Malabo Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol)

This extensive analysis of the Malabo Protocol on the statute of the African Court of Justice and Human Rights by Amnesty International includes the full text of the Protocol, Article 45 of which provides for Compensation and Reparation to Victims (see Annex 1).

In June 2014, the African Union (AU) Assembly of Heads of State and Government meeting in Malabo, Equatorial Guinea, adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (hereafter: Malabo Protocol) and called on AU member states to sign and ratify it. (See our Africa>Legal Instruments page). The Protocol extends the jurisdiction of the (yet to be established) African Court of Justice and Human Rights (ACJHR) to crimes under international law and transnational crimes.

The original plan for the ACJHR was a court with two sections – a general affairs section and a human rights section. The Malabo Protocol introduces a third section: the international criminal law section. Thus, if the Malabo Protocol comes into force, the ACJHR will have jurisdiction to try crimes including genocide, crimes against humanity, war crimes and the crime of aggression, among several others. In essence, the international criminal law section of the ACJHR will serve as an African regional criminal court, operating in a manner akin to the International Criminal Court (ICC) but within a more narrowly defined geographical scope, but over a considerably expanded list of crimes.

In essence, blatant violation of international human rights and humanitarian law is a common feature of conflicts on the continent. Armed groups and government forces alike are responsible for the abuses and violations. Yet impunity is a common denominator in Africa’s conflicts, with those suspected of criminal responsibility for crimes under international law rarely held to account. All too often national governments are unwilling or unable to conduct prompt, independent, impartial, and effective investigations into allegations of crimes under international law, and ultimately to bring all those suspected of criminal responsibility to justice in fair trials before ordinary civilian courts and without recourse to death penalty. Thus, a regional criminal court, as envisaged under the Malabo Protocol, has the potential to fill the accountability gap evident at domestic levels.

However, serious concerns have been expressed about the motivation behind the proposal to establish the criminal chamber of the ACJHR. Some commentators argue that the proposal is an attempt by the AU to shield African heads of state and senior state officials from being held to account when there is reasonable grounds to believe that they are criminally responsible for crimes under international law. It is also argued that the proposal is an effort to score political points with the ICC rather than to address the need for justice and accountability for crimes under international law. Amnesty International also has concerns about some of the legal standards contained in the Protocol and about the capacity of the Court to deliver on its expanded mandate. The AU’s decision to include criminal jurisdiction within the remit of the ACJHR could have far reaching legal and institutional implications and Amnesty International believes that a discussion of these implications is imperative and that it is one in which civil society organizations (CSOs) should have a strong voice.