The Malabo Protocol is roughly modeled on the Rome Statute.5 The Malabo Protocol will become operational as it stands now, when it receives the necessary number of ratifications.6 With this ratification, the court will become the first international tribunal with jurisdiction over crimes of mass atrocity.7 The court will have the jurisdiction to try persons for the crimes: genocide, crimes against humanity, war crimes, the crimes of aggression, and many other transnational crimes.8 The AU foresees that the African Criminal Court and the International Criminal Court (ICC) will coexist in prosecuting international crimes.9 The African Criminal Court will also provide for corporate liability, which the ICC does not.10 Meaning, they will have the ability to open up investigations against corporations that can be found on the territory of any country that has ratified the Malabo Protocol.11

B. Issues with the African Union’s Existing Scheme

There are several issues with the Malabo Protocol, that will be enacted as is upon ratification. The primary issue is how the court will be funded.12 The cost of a single international criminal law trial far surpasses the budget for the court.13 Another issue being a lack of staff, the AU only has 1700 employees, compared to the European Union’s 33,000 employees.14 To run a court of this size, it will be necessary to have many more employees and a higher budget.

Furthermore, the protocol provides for immunity for heads of state and government, as well as high-ranking officials.15 This creates an inability for the court to deter human rights violations, as heads of government and state are common perpetrators of these violations. The inclusion of this official immunity clause will limit the court’s ability to fully investigate cases.16 This clause is very broad and will exclude far too many people from prosecution.17 Additional issues of the Malabo Protocol include: imprecise definitions of offenses and a lack of mention of the ICC.18 The protocol fails to regulate its relationship with the ICC.19

This court appears to be intended to be an alternative to the ICC.20 Hostile states will use the court as a shield against ICC jurisdiction.21 This court would be a way for hostile states to avoid ICC jurisdiction, by conducting a sham investigation that does not include heads of state or any high-ranking government officials. This could weaken the ICC if all of the AU countries pull out of the Rome Statute and ratify the Malabo Protocol instead.

C. Solutions to Improve the African Union’s Existing Scheme

In order to help better implement the principle of complementarity, the AU’s regional criminal court will need to be operational. This regional court and the ICC can coexist, as both courts have a place in adjudicating international criminal law in Africa. The courts will serve two distinct purposes: the ICC has the ability to prosecute heads of state and government officials and the African Criminal Court has the ability to prosecute corporations and other individuals perpetrating crimes of mass atrocity.

States may freely choose which court they would like to refer their situation to, if they are unable or unwilling to exercise their jurisdiction to investigate and prosecute a crime. The regional court could:

[C]ircumvent situations where several states have a keen interest in exercising jurisdiction, and where one state’s exercise of jurisdiction inevitably frustrates the aspiration of other state(s).22

The regional court’s jurisdiction will be based on the reality of territorial conflict lines and will be more likely to limit biased investigations.23

This regional approach makes sense, because it will be met with less resistance than an international organization.

Due to the existence of geographic, historical, and cultural bonds among states, decisions of regional bodies may meet with less resistance than global bodies.24

With the court being linked to the AU, this will facilitate stricter oversight and allow for proper investigations.25

Furthermore, the African Court will have the ability to prosecute corporations which are not included in the Rome Statute, or by any other international court or tribunal.26 Transnational corporations are often indirectly involved in human rights violations and they are not being held responsible.27 These companies can be held liable under the Malabo Protocol for knowledge possessed within the corporation, even when it is divided amongst corporate personnel.28

This regional criminal court will be an excellent complement for the ICC, it will not replace or circumvent ICC jurisdiction. The ICC will remain in place, investigating and prosecuting perpetrators of mass atrocities in Africa. With the assistance of the AU and African Court prosecuting lower level perpetrators and corporations, the ICC will be free to investigate high-level officials and heads of state. The assistance of the African Court is essential to bringing all perpetrators to justice, not just the worst offenders that the ICC is focusing their efforts on.

