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Abstract

The present article analyzes the African Court of Justice and Human Rights, the proposed “main judicial organ of the African Union”. The African Court of Justice and Human Rights is meant to replace the African Court of Human and Peoples’ Rights and would therefore constitute a unique international judicial body combining the jurisdiction of the judicial organ of an intergovernmental organization with the jurisdiction of a regional human rights court. It shares features of the International Court of Justice and the Inter-American Court of Human Rights. In a highly contentious move detrimental to the role of the International Criminal Court, it is currently proposed to extend its jurisdiction over international crimes, the definition of which goes much further than that currently accepted by the international community, raising the prospect of conflicting obligations. The Court’s governing instruments are too ambitious and contain some significant flaws and the case for doing away with the now operational African Court of Human Rights and Peoples’ Rights seems unconvincing. Even though the Court has not yet been established, its structure and mandate do pose many challenging questions that deserve to be thoroughly investigated by drawing comparisons with the existing similar judicial organs in other international organizations.
© Koninklijke Brill NV, Leiden,  DOI: ./-
International Organizations Law Review 9 (2012) 383–449 brill.com/iolr
INTERNATIONAL
ORGANIZATIONS
LAW REVIEW
e African Court of Justice and Human Rights:
A Judicial Curate’s Egg
Gino J Naldia & Konstantinos D. Magliverasb
a) Researcher in International Law, Great Britain
gnaldi@hotmail.com
b) Associate Professor, Department of Mediterranean Studies
University of the Aegean, Greece
kmagliveras@rhodes.aegean.gr
Abstract
e present article analyzes the African Court of Justice and Human Rights, the proposed “main
judicial organ of the African Union”. e African Court of Justice and Human Rights is meant
to replace the African Court of Human and Peoples’ Rights and would therefore constitute a
unique international judicial body combining the jurisdiction of the judicial organ of an
intergovernmental organization with the jurisdiction of a regional human rights court. It shares
features of the International Court of Justice and the Inter-American Court of Human Rights.
In a highly contentious move detrimental to the role of the International Criminal Court, it is
currently proposed to extend its jurisdiction over international crimes, the denition of which
goes much further than that currently accepted by the international community, raising the
prospect of conicting obligations. e Court’s governing instruments are too ambitious and
contain some signicant aws and the case for doing away with the now operational African
Court of Human Rights and Peoples’ Rights seems unconvincing. Even though the Court has
not yet been established, its structure and mandate do pose many challenging questions that
deserve to be thoroughly investigated by drawing comparisons with the existing similar judicial
organs in other international organizations.
Keywords
African Union; judicial organs of intergovernmental organizations; African Court of Justice and
Human Rights; international criminal law
* After  years in academia Dr Gino Naldi is currently an independent researcher in
Public International Law and International Human Rights Law. He has developed a spe-
cialism in these elds relating to Africa and to the Organization of African Unity/African
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384 International Organizations Law Review 9 (2012) 383–449
1. Introduction
e closing years of the th century witnessed unprecedented develop-
ments with regard to pan-African institutions. After nearly  years of
existence, African leaders replaced the obsolescent Organization of African
Unity (OAU) with a seemingly vibrant institution, the aptly named
African Union (AU). e rationale behind the creation of this new
institution was the simple reality that a dynamic and modern-day entity
was required to confront the myriad continental and global political and
socio-economic challenges facing Africa. African leaders showed them-
selves prepared to endow the new organization not only with reconstituted
organs but with brave new functions and powers as well. e Constitutive
Act of the revitalized organization was adopted in Lomé in July 
and entered into force shortly thereafter in May . Following a short
Union in particular, on which he has written extensively. He has published in journals such
as the Zeitschrift für ausländisches öentliches Recht und Völkerrecht, the Netherlands
International Law Review, the Journal of African Law, the International and Comparative
Law Quarterly, the African Human Rights Law Journal and the African Journal of
International and Comparative Law. He is author of e Organization of African Unity: An
Analysis of its Role nd ed. (Mansell, ) and Constitutional Rights in Namibia (Juta, ).
Dr Konstantinos Magliveras specializes in the law of international organizations, espe-
cially African and Mediterranean/Middle East institutions, international criminal law, and
international human rights. He has published, inter alia, in the European Journal of Interna-
tional Law, the European Law Review, the International and Comparative Law Quarterly,
and the Australian International Law Journal. He is the author of Exclusion from Participation
in International Organisations: e Law and Practice Behind Member States’ Expulsion and
Suspension of Membership (Kluwer, ) and Combating Tracking in Persons: e Role and
Action of International Organisations, (Ant. N. Sakkoulas Publishers, ).
) Charter of the Organization of African Unity, adopted on  May , entered into
force  September ,  UNTS , () : International Legal Materials p.  (OAU
Charter).
) See the Sirte Declaration, adopted on  September  (EAHG/Decl. (IV) Rev.), repro-
duced in () : African Journal of International and Comparative Law .
) According to the OAU Secretary-General, “[African leaders] certainly had in mind an
organization that would provide a framework for enhanced cohesion, co-operation, inte-
gration and strengthened capacity to deal with the crises that face the African continent
today”, Report of the Secretary General on the Implementation of the Sirte Decision on the
African Union (CM/ (LXXIV)), para. .
) Constitutive Act of the African Union, adopted on  July , entered into force
 May ,  UNTS , (Constitutive Act). See C. Heyns, E. Baimu and M. Killander,
‘e African Union’ ()  German Yearbook of International Law p. ; K. Magliveras
and G. Naldi, ‘e African Union – A New Dawn for Africa?’ () : International and
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G.J. Naldi & K.D. Magliveras /
International Organizations Law Review 9 (2012) 383–449 385
transitional period, the AU was launched in July  in Durban, South
Africa.
One of the new organs envisaged in the AU institutional structure was
a judicial body with the express mandate to resolve inter-African disputes
in an independent and objective manner. Given that a judicial organ did
not feature in the framework of the OAU, the fact that Article  of the
Constitutive Act makes provision for an African Court of Justice (ACJ)
was a signicant achievement. However, the Constitutive Act itself has
the characteristic features of a framework treaty (traité cadre) and thus does
not contain any provisions on its composition and competencies, leaving
all details to be determined by a future Protocol to be adopted by the
Assembly of Heads of State and Government (hereinafter Assembly), the
organ where the whole membership is represented. Indeed, the Constitutive
Act establishes a plethora of organs but provides only the briefest guide-
lines as regards their composition and spheres of operations. e Protocol
of the ACJ was duly adopted on  July  ( Protocol). It was mod-
eled on the International Court of Justice (ICJ) rather than the Court of
Justice of the European Union (ECJ). To that extent, the  Protocol’s
substantive clauses were heavily inuenced by the ICJ Statute.
Yet this was something of a missed opportunity in view of the fact
that the ECJ is a judicial organ specically set in the context of a regional
supranational organization, adjudicating on a wide range of issues, includ-
ing inter-state disputes, disputes between Member States and organs,
Comparative Law Quarterly pp. -; T. Maluwa, ‘Re-imagining African Unity;
Preliminary Reections on the Constitutive Act of the African Union’ ()  African
Yearbook of International Law p. ; C. Packer and D. Rukare, ‘e New African Union and
its Constitutive Act’ () : American Journal of International Law pp. -.
) Durban Declaration in Tribute to the Organization of African Unity and on the Occasion of
the Launching of the African Union (ASS/AU/Decl. (I)), reproduced in () :
International Legal Materials p. .
) See also Article () of the Constitutive Act. For analysis, see K.D. Magliveras and
G.J. Naldi, ‘e African Court of Justice’ () : Zeitschrift für ausländisches öentliches
Recht und Völkerrecht pp. -.
) K.D. Magliveras and G.J. Naldi, e African Union (Kluwer Law International, e
Hague, ) paras. -.
) Decision on the Protocol of the Court of Justice of the African Union (Assembly/AU/
Dec. (II)), reproduced in () : African Journal of International and Comparative
Law p. .
) Available at <www.icj-cij.org>,  January .
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386 International Organizations Law Review 9 (2012) 383–449
or between organs, and claims that Member States have failed to
observe or have violated treaty obligations. e ACJ’s adjudicatory
jurisdiction extends, inter alia, to the interpretation and application of
the Constitutive Act and other AU treaties; any question of international
law; all acts and decisions issued by AU organs; the existence of facts,
which, if established, would constitute a breach of an obligation owed to a
contracting party or to the AU; and the reparation to be made for a breach
of obligations.
Article  of the  Protocol stipulates that the Protocol would enter
into force one month following its fteenth ratication. Although not
a demanding requirement (the AU has a membership of  States), ratica-
tion did not progress at the pace that was apparently contemplated.
e fteenth instrument of ratication was eventually deposited by Algeria
on  January  and, consequently, the rst ever pan-African judicial
organ ought to have been inaugurated on  February . Surprisingly
the AU has never acknowledged the  Protocol’s entry into force.
e explanation for this apparently curious behaviour lies in the decision
reached in July  to merge the ACJ with the African Court of Human
and Peoples’ Rights (hereinafter Human Rights Court) and to create
one single judicial body. e Human Rights Court was established pur-
suant to the Protocol to the African Court on Human and Peoples’ Rights
( Protocol) by the contracting parties to the African Charter on
) Article () of the  Protocol, which mirrors Article () of the ICJ Statute.
) Algeria had actually ratied it on  June . e current number of signatures stands
at  and of ratications at , see <www.au.int/en/sites/default/les/Courtof
Justice_.pdf >,  January .
) Decision on the Seats of the African Union (Assembly/AU/Dec.  (III)), para. . See also
Decision on the Merger of the African Court on Human and Peoples’ Rights and the Court of
Justice of the African Union (Assembly/AU/Dec.  (V)).
) e Protocol to the African Charter of Human and Peoples’ Rights on the Establishment
of African Court of Human and Peoples’ Rights, adopted on  June , entered
into force on  January , has currently been ratied by  Member States (
Protocol). For analysis, see F. Viljoen, International Human Rights Law in Africa (Oxford
University Press, Oxford, ), pp. -; J. Harrington, ‘e African Court on Human
and Peoples’ Rights’, in M.D. Evans and R. Murray (eds.), e African Charter on Human
and Peoples’ Rights: e System in Practice, - (Cambridge University Press,
Cambridge, ), pp. -; G.J. Naldi and K.D. Magliveras, ‘Reinforcing the
African System of Human Rights: e Protocol on the Establishment of a Regional
Court on Human and Peoples’ Rights’ () : Netherlands Quarterly on Human Rights
pp. -.
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International Organizations Law Review 9 (2012) 383–449 387
Human and Peoples’ Rights (Banjul Charter). Following the European
and American examples, the Human Rights Court, together with the
African Commission on Human and Peoples’ Rights (African Commission),
established under Article  of the Banjul Charter, was meant to form a
comprehensive continental supervisory mechanism with the mandate to
examine whether contracting parties met their human rights obligations.
A number of commentators (including the present authors) considered
the decision to amalgamate the two courts as ill-advised. e main criti-
cism was based on the urgent need to have a fully functional judicial organ
to address the deep challenges aecting Africa and the widespread ethos of
impunity. Nevertheless, in what seemed a regrettable step, on  July 
the Assembly adopted the Protocol on the Statute of the African Court of
Justice and Human Rights ( Protocol) establishing said judicial body
(AU Court). Even though the  Protocol does not specify to which
instrument/s it is annexed, it brings about the following important
changes: (a) it complements the provisions of the Constitutive Act dealing
with the AU’s principal judicial organ, and at the same time (b) it revises
the provisions referring to the “Court of Justice” by establishing a new
pan-African judicial entity, while (c) it abrogates the  and 
Protocols by giving eect to the Statute of the now merged Court. Finally,
it lays down transitional clauses but only as it concerns the  Protocol,
because the AU, as has been explained, has never taken cognizance of the
 Protocol’s entry into force.
is state of aairs has given rise to confusion and a lack of decisive
action. e Human Rights Court has technically been in existence for
nine years but has only recently become fully operational. Moreover, the
) African Charter on Human and Peoples’ Rights, adopted on  June , entered into
force  October ,  UNTS , () : International Legal Materials p. . All
AU Member States, with the exception of South Sudan, are contracting parties.
) See Magliveras and Naldi, supra note , pp. -; Magliveras and Naldi, supra note ,
para. .
) Decision on the Single Legal Instrument on the Merger of the African Court on Human and
Peoples’ Rights and the African Court of Justice (Assembly/AU/Dec. (XI)).
) Article  of the  Protocol.
) Ibid., Article .
) Ibid., Articles -.
) e Human Rights Court handed down its rst judgment in Application No. /,
Michelot Yogogombaye v. the Republic of Senegal,  December , <www.african-court
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388 International Organizations Law Review 9 (2012) 383–449
 Protocol has been in force for more than four years but remains inop-
erative. Finally, the question of whether and when the  Protocol will
secure the required  ratications to enter into force is a matter of conjec-
ture; thus far,  Member States have signed it but only ve have ratied
it: Libya in May , Mali in August , Burkina Faso in June ,
Congo in December  and Benin in June . To be succinct, Africa
missed a valuable opportunity to have in place two separate judicial enti-
ties with distinct jurisdictions. As a result, it has now been left with the
prospect that a single judicial organ may become a reality at some indeter-
minate time in the future. Arguably, the continent as a whole and the AU,
as the political, economic and social intergovernmental institution serving
its needs and aspirations, cannot aord to wait indenitely. For Africa the
prompt operation of a judicial body is not a luxury: it is very much a neces-
sity of the rst magnitude.
e purpose of the present article is, on the one hand, to recount how
the AU has (mis)handled the situation regarding the operation of these
two judicial entities and, on the other hand, to provide some analytical
reections on the Statute of the AU Court. In particular, the article explains
the protracted merger process; examines the various institutional and
operational problems to which the proposed amalgamation gives rise; ana-
lyzes the jurisdiction, functions and the institutional set up of the AU
Court; and, where pertinent, draws comparisons with other transnational
judicial entities (principally the ICJ, the Human Rights Court, the
European Court of Human Rights and the Inter-American Court of
Human Rights). Finally, the article attempts to draw some conclusions on
the prospects of the AU Court and argues that the primary consideration
should be the proper functioning of a judicial organ that is capable of
addressing the multifaceted problems facing Africa and not considerations
such as the economies of scale to be achieved by merging organs.
2. From Two to One: e Road Towards the Creation of a Single
Court of Justice of the African Union
Until June , when the OAU Assembly decided to examine the possi-
bility of setting up a human rights court to complement and strengthen
.org/en/index.php/judgments/other-decisions>,  January ; reproduced in () :
International Legal Materials p. .
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International Organizations Law Review 9 (2012) 383–449 389
the existing mechanism for protecting fundamental rights and freedoms,
the only fully functional guarantor of human rights at the regional level
was the quasi-judicial entity, the African Commission. After various
attempts at drafting the statute for such a court, the  Protocol was
eventually adopted, entering into force in . At the time of writing,
just under half the membership of the AU has ratied, a fact that surely
calls into question the determination of African leaders (at least) to demon-
strate to the world that they are serious about their commitments to con-
front impunity. For its part, the AU was somewhat tentative in taking the
necessary measures to make the Human Rights Court truly functional and
failed to commit the necessary nancial and human resources with prompt-
ness. Indeed, the Assembly appointed the eleven judges as late as  January
, who took the oath of oce in July . A glance through the rst
four Annual Reports that the Human Rights Court has issued makes
gloomy reading as to its ability to operate eectively and eciently.
) Report of Government Experts Meeting (Resolution AHG/Res.  (XXX)). For the OAU
Secretary-General Report on the measures taken to implement this Resolution, see Doc.
CM/ (LXIV).
) Rule  of the Rules of Procedure of the African Commission on Human and Peoples
Rights, adopted in May , describes it as “an autonomous treaty body working within
the framework of the African Union to promote human and peoples’ rights and ensure
their protection in Africa” <www.achpr.org/les/instruments/rules-of-procedure-/
rules_of_procedure__en.pdf>,  January .
) For example the Cape Town draft of , which had many novel features (LEG/EXP/
AFCHPR (I)), reproduced in () : African Journal of International and Comparative
Law p. . See further G.J. Naldi and K.D. Magliveras, ‘e Proposed African Court on
Human and Peoples’ Rights’ () : African Journal of International and Comparative
Law pp. -.
) See supra note .
) ere are currently  contracting states. Malawi was the last to accede in October 
and before it Tanzania in February .
) Decision on the Election of Judges of the African Court on Human and Peoples’ Rights
(Assembly/AU/Dec. (VI)). For the latest Decision appointing new judges, see Decision
on the Appointment of Judges of the African Court on Human and Peoples’ Rights (Assembly/
AU/Dec. (XIX), July )). In its current composition the Court has only two female
judges (including the President).
) African Court on Human and Peoples’ Rights, Activities Report of the Court for 
(EX.CL/ (XVI)); Activities Report of the Court for  (EX.CL/ (XIV)); Activities
Report of the Court for  (EX.CL/ (XIII)); and Activities Report of the Court for 
(Assembly/AU/ (VIII)).
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390 International Organizations Law Review 9 (2012) 383–449
Although the th Ordinary Assembly Session (February ) approved
a total budget of USD ,, for the Human Rights Court for Financial
Year , this gure ought to be considered vis-à-vis the funding granted
to the African Commission. In particular, in the  Budget the African
Commission received USD ,,, which in the  Budget was
signicantly reduced to USD ,,. erefore, it would appear that
the AU has taken the deliberate decision that the Human Rights Court
will operate at the expense of the African Commission. is is a worrying
development considering that the Human Rights Court is not envisaged
to take over all or some of the African Commission’s tasks and, conse-
quently, the latter will have to manage the shortfall somehow. Not-
withstanding the chronic underfunding of the AU, at some stage the
Organization must secure sucient resources to allow the entities protect-
ing the fundamental freedoms of African peoples to operate eectively.
