Immunities from prosecution of International Crimes: a critical analysis of the position of African member states to both the Rome Statute and the Malabo Protocol

Abstract

The rarely accountability of the perpetrators held responsible of serious crimes like genocide, crimes against humanity, war crimes, and other heinous crimes, were behind the creation of International Criminal Court and the African Court of Justice and Human Rights after its amendments. Obviously, both IIC and International Criminal Section of the ACJHR have a common core objective that is to end impunity for international crimes. Nevertheless, as one may see, those bodies contrast in the ways to achieve this objective, as the article 46A bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (“the Protocol on Amendments”) grant immunity to a senior officials of African Leaders while the article 27 supports the existing of customary international law norm that forbid the high States officials to stand behind personal immunities by seeking to avoid prosecution for international crimes they committed or supposed to commit. As it has been proposed by some researchers, the Rome Statute would be revised by highlighting in term of complementarity, that the ICC shall be complementary to national and regional criminal jurisdictions, instead of being complementary to national criminal jurisdictions only. The ICC should be remained a court of last resort by allowing judicial proceedings of local courts to take place near to the allocation where crimes took place. To end up such quarrel, the ICC and ACJHR have to cooperate as equals partners as they have the same main objective of ending impunity, possibly being governed by a treaty giving one or another primary jurisdiction, in order to avoid conflict. The ACJHR should in seeking the prosecution of high officials, to leave from the jurisdiction over the crimes within jurisdiction of the ICC and decline immunity provided for senior State officials. That alternatives shall facilitate and simplify prosecution of State officials that are suspected of having committed international crimes on one hand, and shall undoubtedly give satisfaction to the victims of gross violations of human rights.