge and prosecute perpetrators. Thus, both the ACHPR’s fact-finding missions and its robust network with human rights NGOs are valuable investigative tools that could be used to support national judicial proceedings.

B. Support for National Legislative and Judicial Efforts

The AU and ACHPR can further promote complementarity by supporting States in their efforts to incorporate human rights crimes into national law and prosecute individuals for international crimes. Incorporating the Rome Statute into national law is an important step towards effectively prosecuting individuals for international crimes. This step is especially essential in dualist countries, where treaties are not automatically incorporated into national law upon ratification.38 However, even in monist States, where international treaties are automatically binding on the State, merely ratifying the Rome Statute is likely not sufficient to effectuate domestic prosecution of international crimes.39 As a Human Rights Watch handbook on implementing the Rome Statute explains:

As the Rome Statute has the potential to impact on a wide range of national laws, including constitutional provisions and criminal substantive and procedural law, relying solely on automatic incorporation into national law may not be sufficient to meet the Rome Statute treaty obligations. Specific national laws, especially relating to substantive and procedural criminal law, should be enacted.40

Thus, the AU should work with State legislatures to promote the development of national policy on the prosecution of international crimes. In 2016, the AU produced a model national law on universal jurisdiction over international crimes.41 The model law provides statutory definitions for the crime of genocide, crimes against humanity and war crimes that are consistent with the Rome Statute, as well definitions for terrorism, and piracy and model language for clauses on individual criminal responsibility, rights of the accused, and punishment.42 The AU should continue to disseminate this model and create other models for national laws adopting courts to prosecute international crimes and codifying the Rome Statute. These models can help expediate domestic legislative efforts to codify the Rome Statute and develop the proper criminal substantive and procedural law to actualize prosecutions.

Second, the ACHPR should host regular conferences about international criminal and human rights law to help train African legal professionals in these fields. Even where a legal framework for international crimes exists, genuine prosecutions are often stalled by a lack of properly trained legal staff. The Ugandan situation is a prime example. Beginning in the late 1980s, the LRA rebel group committed mass human rights violations against civilian populations in Northern Uganda.43 In 2003, the Ugandan government invited the ICC to investigate.44 Five years later, in 2008, Uganda established an International Crimes Division (ICD) under the High Court of Uganda to try international crimes including genocide, crimes against humanity, war crimes, terrorism, human-trafficking and more.45 Likewise, in 2010, Uganda incorporated the Rome Statute into Ugandan law.46 Despite these significant legislative advancements, however, the ICD has struggled to convict any individuals or achieve genuine complementarity. A Human Rights Watch report detailed that some major obstacles to the ICD’s success are conflicts of law and unfamiliarity with novel international crimes, inadequate resources for criminal defendants, and limited investigative and legal staff.47 By hosting regular symposiums, seminars, and conferences dedicated to international criminal investigations and prosecutions, the ACHPR could, first, help legal professionals navigate the complex, unique challenges of international criminal law by inviting experts and providing a forum for knowledge-sharing. Second, the ACHPR could use these conferences to build up a network of qualified, experienced African international criminal law professionals who may be willing to help fill resource gaps in States like Uganda. By providing legislative resources and forums for legal training the AU and ACHPR can positively influence the long-term development of national judicial systems.

C. Procedures and Jurisprudence that Reinforce Long-Term Domestic Efforts to Advance Human Rights

Moreover, the ACHPR and ACtHPR should develop procedures and jurisprudence that reinforce existing efforts to advance human rights and hold perpetrators of mass atrocities accountable. James Cavallaro and Stephanie Brewer first posited that in regions that suffer from “large-scale, endemic human rights violations,” regional courts are most likely to be effective when their procedures and jurisprudence are relevant to social movements, human rights activists, media campaigns, civil society groups, progressive government officials, etc. who are engaged in long-term efforts to advance human rights.48 This theory can be applied to the ACHPR and ACtHPR. In fact, a study on ACHPR decisions from 1994 to 2003 found that local and international NGO engagement significantly improved State compliance and follow-through with commission recommendations.49 Likewise, Obiora Chinedu Okafor found that the ACHPR commission was most effective in Nigeria when its decisions contributed to the existing efforts of domestic human rights activists:

An examination of the operations or mechanics by which such influence was exerted reveals that the system was only able to work in the way it did largely because it allowed itself to be mobilised and deployed in creative ways by various activist groups that operated within Nigeria… The system’s influence enabled them....to launch legal manoeuvres that would not have been possible otherwise… to persuade many in the discerning public to put pressure on the military regime to act in the ways in which these activists desired, [and] to justify preferred interpretations of existing constitutional provisions.50

Thus, while the ACHPR and ACtHPR’s factual analysis and decisions should remain impartial, they should adopt a strategic approach that considers the political and social climate of the States within which they have jurisdiction.

With this, coordinated pressure and support from the AU, its judicial organs, media, and civil society groups can influence States to pursue prosecutions they otherwise would not. The Senegalese use of universal jurisdiction to prosecute former Chadian dictator Hissène Habré demonstrates the impact of broader movements. Habré ruled Chad from 1982 to 1990 during which time his government engaged in mass human rights violations.51 After Habré’s government was overthrown in 1990 he fled to Senegal.52 In 2000, Chadian victims partnered with numerous international human rights organizations to file a criminal complaint against Habré in Senegal.53 The Senegalese government was initially unwilling to prosecute Habré itself, but in May 2006, an AU-appointed committee of African jurists issued a decision calling on Senegal to prosecute Habré on behalf of Africa.54 In response, Senegal implemented a national universal jurisdiction law granting Senegalese courts jurisdiction over Habré’s crimes.55 However, the prosecution remained stalled. Over the next few years, the combined efforts of the AU, press, NGOs, and international justice and human rights organizations culminated in the formation of the Extraordinary African Chambers (EAC)—an ad hoc tribunal within Senegal’s existing court system with jurisdiction to prosecute Habré.56 In 2016, the EAC convicted Habré of crimes against humanity, war crimes, and torture.57 While the Habré case relied on the exercise of universal jurisdiction, it illustrates how the AU, ACHPR, and ACtHPR can more effectively promote prosecution by coordinating their efforts with existing positive political and social movements.

V. Challenges

In this section I examine some of the practical challenges the AU, ACHPR, and ACtHPR would face in implementing the strategies discussed above. First, the ACHPR and ACtHPR likely do not have sufficient funding to adopt extensive programming. In 2020, the AU reduced both the ACHPR and ACtHPR’s budgets.58 Specifically, the ACHPR’s budget was reduced by 14% with all funds earmarked for either operating or recurrent expenditures and no funds allocated to program activities.59 At the ACHPR 2020 extraordinary session Commissioner Solomon Dersso expressed the limiting impact of reduced funding:

Unfortunately, the means available at our disposal and the capacity of our institution are very limited and the context in which we operate is highly constrained. The weight and nobility of our mandate and enormity of the demand for human rights protection on our continent means that we have to work beyond the call of duty mustering all the energy, time, and limited capacity.60

With such expansive mandates and comparably limited funding the ACHPR and ACtHPR likely do not have the capacity to significantly expand programming or host large-scale training events.

Furthermore, there may be resistance to ACHPR investigation and evidence-gathering in member States. First, State governments may be unwilling to allow the ACHPR to conduct fact-finding missions altogether. Particularly where government officials have been complicit in human rights violations, they have strong incentives to block the ACHPR’s access to the State and are likely to decline requests for fact-finding missions. Beyond this, it may be too dangerous for ACHPR staff, other human rights professionals, and witnesses and victims to engage in evidence-gathering in active crisis zones. Utilizing the ACHPR’s promotional mandate and NGO network to identify and prosecute individual perpetrators of mass atrocities may endanger ACHPR and NGO officials in crisis situations by making them targets of perpetrators. Thus, this strategy likely could not safely be implemented broadly.