Without doubt, the single most important reason why the AU has
treated the Human Rights Court in a cavalier fashion is the aforemen-
tioned determination in July  that it should merge with the ACJ, a
decision which became a fait accompli the following year. To that end,
draft merger protocols were submitted for consideration in July  and
in May . Based on these events, it is submitted that the AU was not
) See African Commission on Human and Peoples’ Rights, rd Activity Report submitted
in conformity with article  of the African Charter on Human and Peoples’ Rights
(EX.CL/(XIII)), June , para. .
) Decision on the Budget of the African Union for the  Financial Year (Assembly/AU/
Dec. (XII)). is imbalance was maintained in the  Financial Year: the African
Commission was allocated USD ,,, while the Human Rights Court was allocated
USD ,,, see Decision on the Budget of the African Union for the  Financial Year
(Assembly/AU/Dec. (XIV)). It was worsened in the  Financial Year, see Decision on
the Budget of the African Union for the  Financial Year (Assembly/AU/Dec. (XIX)).
) See Magliveras and Naldi, supra note , paras. -.
) Supra note .
) See I. Kane and A.C. Motala, ‘e Creation of a New African Court of Justice and
Human Rights’, in M.D. Evans and R. Murray (eds.), e African Charter on Human and
Peoples’ Rights: e System in Practice, - nd ed. (Cambridge University Press,
Cambridge, ), pp. -.
) Executive Council, Draft Protocol on the Integration of the African Court on Human and
Peoples’ Rights and the Court of Justice of the African Union (EX.CL/ (VII) Annex ).
) Executive Council, Draft Protocol on the Statute of the African Court of Justice and Human
Rights (EX.CL/ (VIII) Rev.). Generally see C. Beyani, ‘Recent Developments in the
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prepared to allocate its sparse resources to an organ whose demise was
simply a matter of time, while the considerable delay in having the Human
Rights Court up and running had nothing to do with the inability of the
AU to complete its institutional framework.
While practical considerations may have been the root cause of the deci-
sion to amalgamate the two judicial entities, including a desire for ratio-
nalization with the cost savings that that would entail and the latent
problem of overlapping jurisdiction between them, the decision was ini-
tially greeted with dismay. On  May , the African Commission,
which would have proted from the existence of a separate Human Rights
Court with the capacity to hear complaints from individuals, expressed
concern at the “negative impact” that the decision could have on the cre-
ation of an ecient mechanism to protect fundamental rights and drew
attention to the fact that the Human Rights Court and the ACJ not only
had dierent mandates but dierent locus standi requirements as well.
African Human Rights System -’ () : Human Rights Law Review
pp. -, at pp. -.
) Note that ten years after its inauguration there is still a number of AU organs that are
not fully functional, e.g., the African Central Bank, the African Monetary Fund, and the
African Investment Bank; see Magliveras and Naldi, supra note , paras.  et seq.
) Cf. AU Press Release No. /: “[the] institutional merging of the two courts is
aimed at integrating justice more concretely into the institutional mechanism of the African
Union. It will also make it possible to bring together the competences of these two statu-
tory organs of the AU”.
) N.J. Udombana, ‘An African Human Rights Court and an African Union Court: A
Needful Duality or a Needless Duplication?’ (-) : Brooklyn Journal of
International Law pp. -.
) In particular, under Article () of the  Protocol, the Human Rights Court has
the capacity to pronounce on the Constitutive Act, given that the promotion and protec-
tion of human rights are stated as core AU principles and objectives in the Act. At the same
time, the ACJ has jurisdiction over the Banjul Charter under Article ()(b) of the 
Protocol.
) Amnesty International criticized the decision on the ground that it undermines the eec-
tive functioning of the Human Rights Court: ‘African Union: Assembly’s decision should
not undermine the African Court’, Press Release IOR // of  August ; and
African Union: e Establishment of an Independent and Eective African Court of
Human and Peoples’ Rights Must be a Top Priority’, Press Release IOR // of 
January , <www.amnesty.org>  January .
) African Commission on Human and Peoples’ Rights, Resolution on the Establishment of
an Eective African Court on Human and Peoples’ Rights (ACHPR/Res. (XXXVII) ),
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It further pointed out that there was no formal relationship between it and
the Human Rights Court. Finally, reference should be made to the speech
made by Mathias Chikawe, Tanzania’s Minister for Justice, at the rd
African Commission Ordinary Session held in May . Speaking on
behalf of all AU Member States, he stated that, in light of the fact that the
Statute of the merged Court had been provisionally adopted on  April
, he felt that “the mission of the Commission [was] gaining grounds”.
If account was taken of the concerns expressed, it was apparently
addressed by envisaging the creation of a single Court with two divisions:
a General Aairs Section and a Human Rights Section, the latter having
jurisdiction over the ever sensitive issue of human rights infractions. With
the autonomy of the latter Section appearing to be preserved, some com-
mentators expressed support for the proposed merger. e arrangement
put forward by the draft instruments pointed towards the creation of two
separate structures sharing common apparatus such as the Registry. If,
however, the whole exercise was to ensure economies of scale, the  and
the  Protocols could have been amended to achieve this goal. us, a
full scale merger would have been unnecessary and valuable time would
not have been lost in indecision. Indeed, Article  of the  Protocol
and Articles  and  of the  Protocol make provision for amend-
ment at the proposal of either a contracting party or of the relevant Court
itself. Finally, it is submitted that if nancial savings was the AU’s pri-
mary consideration, an overhaul of the whole structure pertaining to the
human rights protection mechanism could have resulted in the absorption
of the African Commission by the Human Rights Court.
Despite the above considerations, the day was won by the advocates of
the creation of a single judicial body. On  July , the th Ordinary
Assembly Session adopted the Protocol on the Statute of the African Court
th Activity Report (EX.CL/ (VII), Annex I). See also African Commission on Human
and Peoples’ Rights, Resolution relating to the Operationalisation of an Independent and
Eective African Court on Human and Peoples’ Rights, th Activity Report (EX.CL/
(VIII), Annex III ).
) African Commission on Human and Peoples’ Rights, th Activity Report (EX.CL/
(IX)) para. .
) African Commission on Human and Peoples’ Rights, rd and th Activity Reports (EX.
CL/ (XIII)) p. .
) For example Viljoen, supra note , pp. -.
) Cf. Kane and Motala, supra note , pp. -, questioning the legality of the merger
process on the ground that the proper amendment procedures were not followed.
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of Justice and Human Rights. As has already been mentioned, the 
Protocol is based on a fallacy, namely that the  Protocol never entered
into force. However, this occurred automatically when Algeria deposited
the required ratication in January . No further action was required
by the AU. If one attempted to explain the AU’s stance under the law of
treaties, Article (b) of the Vienna Convention on the Law of Treaties
 could provide a legal basis; it states that a treaty may be terminated
at any time by consent of all the parties. But if this were the case it is curi-
ous that Member States continue to ratify the  Protocol (Gambia did
so in April ).
Notwithstanding these legal considerations, the AU should nally
come to terms with the legal status of the  Protocol. And this because
the Member States that have so far ratied it may not wish to sign up
to the AU Court. is is a scenario that apparently has not been addressed
by the drafters. To put it in other words, the fact that the Assembly
adopted the  Protocol was a purely political act and is quite separate
from the commitment to participate in the AU Court that Member
States have now to show by ratifying and acceding to the  Protocol.
In the  years that the OAU and the AU have been in operation, there
have been some  Conventions that have been adopted under their
auspices but have never entered into force for the simple reason that they
have failed to attract the necessary number of ratications. e African
Maritime Transport Charter is an interesting example: it was concluded
in  and, even though it has never entered into force, in July  a
Revised Charter was adopted. Lately, the AU has sought to address
this failing. To that end, a ‘Signing Week’ was organized in December of
every year with only four treaties (including the  Protocol) being pri-
oritized but, more recently, all not in force treaties have been given
attention.
) See supra note .
) Vienna Convention on the Law of Treaties, adopted on  May , entered into force
 January ,  UNTS .
) See, inter alia, Executive Council, Decision on the Status of Signature and Ratication of
OAU/AU Treaties and the Harmonization of Ratication Procedures (EX.CL/Dec. (XIV))
and Decision on the Status of Signature and Ratication of OAU/AU Treaties (EX.CL/Dec.
(XIII)).
) Executive Council, Decision on the Status of Signature and Ratication of OAU/AU
Treaties (EX.CL/Dec. (XV)) and Decision on the Status of Signature and Ratication of
OAU/AU Treaties (EX.CL/Dec. (XXI)).
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e  Protocol contains transitional provisions (Articles  to ) and
the Statute of the AU Court (Statute) is appended to it. According to
Article () of the Statute, the AU Court shall be “the main judicial organ
of the African Union.” It is not clear what is meant by the adjective “main”.
Since the corresponding Article () in the Constitutive Act simply states
that a “Court of Justice of the Union shall be established”, should Article
() be understood as meaning that at some future point the AU might be
endowed with another judicial organ? And would this then become the
“principal” judicial entity as opposed to the “main” one that is created
under the  Protocol? Moreover, even though Article  of the 
Protocol stipulates that all references to the “Court of Justice” contained in
the Constitutive Act shall be read as references to the merged Court, it
is submitted that, legally speaking, this is not correct. It is obvious that the
judicial organ envisaged in the Constitutive Act is quite distinct from the
merged Court. In eect, if the intention was to substitute the ACJ with
the merged Court, the amendment procedure laid down in Article  of
the Constitutive Act ought to have been employed. It is clear that this
procedure, which inter alia calls for the adoption of a protocol containing
the amendments and its ratication by a two-thirds majority of
Member States, has not been followed. Consequently, it would appear that
the AU Court might not have a proper constitutional foundation in the
Constitutive Act, while it is a fact that the  Protocol cannot be
regarded as an instrument amending said Act.
e principal transitional arrangements made in the  Protocol are
the following. First, according to Article , the term of oce of Human
Rights Court judges shall end when the AU Court judges have been elected
but shall remain in oce until the latter have been sworn in. Second, pur-
suant to Article , any cases pending before the Human Rights Court
which have not been concluded before the  Protocol enters into force,
will be transferred to the Human Rights Section and will continue to be
considered pursuant to the rules of the  Protocol. ird, according to
Article , once the  Protocol has entered into force, the  Protocol
will remain in operation for a period of one year to allow for the Human
Rights Court’s assets and liabilities to be transferred to the AU Court. An
issue that potentially could prove signicant and has not been addressed in
) Cf. Protocol of Amendments to the Constitutive Act adopted on  July  by the
Assembly, not yet in force, <www.au.int>,  January .
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the Protocol and the Statute is the subject of reservations. In accordance
with the rules of general international law, as embodied in Article  of the
Vienna Convention on the Law of Treaties, silence on this matter allows
States to enter reservations on condition that they are not incompatible
with the treaty’s object and purpose. However, it may well be that, in rela-
tion to human rights treaties, States have a much a narrower scope for
entering reservations.
As the situation currently stands, there are three separate instruments
establishing three dierent judicial organs. Of these instruments, two have
come into force (the  Protocol and the  Protocol), while the third
(the  Protocol) is in the slow process of being ratied. Moreover, one
body (the Human Rights Court) is ocially open for business, and is rap-
idly attracting a clientele, while the other entity (the ACJ) has met its
quick (and rather undignied) end. It is perhaps characteristic of how
business is conducted in the AU that the Executive Council urged Member
States in its January  session to continue ratifying the  Protocol
but said nothing about the need to hasten the ratication of the 
Protocol.
Against this background and with no experience having been gained
from the operation of an internationalized court, African leaders decided
to embark on a new venture and create a new judicial body with no parallel
in any other universal or regional organization. is point should be
emphasized: either calculatingly or because it simply turned out this way,
the AU can now boast that it has gone further than any other comparable
organization and has created a unique judicial entity combining the
) Cf. Article  of the American Convention on Human Rights (ACHR), <www.oas.org/
dil/treaties_B-_American_Convention_on_Human_Rights.htm>,  January , and
Article  of the European Convention for Human Rights and Fundamental Freedoms
(ECHR), <http://conventions.coe.int/Treaty/en/Treaties/Html/.htm>,  January .
e  Protocol is also silent on this issue.
) Even though the  Protocol is not a human rights treaty per se, to the extent that it
replaces the  Protocol and creates an institutional mechanism protecting fundamental
freedoms as well, it does have strong characteristics of such an instrument.
) UN Human Rights Committee, General Comment  on Reservations to the International
Covenant on Civil and Political Rights (HRI/GEN//Rev.), para. .
) At the time of writing (January ), there were  pending cases, see <www
.african-court.org/en/index.php/-----/pending-cases>.
) Executive Council, Decision on the Activity Report of the African Court on Human and
Peoples’ Rights (EX.CL/Dec. (XIV)), para. .
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competence to hear international law disputes as well as adjudicating
human rights cases. Indeed, even though courts such as the ICJ and the
ECJ may deal with human rights issues and courts such as the European
Court of Human Rights and the Inter-American Court of Human Rights
(IACHR) may deal with international law issues, they do so incidentally
when the need arises and not because it falls within their primary sphere of
competence. e AU Court, perhaps inadvertently, introduces a new kind
of species in the world of internationalized courts: an entity that is autho-
rized to receive and entertain cases involving either human rights issues or
international law issues or both and having separate Sections where dier-
ent sets of judges will adjudicate the corresponding cases.
3. e African Court of Justice and Human Rights: A Unique
Judicial Organ in International Institutions
3.1. e Structure and Operation of the Court
According to Article  of the Statute, the AU Court is composed of two
Sections: a General Aairs Section and a Human Rights Section. e
delineation between them is laid down in Article . us, the former is
competent to hear all cases except for those involving issues pertaining to
human and peoples’ rights, which is expressly reserved for the latter. In
accordance with Article () cases brought before the Human Rights
Section must indicate the human rights alleged to have been violated and
the treaty provisions on which they are based. Each Section is entitled to
refer any case it has received to the Full Court for consideration, i.e., a
joint sitting of the two Sections. Article  does not provide any guidance
as to when a referral may be considered appropriate. However, it is submit-
ted that this should happen whenever a particularly complex point of
law is at issue, or a particularly salient issue is at stake, for example, the
) On the respective Sections, see G.J. Naldi, ‘Aspects of the African Court of Justice and
Human Rights’, in D. French, M. Saul, & N.D. White (eds), International Law and
Dispute Settlement (Hart Publishing, Oxford, ) pp. -; and G.J. Naldi, ‘e Role
of the Human Rights Section of the African Court of Justice and Human and Rights’, in
A. Abass (ed), Protecting Human Security in Africa (Oxford University Press, Oxford, )
pp. -. As will be discussed later, a third Section, an International Criminal Law
Section, is now contemplated, see Draft Protocol on Amendments to the Protocol on
the Statute of the African Court of Justice and Human Rights (Exp/Min/IV/Rev. ) (Draft
Protocol or Draft Statute as necessary).
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interpretation of the Constitutive Act, or issues of high politics have arisen,
such as the imposition of punitive measures against a recalcitrant Member
State pursuant to Articles  and  of the Constitutive Act, or cases dis-
playing “exceptional circumstances” are at stake. It is important to note
that the Statute does not confer a right to appeal a Sections refusal to refer
a case to the Full Court. In fact, the AU Court does not have an appellate
jurisdiction. Either Section may constitute chambers.
According to the Protocol’s Preamble, the Human Rights Section shall
secure the objectives of the Banjul Charter, and shall supplement and
strengthen the mission of the African Commission as well as of the African
Committee of Experts on the Rights and Welfare of the Child (Committee
of Experts). While this could simply be considered a statement of the
intent to boost the existing protective system, it could also be seen as a
reference to the fact that these two bodies have an enhanced role to play
since, as is later explained, they have direct access to the Human Rights
Section. Indeed, Article () of the Statute refers to the complementarity
that the AU Court maintains with the African Commission and the
Committee of Experts. Nonetheless, one of the eects of merging the
two judicial organs is that their distinctive identities are diminished
) Cf. by analogy Ekollo Moundi Alexandre v. Republic of Cameroon and Federal Republic
of Nigeria,  September , African Court on Human and Peoples’ Rights, Dissenting
Opinion of Judge Ouguergouz, paras. -, who contended that the principle of legal
certainty requires that clear reasoned objective criteria should guide referrals, <www
.african-court.org/en/index.php/judgments/other-decisions>,  January . Under the
European human rights system, a referral to the Grand Chamber may be made where a case
raises serious questions aecting the interpretation or application of the ECHR and its
Protocols, or where an important issue of general application has come up, or to ensure the
unity and consistency of the law, see Article () ECHR and Rule () of the Rules of
Procedure of the European Court of Human Rights, as amended in July  (hereinafter
European Court Rules). In EU Law, the ECJ sits as a full Court when the case is “excep-
tionally important”, P. Craig and G. de Búrca, EU Law: Text, Cases and Materials th ed.
(Oxford University Press, Oxford, ), p. .
) However, under Article  () of the Draft Protocol the Court would have “original and
appellate jurisdiction”.
) Article () of the Statute. e details are to be determined by the Rules.
) e Committee was set up under Article  of the African Charter on the Rights and
Welfare of the Child, adopted  July , entered into force  November , repro-
duced in () : International Legal Materials p. . Its mandate is set out in Article
 thereof. See further Magliveras and Naldi, supra note , paras. -.