III. Association of Southeast Asian Nations

A. The ASEAN Existing Scheme for Protection of Human Rights

There is currently not an effective regional system of human rights protection in the Asia-Pacific region.29 There is also not a regional mechanism for the promotion and enforcement of fundamental human rights principles.30 Although, the Association of Southeast Asian Nations (ASEAN), has previously had two formalized courts to address significant international crimes perpetrated in the region.31 These courts were incorporated as part of the national judicial systems of the countries, Cambodia and Timor-Leste.32

The Asia-Pacific region has the lowest acceptance rate of the ICC.33 This region sees complementarity as a threat to “Asian values”.34 The ASEAN countries respect:

[T]he fundamental importance of amity and cooperation, and the principles of sovereignty, equality, territorial integrity, non-interference, consensus, and unity in diversity.35

These countries do not want any external interference; meaning the ICC or other states.36

Furthermore, this region seeks to preserve “fraternal silence” with respect to human rights violations in other member states.37 They have consistently opposed the use of international organizations in the fight to preserve human rights.38 They believe this assistance would undermine state sovereignty and break their sacred value of non-interference.39 A reason this region may greatly resist the idea of human rights, is because this idea has been molded from western liberal values, which do not value the same ideas as these countries.40

B. Issues with the ASEAN Existing Scheme

There are many issues with the ASEAN approach to international law and human rights. So far, only two member states have ratified the Rome Statute, so it is very unlikely that any situation in this region will be referred to the ICC.41 As for the rest of the member states, they approach the ICC with hesitation.42 They fear that the ICC will be used as a political weapon against them.43 These countries despise external interference and do not want assistance from international organizations or other states.44

The value of non-interference is a major issue for the ASEAN region to overcome to expand their quality of human rights. These states refrain from criticizing other member states with regards to occurrences in these countries, even in cases of suppression of human rights.45 If a situation does not constitute a threat to regional security, the ASEAN strictly adheres to non-interference.46 The ASEAN countries also do not actively seek to promote human rights as a region.47

The ASEAN has a reluctance at the regional level to adopt an internationalized approach to issues of human rights, because they are generally seen as internal matters.48 The localized tribunals that were previously used in this region were not in the best position to address the issues of international law.49 These courts are much more vulnerable to domestic political interference than the ICC or a regional court would be.50 Although, the ASEAN countries are unlikely to accept a regional court for human rights.51

C. Solutions to Improve the ASEAN Existing Scheme

The ASEAN should provide a framework for its member states to prosecute their own human rights violations. Forming a regional court would not follow the Asian values of sovereignty and non-interference. This region values territorial integrity and fosters an environment of fraternal silence when it comes to human rights violation in a member state, so these states would not stand for the ASEAN organization intruding to investigate and prosecute crimes. Therefore, the best this organization can do for complementarity is encourage and provide resources for member states to conduct their own investigations; these resources could be both binding and non-binding.

The ASEAN has the ability to play a role in implementing complementarity in this region through a non-binding framework. This framework should look like a guide to investigating and prosecuting international criminal law violations. This guide should offer clear standards and best practices for member states to prosecute international crimes.52 This, “may offer a non-legally binding means of encouraging genuine domestic prosecutions by giving national governments guidance around which they can structure their own activities.”53 With this guidance, member states will be better equipped to take on large international criminal prosecutions. Further resources can be provided such as trainings, funding, and assistance in investigating.

The ASEAN could also assist in implementing complementarity through a binding resource, such as a charter on human rights, because some external accountability is necessary to hinder states from abusing human rights.54 This would bind member states to promote better practices in human rights. This charter should follow the United Nations Universal Declaration of Human Rights, but account for the different cultures and Asian values. Language from the U.N. declaration of Human Rights was included in the ASEAN Intergovernmental Commission on Human Rights, but it has been ineffective.55 This commission was inaugurated in 2009, but it has been criticized for ambivalent language and its inability to protect individuals’ human rights.56 The ASEAN region needs a clear and unambiguous charter on human rights that protects individuals and groups that are commonly targeted with human rights violations.