Moreover, the ACHPR and ACtHPR’s action will likely also be constrained by political backlash from member States. States may, for example, threaten to or actually withdraw from the Protocols granting the ACHPR and ACtHPR jurisdiction over them. For example, in 2019, Tanzania withdrew its declaration under Article 34(6) of the ACtHPR Protocol disallowing NGOs and individuals from directly filing cases against Tanzania.61 An Amnesty International report suggests that Tanzania’s withdrawal was truly motivated by a desire to evade accountability in response to judgments by the court against Tanzania.62

VI. Conclusion

The ACHPR and ACtHPR can promote positive complementarity in Africa in a number of ways outside of prosecuting individual criminal defendants. While the organs will grapple with some practical constraints, the ACHPR and ACtHPR can work within their current mandates to engage in fact-finding missions and evidence-gathering, support national legislative and judicial efforts, and develop procedures and jurisprudence that support long-term efforts to advance human rights.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Office of the Prosecutor, ICC, Prosecutorial Strategy 2009–2012 (Feb. 1, 2010) [hereinafter Prosecutorial Strategy], available online. ↩

2. 2.

   Situations under Investigation, ICC, available online (last visited Aug. 29, 2023). ↩

3. 3.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 1, available online. ↩

4. 4.

   Id. Art. 5. ↩

5. 5.

   Prosecutorial Strategy, supra note 1, at 4. ↩

6. 6.

   Rome Statute, supra note 3, at Art. 17. ↩

7. 7.

   Id. ↩

8. 8.

   Prosecutorial Strategy, supra note 1, at 5. ↩

9. 9.

   Daniel Abebe, Does International Human Rights Law in African Courts Make a Difference?, 56 Va. J. Int’l L. 527, 539 (2016), available online. ↩

10. 10.

    History of the African Charter, ACHPR, available online (last visited Aug. 29, 2023). ↩

11. 11.

    Organization of African Unity, African Charter on Human and Peoples’ Rights, 21 Int’l L. Materials 58, Art. 17 (Jun. 27, 1981, entered into force Oct. 21, 1986) [hereinafter Banjul Charter], available online. ↩

12. 12.

    AU Echo, 2016: African Year of Human Rights with a Focus on the Rights of Women, 58–60 (Jul. 2016), available online. ↩

13. 13.

    History, ACHPR, available online (last visited Aug. 29, 2023). ↩

14. 14.

    Frans Viljoen, The African Court on Human and Peoples’ Rights, in International Human Rights Law in Africa 420 (Sep. 2007), paywall, doi. ↩

15. 15.

    African Union, Constitutive Act of the African Union, Art. 2 (Jul. 11, 2000, entered into force May 26, 2001), available online. ↩

16. 16.

    Id. Art. 5. ↩

17. 17.

    Abebe, supra note 9, at 576. ↩

18. 18.

    Organization of African Unity, Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, Art. 3 (Jun. 10, 1998, entered into force Jan. 25, 2004), available online. ↩

19. 19.

    Id. Arts. 2, 3. ↩

20. 20.

    Pascifique Manirakiza, Complementarity between the International Criminal Law Section and Human Rights Mechanisms in Africa, in The African Court of Justice and Human and Peoples’ Rights in Context: Developments and Challenges 989 (Charles Chernor Jalloh, Kamari Maxine Clarke & Vincent Obisienunwo Orlu Nmehielle, eds., May 2, 2019), available online. ↩

21. 21.

    African Union, Protocol on the Statute of the African Court of Justice and Human Rights, Art. 2 (Jul. 1, 2008), available online. ↩

22. 22.

    Abebe, supra note 9, at 577. ↩

23. 23.

    List of Countries that have Signed, Ratified/Acceded to Protocol on the Statute of the African Court of Justice and Human Rights, AU, (updated Jun. 18, 2020), available online. ↩

24. 24.

