It is not wrong to argue that at the heart of the fragile relationship between the ICC and the African Union Assembly lies the grounds of admissibility governed under the principle of complementarity as specified under Article 17 of the Rome Statute.6 Thus, African Union Assembly’s non-cooperation policy shares a strong correlation with the principle of complementarity which has led to the expansion of the jurisdiction of the ACJHR and the subsequent adoption of the Malabo Protocol.7 Ironically, the solution to the African Union Assembly’s nasty criticism also lies in the statutory text of the principle of complementarity. While the effectiveness of the Malabo Protocol can only be visualized at the moment, the role of the ACJHR in the larger international criminal justice system can be determined. It is propounded here that the same be done through the lens of positive complementarity.8 Positive complementarity is said to have made a shift from the traditional principle of complementarity. Under the traditional principle, the OTP and the Chief Prosecutor of the ICC was responsible for protecting the sovereignty of its State Parties that are obligated to nationally prosecute from international intervention by the ICC.9 In addition to this, positive complementarity envisages a cooperative correlation between the regional judicial institutions and the ICC while enhancing the ability and willingness of these institutions to shoulder legitimate investigations and prosecutions.10 This is to say, positive complementarity strengthens the affirmative duty of the ICC, specifically the OTP to transfer evidence, training programs for regional prosecutors and/or militia personnel et al.11

Likewise, there are sufficient reasons to confer optimism in the effectiveness of the up and running of the regional courts of human rights, hypothecated on the success of firstly the European Court of Human Rights then followed by the Inter-American Court of Human Rights over the last few decades.12 The ethos of this statement lies in the valuable contributions made by these regional institutions at the international platform by providing both human rights protections as well as yielding to democratic decision-making at the domestic levels while bringing perpetrators to justice, diffusing the ongoing human rights abominations, and the occurrence of future such abominations.13 However, it is predicted that this may not be the case for the ACJHR. There are a significant number of factors to be a concern for both the ICC and the ACJHR, especially after the advent of the Malabo Protocol which shockingly mirrors multiple fundamental provisions of the Rome Statute.

Against this backdrop, in the June of 2014, the African Union unilaterally drafted and adopted the Malabo Protocol as an additional segment to the two pre-existing segments of the ACJHR that is the general affairs and the human rights segments.14 The Malabo Protocol extends the jurisdiction of the ACJHR over four of the already universally recognized mass atrocities of genocide, war crimes, crimes against humanity, and crime of aggression, along with ten additional international crimes such as piracy, terrorism, money laundering, etc. While some scholars argue that this amendment caters to the crimes that are beyond the jurisdictional reach of the ICC to end impunity and prevent future atrocities, on the other hand, another set of scholars argues the expanded jurisdiction is a path toward future dysfunctionality of the ICC. I attempt to echo the criticism against the ACJHR for adjudicating upon four core crimes that are enshrined under Article 5 of the Rome Statute that is within the sole ratione materiae jurisdiction of the ICC together with the crimes that are not be tried before the same Court such as drug trafficking, human trafficking, etc.15 The ICC was envisioned to be the ultimate adjudicator and preserve of international criminal justice in the new era, however, this mandate poses the threat to dilute the supremacy of this Court.

While adding confusion to whether cases should be adjudicated before the ICC or the ACJHR, the mandates under the Malabo Protocol, are filled with incompatibilities with the Rome Statute by the virtue of the international legal system. This section of the comment compartmentalizes the deliberation upon the incompatibilities of the Rome Statute and the Malabo Protocols into three subsections. The first subsection focuses on how the two acts are in a potential conundrum with international treaty law. The second subsection specifies the inconsistencies between the two acts by virtue of the principle of complementarity. Furthermore, the third subsection highlights how the similarities between the two multilateral treaties are in incongruence with other international human rights conventions. And the final subsection intensifies the concern of how enforcing the Malabo Protocols may conclude in infringement of the principles of international law.

It can be strongly opined that the two multilateral treaties, that is the Rome Statute and the Malabo Protocol, are discordant with one another owing to their provisional obligations, by reason of the law of termination and validity of treaties as iterated in the Vienna Convention on the Law of Treaties (Vienna Convention). According to the customary character of Article 59 of the Vienna Convention, in case the two multilateral treaties are premised on the “same subject matter”, they are considered to be incompatible with one another.16 As Jacky Fung Wai Nam points out, upon strict interpretation of the treaties, the subject matter is held to be identical if, (i) their objective is the same and (ii) they present a similar degree of generality.17 The language and the statutory interpretation of Article 59 of the Vienna Convention make it amply clear that because the judicial obligations stemming from the Preambles of both the Rome Statute and the Malabo Protocol between the ICC and the ACJHR overlap, the two are said to be incompatible.