Human rights need to be balanced with national sovereignty, territorial sovereignty, and non-interference, as well as with specific cultural, social, economic, and political circumstances.57

Scholars have argued that a more optimistic approach would be to draft a regional charter based on a genuine commitment to the indivisibility of political rights, civil rights, and socio-economic rights, which are all aspects of humane development.58

IV. Arab League of States

A. The Arab League’s Existing Scheme for Protection of Human Rights

There is no mention of human rights in the original charter of the Arab League of States (The Arab League), although the main international human rights standards had not been adopted at that time.59 In 2004, the Arab League adopted a charter on human rights.60 Unlike other regional standards, the Arab League’s charter on human rights does not have an individual or collective complaint mechanism.61 The charter also lacks an enforcement mechanism.62

The Arab League has proposed an Arab Court of Human Rights that is still awaiting ratification.63 This court will be the first supranational enforcement mechanism constraining the behavior of the Islamic Arab countries.64 Scholars have argued that the establishment of this imperfect court is better than an outright rejection that leaves this region without any regional human rights enforcement mechanism.65 The Arab Court of Human Rights will have jurisdiction over all cases arising from the application of the Arab Charter on Human Rights or any other Arab treaty in the field of human rights to which the disputing states are party.66

The position of the Arab League on the ICC has largely been inconsistent. It moves from support to great resistance based on the context of the situation.67 Although, the Arab League does have several model laws based on the Rome Statute for crimes that are under the jurisdiction of the ICC.68

B. Issues with the Arab League’s Existing Scheme

The Arab Charter on Human Rights falls short in several ways. Unlike other regions, it has no mechanism for collective or individual complaints.69 This demonstrates a failure for the charter to protect individual human rights within the member states.70 Presently, the charter does not have an effective mechanism of accountability and enforcement.71 The Arab Court of Human Rights is not yet operational, therefore, there is no effective remedy for victims of international criminal law.72

The competence of the court, when it becomes operational, has also been called into question. The jurisdiction of the court will be restricted to interstate cases.73 Challenges to this jurisdiction will be examined by a single judge.74 This judge will then determine the important questions that will be at stake in preliminary objections.75 These judges will be representing their home state, rather than sitting in their own individual capacity.76 This selection of judges with immense power, breeds an environment for biases and corruption within the court.

The Arab League’s oscillating views on the ICC are also a problem. Some states have ratified the Rome Statute and accepted ICC jurisdiction, but the Arab League has reacted strongly to some of the ICC prosecutor’s investigations.77 The Arab League also has some different viewpoints on laws that are within the ICC’s jurisdiction. The model laws show that immunity for people working in their official capacity is left up to each state and the death penalty may be imposed for crimes against humanity, genocide, war crimes, and crimes of aggression.78 The Rome Statute does not permit the death penalty for any crimes.79

Another potential issue holding this region back from properly adjudicating international criminal law is the rejection of the western ideas of human rights. The western model has undoubtedly become the basis for international standards on human rights.80 The Arab League resists this because of the belief:

[T]hat the Sharia, as God’s comprehensive path for human life, already provides appropriate protection and is the legitimate authority on which to base any legal framework for the protection of human rights.81

The Arab League may also resist the western idea of human rights because of a history of colonialism and a cautious attitude to the development of an independent regionally enforced human rights regime.82

C. Solutions to Improve the Arab League’s Existing Scheme

There are several ways for the Arab League to better implement complementarity in the region. There are some issues with the Arab Court for Human Rights that should be resolved before it is fully implemented.

The Arab League should allow non-governmental organizations to act as agents for individuals or collective groups of individuals to bring claims to the court. There are currently obstacles for the non-governmental organizations to overcome in order to bring a complaint, including requiring the state to accept this access.83 This requirement should be removed, in order for individuals that are unable to bring their own complaint to get their day in court.

Additionally, certain aspects of the court itself should be changed. Judges should sit in their own individual capacity, rather than representing their home state. Impartiality is essential to fair proceedings and single judges that are not sitting in their own capacity foster an environment of unfairness. Another issue that could be fixed, would be a longer time period for cases to be referred to the court. It is currently only a period of six months after the notification of final judgment in a domestic court.84 This is not enough time for an unsophisticated claimant to properly bring the claim to the court. With additional time and impartial judges, more claims will actually come to fruition on the docket and more victims will get to see justice.

