Stephen Lamony's article "African Court Not Ready for International Crimes" is premised on an explicit misconception about the nature of international law making and an implicit determinism about Africa.
It is also liberally laced with inaccuracies. My purpose in this brief response is not to take sides with anyone, but to draw attention to the need for rigor and accuracy in a necessary conversation.
There may well be sundry suspicions about the motives behind the possible extension of the jurisdiction of the African Court on Human and Peoples' Rights to cover international crimes. There is, however, no tyranny or monopoly of original motive in international law.
Factual accuracy matters. Irrespective of where anyone stands on the desirability or not of conferring criminal jurisdiction on the African Court, Lamony's claim that the desire to add a criminal jurisdiction to the African Court is driven by "fundamentally differing views of justice and peace" between the AU and the International Criminal Court (ICC) is unsupported by the records.
Various proposals for the re-design of Africa's regional human rights institution have been around for longer than Lamony's three year time-line. The initial rationale for the earliest proposals to re-design Africa's regional human rights system in Africa was efficiencies. In 2004, the then Chairman of the Assembly of Heads of State and Government of the AU, Nigeria's then President, Olusegun Obasanjo, suggested the merger of the AU Court of Justice and the African Court into one Court, urging the organization to guard against a "danger of proliferation of organs of the organization". In implementing that suggestion, the African Union, for the second time, sought to examine the feasibility of enhancing the jurisdiction of the African court to extend to international crimes.
In 2006, the African Union established a Committee of Eminent Jurists to advise it on the question of possible trial in Africa of former Chadian President, Hissène Habré. In its report, the Committee recommended, among other things as follows:
"The Committee discussed the prospects for the creation of the African Court of Justice and Human Rights based on the project to merge the African Court of human and People's Rights and The African Court of Justice. The Committee proposes that this new body be granted jurisdiction to undertake criminal trials for crimes against humanity, war crimes and violations of Convention against Torture....The African Court should be granted jurisdiction to try criminal cases. The Committee therefore recommends that the on-going process that should lead to the establishment of a single court at the African Union level should confer criminal jurisdiction on that court."
This report was submitted in the summer of 2006, long before any dispute would arise between the ICC and the AU. Even before any dispute between the AU and the ICC was declared, several victims had begun to raise concerns about the work of the ICC in Africa. A community of International Justice refugees had emerged from the countries of the Great Lakes of Africa, intermediaries and other collaborators who had been targeted for persecution in their countries for valiantly co-operating with the ICC in case building and for whom neither support nor recognition was available from the ICC or most of its supporters. The first group to begin to raise questions about the ICC in Africa was not African Heads of State about whose fates most African's couldn't much be bothered - but victims and their families.
The explicit premise of Lamony's article is that African states cannot provide credible accountability for international crimes because they are "severely underequipped to prosecute perpetrators of gross human rights violations." He fails to provide any evidence for this because there is none. The annual budget of the ICC, which is cited as being ready to prosecute such crimes, is less than what one contractor or corrupt public official could divert from public coffers in one transaction.
There is no suggestion that the world that agreed the Statute of the ICC in 1998 was ready for the creation of the Court when it began negotiations for its five years earlier. Similarly, most of the African leaders that began the negotiations for the African Charter on Human and Peoples' Rights in 1978 were not ready for regional human rights oversight. But today we have the Charter.
There is a time delay between the formulation of proposals, their embodiment in a text, the adoption of the text and its entry into force. Through all these phases, change happens. The Africa that began negotiating for international crimes jurisdiction for its regional court will almost certainly be different from that in which the treaty for that purpose enters into force in future.
Lamony's implicit premise is that Africa's fate is pre-determined and there is nothing Africa can offer to international accountability. This is worse than patronizing nonsense. The architecture of the Rome Statute does not preclude complementarity between the ICC and regional mechanisms. Article 52(1) of the United Nations Charter expressly allows for "the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations." The only other substantive limitation on regional treaty making in international law is in Article 103 of the UN Charter which provides that "in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."
Generous resort to inaccurate generalisations diminishes serious debate. Lamony claims that the African Court "is currently failing to carry out or implement its mandate to monitor state's accordance with." This clearly mis-conceives the Court's role. The African Court decides claims of human rights violations presented before it. It is not a monitoring body. Since it began operations in 2006, the Court has received 23 cases, that is an average of less than four cases per year. The claim that "Africa's courts are also severely underequipped to prosecute perpetrators of gross human rights violations" again is throw out as a self-evident truth with no need for supporting evidence. Let us even assume for one moment this is true, how many African suspects can Europe harbor?
The ICC is over-worked, under-funded, and over-exposed. It can only prosecute less than a fraction of those who have questions to answer in any mass atrocity. Like the AU, the ICC is run by human beings. Both are imperfect institutions. There is no basis in any suggestion that one or the other has all the answers to the justice needs of people emerging from mass atrocities in Africa or anywhere.
There is no threshold legal impediment to African countries choosing to create a regional criminal jurisdiction. Such a project would, admittedly, be new territory for regional courts, but that does not make it undesirable or unworkable. It simply means it should be carefully thought through.
The concentration of international justice cases from Africa places a duty on the continent and its leadership to think outside the proverbial box. The only way to improve human institutions is through experimentation. Africa will not be ready to contribute to international justice and accountability if it does not place itself in a position to do so. To say that Africa cannot provide for a regional criminal jurisdiction that could be credible is to suggest that justice is alien to Africa and that Africans are incapable of evolving institutions that work. That is not a debating proposition that seriously deserves to be dignified with a response.
Chidi Odinkalu is senior legal officer for the Africa Program of the Open Society Justice Initiative.