To illustrate further, paragraph 5 and paragraph 16 of the Preamble of the Rome Statute and the Malabo Protocol respectively, emphasize the objective of the two international judicial institutions to put an end to impunity and deter the occurrence of atrocious crimes and gross violations of human rights.18 Similarly, paragraph 7 of the Preamble of the Rome Statute has been replicated in paragraph 10 of the Preamble of the Malabo Protocol which accentuates the importance of human life and the need to abstain from the use of force.19 Therefore, the terms of the objective between the Rome Statute and the Malabo Protocol are the same and the subject matter as discussed above is of a similar degree of generality. This could inherently mean that both ICC and the ACJHR may result in initiating investigations and prosecuting the same perpetrator for the commission of the same crime in a given jurisdiction. Eventually, raising inevitable apprehensions amongst the State parties regarding which judicial institution has superior jurisdiction and adjudicatory powers.20 Thereby, significantly impacting the jurisdiction while posing a serious threat to the functionality of the ICC.

The African Union Assembly finds the Malabo Protocol to be a better alternative to end impunity and counter human rights violations, regionally and internationally through the principle of complementarity, but the inspiration behind the same is drawn from the verbatim interpretation of the same principle prescribed under the Rome Statute. Even though the subjectivity of Article 46A (2) of the Malabo Protocol21 on the principle of complementarity reflects the same subjectivity as that of the Rome Statute under Article 17,22 there is a minuscule alteration in the former’s admissibility criteria: the absence of the term genuinely.23 This means that the standard of admissibility is relaxed with lesser requirements of burden of proof, unlike Article 17 of the Rome Statute.24

On the same note, it is necessary to point out the possibility of legal fragmentation of the customary international law and international criminal law regarding the law involving immunities to Heads of State and other senior officials. From the plain reading of the text of Article 46A bis of the Malabo Protocol,25 it can be asserted that it fails to recognize the type(s) of immunities that it is willing to offer. It is predicted that this rule offers only immunity to ratione personae (immunities based on their roles for the State government) despite not differentiating between Heads of State and other senior officials, which means that the Malabo Protocol can provide a defense to those unrecognized individuals who receive no such sovereign protection under the broader international law governing immunities.26 Thus, in an attempt to protect the State leaders and officials of sub-Saharan African States, the Malabo Protocol has drifted away from the general interpretation of immunities that “immunity of state officials is no longer a valid defense for the commission of international crimes”27 as envisioned under the international law and by the ICC. It can be seen that the ambiguous tone of Article 46A bis on account of legal fragmentation, lives while catering to the grey area between the law surrounding the law of immunities.28

The next set of incompatibilities between the Rome Statute and the Malabo Protocol eclipse the violations of the non-reciprocal obligations of human rights treaties under the international legal system.29 From the ruling of the International Court of Justice in its Advisory Opinion on the Reservations to the Convention on the Prevention and the Punishment of the Crime of Genocide,30 it can be deduced that ratifying States of human rights treaties cannot be said to have individualistic interests as it may defeat the higher purpose of raison d’être of such conventions.31 Unlike commercial treaties, international criminal justice and human rights treaties such as the Rome Statute and the Malabo Protocol cannot be premised on the role of safeguarding the reciprocal interests of other States.32 However, if both these treaties are effective then it would be against the goal of humanization of legal obligations towards the greater good of the community and be classified as a deviation from non-reciprocal obligations of human rights treaties.33 Consequentially, contrary to the objective of the Rome Statute this also purports the danger of forum shopping by State parties. If the Malabo Protocol is adopted, every State will have not one but at least three different adjudicatory fora to conduct criminal trials: the domestic court of the State party, the ACJHR, and the ICC. Subsequently, the drafters of the Rome Statute, intended to avoid all possibilities of forum shopping, however, with the advent of the Malabo Protocols, these protections will be in jeopardy.34

Lastly, as per general principles of international law, once a State has ratified a specific treaty then it is not permitted to ratify another treaty that has conflicting treaty obligations with the previous treaty.35 Thereby, the sub-Saharan African States that have contracted themselves with treaty obligations of the Rome Statute should not contract themselves with the Malabo Protocol which shares similar treaty objectives, purpose, and obligations as the Rome Statute. To further substantiate, even though this rule does not indicate that a State cannot freely consent to another treaty because it is stained with illegality, the latter treaty does not naturally become invalid, thereby allowing it to continue to co-exist with other international treaties.36 On the basis of this, the Malabo Protocol unfortunately cannot be labeled as an invalid treaty. As a result of which, States can continue to consent to the Malabo Protocol despite being in breach of their treaty obligations under the Rome Statute and consequently disabling the functionality of the ICC. To make matters worse, the language of Article 127 of the Rome Statute, grants the ratified State parties to withdraw from their treaty obligations owed under the Rome Statute, thereby stripping the ICC of any scope of its jurisdictional supremacy in sub-Saharan Africa.37

