Hague Institute Photo

The AAIL-AFIL Inaugural Lecture: Comparing Courts

Hague Institute Photo

On 8 December, The Hague Institute hosted the inaugural Distinguished Lecture of The African Foundation for International law (AFIL) and the African Association of International Law (AAIL). This was the occasion for renowned experts to convene and compare the International Criminal Court (ICC) and The African Court on Human and Peoples’ Rights.

The keynote lecture was delivered by Fatsah Ouguergouz from Algeria, Judge of the African Court on Human and People’s Rights.

Judge Ouguerguouz participated in a panel featuring H. E. Judge Sanji Monageng from Botswana, Vice President of the International Criminal Court; Dr. Prof. André Nollkaemper from The Netherlands, Professor at the University of Amsterdam and President of the European Society of International Law (ESIL).  Moderating the lecture was Dr. Jumoke Oduwole from Nigeria, Holder of the Prince Claus Chair in Development and Equity (2013 – 2015), Institute of Social Studies, Erasmus University, The Netherlands, and Lecturer at the University of Lagos, Akoka, Yaba.

During his welcoming remarks, Dr. Abiodun Williams, President of The Hague Institute, described the African association as one of the first academic societies in international law in the continent and briefly illustrated its aim, which is to foster development of African perspectives and practices of international law.  He also highlighted the relevance of its activities, since the most contentious debates on international criminal law are nowadays taking place in Africa.

Judge Ouguergouz´s lecture mainly focused on Elimination of impunity in Africa and how The African Court on Human and Peoples’ Rights will greatly contribute to this objective. The new Court, he stressed, will play a relevant  role, as it will result from the fusion of the African Court of Justice and the African Court of Human and People’s Rights. Furthermore, Mr. Ouguergouz underlined the fact that the African Court  is going to cover also criminal jurisdiction. Such ambitious decision to extend the Court’s mandate to criminal jurisdiction, he explained, is rooted in the deteriorating relationships between the ICC and the African states since July 2008, when the ICC prosecutor requested an arrest warrant for Omar  Al Bashir. Moreover, problems between the ICC and African states are reinforced by the fact that all of the situations pending at the ICC concern African states – he added. Mr. Ourguergouz concluded his lecture by illustrating the future challenges of the new court. The first being the lack of complementary with The Rome Statute, which doesn’t include articles regarding cooperation with continental courts, and the vague definition of immunity of head of states of the African Union in Art. 46A-bis of the Protocol establishing the African Court on Human and Peoples’ Rights (hereinafter: the Protocol).

Judge Monageng focused on the possible problems the newly established Court could face. Due to the fact that international criminal law is still a developing area, she warns that the African Court will need to be extremely innovative. In the best case scenario, the Court could enhance the accountability for the crimes included in the Protocol. Nevertheless, investigation and fact-finding of such crimes would require a larger amount of financial and human resources compared to what is needed for human rights investigations. For this reason, the court could face financial challenges. Moreover, issues of cooperation, complementarity, harmonization of national law as well as efficiency and efficacy of the court are mentioned.  She raised crucial questions regarding the court granting immunity to State officials. If they are not be prosecuted, who is left to prosecute? Does it not bring an end to the jurisdiction of the ICC? She concluded her speech by stating that the ICC is ready to engage in a practical dialogue.

Dr. Nollkaemper claimed that the Protocol is a reaction to the exercise of universal jurisdiction of some states. He believes that the list of crimes in the Protocol is a valuable add to the list of international crimes and that deviating from a global instrument to have a regional framework is not something unprecedented. Moreover, he declared himself sympathetic to the call for this framework. Nonetheless, he listed some critics mainly involving complementarity with the ICC. Normative conflicts such as immunity of State Officials, would arise. Moreover, States parties would be under competing and incompatible obligations to cooperate with the ICC and the new Court. He finally called for both courts to start a dialogue as it is the only solution to such problems.

During the Q&A session, the panelists opened the discussion to the audience and answered a broad range of questions, including the process of fusion establishing the new African Court, complementary issues arising between this and the ICC as well as the enforcement of the new rulings in Africa.

Africa Celebrities Magazine (ACM), the most influential international African magazine published in Europe, reported on this inaugural lecture. To read the full article, click here.

Listen to the event audio:

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