) Rule  of the African Commission.
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because both Sections share common features. is observation seems
truer of the Human Rights Court. Viewed overall, it would appear that the
Statute has drawn inspiration from, and has more in common with, the
Statute of the ICJ than with other multilateral judicial systems.
Pursuant to Article  of the Statute, the AU Court shall hold ordinary
and extraordinary sessions. e number and the duration of the former
shall be decided by the AU Court on an annual basis, while the latter
shall be convened whenever the President sees t or at the request of the
majority of judges. Given that the AU Court, unless it functions as ple-
nary, meets eectively as two dierent and separate entities (the General
Aairs Section and the Human Rights Section) it is somewhat peculiar
that the question of sessions has not been regulated at the level of Sections.
And this because it is not unreasonable to believe that one Section might
have a considerably greater workload than the other. Equally, in most cases
the convening of extraordinary sessions will concern one or the other
Section rather than the Full Court. Even though these submissions might
appear to be of secondary importance, arguably they are revealing of the
multifaceted aws that characterize the Statute. Naturally, it could be sug-
gested that such defects will be corrected in the Rules, which, pursuant to
Article  of the Statute, the AU Court itself (i.e. without the involvement
of another AU organ) is bound to adopt.
4. e Competence of the Court
4.1. Contentious Jurisdiction
4.1.1. e Question of Locus Standi
e fundamental question of locus standi is governed by Articles  and 
of the Statute. ese provisions, setting out the expansive scope of the AU
Court’s jurisdiction, create a system whereby the entities that are eligible to
submit cases are laid down according to whether the subject matter of the
action is (a) any issue or dispute stipulated in Article , the provision lay-
ing down the AU Court’s general jurisdiction or (b) a violation of the
Banjul Charter, of the Charter on the Rights of the Child, of the Protocol
) e Human Rights Court holds four ordinary sessions per year, Rule () of the
[Human Rights] Court, adopted in , <www.african-court.org/en/index.php/
documents-legal-instruments/basic-documents>,  January .
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on the Rights of Women in Africa, or of any other legal instrument per-
taining to human rights. us, it could be assumed that Article  corre-
sponds to locus standi before the General Aairs Section and Article  to
locus standi before the Human Rights Section. However, the very wording
of these provisions would suggest that this interpretation might not be cor-
rect and that the Article  entities have a general locus standi, while the
eligibility of the Article  entities solely concerns alleged violation of
human and peoples’ rights.
In particular, the applicants entitled under Article () to submit cases
fall into three categories: (a) the contracting parties to the  Protocol;
(b) the Assembly, the Pan-African Parliament (PAP) and other AU organs
provided that the Assembly has authorized them (e.g. the Executive
Council, the Commission, and the Peace and Security Council); and
(c) AU employees, who in accordance with Regulation  of the AU Sta
Regulations and Rules, have appealed against a decision rendered in the
context of a labour dispute with the Organization. e rst category
could be described as “privileged applicants”: they can approach the AU
Court on any dispute falling within the ambit of its general jurisdiction,
which, theoretically speaking, could also include human rights violations.
e African Commission and the Committee of Experts, which are not
AU organs, are specically excluded; their standing is based solely on
Article  of the Statute.
) Protocol to the African Charter on Human and Peoples’ Rights on the Rights
of Women, adopted  July , entered into force  November , <www.au.int>,
 January .
) According to Article () of the Protocol to the Treaty Establishing the African Economic
Community Relating to the Pan-African Parliament, adopted in March , entered into
force  December , PAP represents the peoples of Africa <www.au.int>,  January
; cf. Article () of the Constitutive Act mandating PAP with ensuring the full partici-
pation of the population in Africa’s development and economic integration. PAP’s powers
are for now consultative and advisory rather than law making although in time it is expected
to evolve full legislative powers, see Articles () and  of the Protocol. For analysis, see
K.D. Magliveras and G.J. Naldi, ‘e Pan-African Parliament of the African Union: An
Overview’ () : African Human Rights Law Journal pp. -; Magliveras and Naldi,
supra note , paras. -.
) See Article  of the Constitutive Act. e AU has considered conferring upon the African
Commission the status of a proper AU organ, see Decision on the Report of Activities of
the African Commission on Human and Peoples’ Rights (Assembly/AU/Dec. (XI)) para. .
However, as mentioned supra note , Rule  of the African Commission describes it as
“an autonomous treaty body working within the framework of the African Union”.
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ere is a signicant omission in the General Aairs Sections jurisdic-
tion. One of the AU’s objectives is the promotion of economic develop-
ment and the Treaty Establishing the African Economic Community
(AEC) is a principal means in achieving that goal. e Treaty seeks, inter
alia, to establish a common market taking in the free movement of
persons, goods, services and capital and the right of residence and estab-
lishment, and its similarities with European Community Law (EC) has
given rise to anticipation that the law might develop along similar lines.
Even if that assessment should turn out to be inaccurate the likelihood
remains that disputes concerning Treaty rights and obligations will arise
suitable for resolution by the General Aairs Section. Such a state of aairs
would therefore require standing for natural and legal persons but no
provision is made for these potential applicants. Is this omission by acci-
dent or design? It cannot be because the AEC Treaty envisages the estab-
lishment of a Court of Justice. Given that the role allocated to this court
devolved on the ACJ in turn it should have been assumed by the AU
Court. If it is due to a fear of the ‘oodgates’ scenario such a prospect
could be minimized by the simple expedient of adopting the doctrine of
‘direct and individual concern’ from EC Law. But having to rely on the
traditional principle of diplomatic protection is simply wholly inadequate
for this sort of situation. Unfortunately, the impression is given of a lack of
‘joined-up’ thinking.
A couple of further observations need to be made about this provision.
First, while Article  of the Statute states that, “e Court shall have
jurisdiction over … all legal disputes submitted to it”, Article ()
See further M. Hansungule, “African Courts and the African Commission on Human and
Peoples’ Rights” in A. Boesl and J. Diescho (eds), Human Rights in Africa – Legal Perspectives
on their Protection and Promotion (Windhoek, Konrad Adenaeur Stiftung, ), p. ,
pp. -.
) Treaty Establishing the African Economic Community, adopted on  June , entered
into force on  May , () : International Legal Materials p. .
) See G. Naldi and K. Magliveras, ‘e African Economic Community: Emancipation for
African States or Yet Another Glorious Failure?’ () : North Carolina Journal of
International Law and Commercial Regulation pp. -.
) Article ()(b) of the  Protocol.
) Article () of the Consolidated Version of the Treaty on the Functioning of the
European Union (TFEU) [] OJ C , .., p. . See D. Chalmers, G. Davies and
G. Monti, European Union Law: Cases & Materials nd ed. (Cambridge, Cambridge
University Press, ), pp. -.
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proceeds to say that entities can submit cases “on any issue or dispute pro-
vided for in Article ” (emphasis added). e noun “dispute” has a tech-
nical meaning in international law, and it is beyond question that the
mention in Article  inevitably refers to “legal disputes”. However, it is
not altogether clear whether the dierent form of words used in Article
() is intended to make a substantive dierence by allowing the “privi-
leged applicants” the capacity to submit to the AU Court questions of law
other than disputes and without invoking the AU Court’s advisory juris-
diction if available, or whether it is a simple ‘slip of the pen’, especially in
view of the fact that its advisory jurisdiction is limited to legal questions.
e ICJ has categorically expressed the view that a dispute is a prerequisite
for exercising its judicial function and it will not entertain cases where a
dispute is no longer extant. Of course the AU Court might take a proac-
tive stance and be prepared to hear cases that do not amount to disputes in
the legal sense of the term. Secondly, PAP has, unlike other AU organs
which must rst obtain the Assembly’s permission to submit a case, been
singled out for preferential treatment and is considered a privileged appli-
cant. is may be due to its status as representative of African peoples.
irdly, the Peace and Security Council’s omission as a privileged appli-
cant is mystifying given its critical role in peace and security matters.
) A dispute has been dened as “a disagreement on a point of law or fact, a conict of
legal views or of interests”, Mavrommatis Palestine Concessions Case (Greece v. Great Britain),
 August , Permanent Court of International Justice, Series A No. , p. .
) A.P. Fachiri, e Permanent Court of International Justice (reprint of the nd ed. ,
Scientia Verlag, Aalen, ), p. ; M.O. Hudson, e Permanent Court of International
Justice - (MacMillan, New York, ), pp. -.
) is possibility is given credence by Article () of the Draft Protocol which endows the
AU Court with jurisdiction to hear “such other matters or appeals” referred to it.
) Article () of the Statute. It is interesting to note that under Article  of the League
of Nations Covenant the Permanent Court of International Justice was authorized to
give advisory opinions on “any dispute or question referred to it” (emphasis added). e
latter has been interpreted as referring to abstract points of law, Fachiri, supra note ,
p. .
) Nuclear Tests Cases (Australia v. France),  December , International Court of
Justice, I.C.J. Reports , p. , pp. -.
) Ibid., p. .
) See Protocol relating to the Establishment of the Peace and Security Council of the
African Union, adopted  July , entered into force  December , <www.au.int>,
 January . Although this omission (oversight?) purports to be rectied by Article 
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As regards the entities entitled to submit cases to the AU Court alleging
human rights violations, the following categories possess standing accord-
ing to Article  of the Statute: (a) the contracting parties to the Protocol;
(b) the African Commission; (c) the Committee of Experts; (d) African
Intergovernmental Organizations; (e) African national human rights insti-
tutions; and (f) individuals and NGOs accredited to the AU or to its
organs.
Regarding the rst category, the principal rule, which is common to
both Article  and Article , is that access to the AU Court is automatic
upon ratication of or accession to the Protocol and is not dependent on
further declarations by contracting states. us, it is unsurprising that
the AU Court does not have jurisdiction over disputes involving AU
Member States that have not ratied the Protocol. It is also clear that the
Statute’s drafters took the conscious decision not to extend locus standi to
non-AU Member States even if a dispute should arise concerning the AU
itself or its Member States. Article () of the Statute says as much. Such
disputes would have to be resolved by some other method or body. e
fact that the AU Court has power over only those Member States that have
expressly consented to its jurisdiction should be emphasized. Since its
jurisdiction is not compulsory over the membership merely by virtue of
participation in the AU, States must take the deliberate step of signing up
to the Protocol. is is a situation that contrasts with the United Nations
and the European Union. Considering that when the  Protocol
enters into force the AU Court will have jurisdiction over a limited
of the Draft Statute. See generally Magliveras and Naldi, supra note , paras. -,
-.
) Cf. Article () ACHR and Articles - ECHR. Article () of the  Protocol is
considerably more complex.
) But see Article () of the Protocol and Article (f) of the Statute. Cf. Article  ACHR.
) Article () of the Statute. Article (f ) of the Statute rules out the possibility of a non-
party submitting a case to the AU Court by special agreement. Cf. Article () ICJ Statute.
Cf. Alexandre v. Cameroon and Nigeria, supra note , where the case was dismissed on the
ground, inter alia, that Cameroon had not ratied the  Protocol.
) While all UN Member States are ipso facto parties to the ICJ Statute, under Article ()
of the UN Charter, acceptance of its compulsory jurisdiction is dependent on a declaration
to that eect pursuant to Article () of the ICJ Statute.
) e compulsory jurisdiction of the ECJ is an integral aspect of membership in the
European Union.
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number of Member States (namely, the rst  Members that have chosen
to ratify it), it is submitted that, as the “main judicial organ” of the AU, it
ought to have been conferred automatic jurisdiction over the whole
membership.
It is further submitted that it would have better served the purpose of
establishing a pan-African judicial body if Member States could only extri-
cate themselves from the AU Court’s jurisdiction by terminating their AU
membership. is submission is based on the assumption that a Member
State’s government would think twice before withdrawing and risk facing
hostile public opinion and negative criticism, both at home and abroad. At
the very least it would have been an advance if all Member States were
obligated to accept initially the AU Court’s compulsory jurisdiction and,
thereafter, be free to contract, or opt, out. Finally, it should be noted that
there is one instance where the AU Court’s decisions are binding regardless
of whether a Member has accepted the Protocol or not: according to
Article () of the Statute, decisions on the Constitutive Act’s interpreta-
tion and application are obligatory for all Members.
It is evident from the Statute that inter-State cases are envisaged. is
conclusion is based, on the one hand, on the language of Article (c),
subparagraph (a), which specically cites contracting parties, and, on the
other hand, on the procedure for complaints laid down in the Banjul
Charter. In particular, under Articles - of the Banjul Charter, the
African Commission is empowered to entertain inter-State complaints
alleging breach of Charter obligations. ere is no requirement for the
complainant country to prove any special interest in the case it has brought
against a fellow party to the Banjul Charter. As is also the case with the
other regional human rights systems, all contracting parties are deemed to
) See Yogogombaye v. Senegal, supra note , Separate Opinion of Judge Ouguergouz,
para. , regarding Article () of the  Protocol.
) See further, Magliveras and Naldi, supra note , paras. -. In Interights (on behalf of
Pan African Movement and Citizens for Peace in Eritrea) and Interights (on behalf of Pan
African Movement and Inter Africa Group) v. Eritrea, African Commission on Human and
Peoples’ Rights, Communication Nos. / and /,  th Activity Report –,
para. , the African Commission stated that the “initiation of an inter-state complaint is
dependent on the voluntary exercise of the sovereign will of a State Party to the [Banjul]
Charter, which decision can only be made by States in accordance with the Charter.” To
date only one such complaint has been submitted, Democratic Republic of Congo v. Burundi,
Rwanda and Uganda, African Commission on Human and Peoples’ Rights, Communication
No. /, th Activity Report , para. .
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have a collective interest in upholding the Banjul Charter. It is for this
reason that they are deemed to have a general right to move against any
other party that allegedly has breached its provisions. Even though this
manoeuvre might be open to political manipulation, the fact that so far
very few inter-State cases have been instituted (this is also true on the
international plane) shows that States are very reluctant to invoke this
opportunity and hold other countries to account.
Whether States can appeal adverse opinions issued by the African
Commission and by the Committee of Experts before the AU Court is by
no means certain but the language of the Statute suggests that it is so.
Even if it were decided that it could act as an ‘appeals body’, this is a rather
intricate issue considering that only those Member States that have ratied
the  Protocol are entitled to bring cases before the AU Court. It fol-
lows that these Members that are contracting parties to the Banjul Charter
but have not ratied the  Protocol are unable to avail themselves of
this process. is state of aairs would eectively create two categories of
Member States. e rst will comprise those that are contracting parties to
the Banjul Charter and/or to the African Charter on the Rights of the
Child and have additionally ratied the  Protocol: they will be able to
seek the reversal of adverse opinions by the African Commission and the
Committee of Experts. e second will comprise those that are contract-
ing parties to the Banjul Charter/Charter on the Rights of the Child but
which, for one reason or another, have not ratied/acceded to the 
Protocol: they will not enjoy this benet. Awkward as this situation might
be, it is another consequence of the way the AU Court has been devised.
Leaving these considerations aside, if the AU Court were to rule that it
could function as an ‘appeals body’ this would arguably have repercussions
for, inter alia, the wider AU institutional structure. e African Commission
is not a judicial entity and, legally speaking, does not form part of the AU
array of organs, while the AU Court has not been conceived with an
explicit appeals function. On the other hand, the African Commission
might be prepared to be especially bold if it knew that its decisions could
be reviewed by the AU Court. us, it is not inconceivable that a dialogue
might evolve between the African Commission and the AU Court, which
will of course be to the benet of promoting human rights and developing
) Harrington, supra note , pp. -.
) See supra note  and corresponding text.
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international law in general in the Continent. Arguably, this interaction
between the AU Court and the African Commission could be looked into
when drafting new Rules of Procedure for these organs.
Special attention ought to be placed on the fact that an impressively
large number of entities have been endowed with the right to submit cases
to the AU Court. e Statute’s drafters, in a rare glimmer of originality,
have included African intergovernmental organizations and national
human rights institutions as applicants. In this respect it is interesting to
note that the Court of Justice of the Economic Community of West
African States (ECOWAS) has stated that it has been assigned responsibil-
ity for protecting human rights, including those enshrined in the Banjul
Charter. National human rights institutions could play a signicant role
if suciently independent. It is encouraging that, in principle, the locus
standi of duly accredited individuals and NGOs before the Court has been
recognized, although the point has been made that the requirement of
) Hadijatou Mani Koraou v. Republic of Niger,  October , ECOWAS Community
Court of Justice, Judgment No. ECW/CCJ/JUD//, paras. -, <www.unhcr.org/
refworld/docid/bfa.html>,  January , discussed by H. Duy in : Human
Rights Law Review () -.