It is essential to point out that even though the Malabo Protocol poses a danger to the dysfunctionality and overall impact of the ICC, it bears no conformity on the same as there is no assurance that the ratification of all the thirty-two African States to the Malabo Protocol will subsequently result in withdrawal from the Rome Statute.38 On the contrary, because the subject matter of the Malabo Protocol imitates that of the Rome Statute, there are greater possibilities that as per the international norms discussed above it may never constructively operate. On a similar note, with the intent of ensuring the greater good for humanity and the international community over individualistic interests between States, the principles of non-reciprocal obligations of the human rights convention may discourage all sub-Saharan African States from withdrawing their obligations from the Rome Statute while swearing their homage with the Malabo Protocol.

While it is consoling that the functionality of the ICC is not in complete shambles, it may also worth mentioning that it is not logistically feasible for the African Union Assembly to set the seal on the Malabo Protocol without the assistance of the OTP and the ICC. As per the records, the ACJHR is expected to require a judicial body of nearly sixteen judges nominated and elected by the African Union Assembly while keeping in mind the gender and geographical demographics of the consortium. The same may be difficult to execute because the African Union Assembly is at risk of spreading its human resources thinly as it is also responsible for the managerial and administrative assistance to the African Commission on Human and Peoples’ Rights (ACHPR). The narrative, African solutions to African problems may not be successful owing to the lack of human resources as well as budgetary constraints.39 Henceforth, it is fair to confer that the legacy of regional judicial institutions in Africa has been of an over-commitment and under-delivery.40

Between the hope that the Malabo Protocol will not result in the dysfunctionality of the ICC and the doubt pertaining to the possibility of ACJHR superseding in prosecuting any international crime in the sub-Saharan African region, lies the duty of the OTP. Given the concerns, it is indeed complex to predict the likelihood of integrating the ACJHR with the complementarity structures of the ICC. Notwithstanding this, one effective and purposeful way of achieving this is to hold open conversations between the political and judicial institutions and the ICC. Moreso, another pragmatic solution would be for the two judicial fora to sign and conclude a contractual agreement regarding the principle of complementarity to collaboratively fight against impunity.41

By stating the above mentioned, it can be concluded that the territorial and subject-matter jurisdiction vested with the ICC would indeed be affected by the introduction of the new provisions laid down under the Malabo Protocol. Not only does ICC needs to enhance its control over the principle of complementarity over regional judicial institutions but these regional judicial institutions in Africa also need to harmoniously work with the ICC to bring about greater benefits toward international peace and justice. By cooperatively collaborating with the African regional institutions, the ICC can efficaciously (re)think and (re)instate the position for rule of law by fostering a more stable legal environment that would preserve peace and restore principles of international justice in the larger socio-legal-political context.

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

1. 1.

   Amnesty International, Malabo Protocol: Legal and Institutional Implication of the Merged and Expanded African Court 1, 1–34 (2016) [hereinafter Malabo Protocol], available online. ↩

2. 2.

   Laurence R. Helfer & Anne E. Showalter, Opposing International Justice: Kenya’s Integrated Backlash Strategy Against the ICC, 17 Int’l Crim. L. Rev. 2, 27 (2017), available online. ↩

3. 3.

   Eamon Aloyo, Geoff Dancy & Yvonne Dutton, Allegations of Bias of the International Criminal Court Against Africa: What Do Kenyans Believe?, Leiden Sec. Global Aff. Blog (Jan. 20, 2020), available online. ↩

4. 4.

   Kamari Maxine Clarke, Is the ICC Targeting Africa Inappropriately or Are There Sound Reasons and Justifications for Why All of the Situations Currently Under Investigation or Prosecution Happen to Be in Africa?, ICC Forum (Mar. 17, 2013), available online. ↩

5. 5.

   Helfer & Showalter, supra note 2. ↩

6. 6.

   Jos van Doorne, The Rome Statute and Malabo Protocol: Complementarity’s Creation of a Fragmented World (Aug. 2019) (Master’s thesis, Tilburg University), available online. ↩

7. 7.