    Sarah P. Nimigan, The Malabo Protocol, the ICC, and the Idea of “Regional Complementarity,” 17 JICL 1005, 1006–07 (Nov. 5, 2019), paywall, earlier version, doi. ↩

25. 25.

    Id. at 1008. ↩

26. 26.

    Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Art. 3 (Jun. 27, 2014) [hereinafter Malabo Protocol], available online. ↩

27. 27.

    List of Countries that have Signed, Ratified/Acceded to Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, AU (updated May 20, 2019), available online (last visited Aug. 29, 2023). ↩

28. 28.

    Manirakiza, supra note 20, at 990–91. ↩

29. 29.

    Id. at 992. ↩

30. 30.

    Banjul Charter, supra note 11, at Art. 45. ↩

31. 31.

    African Commission on Human and Peoples’ Rights, Report of the Fact-Finding Mission to the Republic of Mali 18 (2013), available online. ↩

32. 32.

    Amnesty International, A Guide to the African Commission on Human and Peoples’ Rights 17 (Nov. 2, 2007), available online. ↩

33. 33.

    Morten Bergsmo & William H. Wiley, Human Rights Professionals and the Criminal Investigation and Prosecution of Core International Crimes, in Manual on Human Rights Monitoring: An Introduction for Human Rights Field Officers 13 (2008), available online. ↩

34. 34.

    Id. ↩

35. 35.

    Id. at 14–17. ↩

36. 36.

    Id. at 24–25. ↩

37. 37.

    Network: Non-governmental Organizations, ACHPR, available online (last visited Aug. 29, 2023). ↩

38. 38.

    Human Rights Watch, Making the International Criminal Court Work: A Handbook for Implementing the Rome Statute 6 (Sep. 2001), available online. ↩

39. 39.

    Id. ↩

40. 40.

    Id. ↩

41. 41.

    African Union, Model National Law on Universal Jurisdiction over International Crimes (Jul. 13, 2012), available online. ↩

42. 42.

    Id. ↩

43. 43.

    Elise Keppler, HRW, Justice for Serious Crimes Before National Courts: Uganda’s International Crimes Division 4 (Jan. 2012), available online. ↩

44. 44.

    Id. ↩

45. 45.

    Uganda, CICC, available online (last visited Aug. 29, 2023). ↩

46. 46.

    Keppler, supra note 43, at 5. ↩

47. 47.

    Id. at 12, 16, 19. ↩

48. 48.

    James L. Cavallaro & Stephanie Erin Brewer, Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the Inter-American Court, 102 Am. J. Int’l L. 768 (2008), available online. ↩

49. 49.

    Frans Viljoen & Lirette Louw, State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights: 1992–2004, 101 Am. J. Int’l L. 1, 28–30 (Jan. 2007), available online. ↩

50. 50.

    Obiora Chinedu Okafor, The African System on Human and Peoples’ Rights, Quasi-Constructivism, and the Possibility of Peacebuilding Within African States, 8 Int’l J. of Hum. Rts. 452 (Jan. 2004), available online. ↩

51. 51.

    Reed Brody, Bringing a Dictator to Justice: The Case of Hissène Habré, 13 J. Int’l Crim. Just. 209 (May 2015), available online, doi. ↩

52. 52.

    Id. ↩

53. 53.

    Id. at 210. ↩

54. 54.

    African Union, Doc. Assembly/AU/3 (VII), Decision on the Hissène Habré Case and the African Union (Aug. 2006), available online, archived. ↩

55. 55.

    Reed Brody, Brot für die Welt, Victims Bring a Dictator to Justice: The Case of Hissène Habré 6 (Jun. 2017), available online. ↩

56. 56.

    Id. at 12. ↩

57. 57.

    Id. at 6. ↩

58. 58.

    Amnesty International, The State of the African Regional Human Rights Bodies and Mechanisms 2019–2020 at 7 (2020), available online. ↩

59. 59.

    Id. ↩

60. 60.

    Id. at 46. ↩

61. 61.

    Id. at 41. ↩

62. 62.

    Id. ↩