) Traditionally individuals have not had standing before a court in international human
rights law, see e.g., Article () ACHR. In , the ECHR became the rst regional instru-
ment to accept the standing of individuals when Protocol No.  entered into force, see
Article  ECHR. It must be pointed out that Article (f) of the Draft Statute enters a
disturbing limitation, namely, that standing is granted to African individuals and African
NGOs. e latter condition can be met relatively easily through the simple expedient of
setting up African branches of or by liaising with African NGOs, although it must be
acknowledged that many NGOs face arbitrary diculties in registering and are subject to
restrictions, while their activists are subjected to harassment, intimidation and extrajudicial
killings, see UN Commission on Human Rights, Report of the Special Rapporteur on Human
Rights Defenders (E/CN.//), pp. -. However, the former condition raises a dif-
culty of a completely dierent order. e principal problem is that it bars access to the
Human Rights Section to victims who are not African. is is contrary to one of the most
fundamental principles of human rights law, that protection is not contingent on national-
ity; every individual, national and non-national, subject to the jurisdiction of a State Party
to a human rights instrument is guaranteed the rights and freedoms enshrined therein, see
Article () ACHR, Article  ECHR, and Article () of the International Covenant on
Civil and Political Rights, adopted  December , entered into force  March ,
 UNTS . See further J.M. Pasqualucci, e Practice and Procedure of the Inter-American
Court of Human Rights (Cambridge University Press, Cambridge, ), pp. -;
J.G. Merrills and A.H. Robertson, Human Rights in Europe th ed. (Manchester University
Press, Manchester, ), pp. -; A. Conte and R. Burchill, Dening Civil and Political
Rights: e Jurisprudence of the United Nations Human Rights Committee nd ed. (Ashgate,
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accreditation may have a restrictive eect. In July , the Executive
Council updated the criteria for accreditation which apply to NGOs
only. Based on the practice of the African Commission, NGOs such as
Amnesty International and International Pen may be accredited. But it
remains to be seen whether standing is aorded to associations and legal
persons as is the case under the European system.
However, it is important to note that the locus standi of NGOs and
individuals is subject to the condition set out in Article () of the 
Protocol, the substantive section of which states that, “[a]ny Member
State may…make a declaration accepting the competence of the Court
to receive cases under Article (f) [of the Statute] involving a State which
has not made such a declaration” (emphasis added). It is a matter of
regret, given the import of standing for individuals and NGOs, that this
Farnham, ), pp. -. e African Commission has interpreted Article  of the Banjul
Charter in like manner, Rencontre Africaine pour la Defense des Droits de l’Homme v. Zambia,
Communication No. /, th Activity Report -, para. ; African Institute
for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea)
v. Republic of Guinea, Communication No. /, th Activity Report -,
para. . Such selective justice is incompatible with the principle of non-discrimination
enshrined in Article  of the Banjul Charter; in the case of inconsistency between a treaty
and a protocol supplementary to it the main treaty prevails, Femi Falana v. African Union,
 June , African Court on Human and Peoples’ Rights, Joint Dissenting Opinion of
Vice-PresidentAkuo, Judges Ngoepe and ompson, paras. -, <www.african-court.
org/en/index.php/judgments/other-decisions>,  January . Such a deplorable develop-
ment deserves condemnation.
) S. Sceats, ‘Africas New Human Rights Court: Whistling in the Wind?’, Chatham
House Brieng Paper IL BP /,  March , <www.chathamhouse.org.uk/research/
international_law/papers>,  January . In Association Juriste d’Afrique pour la Bonne
Gouvernance v. Ivory Coast,  June , African Court on Human and Peoples’ Rights, the
case was dismissed as the applicant NGO did not have observer status with the African
Commission as required by Article () of the  Protocol, <www.african-court.org/en/
index.php/judgments/other-decisions>,  January . Notwithstanding a similar provi-
sion in Article  ACHR, the IACHR was able to nd a loophole holding that it was
irrelevant that the NGO in question was unrecognized by the State since the ACHR
allowed a right of petition to “persons or groups of persons”, Castillo Petruzzi et al. v. Peru,
 September , Inter-American Court of Human Rights, Preliminary Objections, Series
C No. , para. .
) Executive Council, Criteria for Granting Observer Status and for a System of Accreditation
within the AU (EX.CL/Dec. (VII)).
) See D.J. Harris, M. O’Boyle & C. Warbrick, Law of the European Convention on Human
Rights nd ed. (Oxford University Press, Oxford, ), pp. -.
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provision has been drafted in such tortuous language. If the intention is
to make the AU Court’s jurisdiction to receive petitions from these com-
plainants contingent upon States making a separate optional declaration,
then why not simply repeat verbatim Article () of the  Protocol?
It makes it clear that the Human Rights Court “shall not receive any
petition … involving a State Party which has not made such a declaration.”
If, as is apparently the case, a separate declaration is required, then the
situation is highly unfortunate since it is unlikely that States with a record
of serious human rights abuses will accept the AU Court’s jurisdiction in
this respect.
It is ironic that whereas the Statute could be said to provide for what
may amount to public interest litigation, at the same time complaints
from certain applicants can only be instituted in extremely restrictive
circumstances. Applicants nding their way to the AU Court blocked
by a contracting party’s refusal to accept this head of jurisdiction will need
to rely on the African Commission, national human rights institutions,
other African intergovernmental institutions and possibly third States will-
ing to champion their complaints before the AU Court. However, another
avenue may emerge for an applicant found not to have standing, forum
prorogatum.
Under the Statute a complainant is not required to be the victim of
the alleged violation. It is commendable that the African system has
not followed the more restrictive European system but has opted for
the Inter-American approach which is based on a laissez passez understand-
ing and allows (almost) anyone to le a human rights petition. In the
) Sadly the French version does not help to clarify matters, “Tout Etat partie…peut faire
une déclaration acceptant la compétence de la Cour pour recevoir les requêtes énoncées à
l’article  (f) et concernant un Etat partie qui n’a pas fait cette déclaration”. Happily,
Article () of the Draft Protocol is a model of simplicity.
) is is the interpretation of Article () given by Interights, <www.interights.org/
africansingleprotocoladopted/index.html>,  January . See also Sceats, supra note ,
pp. -.
) According to Interights, this limitation “renders access to justice illusory for human
rights victims”, ibid.
) Yogogombaye v. Senegal, supra note , Separate Opinion of Judge Ouguergouz, paras.
-.
) Article  ECHR. See further Merrills and Robertson, supra note , pp. -.
) Article  ACHR.
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Inter-American system the justication for such extensive standing is to
befound in “poverty, lack of education and lack of legal assistance”, in
addition to the possible intimidation of lawyers, which “might otherwise
hinder access to the enforcement organs of the regional system.
Undoubtedly,thisjusti cation applies equally in the African context. In
its interpretation of admissibility requirements under the Banjul Charter,
the African Commis sion has held that applications in the form of an actio
popularis are allowed. Having said that, it should not escape one’s atten-
tion that the Statute is silent on the issue of hurdles of admissibility. It may
be that detailed conditions governing admissibility will be laid down in the
Rules of the Court.
4.1.2. Heads of Jurisdiction
Article  of the Statute setting out the AU Court’s contentious jurisdic-
tion does not address the separate Sections but their discrete competences
should be kept in mind. It reects Article () of the ICJ Statute
although the former is considerably broader in scope, but has a specically
African outlook. States automatically accept the AU Court’s jurisdiction
upon ratication and in that sense its jurisdiction may be said to rest on
their consent. But in addition jurisdiction is founded on compromis or
subsequent treaties. Given that the heads of jurisdiction as set out in the
ICJ Statute have been studied in depth, further discussion seems unneces-
sary; only those that dier from the ICJ Statute will be considered.
) Pasqualucci, supra note , pp. -.
) F. Viljoen, ‘Admissibility under the African Charter’, in Evans & Murray, supra note ,
pp. -, p. .
) Article  v. Eritrea, African Commission on Human and Peoples’ Rights, Communication
No. /, nd Activity Report –, annex II, para. ; e Social and Economic
Rights Action Center and the Center for Economic and Social Rights v. Nigeria, African
Commission on Human and Peoples’ Rights, Communication No. /, th Activity
Report –, para. . In e Law Oce of Ghazi Suleiman v. Sudan, African
Commission on Human and Peoples’ Rights, Communication Nos. / and /,
th Activity Report -, para. , the African Commission expressed the opinion that
States’ obligations were of an erga omnes nature and, therefore, not dependent on
individuals.
) Cf. Rule  of the Human Rights Court.
) For an analysis of the categories of disputes contemplated see Hudson, supra note ,
pp. -.
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us, the AU Court shall be competent to hear all cases and legal
disputes submitted to it concerning:
(a) the interpretation and application of the Constitutive Act;
(b) the interpretation, application or validity of other AU treaties and all
subsidiary legal instruments adopted by the AU or the OAU;
(c) the interpretation and application of the Banjul Charter and the
Protocol on the Rights of Women in Africa, the African Charter on
the Rights and Welfare of the Child, and any other legal instrument
relating to human rights that a State Party has ratied;
(d) any question of international law;
(e) all acts, decisions, regulations and directives that have been adopted
by AU organs;
(f) all matters specically provided for in other agreements that the con-
tracting parties to the Statute may conclude among themselves or with
the AU and which confer jurisdiction on the Court;
(g) the existence of any fact which, if established, would constitute a
breach of an obligation owed to a State Party or to the AU; and
(h) the nature or extent of the reparation to be made for the breach of an
obligation.
e all-embracing nature of this provision must be noted. Whether the
drafters of the  Protocol intended to establish an alternative regional
forum to the ICJ for African States is unclear but a good argument can be
made for the thesis that the primary responsibility for determining ques-
tions of international law should lie with the ICJ which, as “the principal
judicial organ of the United Nations”, is uniquely placed to examine such
) It should be observed that under Article () of the Draft Protocol the AU Court will
be endowed with jurisdiction to hear cases referred to it “in any other agreements that the
Member States or the Regional Economic Communities or other international organiza-
tions recognized by the African Union may conclude among themselves, or with the
Union.” Apart from the potentially heavy workload that the AU Court may have to bear, a
potential stumbling block that has not been addressed is that neither the Statute nor the
Draft Statute bestows standing on the Regional Economic Communities (e.g. ECOWAS,
SADC, COMESA, etc.) or other international organizations (the UN?). Or are the former
entities the ‘African Intergovernmental Organizations’ mentioned in Article (d) of the
Statute? In which case, why the dierent nomenclature? If dierent entities are envisaged,
then how can compromissory clauses be pencilled into treaties referring disputes to a court
that does not recognize one of the parties?
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issues. Of course, the counter argument is that the drafters merely
intended to ensure that the AU Court has the specic authorization to
consider a wide range of international law issues. In the absence of such a
provision, the AU Court, as any other institutionalized judicial body,
would nevertheless have had the inherent right to consider international
law issues as they arose. In fact, it should be noted that the ICJ is not men-
tioned at all in the Statute, which does not contain a savings clause.
erefore, the important question of the relationship between these two
bodies is not addressed. Does it follow that State Parties to the Statute are
precluded from submitting a dispute, concerning the Constitutive Act
perhaps, to any method of settlement outside the Statute? In the absence
of a clause conferring exclusive jurisdiction upon the AU Court this can-
not be said to be the case.
e African nature of the Protocol is evidenced by the explicit references
to AU/OAU treaties. e inclusion of the Constitutive Act confers upon
the AU Court the express power to analyze it, and this power extends
not only to other AU treaties but by necessary implication and contextu-
ally also to those adopted by the OAU. e use of the noun ‘validity’ with
reference to “other AU treaties and all subsidiary legal instruments”
adopted by the AU/OAU is very signicant because it bestows upon
the AU Court the power of judicial review over these instruments, and
only these instruments, and consequently the authority to nullify them
where appropriate. e Constitutive Act, as the ‘constitution’ of the AU,
is naturally beyond the AU Court’s power of review, as are the human
rights treaties. It would thus appear that the Statute creates a normative
hierarchy.
) In recent years fears have been expressed that the proliferation of international
judicial bodies could lead to the fragmentation of international law, see, e.g., G. Guillaume,
‘e Future of International Judicial Institutions’ () : International and Comparative
Law Quarterly pp. -; C.P.R. Romano, ‘e Proliferation of International Judicial
Bodies: e Pieces of the Puzzle’ (-) : New York Journal of International Law and
Policy pp. -.
) Cf. Article  of the Consolidated Version of the Treaty on the Functioning of the
European Union, supra note . And see Case C-/ Commission v. Ireland,  May
, European Court of Justice, [] ECR I- (concerning the disputes settlement
system of the UN Convention on the Law of the Sea, adopted on  December ,
entered into force  November ,  UNTS , and the EU Members’ undertaking
not to submit disputes relating to the EU Treaty’s interpretation or application to methods
of settlement other than those provided for by said Treaty). But in the proceedings
Germany instituted against Italy before the ICJ on  December , Jurisdictional
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e question arises as to the precise meaning of the term “subsidiary
legal instruments”. It cannot refer to the decisions taken by AU organs as
these are the express subject of another category. It may be intended to
refer to the various protocols since these are supplementary to the princi-
pal treaties.
e inclusion of the provision “any other legal instrument relating to
human rights” that a State Party has ratied within the AU Court’s reach
is especially worthy of note. Its expansive character sets it apart from
its American and European counterparts which have a more limited
competence. It is sweeping in its scope. Potentially, the AU Court has
been granted jurisdiction to pronounce on the following two categories of
multilateral instruments. First, on relevant UN instruments such as the
International Covenants on Human Rights , the Convention on the
Elimination of Discrimination Against Women , and the Convention
on the Rights of the Child . Second, on the constituent treaties of
those African sub-regional institutions organizations with human rights
commitments, namely, ECOWAS, the Common Market for Eastern
Immunities of the State (Germany v. Italy: Greece intervening), Judgment of  February
, claiming that Italy has failed to respect its jurisdictional immunity as a sovereign
State, Germany asserted that, although the case was between two EU Member States, the
ECJ has no jurisdiction to entertain it because the dispute was not about EC Law, ICJ,
Press Release /,  December .
) J.P. Grant and J.C. Barker, Parry & Grant Encyclopaedic Dictionary of International Law
rd ed. (Oxford University Press, New York, ), p. .
) Cf. Article () ECHR. Under Article () ACHR and Article  of its Rules, the
IACHR can give advisory or interpretative rulings on “other treaties concerning the protec-
tion of human rights in the American states”. However, the IACHR itself has interpreted
this mandate liberally, see e.g., ‘Other Treaties’ Subject to the Consultative Jurisdiction of the
Court (Art.  of the American Convention on Human Rights),  September , Inter-
American Court of Human Rights, Advisory Opinion, Series A No. .
) Note that Article (), the corresponding provision in the  Protocol, uses very simi-
lar language; it has been described as bestowing upon the Court an “almost unlimited
substantive jurisdiction”, Harrington, supra note , at . And see the Order of the Human
Rights Court, In the Matter of the African Commission on Human and Peoples’ Rights v.
Libyan Arab Jamahiriya,  March , African Court of Human and Peoples
Rights, Provisional Measures, <www.african-court.org/en/index.php/judgments/orders>,
 January .
) See Article (g) of the Revised ECOWAS Treaty , () : International
Legal Materials p. . us, in Hadijatou Mani Koraou v. Niger, supra note , ibid., the
ECOWAS Community Court of Justice was able to rely on Article  of the Revised
ECOWAS Treaty to state that it was charged with protecting human rights.
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412 International Organizations Law Review 9 (2012) 383–449
and Southern Africa (COMESA), and the Southern African Development
Community (SADC). Motivated it would seem by the desire to enhance
the protection of human rights in Africa, a laudable aim in itself, and to
avoid a descent into cultural relativism, the following possibilities arise.
e rst is to have inconsistent interpretations of human rights law, even
though Article  of the Statute expressly stipulates that judges should have
expertise in human rights issues. e second is that applicants might
engage in forum shopping, in other words that they might choose among
the dierent judicial organs of regional organizations the one that they
consider might be more favourable towards their case.
A further consideration concerns whether States will be permitted to
enter reservations to Article . Attention has already been drawn to the
fact that the  Protocol and Statute are silent on this issue. It may
therefore be anticipated that States may ratify the Protocol with conditions
relating to time, subject matter or certain actors, among others.
4.1.3. Incidental Jurisdiction
4.1.3.1. Preliminary Objections
Objections to a court’s jurisdiction is a common feature of international
litigation, extending to advisory cases, and the possibility of a challenge
) Article (e) of the COMESA Treaty .
) Article (c) of the amended SADC Treaty . In Mike Campbell (Pvt) Ltd. et al. v. e
Republic of Zimbabwe, SADC (T) Case No. /, <www.saii.org/sa/cases/
SADCT//.pdf>,  January , the SADC Tribunal held similarly that Article (c)
of the SADC Treaty conferred upon it the competence to rule on human rights issues. See
G.J. Naldi, ‘Mike Campbell (Pvt) Ltd et al v e Republic of Zimbabwe: Zimbabwe’s Land
Reform Programme Held in Breach of the SADC Treaty’ () : Journal of African Law
pp. -. Regarding the Inter-American system, see ‘Other Treaties’ Subject to the
Consultative Jurisdiction of the Court, supra note ; and Right to Information on Consular
Assistance Within the Framework of the Guarantees of Legal Due Process,  October ,
Inter-American Court of Human Rights, Advisory Opinion, Series A No. .
) V.O. Nmehielle, e African Human System: Its Laws, Practice and Institutions (Martinus
Nijho, e Hague, ), p. .
) G.W. Mugwanya, Human Rights in Africa: Enhancing Human Rights rough the African
Regional Human Rights System (Transnational Publishers, Ardsley, N.Y., ), p. .
) us, the Mike Campbell Case, supra note , could, theoretically speaking, have been
brought before the judicial organ of COMESA.
) For example, Spain in Western Sahara,  October , International Court of Justice,
Advisory Opinion, I.C.J. Reports , p. ; Israel in Legal Consequences of the Construction
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to the AU Court’s jurisdiction therefore cannot (and should not) be
ruled out. e Human Rights Court makes provision for preliminary
objections in its Rules. It therefore seems curious that the crucial ques-
tion as to the AU Court’s competence to determine its own jurisdiction,
Kompetenz-Kompetenz, should it happen to be disputed, is not explicitly
addressed. Such a power is exercised by other comparable tribunals but a
provision to this eect was dropped from the nal version of the Statute.