   Chile Eboe-Osuji, Administering International Criminal Justice through the African Court: Opportunities and Challenges in International Law, in The African Court of Justice and Human and Peoples’ Rights in Context: Developments and Challenges 841 (Charles Chernor Jalloh, Kamari Maxine Clarke & Vincent Obisienunwo Orlu Nmehielle eds., 2019), available online, doi. ↩

8. 8.

   Justine Tillier, The ICC Prosecutor and Positive Complementarity: Strengthening the Rule of Law?, 13 Int’l Crim. L. Rev. 507, 510 (2013), paywall, doi. ↩

9. 9.

   Matthew Fay, Positive Complementarity: How to Fix a Failed ICC, 1123 Seton Hall Stud. Scholarship 1, 4 (2021), available online. ↩

10. 10.

    Katharine A. Marshall, Prevention and Complementarity in the International Criminal Court: A Positive Approach, 17 Hum. Rts. Br. 21, 22 (2010), available online; Emeric Rogier, The Ethos of “Positive Complementarity”, EJIL Talk (Dec. 11, 2018), available online. ↩

11. 11.

    Tom Ginsburg, Book Review, 115 Am. J. Int’l L. 777 (Oct. 2021), available online

    (reviewing James Thuo Gathii ed., The Performance of Africa’s International Courts: Using Litigation for Political, Legal, and Social Change (2020), paywall). ↩

12. 12.

    Amaya Úbeda de Torres, Freedom of Expression under the European Convention on Human Rights: A Comparison with the Inter-American System of Protection of Human Rights, 10 Hum. Rts. Br. 6 (2003), available online. ↩

13. 13.

    Andreas Follesdal, Exporting the Margin of Appreciation: Lessons for the Inter-American Court of Human Rights, 15 ICON 359, 364 (Apr. 2017), available online, doi. ↩

14. 14.

    Malabo Protocol Report, supra note 1, at 5. ↩

15. 15.

    Stuart Ford, Between Hope and Doubt: The Malabo Protocol and the Resource Requirements of an African Criminal Court, in The African Court of Justice and Human and Peoples’ Rights in Context: Developments and Challenges 1076 (Charles Chernor Jalloh, Kamari Maxine Clarke & Vincent Obisienunwo Orlu Nmehielle eds., 2019), available online, doi. ↩

16. 16.

    Vienna Convention on the Law of Treaties, Art. 59, May 23, 1969, 1155 U.N.T.S. 331, available online, archived. ↩

17. 17.

    Jacky Fung Wai Nam, Jurisdictional Conflicts Between the ICC and the African Union—Solution to the Dilemma, 44 Denv. J. Int’l L. & Pol’y 41, 45 (Jan. 2015), available online. ↩

18. 18.

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

19. 19.

    Id. at Preamble. ↩

20. 20.

    Fung Wai Nam, supra note 17, at 46. ↩

21. 21.

    Malabo Protocol, supra note 18, at Art. 46A(2). ↩

22. 22.

    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. 17, available online. ↩

23. 23.

    van Doorne, supra note 6, at 42. ↩

24. 24.

    Id. at 43. ↩

25. 25.

    Malabo Protocol, supra note 18, at Art. 46A bis. ↩

26. 26.

    van Doorne, supra note 6, at 46. ↩

27. 27.

    Id. ↩

28. 28.

    Malabo Protocol, supra note 18, at Art. 46A bis. ↩

29. 29.

    Fung Wai Nam, supra note 17, at 50. ↩

30. 30.

    Reservations to the Convention on the Prevention and the Punishment of the Crime of Genocide, Advisory Opinion, 1951 I.C.J. Rep. 23 (May 28, 1951). ↩

31. 31.

    Id. at 10. ↩

32. 32.

    Fung Wai Nam, supra note 17, at 50. ↩

33. 33.

    Id. at 51. ↩

34. 34.

    Fung Wai Nam, supra note 17, at 50–52. ↩

35. 35.

    El Salvador v. Nicaragua, Judgment, 11 Am. J. Int’l L. 674 (Central American Court of Justice 1917), available online. ↩

36. 36.

    Fung Wai Nam, supra note 17, at 49. ↩

37. 37.

    Rome Statute, supra note 22, at Art. 127. ↩

38. 38.

    Fung Wai Nam, supra note 17, at 54. ↩

39. 39.

    Serekebrhan Fiquremariam, African Solutions to African Problems, ISS (Sep. 18, 2008), available online. ↩

40. 40.

    Ford, supra note 15, at 1080. ↩

41. 41.

    Philomena Apiko & Faten Aggad, The International Criminal Court, Africa and the African Union: What Way Forward?, 201 ECDPM 1, 42 (Nov. 11, 2016), available online. ↩