V. Comparison of the Solutions to Improve the Schemes of the Three Regional Organizations

These three regional organizations have many cultural, political, and legal differences that require different solutions to be more effective international partners. The AU and the Arab League both have an international criminal court in the works, although, both of these courts have varying issues for why they might fail or why they are not yet operational. The ASEAN has no enforcement mechanism and observes a deafening silence when it comes to human rights. Therefore, each organization requires different solutions in order to better implement complementarity.

The issues with the AU’s court are more external, they will not be able to fully prosecute all of the perpetrators of international crimes, due to what was written in the Malabo Protocol. They will likely be successful in prosecuting corporations and transnational criminals, so to better implement complementarity, they should focus on those criminals. The Arab League’s issues are more internal, with a fear that the court itself will be biased, because of the selection process of the judges. They will have the ability to prosecute anyone, but the issues will come from inside the court itself. This requires the court itself to be fixed before they are able to truly assist in implementing complementarity. The ASEAN does not and will not have a regional court, so their issues come from a regional desire to not interfere. The only way for this organization to help implement complementarity is by providing better resources to their member nations to prosecute crimes of mass atrocity.

VI. Conclusion

Regional organizations play a great role in implementing the principle of complementarity. There are many issues that each organization faces before they will be fully operational and of any assistance to the ICC or the international community as a whole. Although, as discussed in this comment, there are solutions for the AU, ASEAN, and the Arab League to help them play a role in better implementing complementarity through regional courts and prosecutorial frameworks.

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

1. 1.

   Noele Crossley, The African Union and Human Protection: Towards a Regional Protection Regime, 13 Afr. Sec. 147, 150 (2020), available online, earlier version, doi. ↩

2. 2.

   Matiangai Sirleaf, The African Justice Cascade and the Malabo Protocol, 11 IJTJ 71, 73 (Mar. 2017), available online, doi. ↩

3. 3.

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

4. 4.

   Id. ↩

5. 5.

   Crossley, supra note 1, at 162. ↩

6. 6.

   Gerhard Werle & Moritz Vormbaum, Creating an African Criminal Court, in The African Criminal Court: A Commentary on the Malabo Protocol 3, 5 (Gerhard Werle & Moritz Vormbaum eds., Dec. 1, 2016), available online, doi. ↩

7. 7.

   Id. at 6. ↩

8. 8.

   Malabo Protocol, supra note 3, at Art. 28A. ↩

9. 9.

   Harmen van der Wilt, Complementary Jurisdiction (Article 46H), in The African Criminal Court: A Commentary on the Malabo Protocol 187, 190 (Gerhard Werle & Moritz Vormbaum eds., Dec. 1, 2016), available online, doi. ↩

10. 10.

    Id. at 200. ↩

11. 11.

    Id. ↩

12. 12.

    Id. at 5. ↩

13. 13.

    Id.

    (noting the Charles Taylor trial cost more than $50,000,000 USD). ↩

14. 14.

    Crossley, supra note 1, at 161. ↩

15. 15.

    Werle & Vormbaum, supra note 6, at 5. ↩

16. 16.

    Crossley, supra note 1, at 162. ↩

17. 17.

    Jean-Baptiste Jeangène Vilmer, The African Union and the International Criminal Court: Counteracting the Crisis, 92 Int’l Aff. 1319, 1340 (Nov. 2016), paywall, doi. ↩

18. 18.

    Id. ↩

19. 19.

    Werle & Vormbaum, supra note 6, at 5. ↩

20. 20.

    Vilmer, supra note 17, at 1340. ↩

21. 21.

    Id. ↩

22. 22.

    Sirleaf, supra note 2, at 87. ↩

23. 23.

    Id. ↩

24. 24.

    Id. at 88. ↩

25. 25.

    Id. ↩

26. 26.

    Chantal Meloni, Modes of Responsibility (Article 28N), Individual Criminal Responsibility (Article 46B) and Corporate Criminal Liability (Article 46C), in The African Criminal Court: A Commentary on the Malabo Protocol 139, 152 (Gerhard Werle & Moritz Vormbaum eds., Dec. 1, 2016), available paywall, doi. ↩

27. 27.

    See id. ↩

28. 28.

    Id. at 141. ↩

29. 29.