Since this authority corresponds to a fundamental principle of interna-
tional law, namely, “the inherent power of a tribunal to interpret the
text establishing its jurisdiction”, it seems likely that the AU Court will
assert this implied capacity where necessary. And it is imperative that
the AU Court does so since provision needs to be made for certain eventu-
alities, for example, the admissibility of objections or joining the objec-
tions to the merits.
4.1.3.2. Provisional Measures
Under Article () of the Statute, the AU Court can, proprio motu, or at
the request of a party to the case, indicate such provisional measures to
preserve the respective rights of the parties. is provision corresponds in
every material respect to Article () of the ICJ Statute and appears to
constitute a departure from the more stringent language of the 
of a Wall in the Occupied Palestinian Territory,  July , International Court of Justice,
Advisory Opinion, I.C.J. Reports , p. .
) Rule . Cf. Rule  of the ICJ Rules; Rule  IACHR Rules of Procedure (IACHR
Rules).
) See Article () of the ICJ Statute, Article () ECHR and Article () of the 
Protocol declaring that the matter shall be settled by the decision of the Court.
) Kane and Motala, supra note , at .
) See Norwegian Loans Case (France v. Norway),  July , International Court of
Justice, Separate Opinion of Judge Lauterpacht, I.C.J. Reports  p. , p. . On the
approach of the IACHR, see, inter alia, Constitutional Court v. Peru,  September ,
Inter-American Court of Human Rights, Competence, Series A No. , paras. -. See
also Prosecutor v Tadić,  October , International Criminal Tribunal for the former
Yugoslavia, Appeal on Jurisdiction, IT--, () : International Legal Materials p. .
) See Pasqualucci, supra note , pp. -; S. Rosenne, e World Court: What it is and
how it Works th ed. (Martinus Nijho, Dordrecht ), pp. -. e litigation before
the ICJ in the s over South West Africa/Namibia demonstrated the crucial role that
preliminary objections can play, Rosenne, ibid., pp. -.
) And additionally Articles - of the ICJ Rules of Procedure.
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Protocol. However, a number of questions remain to be answered. Can
a request for provisional measures be submitted to the AU Court at the
same time as the main proceedings are instituted? Will the AU Court
satisfy itself that it has jurisdiction, prima facie or otherwise, before
ordering provisional measures? Furthermore, what will the AU Court’s
approach be towards interim measures that have already been adopted by
another competent entity (e.g. the African Commission)? It might have
been preferable if these important issues had been regulated in the context
of the Statute rather than left to the Rules of Procedure.
However, the most signicant omission is the perennial question
whether provisional measures are (or should be) considered legally bind-
ing, an issue that the Statute’s drafters were undoubtedly aware of. e
language of the relevant provision of the Statute provides no clues on this
point, while the African Commission’s practice is inconclusive, refrain-
ing from a decisive answer. Arguably, the position has now been reached
where major and diverse international judicial and quasi-judicial bodies
) Article () of the  Protocol requires the existence of ‘extreme gravity and urgency’,
and the need ‘to avoid irreparable harm to persons’. See African Commission on Human and
Peoples’ Rights v. Libya supra note , which were indicated by the Human Rights Court
proprio motu.
) e Rules of the Human Rights Court do not shed any light on these questions
either.
) Cf. Article () of the ICJ Rules of Procedure. Rule  of the African Commission
species that a request for provisional measures can be made at any time after the receipt of
a communication but before a determination on the merits.
) In African Commission on Human and Peoples’ Rights v. Libya, supra note ,
paras. -, the Human Rights Court decided that, as long as prima facie jurisdiction
is apparent, it will entertain the request for interim measures. is position corresponds
to the ICJ’s established practice, see Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America),  May , International Court of
Justice, Provisional Measures, I.C.J. Reports , p. ; Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia
(Serbia and Montenegro),  April , International Court of Justice, Provisional Measures,
I.C.J. Reports , p. ; Case Concerning the Arrest Warrant of  April  (Democratic
Republic of Congo v. Belgium),  August , International Court of Justice, Provisional
Measures, I.C.J. Reports , p. .
) Although, as will later be mentioned, the Statute states that it is only ‘judgments’ that
have a legally binding eect, see Article ().
) See G.J. Naldi, ‘Interim Measures of Protection in the Practice of the African
Commission on Human and Peoples’ Rights’ () : African Human Rights Law Journal
pp. -.
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(e.g. the ICJ, the IACHR, the UN Human Rights Committee and
the European Court of Human Rights) have established that interim
measures have binding eect. e AU Court should follow this trend and
it could do worse than adopt the African Commission’s approach declaring
that a contracting party that has failed to abide by its indication of interim
measures is in breach of the principle of pacta sunt servanda enshrined in
Article  of the Banjul Charter.
4.1.3.3. Intervention
Article () of the Statute allows any Member State or AU organ, pro-
vided that it has a legal interest in a case and could be aected by the deci-
sion, to petition the AU Court to intervene. e decision whether to grant
the request rests with the AU Court; in eect, the views of the applicant or
the parties to the case cannot bind the AU Court. ere is no guidance
as to what the nature of the “legal interest” might mean and what degree
of interest would be required but the AU Court could choose to be guided
by the practice of other tribunals. For example, ICJ practice under Article
) LaGrand Case (Germany v. United States of America),  June , International Court
of Justice, I.C.J. Reports , p. , paras. -; Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro),  February , International Court of Justice, I.C.J. Reports , p. ,
paras. , . It is interesting to note, however, that provisional measures issued by the
UN Tribunal on the Law of the Sea  are binding pursuant to Article () of the UN
Convention on the Law of the Sea.
) Constitutional Court v. Peru,  August , Inter-American Court of Human Rights,
Provisional Measures, Series E No. .
) Piandiong, Morallos and Bulan v. e Philippines,  October , Communication
No. / (CCPR/C//D//).
) Mamatkulov and Abdurasulovic v. Turkey,  February , European Court of Human
Rights, Application nos. / & /, <www.echr.coe.int/ECHR/EN/hudoc>
 January .
) Continental Shelf (Tunisia v. Libya),  April , International Court of Justice,
Application by Malta to Intervene, I.C.J. Reports , p. . e State seeking to intervene
has the burden of proof, Land, Island and Maritime Frontier Dispute (El Salvador v.
Honduras),  September , International Court of Justice, Application by Nicaragua to
Intervene, I.C.J. Reports , p. , p. . Under Article () of the Statute, the AU Court
may invite any Member State, AU organ, or person concerned that is not a party to the case
to submit written observations or take part in the hearings in the interests of the eective
administration of justice.
) Article () ECHR, which is limited under para.  thereof to cases where a national of
a contracting party is an applicant, requires intervention to be in the interest of the proper
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 of its Statute demonstrates that it has applied a very strict policy in this
eld. e use of the noun “Member State” in the wording of Article ,
if read in conjunction with Article  of the Statute, suggests that permis-
sion to intervene is extended to the whole AU membership irrespective
of whether they have signed up to the Statute. is corresponds with the
ICJ practice where a ‘jurisdiction link’ by the intervening party is not
required. Given the nature of the AU, extending the right to intervene to
its organs seems sensible. e ability of the AU Court to invite other
Member States, AU organs or persons to participate in the case in the
interest of the eective administration of justice appears an insightful step.
It therefore seems regrettable that no provision is made for inviting other
African organizations to participate. Considering that almost all AU
Member States participate in at least one African sub-regional organiza-
tion, it is not inconceivable that disputes brought before the AU Court
could impact on them as well.
One could oer the following two illustrations. First, the AU Assembly
has imposed sanctions on a Member State pursuant to Article  of the
Constitutive Act for breaching its obligations and a sub-regional organiza-
tion has inicted punitive measures on that State for the same reason. e
Member State in question applies to the AU Court for a declaration that
said decision was in violation of the Constitutive Act. In these circum-
stances, the sub-regional institution, which is made up of Member States
that also participate in the AU, may wish to intervene to support the
imposition of the sanctions. Secondly, in a case brought by a Member State
against another, where both States participate in the same sub-regional
administration of justice. See further Harris, O’Boyle & Warbrick, supra note , pp. -
. Note that Article () of the  Protocol is less strict, requiring the applicant State
simply to show an “interest”.
) See C. Chinkin, ‘ird Party Intervention before the International Court of Justice
()  AJIL . Article ()(a) of the ICJ Rules of Procedure requires the intervening
State to set out the interest of a legal nature that will be aected; and see Sovereignty over
Pulau Litigan and Pulau Sipadan (Indonesia/Malaysia),  October , International
Court of Justice, Application by Philippines to Intervene, I.C.J. Reports , p. , where
the ICJ explained the meaning of an “interest of a legal nature”. For the factors that will
persuade the ICJ to accept a request for intervention, see Land, Island and Maritime
Frontier Dispute, supra note .
) Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),
International Court of Justice, Application by Equatorial Guinea to Intervene, I.C.J.
Reports , p. .
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organization, the respondent State might claim that the judicial organ
of that institution is a far more appropriate forum to resolve the dispute.
In this instance, the sub-regional institution may wish to intervene to
support this line of argument.
In a departure from comparable instruments, Article () of the Statute
stipulates that the AU Court’s interpretation is equally binding upon the
party (be it a Member State or an AU organ) that is allowed to intervene.
is only seems right and proper and could potentially prevent speculative
intervention especially in inter-state litigation that is highly politicized.
As regards intervention in cases concerning the interpretation of trea-
ties, the Statute distinguishes between the Constitutive Act’s interpretation
(Article ) and interpretation of “other treaties” (Article ). Arguably, the
content and wording of Article  gives rise to some confusion. In particu-
lar, the rst paragraph provides that if, during a case in which “Member
States other than the parties to the dispute have expressed an interest”, the
interpretation of the Constitutive Act became an issue, the Registrar shall
“notify all such States and organs of the Union forthwith”. According to
the second paragraph, it is only the State Parties and organs so notied that
have the right to intervene in the proceedings. Evidently, there is an error
in this construction because, even though a Member State that has not
ratied the Statute may have expressed an interest in a case and was subse-
quently notied of the interpretation question that has arisen, paragraph 
does not allow it to intervene because this right is reserved to States Parties
only. is construction contradicts the general provision on intervention
stipulated in Article , namely that any Member State having a legal
interest in proceedings may request to intervene. So much more so in the
case of the Constitutive Act’s interpretation where all AU Members poten-
tially have an interest on the outcome.
Another problematic issue is that the AU organs seem to have an unfet-
tered right to intervene. Clearly, there should be a nexus between the pro-
visions of the Constitutive Act being interpreted by the AU Court and the
organs having the right to intervene, in the sense that this right should
extend only to those organs aected by the interpretation. To oer an
) Cf. the request for an ICJ advisory opinion on the legality of the threat or use of nuclear
weapons made by the World Health Organization in September ; the ICJ rejected it
because the subject matter was ultra vires, Legality of the Use by a State of Nuclear Weapons
in Armed Conict,  July , International Court of Justice, Advisory Opinion, I.C.J.
Reports , p. .
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illustration, if a question arose vis-à-vis the power of the Assembly to
impose sanctions under Article  of the Constitutive Act, there appears
to be no good reason why, e.g., the Pan-African Parliament should be able
to intervene but, on the contrary, the Peace and Security Council ought to
be able to participate. A nal point of some concern is the content of the
third paragraph of Article  envisaging that the AU Court decisions con-
cerning the interpretation and application of the Constitutive Act shall be
binding on Member States and organs (emphasis added). e addition of
the Act’s ‘application’ is troublesome considering that it is an issue quite
dierent and separate from its interpretation, while the reference to
Members being bound by the decision again raises the matter of the con-
tradiction relating to the rst two paragraphs. Perhaps the scope of Article
 will be revisited by the Court Rules and its practice.
With regard to the interpretation of “other treaties”, Article () of the
Statute stipulates that the Registrar shall notify those Member States and
AU organs where the interpretation of a treaty ratied by the former is at
issue. is provision potentially confers upon the AU Court an extremely
wide competence which again raises concerns about possible divergent
interpretations of international law since there is nothing to suggest that
this is limited to AU/OAU treaties. Pursuant to Article (), any State and
organ taking advantage of this right shall be bound by the Court’s inter-
pretation. It should be noted that Article  diers from the corresponding
provision in Article  of the ICJ Statute in one important respect, namely
that it specically excludes cases of alleged violations of human rights
which have been submitted by virtue of Articles  and . is is curious
because Rule  of the Human Rights Court makes provision for this par-
ticular procedure. Finally, it should be observed that Article ()-()
repeats the “Member States’/’State Party” issue discussed above in relation
to Article .
4.1.3. Reparations
e AU Court is authorized, by virtue of Article (h) of the Statute, to
determine the nature and the extent of the reparations to be made or the
compensation to be paid for breach of an obligation by the party that
lost the action. is it may do, according to Article , at the request of
) Cf. Article ()(d) of the ICJ Statute. is reects a fundamental principle of interna-
tional law, Factory at Chorzów (Claim for Indemnity),  September , Permanent Court
of International Justice, PCIJ Series A No. , pp. -.
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a party. Article  deals specically with situations where the AU Court
has established a violation of human rights by the respondent State. In
these cases, the AU Court has been authorized to array “any appropriate
measures” that aim at remedying the situation. e wording of the provi-
sion suggests that the AU Court may make an award on its own motion
but is under no obligation to make an award even if a violation is estab-
lished. e AU Court has a broad mandate under these provisions to
order suitable remedies of which fair compensation, which by denition
must include awards of a pecuniary nature, or reparation are but options.
is could extend to ordering consequential measures requiring States to
take certain positive steps. Although it is unclear whether the Statute
envisages restitution in kind as a remedy, it could be covered by the con-
cept of ‘reparation’ and implied in the general wording of the provision.
What exactly constitutes “fair compensation” remains to be seen.
However, it is interesting to note that the African Commission has accepted
the principle of compensatory damages as a form of indemnity. e AU
) Cf. Article () ACHR.
) Note that the African Commission has adopted a similar practice of issuing ‘recom-
mendations’ to States in its communications; see, inter alia, Centre for Minority Rights
Development (Kenya) and Minority Rights Groups International on behalf of Endorois Welfare
Council v. Kenya, African Commission on Human and Peoples’ Rights, Communication
No. /, th Activity Report .
) Article () of the Cape Town Draft Protocol clearly envisaged this possibility since it
read that fair compensation or reparation was “to be paid or made to the injured party”, see
Naldi and Magliveras, supra note , pp. -.
) Cf. Article () of the  Protocol containing the same language. It is interesting to
note that Rule () of the Human Rights Court allows the applicant to submit a request
for the amount of the reparation.
) Malawi African Association, Amnesty International, Ms. Sarr Diop, Union Interafricaine
des Droits de l’Homme and RADDHO, Collectif des Veuves et Ayant-droit, and Association
Mauritanienne des Droits de l’Homme v. Mauritania, African Commission on Human and
Peoples’ Rights, Communication Nos. /, /, /, /-/, and /, th
Activity Report -. It has also accepted the concept of restitution as a remedy in
individual communications despite the lack of any express authority either in the Banjul
Charter or its Rules of Procedure. In Centre for Minority Rights Development (Kenya) v.
Kenya, supra, note , p. , it held that adequate compensation had to be paid for all the
loss suered. On how it has handled the issue of reparations, see G.J. Naldi, ‘Reparations in
the Practice of the African Commission on Human and Peoples’ Rights’ () : Leiden
Journal of International Law pp. -. It should be noted further that Article  of the
Draft Statute deletes and substitutes entirely Article  of the Statute and expressly refers to
the principles of “restitution, compensation and rehabilitation”.
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Court may wish to be guided by the practice of the IACHR on reparations
which provides ample examples of the extensive nature and forms that
remedies can take.
4.1.4. Friendly Settlement
A notable omission from the Human Rights Sections competence at this
stage is the amicable or friendly settlements procedure which is sanctioned
in the Banjul Charter and in Article  of the  Protocol. Such a pro-
cedure can be found in the European system; Article ()(f) of ACHR
entrusts this role to the Inter-American Commission on Human Rights.
In fact, the African Commission already performs this function pursuant
to Article  of the Banjul Charter. It can be expected that this is another
matter to be addressed by the AU Court when it commences its
operations.
5. Advisory Jurisdiction
In accordance with Article () of the Statute, the AU Court has the com-
petence to give advisory opinions. e phrasing of this provision suggests
that opinions will be given by the Full Court and not by one of the
Sections. us, regardless of the substance of the request, be it human
rights exclusively, it will be the Full Court that would render the Opinion
and not, in this instance, the Human Rights Section. ere is nothing in
the Statute to explain this apparent divergence between contentious and
advisory functions.
An opinion may be given on any legal question at the request of the
Assembly, the PAP, the Executive Council, the Peace and Security Council,
the Economic, Social and Cultural Council, the Financial Institutions or
any AU organ authorized by the Assembly. It should be emphasized that
) Pasqualucci, supra note , pp. -. For a more critical account, see D. Shelton,
‘Reparations in the Inter-American System’, in D.J. Harris and S. Livingstone (eds.), e
Inter-American System of Human Rights (Clarendon Press, Oxford, ), pp. -.
) See also Rules ()(c) and  of the Human Rights Court.
) Cf. Article  ECHR and Rule  of the European Court Rules.
) Cf. Article () of the Banjul Charter permitting the African Commission to interpret
it. is function has been described as amounting to authorization “to issue what are in
eect advisory opinions”, Merrills and Robertson, supra note , p. .