    Steven Freeland, International Criminal Justice in the Asia-Pacific Region: The Role of the International Criminal Court Treaty Regime, 11 J. Int’l Crim. Just. 1029, 1035 (Dec. 2013), available online, doi. ↩

30. 30.

    Id. ↩

31. 31.

    Id. at 1039. ↩

32. 32.

    Id. ↩

33. 33.

    Amrita Kapur, Asian Values v. The Paper Tiger: Dismantling the Threat to Asian Values Posed by the International Criminal Court, 11 J. Int’l Crim. Just. 1059, 1060 (Dec. 2013), available online, doi. ↩

34. 34.

    Id. at 1061. ↩

35. 35.

    Lasse Schuldt, Southeast Asian Hesitation: ASEAN Countries and the International Criminal Court, 16 German L.J. 75, 87 (2015), available online. ↩

36. 36.

    Id. at 88. ↩

37. 37.

    Li-ann Thio, Implementing Human Rights in ASEAN Countries: Promises to Keep and Miles to Go Before I Sleep, 2 Yale Hum. Rts. & Dev. L.J. 1, 2 (1999), available online. ↩

38. 38.

    Id. at 1. ↩

39. 39.

    Id. ↩

40. 40.

    Id. at 23. ↩

41. 41.

    Schuldt, supra note 35, at 76. ↩

42. 42.

    Id. ↩

43. 43.

    Id. at 82. ↩

44. 44.

    Id. at 88. ↩

45. 45.

    Id. at 89. ↩

46. 46.

    Id. at 92

    (discussing the situation against Rohingya Muslims, compared to the situation in Thailand). ↩

47. 47.

    Id. at 101. ↩

48. 48.

    Freeland, supra note 29, at 1035. ↩

49. 49.

    Id. at 1039. ↩

50. 50.

    Id. ↩

51. 51.

    Thio, supra note 37, at 79. ↩

52. 52.

    William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice, 49 Harv. Int’l L.J. 53, 93 (2008), available online. ↩

53. 53.

    Id. ↩

54. 54.

    See Thio, supra note 51, at 25. ↩

55. 55.

    Schuldt, supra note 35, at 101. ↩

56. 56.

    Id. at n.141. ↩

57. 57.

    Id. at 101. ↩

58. 58.

    Thio, supra note 37, at 38. ↩

59. 59.

    Mervat Rishmawi, The League of Arab States: Human Rights Standards and Mechanisms, Open Society Foundations 1, 11 (Nov. 30, 2015), available online. ↩

60. 60.

    Id. at 68. ↩

61. 61.

    Id. at 70. ↩

62. 62.

    Ahmed Almutawa, The Arab Court of Human Rights and the Enforcement of the Arab Charter on Human Rights, 21 Hum. Rts. L. Rev. 506, 506 (Sep. 2021), available online, doi. ↩

63. 63.

    Id. at 507. ↩

64. 64.

    Id. ↩

65. 65.

    Id. at 519. ↩

66. 66.

    League of Arab States, Charter of Arab League, Art. 16 (ratified Mar. 22, 1945), available online. ↩

67. 67.

    Rishmawi, supra note 59, at 80. ↩

68. 68.

    Id. at 82. ↩

69. 69.

    Id. at 70. ↩

70. 70.

    Almutawa, supra note 62, at 507. ↩

71. 71.

    Id. ↩

72. 72.

    Id. ↩

73. 73.

    Konstantinos D. Magliveras & Gino Naldi, The Arab Court of Human Rights: A Study in Impotence, 29 SQDI 147, 151 (2016), available online. ↩

74. 74.

    Id. at 163. ↩

75. 75.

    Id. ↩

76. 76.

    International Commission of Jurists, The Arab Court of Human Rights: A Flawed Statute for an Ineffective Court 5, 6 (2015) [hereinafter Flawed Statute], available online. ↩

77. 77.

    Rishmawi, supra note 59, at 80–81. ↩

78. 78.

    Id. at 82. ↩

79. 79.

    Id. ↩

80. 80.

    Almutawa, supra note 62, at 528. ↩

81. 81.

    Id. ↩

82. 82.

    Id. at 529. ↩

83. 83.

    Flawed Statute, supra note 76, at 6. ↩

84. 84.

    Id. at 22. ↩