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the right to request an advisory opinion does not extend to Member
States, which, of course, is also the case with the ICJ. is is somewhat
regrettable and, as is shown later, retrogressive compared to the 
Protocol. Moreover, it gives credence to the supposition raised above,
namely that the merged Court should be regarded as the judicial organ
envisaged in the AU Constitutive Act. And this because the totality of the
AU Member States ought to have access to the judicial organ so as to seek
its legal advice on matters that are of concern to them. ese matters might
have to do with the proper functioning of the AU, the relations between
the Organizations and its Member, etc. Indeed, it seems perverse why a
subordinate organ, such as the Economic, Social and Cultural Council, is
expressly permitted to approach the AU Court for an advisory opinion but
not the Member States.
Notwithstanding the exclusion of Member States (including those that
are contracting parties to the  Protocol), the authority of the AU
Court to render advisory opinions is at any rate discretionary and this is
evidenced by the inclusion of the verb ‘may’ in Article (). However,
the third paragraph of this Article states an explicit exception in that a
request must not relate to an application that is pending before the African
Commission or the Committee of Experts. is is an application of the
lis pendens principle.
It remains to be seen in what other circumstances the AU Court may
choose to decline to exercise its advisory jurisdiction, especially in view of
the fact that its subject matter is so wide-ranging. is argument is
not only based on the Statute’s aims and objectives as a whole but also
follows from the scope of the term “legal question” in the wording of
Article () and, by implication, from Articles (c) and () of the
Statute. ere appears to be no impediment for the AU Court to consider
requests relating to the Banjul Charter or other relevant human rights
instruments. is question ought to be combined with the fact that so
) Cf. Article () ACHR: OAS Members “may consult” the IACHR regarding the inter-
pretation of the ACHR or other relevant human rights treaties.
) See Article  of the UN Charter and Article () of the ICJ Statute.
) Cf. Article () of the ICJ Statute.
) Cf. Article () of the  Protocol.
) By way of contrast, under Article () ECHR, the European Court of Human Rights
has the narrow jurisdiction to interpret only the ECHR and its Protocols at the request
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many AU organs have a right to request an opinion and, unlike the ACHR,
there is no indication that AU organs are restricted to their sphere of com-
petence. If the experience of the ICJ and the IACHR is of any value, it
should be noted that the former has adopted the view that it may reject
requests for advisory opinions for “compelling reasons”, whereas the lat-
ter in the following circumstances: where its contentious jurisdiction could
be undermined, where the protective system would be impaired, and
where the question put to it is wholly academic.
e following hypothetical example could be given to illustrate how the
AU Court might be used for overturning situations that have developed in
a certain way. Suppose that the African Commission is dissatised with the
pronouncements of the Human Rights Section, which it considers to be
restrictive and not promoting adequately the protection of fundamental
rights and freedoms. For exactly this reason, it decides to ‘throw caution to
the wind’ and interpret the Banjul Charter in an extremely activist man-
ner. Suppose further that this practice does not nd favour with the major-
ity of Member States. e latter, perceiving this development as detrimental
to their interests, use the organ they fully control, namely the Assembly, to
lodge a request for an advisory opinion hoping that the AU Court will
‘overrule’ the African Commission’s interpretations. e Assembly is
apparently not required to show a specic legal interest in its request for
an advisory opinion, while the AU Court will probably seek consistency
in its jurisprudence. Following this line of thinking, the AU Court will
phrase its advisory opinion in such a way that it will be highly critical
of the African Commission’s interpretations. Even though the African
Commission would not be bound by the advisory opinion, arguably it
would be dicult for it to persist in this practice.
solely of the Committee of Ministers; this had led Merrills and Robertson, supra
note , p. , to comment that its advisory competence has been dened so restrictively
“that it is dicult to think of any important issue of interpretation that would have
fallen within it”.
) Cf. Article () of the UN Charter, and see Legality of the Use by a State of Nuclear
Weapons, supra note .
) Legality of the reat or Use of Nuclear Weapons, supra note , p. .
) For example ‘Other Treaties’ Subject to the Consultative Jurisdiction of the Court, supra note
; and Judicial Guarantees in States of Emergency (Articles (),  and  of the American
Convention on Human Rights),  October , Inter-American Court of Human Rights,
Advisory Opinion, Series A No. .
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e fact that so many AU organs have a right to request an opinion is
noteworthy and it has been observed that it does not appear that the AU
organs are restricted to their sphere of competence. Nevertheless, the range
of applicants authorized to request an opinion, while comparable in ambit
to Article  of the UN Charter, is not as broad as that of the  Protocol,
which is the most extensive of the regional human rights systems.
Pursuant to Article () of the  Protocol, all AU Member States are
able to request an opinion, whether or not they are parties to it. e right
is also extended to other African organizations, which could include
ECOWAS or SADC for example. e Statute is, therefore, considerably
narrower in this respect but this could be explained by the fact that the AU
Court operates as the judicial organ for the whole of the AU system and
not as the Banjul Charter’s judicial organ. e departure from the 
Protocol is disappointing but given that the Statute shares many features
with its ICJ counterpart not entirely surprising. at being said, we need
to remind ourselves that the range of applicants is wider than under the
European system and that the subject matter of the AU Court’s
advisory jurisdiction is so wide-ranging that it should be able to consider
matters relating to the Banjul Charter or other relevant human rights
instruments.
Accepted that there is a need to strengthen human rights signicantly in
the African continent, the AU Court could make creative use of its com-
petence to deliver advisory opinions in a fashion similar to the precedent
established by the IACHR, which enjoys a comparable jurisdiction under
Article () ACHR. In particular, the IACHR has, in interpreting sub-
stantive and procedural provisions of the ACHR, contributed materially
to the evolution of human rights law. While advisory opinions are strictly
non-binding, they tend to acquire a persuasive status. Moreover, if they
were followed by the African Commission and by the Committee of
Experts, and if invoked by the Assembly, the PAP, the Peace and Security
) Cf. Article () ACHR and Article () ECHR. It is instructive to note that as a result
of an imaginative interpretation of locus standi requirements, the IACHR has allowed amici
curiae, including NGOs, to participate in advisory proceedings, see A.A. Cançado Trindade,
‘e Operation of the Inter-American Court of Human Rights’, in Harris and Livingstone,
supra note , pp. -, p. .
) Trindade, supra note , pp. -; J.M. Pasqualucci, ‘Advisory Practice of the Inter-
American Court of Human Rights: Contributing to the Evolution of International Human
Rights Law’ () : Stanford Journal of International Law pp. -.
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Council, etc. in time they could create an important body of authoritative,
judicially pronounced principles. Finally, when courts make pronounce-
ments in the context of advisory opinions they do not operate under the
constraints associated with adjudicating a specic dispute and, conse-
quently, they have the ability to consider matters from a wider perspective
and articulate their opinions in a broader manner. e IACHR has already
demonstrated its capacity to operate imaginatively and innovatively and
the AU Court could draw inspiration from it.
With respect to the procedural aspects of its advisory jurisdiction, it fol-
lows from Articles  and  of the Statute that the AU Court shall be
guided by the procedure applicable in contentious cases. Amongst other
things, this should enable judges to deliver separate or dissenting opinions,
which conforms to standard international judicial practice.
6. e Sources of Law
Article () of the Statute sets out in descending order the applicable law
to which the AU Court must have regard in determining the cases before
it:
(a) e Constitutive Act;
(b) International treaties, of general or particular content, which have
been ratied by the contesting States;
(c) International custom, as evidence of a general practice accepted as
law;
(d) General principles of law recognized either universally or by African
states;
(e) As subsidiary means for the determination of the rules of law,
judicial decisions, the writings of the most highly qualied
publicists but also the regulations, directives and decisions of the
AU; and
(f ) Any other law relevant to the case under consideration.
) Cf. Article  of the ICJ Statute.
) Cf. Article () ACHR, Article  ECHR and Rule () of the European Court
Rules. Note that Article () of the  Protocol expressly allows judges to deliver separate
or dissenting opinions.
) It is clearly stated that that judicial decisions have no binding force except as between
the parties to a particular case in accordance with Article () of the Statute.
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In addition, the second paragraph of Article  stipulates that the AU
Court has the power to decide a case ex aequo et bono should the litigant
parties so agree.
Article  is very similar to Article ()-() of the ICJ Statute and com-
ment will be limited to where there are dierences, reecting the Statute’s
regional setting in light of Article  thereof. Worthy of note is the pre-
scription to the AU Court to have regard to the Constitutive Act. is is
perfectly rational in view of the fact that it is the AU constituent instru-
ment. However, this instruction must be read in the light of Article  of
the UN Charter which establishes its primacy over other treaties. us,
in any clashes between the UN Charter and AU instruments, the former
should be deemed to prevail. As regards the reference to international trea-
ties in Article () sub-paragraph (b), it must necessarily encompass all
treaties adopted under OAU/AU auspices and should also extend to duly
ratied UN and other treaties, including of course multilateral human
rights instruments. However, this does constitute an application of the
principle pacta tertiis nec nocent nec prosunt, which is not tantamount to
saying that the AU Court could not take account of other treaties as well
as pay heed to the jurisprudence of the judicial organs that have applied
and interpreted them. is submission is based not only on ICJ practice
but on the fact that Article  includes, as sources of law, international
) Under Articles  and  of the Banjul Charter, the African Commission is authorized
to draw inspiration from various sources of law, see Civil Liberties Organisation, Legal
Defence Centre, Legal Defence and Assistance Project v. Nigeria, African Commission on
Human and Peoples’ Rights, Communication No. /, th Activity Report -,
para. ; African Institute for Human Rights and Development v. Guinea, supra note ,
paras. -.
) See Joined Cases C-/ P & C-/ P Kadi & Al Barakaat International Foundation
v. Council & Commission,  September , European Court of Justice, [] ECR
I-, paras. -, where the ECJ found that it was not competent to review the lawful-
ness of UN Security Council resolutions. See also R (on the application of Al-Jedda) v.
Secretary of State for Defence,  December , House of Lords, [] UKHL 
wherethe UK House of Lords held that an incompatible provision of the ECHR had to
give way to mandatory UN Security Council resolutions in accordance with the UN
Charter’s primacy.
) See, e.g., Civil Liberties Organisation v. Nigeria, supra note , para. ; Purohit and
Moore v. e Gambia, African Commission on Human and Peoples’ Rights, Communication
No. /, th Activity Report –, para. ; Garreth Anver Prince v. South Africa,
African Commission on Human and Peoples’ Rights, Communication No. /, th
Activity Report -, para. .
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custom, which should embrace relevant norms of jus cogens, general
principles of law, judicial decisions, and any other law relevant to the
case under consideration.
e AU Court has an unfettered discretion in determining which
sources to refer to and this should be put to good use. Potentially signi-
cant is the fact that it is directed to take into account general principles of
law accepted in Africa. Indeed, there is no reason to believe that regional
customary law would be excluded, so that included in such principles
could be a right to development and second and third generation human
rights. Finally, there appears to be no valid reason why the AU Court
could not rely upon general principles of law which are accepted by
specic Member States and not by the African continent as a whole.
) As expressed in the Universal Declaration of Human Rights  for instance, see
Zimbabwe Human Rights NGO Forum v. Zimbabwe, African Commission on Human and
Peoples’ Rights, Communication No. /, st Activity Report –, para. .
) E.g. the prohibition on torture, Prosecutor v. Furundzija, () : International Legal
Materials p. , para. ; Al-Adsani v. United Kingdom ()  EHRR , para. ; Ould
Dah v. France, () : International Legal Materials p. .
) Ample African Commission jurisprudence supports this argument: in Democratic
Republic of Congo v. Burundi, Rwanda and Uganda, supra note , paras. , , it invoked
the Geneva Conventions  and the Additional Protocols  as general principles of
law recognized by African States; in Purohit and Moore v. e Gambia, supra note ,
para. , and in Lawyers for Human Rights v. Swaziland, African Commission on Human
and Peoples’ Rights, Communication No. /, th Activity Report -, para. ,
it relied on UN soft law instruments, namely the UN Principles for the Protection of
Persons with Mental Illness and for the Improvement of Mental Health Care  (adopted
by General Assembly Resolution / of  December ), and the UN Basic Principles
on the Independence of the Judiciary  (U.N. Doc. A/CONF.//Rev. at ),
respectively.
) In Zimbabwe Human Rights NGO Forum v. Zimbabwe, supra note , paras. , ,
-, -, , the African Commission drew inspiration from the jurisprudence of
the IACHR, the European Court of Human Rights, and the UN Human Rights
Committee.
) Such a right has been asserted by the African Commission, see e.g., Social and Economic
Rights Action Center, supra note , para. ; Bissangou v. Republic of Congo, African
Commission on Human and Peoples’ Rights, Communication No. /, st Activity
Report –, para. . See further, Magliveras and Naldi, supra note , paras. -;
R. Murray, Human Rights in Africa: From the OAU to the African Union (Cambridge,
Cambridge University Press, ), pp. -.
) Social and Economic Rights Action Center, supra note , para. ; Magliveras and Naldi,
supra note , paras. -; Murray, supra note , pp. -.
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7. Other Issues of Procedure
Regarding the provisions regulating the procedure before the AU Court,
Article  of the Statute stipulates that they shall be laid down in its Rules
“taking into account the complementarity between the Court and the
other treaty bodies of the Union”. It is not immediately clear which
are these “treaty bodies” (the term is not included in Article  containing
denitions) and why the issue of complementarity concerns solely the
question of procedure. In the international legal literature this term is
usually associated with the tem entities created by virtue of the so-called
“core international human rights entities” negotiated and concluded under
UN auspices. Moreover, Article  of the  Protocol envisages that the
Rules of the Human Rights Court would bear in mind the complementar-
ity between it and the African Commission. erefore, it could be con-
cluded that the Statute denotes the human rights entities set up by virtue
of the relevant OAU/AU negotiated instruments, namely the African
Commission and the Committee of Experts. However, as the Rules would
be common for both Sections it would perhaps be inappropriate to place
so much emphasis on the Human Rights Section.
Article  of the Statute obliges the AU Court to conduct its hearings
in public unless it decides, propio motu or upon application by the parties,
to be held in camera. No guidance is provided as to the circumstances
that might lead the AU Court to take this step and naturally it should
be resolved in the Rules. If the practice of the IACHR and European
Courts of Human Rights could oer a useful precedent, this should
happen only in “exceptional circumstances”. e latter include, inter
alia, instances justied on the grounds of morals, public order or
national security, the interests of juveniles or the protection of the parties’
private life.
Pursuant to Article ()-() of the Statute, State Parties shall be repre-
sented by agents, with the assistance of counsel or advocates before the AU
Court if necessary. e AU organs having locus standi are represented by
) For more information, see <www.ohchr.org/EN/HRBodies/Pages/HumanRightsBodies.
aspx>,  January .
) See Rule .
) Article () of the Statute of the Inter-American Court of Human Rights (hereinafter
IACHR Statute), Article () IACHR Rules, and Rule () of the European Court Rules.
) Rule () of the European Court Rules.
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the Commission’s Chairperson. e African Commission, the Committee
of Experts, other African intergovernmental organizations and the national
human rights institutions operating in African countries can be repre-
sented by a person of their choice and the same applies to individuals and
NGOs. ere is no provision for the possibility of free legal representa-
tion in the interests of justice. is is a rather disturbing omission espe-
cially since it is provided for in Article () of the  Protocol.
In accordance with Article () of the Statute, any person, witness or
representative of parties appearing before the AU Court is guaranteed
such protection necessary for the proper discharging of their functions
and duties and, therefore, should be able to appear without fear of
retribution. is is a particularly welcome development since arbitrary
detention, ill-treatment and disappearances for defying the authorities
are all too common in parts of Africa. It is unclear how, if at all, individuals
are to be eectively protected within the jurisdiction of a State Party to the
Statute. However, it is submitted that this guarantee could be strength-
ened were the AU Court to use creatively its competence to indicate
provisional measures under Article  of the Statute. A State that failed
to protect suchindividuals could ultimately be found to be in breach of
its obligations under the Statute and the Banjul Charter and liable to pay
compensation.
Pursuant to Article () of the Statute, if one of the parties fails to make
an appearance or does not defend the case against it, the AU Court is
authorized to consider the case and give its judgment. However, it must
rst satisfy itself that it has jurisdiction, that the claim is well founded in
fact and in law, and that due notice was given to the defaulting party.
It remains to be seen whether the AU Court will follow the ICJ practice in
) Article () of the Statute.
) Article () and () of the Statute. Cf. Rules  and  of the European Court Rules.
) Rule  of the European Court Rules states that legal aid will be granted only if it is
necessary for the proper conduct of the case, and the applicant has insucient means to
meet all or part of the costs.
) Cf. Article  IACHR Rules in relation to witnesses and expert witnesses.
) As regards the ICJ, non-appearance does not seem to amount to a violation of interna-
tional law but certainly goes against the spirit of the obligations assumed under its Statute,
A. Verdross and B. Simma, Universelles Voelkerrecht rd ed. (Duncker & Humblot, Berlin,
), pp. -.
) Article () of the Statute.
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relation to Article  of its Statute whereby the ICJ would consider legal
arguments that the absent party might have submitted in support of its
case had it appeared. is fact notwithstanding, the party that chooses
not to appear is likely to prejudice its case. Perhaps with a view to this
possibility, Article () of the Statute allows the non-appearing party
ninety days from the date of notication to lodge an objection against the
default judgment. e objection shall not stay enforcement unless the AU
Court decides to the contrary. Even though the Statute does not lay down
the grounds on which the objection may be lodged, it should be accepted
that they cannot have the eect of asking it to review the case ab initio
as this would mean that the non-appearing party would nd itself in
an advantageous position vis-à-vis the other litigant party/ies. And
this because the non-appearing party could use its right to objection as a
means akin to lodging an appeal against a judgment that went against its
interests.
8. Judgments, Binding Force and Execution
e Statute’s provisions concerning judgments in contentious cases fol-
low established international standards. us, judgments must be taken by
a majority, must be reasoned, read in open court and separate and
dissenting opinions may be attached. An interesting innovation is Article
) See, e.g., US Diplomatic and Consular Sta in Tehran Case (United States of America v.
Iran),  May , International Court of Justice, I.C.J. Reports , p. ; Fisheries
Jurisdiction Cases (United Kingdom v. Iceland),  July , International Court of Justice,
I.C.J. Reports , p. .
) Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States
of America),  June , International Court of Justice, I.C.J. Reports , p. ,
Dissenting Opinion of Judge Jennings, p. .
) Appropriately applicable by analogy to advisory cases, see Article  of the Statute.
) Article () of the Statute. In the event of a tie, the presiding judge has the casting vote,
Article (). Cf. Article () of the IACHR Statute and Rule () of the European Court
Rules.
) Article () of the Statute. Cf. Article () ACHR, Article () IACHR Rules, Article
() ECHR and Rule () of the European Court Rules.
) Article () of the Statute. See also Article  with regard to advisory opinions. Cf. Rule
() of the European Court Rules.
) Article  of the Statute. Cf. Article () ACHR, Rule () IACHR Rules, Article
() ECHR and Rule () of the European Court Rules.
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() requiring the AU Court to render its judgment within ninety days
once deliberations have been completed. is does not seem an unreason-
able expectation especially in the context of human rights protection were
time is almost always of the essence. e Statute is silent on the publica-
tion of judgments but in our technological era publication on its web site
might be enough.
Pursuant to Article () of the Statute, judgments shall be nal. is
rule is also applicable to judgments rendered by any Section or chamber
since, according to Article (), they are considered as having beengivenby
the Full Court. It is interesting to note that the provision in Article ()
of the  Protocol stipulating that judgments are additionally “without
appeal” has not been replicated in the Statute even though it has the
advantage of legal clarity. Moreover, the use of the term “judgments” may
be problematic since it is normally associated with the Court’s nal con-
clusion which it issues at specic stages of contentious proceedings, i.e.
jurisdiction, admissibility, and merits. It might have been preferable to
follow the spirit of Article () of the IACHR’s Rules of Procedure which
states that “Judgments and orders of the Court may not be contested in any
way” (emphasis added). is provision has a broader scope and takes into
consideration the various Court rulings e.g., on interim measures, on the
taking of evidence and fact-nding, etc.
Even though it does not amount to an appeal, it should be mentioned
that Article  of the Statute envisages that the AU Court may be asked
by a party to interpret the meaning and scope of a judgment if a dispute
over it were to arise. e Statute does not actually set a deadline for the
) Cf. Article  IACHR Rules and Rule  of the European Court Rules.
) Cf. Article  of the ICJ Statute. However, appeals within the International Criminal
Law Section are envisaged under Article ()-() of the Draft Statute.
) Cf. Article  ACHR. Among the signicant reforms introduced by Protocol No. 
ECHR is that judgments given by a Chamber may be referred, in eect appealed, to the
Grand Chamber whose decision is nal, see Articles ,  and  ECHR. See further
Harris, O’Boyle & Warbrick, supra note , pp. -.
) Judgments and decisions are not interchangeable, Hudson, supra note , pp. -;
Alexandre v. Cameroon and Nigeria, supra note , Dissenting Opinion of Judge Ouguergouz,
para. .
) Cf. Article  of the ICJ Statute, Article  ACHR and Rule  of the European Court
Rules. According to the IACHR, the purpose of this procedure involves “not only precisely
dening the text of the operative parts of the judgment, but also specifying its scope,
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submission of such a request although this omission may be addressed by
the Rules. Furthermore, pursuant to Article  of the Statute, the AU
Court has the capacity to review its judgments in the light of new facts
subject to the following mandatory and discretionary conditions. First,
the application for revision is based on the discovery of a new fact which,
if it had been known at the time to it and the party claiming revision,
would have played a decisive factor in its determination. Second, such
ignorance was not due to negligence, presumably on the part of the party
claiming revision. ird, a double statute of limitations has been observed:
the application was lodged no later than six months of the new fact’s dis-
covery and not later than ten years from the date of the judgment. Four,
the party claiming revision may be obliged to rst comply with the judg-
ment. Regarding the latter condition, presumably the AU Court may
require it only when it would not interfere with the outcome of the revi-
sion. To put it otherwise, the party applying for revision may claim that, if
it were to comply with the judgment and the AU Court were to review it
in its favour, it might not be possible to overturn the new status quo that
would have resulted from executing the judgment.
Pursuant to Article () of the Statute, parties must not only comply
with the judgment within the time stipulated by the AU Court but also
guarantee its execution. As is true with other international judicial
organs, the AU Court itself has no power to enforce its judgments. e
wording of Article () leaves no doubt that, should a party fail to com-
ply with a judgment, the AU Court must refer it to the Assembly for a
decision. However, the Statute does not stipulate how the question of non-
compliance will be monitored. In particular, will it be the other party to
the case bringing the matter to the AU Court’s attention, will monitoring
meaning and purpose, based on the considerations of the judgment”, Velasquez Rodriguez
v. Honduras, Interpretation of the Compensatory Damages,  August , Inter-American
Court of Human Rights, Series C No. , para. .
) Rule () of the European Court Rules sets a deadline of one year but Article 
IACHR Rules is stricter, only ninety days.
) Cf. Article  of the ICJ Statute.
) In Request for Interpretation of the Judgment of  March  in the Case concerning
Avena and Other Mexican Nationals (Mexico v. United States of America),  January ,
International Court of Justice, I.C.J. Reports , p. , the ICJ observed that a question
that was not decided in the initial case cannot be submitted for interpretation.
) Cf. Article () ACHR and Article () ECHR.
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be entrusted to the AU Commission, the organ acting as the Secretariat,
or will the AU Court oblige the losing party to notify within a given time
period all measures and actions taken to give eect to the judgment?
Whatever the answer to this question, the fact remains that, once the
AU Court has taken cognizance of non-fullment, it does not have the
discretion to decide whether to refer it or not to the Assembly. Moreover,
contrary to the situation under Article () of the UN Charter, it does
not have to wait for the other party to have recourse to the Assembly. A
further issue that is not settled in the Statute is whether the party accused
of non-compliance will have the opportunity to challenge the allegation
before the AU Court and/ or the Assembly and whether it could invoke
circumstances amounting to force majeure or similar events. Arguably, the
party in question cannot be deprived of its natural justice right to defend
itself in a manner that is timely and adequate. When the issue of non-
compliance has reached the Assembly, the latter is not only authorized but
also compelled to act. Article () leaves no doubt about that: “the
Assembly … shall decide upon measures to be taken to give eect to th[e]
judgment”. What these measures might entail is envisaged in the sixth
paragraph of Article , which empowers (but not compels) the Assembly
to impose sanctions pursuant to Article () of the Constitutive Act. is
stipulation is far more appropriate compared to Article () of the UN
Charter, which gives to the Security Council only the discretion to make
recommendations or decide on the action to be taken to give eect to the
judgment.
Article () of the Constitutive Act, reference to which has already
been made, forms part of the AU sanctioning system. More specically,
the rst paragraph of authorizes the Assembly to determine the appropri-
ate sanctions for any Member State defaulting in the payment of budget-
ary contributions. e way Article () has been drafted, it is clear that the
principle of proportionality must be observed. us, the following “appro-
priate sanctions” are envisaged: denial of the right to address meetings, to
) See Article () of the Constitutive Act.
) Under Article  ACHR and Article  IACHR Statute, the Court shall draw the atten-
tion of the OAS General Assembly to those cases where a State has failed to comply with a
judgment. Under Article  ECHR, the Committee of Ministers supervises the execution
of judgments, see Harris, O’Boyle & Warbrick, supra note , pp. -.
) Magliveras and Naldi, supra note , paras. -.
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vote, to present candidates for vacancies in AU organs, and to benet from
AU activities. Against this background, Article () stipulates that, should
any Member State have failed to comply with AU decisions, it may
be subjected to other sanctions that will be determined by the Assembly
(presumably on a case to case basis) including “the denial of transport and
communications links with other Member States, and other measures of a
political and economic nature” (emphasis added). As a matter of policy, it
is likely that such an option will be exercised only in the most egregious
circumstances.
Moreover, it is submitted that a creative interpretation of the AU Court’s
power to award compensation could lead it to award punitive damages in
those cases where the judgment concerns a serious violation of human
rights and the applicant has established that the respondent State has
outed the judgment and has failed to make reparation to the victims of
the violation, and would additionally have a deterrent eect. In such
instances, even though the Statute does not envisage it, it should
be accepted that a new case will have to be brought before the AU
Court whose subject matter will be that it recognizes the fact that the
respondent State has failed to observe and give eect to the obligations
arising under the previous judgment. is procedure whereby a judicial
organ of an international organization rst establishes that a State has
) Although presumably not contemplated by the drafters of the Constitutive Act, argu-
ably the Court judgments could fall into the ambit of a broad denition of the term “AU
decisions”.
) It should be noted that the Assembly has threatened Member States with sanctions if
they fail to abide by its decisions on non-cooperation with the ICC on the arrest and sur-
render of President al-Bashir of Sudan, Decision on the Progress Report of the Commission on
the Implementation of the Assembly Decisions on the International Criminal Court (ICC)
(Assembly/AU/Dec.  (XVIII)) paras. -.
) See D. Shelton, Remedies in International Human Rights Law (Oxford University Press,
Oxford, ), pp. -. However, the IACHR has rejected this suggestion, Garrido and
Baigorria v. Argentina,  August , Inter-American Court of Human Rights,
Reparations, Series C No. , para. ; Pasqualucci, supra note , pp. -. e purpose
of just satisfaction under Article  ECHR is “to provide reparation solely for damage suf-
fered by those concerned to the extent that such events constitute a consequence of the
violation that cannot otherwise be remedied”, Harris, O’Boyle & Warbrick, supra note ,
p. . It is disputed whether punitive damages are permissible under international law, see
A. Aust, Handbook of International Law (Cambridge University Press, Cambridge, ),
p. ; H. Lauterpacht, Oppenheim’s International Law, Vol. , th ed. (Longmans, London,
), pp. -.
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not complied with a previous judgment and then proceeds with impos-
ing penalties is already known in the context of the European Union,
where the ECJ is empowered to inict a monetary penalty in these
circumstances.
9. e Composition of the Court
Article () of the Statute stipulates that the AU Court is composed of
sixteen judges, a gure that can be reviewed by the Assembly upon the AU
Court’s recommendation. e number of  judges, divided equally
between the General Aairs Section and the Human Rights Section, is
under a third of the AU membership and should ensure that the Full
Court does not become unwieldy. e judges shall meet, according to
Article () of the Statute, in the seat of the African Human Rights
Court, namely in Arusha, Tanzania (coincidentally the seat of the
International Criminal Tribunal for Rwanda). e ocial and working
languages of the Court shall be those of the AU.
In accordance with Article  of the Statute, ve judges are required for
each Section to be quorate. Regarding the chambers that each Section may
) See Article  TFEU; Case C-/ Commission v. Greece,  July , European
Court of Justice, [] ECR I-; Case C-/ Commission v. France,  July ,
European Court of Justice, [] ECR I-. See further Craig and de Búrca, supra note
, pp. -; K. Magliveras, e Adoption of Punitive Measures by the European
Community and the European Uniin against Recalcitrant Member States: Analysis, Criticism
and Some Proposals (European Public Law Series vol. VII, European Public Law Centre,
London, ), pp.  et seq.
) e meaning of the Assembly’s review is not clear and raises the issue of how it links
up with the procedure for amending the Statute to be found in Articles - thereof.
Presumably, it would be wrong to suggest that the Assembly could simply adopt a decision
altering the number of judges without undergoing the amendment procedure.
) Under Article  ECHR, the European Court of Human Rights consists of the same
number of judges as there are States Parties, currently . Given that such a bench would
be unmanageable but at the same time it has to deal with thousands of applications, it sits
in single-judge formation, in Committees of three judges, in Chambers of seven judges and
in a Grand Chamber of seventeen judges, Article () ECHR. e IACHR is composed
of seven judges, Article () IACHR Statute.
) e Court may sit in another Member State if necessary with its consent. Cf. Article 
IACHR, and Rule () of the European Court Rules.
) Article  of the Statute and Article  of the Constitutive Act. Cf. Article  IACHR
Rules, and Rule  of the European Court Rules.
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constitute, Article () does not specify the quorum but leaves it to be
determined by the Rules. As is customary with most international courts,
the judges must be nationals of only those States that have ratied the
Protocol. Taking into consideration that, as has been explained, the
entry into force of the  Protocol necessitates fteen ratications, at
the exact moment that the AU Court becomes operative the number of
judges will be less than the number of contracting parties. is situation
will remain so until and unless there is a th ratication/accession to the
Protocol. However, since no two judges may be nationals of the same
State, the problem that arises is what will be the nationality of the six-
teenth judge? is issue might prove to be unimportant if a suciently
large number of Member States are prompt in ratifying the Protocol.
However, there is no guarantee that this will happen and the ratifying
history of the  and  Protocols have demonstrated otherwise.
Notwithstanding that at some stage a solution will have to be worked out,
this situation should be credited to bad draftsmanship.
e procedure for nominating and electing judges does raise a number
of other issues. Each State Party may nominate up to two candidates, and
in doing so it must give consideration to “equitable gender representa-
tion”. Even though this formulation is, arguably, an improvement on
others (e.g. the “balanced representation of the sexes” specied in Rule 
of the Rules of the European Court of Human Rights), it still does not
guarantee that half the judgeships will be lled by women or indeed that
any female judges will be elected. And this despite the fact that Article ()
of the Statute repeats that “equitable gender representation” must be
ensured when the Assembly elects judges. It would appear that the taking
of positive measures to promote the position of women is not accepted
without qualications. us, in Guido Jacobs v. Belgium the UN Human
Rights Committee held that the policy must be proportionate and based
) Cf. Article  of the ICJ Statute.
) Article () of the Statute. By way of contrast, the IACHR species that judges must be
nationals of OAS Member States, Article () ACHR and Article () IACHR Statute.
Curiously, the ECHR is silent on this issue, see Article .
) Article () of the Statute. Cf. Article () ACHR and Article () IACHR Statute.
) Article () of the Statute. ere are two lists of candidates, one for each of the Sections,
and States can choose the list on which their candidates are placed, Article  of the Statute.
Cf. Article () ACHR, Article () IACHR Statute, and Article  ECHR, both systems
permitting the nomination of up to three candidates.
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on objective and reasonable criteria, while it must also be neutral and spe-
cic to individual candidates.
Article  of the Statute, which is virtually identical to Article  of
the ICJ Statute, requires the judges to possess the appropriate qualica-
tions but with the added proviso, in an implied reference to the Human
Rights Section, that expertise in human rights law may also be required.
is stipulation should put to rest the fears expressed by some critics
when the proposed merger was rst aired that the AU’s commitment
to human rights was being undermined because it was not required
that judges had recognized competence and experience in the eld of
human rights.
Article ()-() of the Statute envisages a two-stage procedure for con-
rming the judges: initially they shall be elected by the Executive Council
in a secret ballot and thereafter appointed by the Assembly. It is neither
clear what this two-stage procedure, not to be found in any other similar
body, serves nor what is the legal basis. On the contrary, based on the
Constitutive Act’s relevant provisions, there are strong indications that it
might be ultra vires. In particular, Article ()(h) of the Act lists the
appointment of judges as an Assembly function. e notion of judges
being rst elected and then appointed is not to be found in the Act.
Moreover, Article () of the Act describes the Executive Council’s func-
tions as coordinating and taking decisions in areas that are of common
interest to Member States, ranging from foreign trade to immigration mat-
ters to science and technology. One could counter-argue that the Assembly
could have delegated this function to the Executive Council pursuant to
Article () of the Act. However, if this were the case the Executive Council
would have directly appointed judges without rst having to elect them.
Finally, the Statute does not stipulate whether the Assembly is obliged to
accept the election (thus making the appointment of judges a rubber
stamp exercise) or whether it could (wholly or partly) challenge it and, in
the latter case, how the procedure will proceed. Admittedly, this is not very
) Communication No. /, Decision of  July  (CCPR/C//D//
and GAOR A//, Vol. II, annex IX, sect. S).
) Cf. Article () ACHR and Article () IACHR Statute. Curiously the ECHR makes
no explicit reference to expertise in human rights, Article () ECHR.
) F. Viljoen and E. Baimu, ‘Courts for Africa: Considering the Co-Existence of the
African Court on Human and Peoples’ Rights and the African Court of Justice’ () :
Netherlands Quarterly of Human Rights pp. -.
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likely to happen considering that the Executive Council is made up of the
Member States’ foreign ministers. However, this is not an excuse for not
regulating quite obvious eventualities.
It is submitted that, for no apparent reason, the Statutes drafters made
the procedure for the election of judges unduly complicated. us, Article
 of the Statute envisages a two-thirds majority of all AU Member States
with voting rights for the election of judges. erefore, until and unless
the whole AU membership has ratied the  Protocol, non State Parties
will be able to exercise a vote in a matter which, arguably, is not of direct
concern to them. Moreover, they could potentially use their vote to
support friendly countries or in exchange for favourable behaviour
accorded to them by another country. Pursuant to Article (), the same
procedure applies where vacancies result from death, resignation or
removal from oce. Finally, Article () of the Statute stipulates that
Africa’s regions and its principal juridical traditions (presumably, the civil,
Roman-Dutch, common, and Islamic legal systems), must be represented
on the AU Court.
Even though Article () of the Statute does not expressly state that
judges are elected in an individual capacity, this follows from the fact that
they neither represent any person, State or body nor must they be under
their control or direction. ese restrictions are reinforced under Article 
directing judges to abstain from any pursuit that is incompatible with their
independence or impartiality or the demands of the oce. is duty
accom panies the commitment to the independence of the bench, which is
set out in Article (); it seeks to ensure that the judges are not subjectedto
) It follows that Member States whose rights were suspended pursuant to the aforemen-
tioned Article  of the Constitutive Act or pursuant to Article  thereof (it bars
governments that came to power through unconstitutional means from participating in
AU activities), shall not be allowed to participate at the voting stage.
) By way of contrast, Article () ACHR and Article  IACHR Statute specify an
absolute majority, while Article  ECHR requires a majority of votes.
) Note that Article () ACHR and Articles () and () IACHR Statute restrict voting
to States Parties to the ACHR. e same is true of the European system, Article  ECHR.
) Article () of the Statute states that where possible each geographical region of Africa
is to represented by three judges except for the Western Region which will have four judges.
Cf. Rule () of the European Court Rules.
) Cf. Article () ECHR.
) Cf. Article () IACHR Statute, which is more detailed, as well as Article () ECHR
and Rule  of the European Court Rules.
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inducements, pressure, inuence, threats or other interference. Judges
are, of course, under a general duty to consider all cases impartially and
conscientiously and that much has been written in the oath of oce that
is laid down in Article (). ere is a corresponding duty placed on the
AU Court which is spelt out in Article (): “e Court shall act impar-
tially, fairly and justly”. It is a rather interesting notion that the Statute
distinguishes between the Court as an entity and the Court as judgeships.
However, considering that it acts through its judges this dierentiation
seems superuous.
e Statute seeks in Article () to avoid conicts of interest by requir-
ing a judge who has had previous involvement with a case to recuse
himself/herself. However the Statute does not stop there and, in fact, in
order to avoid any semblance of partiality, Article () does not allow
a judge who is a national of a State that is a party to a case to hear it. is
is a departure from accepted international practice and is probably irrecon-
cilable with the assertion of the judges’ independence. No provision is
made for replacing a judge in such circumstances with an interim or
substitute judge. Again, this is a matter to be presumably addressed in
the Rules.
Conspicuous by its omission is any reference to the appointment of ad
hoc judges in the Statute. is is a manifest dierence with the ICJ and
) Cf. Article  of the Banjul Charter. e independence of the judiciary is compromised
in certain African countries, see Lawyers for Human Rights v. Swaziland, Communication
No. /, th Activity Report -, para. ; Amnesty International et al. v. Sudan,
Communication Nos. /, /, / & /, th Activity Report –, para. .
e campaign of threats and harassment against the robustly independent justices of the
Supreme Court of Zimbabwe, and other members of the judiciary, in - by state-
sponsored thuggery that eventually led to their resignations is common knowledge.
Disappointingly, the African Commission has so far been unable to nd that the independ-
ence of the judiciary in Zimbabwe has been undermined, see Zimbabwe Lawyers for Human
Rights and the Institute for Human Rights and Development v. Zimbabwe, Communication
No. /, th Activity Report , paras. -.
) Additionally, if the President is of the view that a judge should not participate in a case
that judge, with the Court’s agreement, will be excluded, Article (). Cf. Article ()
IACHR Statute, and Rule () of the European Court Rules.
) Cf. Article () of the ICJ Statute, and Article () ACHR. According to Rule  of the
European Court Rules, judges are prevented from presiding in cases involving a contracting
party of which they are nationals.
) Cf. Article () IACHR Statute, and Rule ()(a)-(b) of the European Court
Rules.
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other regional human rights systems. However, as has just been men-
tioned, the fact that a judge who is a national of a State Party to a case
cannot hear that case would appear to obviate the need for ad hoc judges
and consequently the omission may be justied on this basis.
e judges are elected for a term of oce of six years with the possibility
of one further renewable period. In order to ensure that the elections are
held on a staggered basis, at the end of two years following the rst elec-
tion, the terms of oce of eight judges, four from each section, shall expire
after four years. According to Article () of the Statute, all judges are
part-time with the exception of the President. Should the Court’s docket
become full there would be some justication for making the judges full-
time. Vacancies may result from death, resignation or removal from
oce. In such circumstances, Article () stipulates that another judge
shall be elected to complete the predecessor’s term of oce.
According to Article () of the Statute, the procedure for suspending or
removing a judge from oce is initiated when two-thirds of the other
Court members have taken the view that he or she no longer fulls the
requirements of oce. However, this decision is only a recommendation
which the President is instructed to communicate to the Assembly
Chairperson through (for some strange reason) the Chairperson of the
Commission. Pursuant to Article (), this “recommendation shall become
nal upon its adoption by the Assembly”. Presumably the drafters left
the ultimate decision to be reached by the Assembly as the organ that
appointed the judge whose suspension/removal is being sought. If this
supposition stands, then the decision ought to have been taken by the
Executive Council as the organ that elected the judge. As has been
) Cf. Article ()-() of the ICJ Statute, Article ()-() ACHR, Article  IACHR
Statute, and Rule  of the European Court Rules.
) Article () of the Statute. is is identical to the Inter-American system, see Article
() ACHR. Judges to the European Court of Human Rights are elected for an initial
period of nine years and may be re-elected, Article () ECHR. However, they must retire
at the age of , Article () ECHR.
) Ibid.
) Article () of the Statute. e President serves a term of oce of three years and may
be re-elected once.
) Article () of the Statute.
) In the American and European systems the decision rests squarely with the Court,
Article () IACHR Statute, Rule  of the European Court Rules.
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explained above, this act is far more important compared to the Assembly’s
rubberstamping act of appointment.
10. A New Role for the Court? - Jurisdiction over
International Crimes
e AU’s disenchantment with the International Criminal Court’s (ICC)
focus on Africa, but particularly the controversy over the arrest warrants
issued for President al-Bashir of Sudan, appears to have been a motivat-
ing factor behind the Assembly’s call in  for a feasibility study to
empower the Human Rights Court with the competence to try interna-
tional crimes. Of course, this development could be considered a natural
progression in the AU’s mandate pursuant to Article (h) of the Con-
stitutive Act to deal with war crimes, genocide and crimes against human-
ity. In , a Draft Protocol on Amendments to the African Court of
Justice and Human Rights (Draft Protocol) was produced for the AU’s
consideration. A new Section to the AU Court, which would be renamed
) All of the ICC’s current eight cases relate to Africa. For a summary of African objections
to what is perceived to be the ICC’s ‘selective justice’ see M. du Plessis, ‘e International
Criminal Court and its Work in Africa: Confronting the Myths’ (ISS Paper , Institute
for Security Studies, Pretoria, ) . However, many African States continue to be
staunch supporters of the ICC, see M. du Plessis and C. Gevers, ‘Balancing competing
obligations: e Rome Statute and AU Decisions’ (ISS Paper , Institute for Security
Studies, Pretoria, ). And also M. du Plessis, A. Louw and O. Maunganidze, ‘African
eorts to close the impunity gap: Lessons for complementarity from national and regional
actions’ (ISS Paper , Institute for Security Studies, Pretoria, ).
) Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan
Ahmad Al Bashir,  March , International Criminal Court Pre-Trial Chamber I,
() : International Legal Materials p. ; Prosecutor v. Omar Hassan Ahmad Al
Bashir, Second Warrant of Arrest for Omar Hassan Ahmed Al Bashir,  July .
) Decision on the Abuse of the Principle of Universal Jurisdiction (Assembly/AU/Dec.
(XV)) para. .
) Draft Protocol on Amendments to the Protocol on the Statute of the African Court of
Justice and Human Rights (Exp/Min/IV/Rev. ). See G.J. Naldi and K.D. Magliveras,
African Union Debates Adding an International Criminal Court Section to its Court’
() : International Enforcement Law Reporter pp. -; M du Plessis, ‘Implications
of the AU Decisions Giving the African Court Jurisdiction over International Crimes’ (ISS
Paper No. , Institute for Security Studies, Pretoria, ). However, in July  the
Assembly postponed deciding on adopting the Draft Protocol pending further study of a
number of concerns, Decision on the Protocol on Amendments to the Protocol on the Statute of
the African Court on Human and Peoples’ Rights (Assembly/AU/Dec. (XIX)), para. .
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the African Court of Justice and Human and Peoples’ Rights, would be
added, an International Criminal Law Section (ICL Section). e ICL
Section is modelled on the ICC but interesting dierences exist which will
be touched upon in this article, although constraints of space do not per-
mit a fuller discussion of this fascinating development. It should be
observed that the ICL Section would have a very dierent mandate from
the other Sections. International criminal tribunals are competent to con-
sider individual criminal responsibility, that is, has person X committed
one of the crimes listed in, for instance, the Rome Statute. Or in other
words, it is possible to prosecute an individual before such a tribunal and
to have that person found guilty of committing an international crime.
But a human rights court holds States accountable for human rights viola-
tions, that is, has State Y legal responsibility for human rights abuses com-
mitted within its jurisdiction. It establishes the responsibility of individuals
as agents of the State, not in their individual capacity; their acts are imput-
able to the State.
A preliminary diculty needs to be addressed. As is known, the 
Protocol has not yet entered into force and consequently the AU Court has
not been established. However, amendments to the  Protocol and
Statute can be contemplated only once it has entered in force and the AU
Court is operational since Article () of the Statute states that a proposed
amendment can only be adopted by the Assembly “after the Court has
given its opinion on it” (emphasis added). Properly the Statute’s entry into
force is a condition precedent for any amendment to be passed. It will be
interesting to observe if the AU abides by this legal technicality.
) Article  of the Draft Protocol. e Court would now have “original and appellate
jurisdiction” with jurisdiction to hear cases referred by, inter alia, the Regional Economic
Communities (ECOWAS, SADC, etc.) and other international organizations.
) Article () of the Draft Statute.
) Statute of the International Criminal Court, adopted  July , entered into force
 July ,  UNTS  (Rome Statute). See generally W.A. Schabas, An Introduction
to the International Criminal Court (Cambridge University Press, Cambridge, );
D. Sarooshi, ‘e Statute of the International Criminal Court’ () : International
and Comparative Law Quarterly pp. -.
) Article B() of the Draft Statute. Cf. Article  and  of the Rome Statute; Schabas,
ibid pp. -. e same point was made in relation to the ICTY, Furundzija Case, supra
note , para. .
) Furundzija Case, supra note , ibid.; Velasquez Rodriguez v. Honduras,  July ,
Inter-American Court of Human Rights, Series C No. , paras. -.
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Unfortunately, this seems to be but the latest demonstration of the AU’s
somewhat casual approach towards its judicial organ.
e ICL Section is composed of a Pre-Trial Chamber, a Trial Chamber
and an Appellate, or Appeals, Chamber (both terms are used in the Draft
Statute). A decision of the Pre-Trial Chamber or the Trial Chamber
may be appealed to the Appellate Chamber by the Prosecutor or the
accused. It is competent to hear exclusively all cases relating to crimes
specied in the amended Statute.
Cases are brought by the Prosecutor, who may initiate investigations
proprio motu, following a referral by a State Party or pursuant to a
referral by the AU Assembly or the PSC. It is not clear whether crimes
committed in the territory of a non-party would be the subject of a referral
to the ICL Section, as the UN Security Council has done with the situa-
tions concerning Darfur and Libya. Assuming the political will to do
so existed, the AU does not have the UN Security Council’s advantage of
having resort to the authority of Chapter VII but, since the AU has invoked
Article () of the Constitutive Act as endowing its decisions with bind-
ing force, there appears to be no good reason why such a precedent could
not be used to bring alleged criminals to justice.
With regard to jurisdictional competence a State automatically accepts
the ICL Section’s jurisdiction upon ratication. However, a non State
Party may accept its jurisdiction on an ad hoc basis by means of a declara-
tion. It is important to note that the heads of jurisdiction are wider than
) Article () of the Draft Statute.
) Ibid., Article ().
) Ibid., Articles (), ().
) Ibid., Article A().
) Ibid., Articles A(), F(), G().
) Ibid., Article F().
) Ibid., Article F().
) UN Security Council Resolution  (), () : International Legal Materials
p. .
) UN Security Council Resolution  (), () : International Legal Materials
p. .
) Article E bis () of the Draft Statute.
) Ibid., Article E bis ().
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those of the ICC. Additional bases are the nationality of the victim (pas-
sive personality) and acts prejudicial to a State’s vital interests committed
abroad by non-nationals (protective principle). Both these assertions of
jurisdiction are highly contentious. Both principles ordinarily enjoy little
support but given that in recent years they have been applied in relation to
terrorism and other serious oences against national security such as espio-
nage, counterfeiting and smuggling there may be some justication.
Another noteworthy feature is the fact that the ICL Section’s jurisdic-
tion ratione materiae is far broader than that of the ICC, perhaps overly
ambitious. In addition to the core crimes of genocide, crimes against
humanity and war crimes, it includes coups d’état, mercenarism, piracy,
terrorism, corruption, money laundering, drug tracking, and the illicit
exploitation of natural resources amongst others. Many of these crimes,
such as coups d’état and mercenarism, reect African concerns and priori-
ties and most may be considered as prohibited by customary and/or treaty
law, even if regionally, although some of these ‘crimes’ “are not yet xed in
the international criminal law rmament.” For example, coups d’état are
in breach of the Constitutive Act but it is probably premature to claim
that they are contrary to general international law. Although under the
terms of the Convention on Mercenarism in Africa mercenarism is con-
demned as an international crime, it is not clear whether it is prohibited
) Article  of the Rome Statute. See Schabas, supra note , pp. -.
) Article E bis ()(c) of the Draft Statute.
) Aust, supra note , p. .
) du Plessis, supra note , p. .
) Article A of the Draft Statute.
) du Plessis, supra note , pp. -.
) Article (p) of the Constitutive Act. See Sir Dawda K. Jawara v. Gambia, Communication
Nos. / and /, th Activity Report –, para. , where the African
Commission relied on the internal dimension of self-determination to uphold democratic
values and to condemn military coups. It held that the military coup that overthrew
Gambia’s democratic regime “was a grave violation of the right of the Gambian people to
freely choose their government as entrenched in Article ()” of the Banjul Charter.
) It is increasingly argued that a legal entitlement to democratic rule exists, see T. Franck,
‘e Emerging Right to Democratic Governance’ () : American Journal of
International Law pp. -.
) Article () of the OAU Convention for the Elimination of Mercenarism in Africa,
adopted on  July , entered into force  April ,  UNTS .
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by customary international law. Other OAU/AU treaties require signa-
tories to legislate to designate certain acts and practices as criminal oences
but they do not amount to international crimes. e question could
therefore be legitimately posed as to whether they amount to “most serious
crimes of concern to the international community” as understood by the
Rome Statute. Unlike the Rome Statute, the AU has notably succeeded
in agreeing to a denition of the crime of aggression. Perhaps the ICL
Section will require its own version of the ICC’s Elements of Crimes.
Jurisdiction ratione personae attracts attention because jurisdiction is
extended over legal persons, which includes corporations but not States.
e inclusion of corporate legal liability may be understandable in the era
of globalization and in light of the sometimes questionable practices of
some transnational, or multinational, corporations and since international
criminal law imposes obligations upon individuals logic would appear to
dictate, especially given the list of core crimes in the Draft Statute, that
such obligations are similarly incumbent upon corporations. While an
increasing trend to impose human rights standards on transnational cor-
porations exists a considerable obstacle remains to be overcome: corpo-
rations are mere objects of international law, or at best have limited
) Grant and Barker, supra note , p. .
) See, e.g., Article () of the OAU Convention on the Ban of the Import of Hazardous
Wastes into Africa and on the Control of their Transboundary Movements within Africa,
adopted on  January , entered into force  May ,  UNTS , () :
International Legal Materials p. ; Article () of the AU Convention on Preventing and
Combating Corruption, adopted in July , entered into force on  August .
) Article () of the Rome Statute.
) A. Cassese, International Criminal Law nd ed. (Oxford University Press, Oxford,
), pp. -. However, it should be noted that a text dening the crime of aggression
was adopted at the ICC Review Conference with a view to entry into force by , First
ICC Review Conference: Resolutions and Declarations, () : International Legal
Materials p. , pp. -.
) Article M of the Draft Statute.
) Ibid., Article C.
) UN Sub-Commission on the Promotion and Protection of Human Rights, UN Norms
on the Responsibilities of Transnational Corporations and Other Business Enterprises with
Regard to Human Rights (E/CN./Sub.///Rev.). See D. Weissbrodt and M. Kruger,
‘Norms on the Responsibilities of Transnational Corporations and Other Business
Enterprises with Regard to Human Rights’ () : American Journal of International
Law pp. -.
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international personality, and to seek to impose such obligations upon
them seems incompatible with the present state of international law.
Of course, the point could be made that since international criminal law
imposes criminal responsibility upon natural persons that there is no logi-
cal reason why it should not be imposed on legal persons. e end result
would likely be to deter transnational corporations from conducting
business in Africa.
Despite the fact that  African States have ratied the Rome Statute
the Draft Protocol does not contain a savings clause, in fact no mention
of the ICC is to be found in the document, so that the important ques-
tionof the relationship between the two bodies is not addressed explicitly
except to the eect that States that ratify the Protocol accept the jurisdic-
tion of the AU Court. A critical diculty is that of overlapping jurisdic-
tion and States Parties to both treaties may be faced with the awkward
problem of conicting obligations. In line with customary law, reected in
Article () of the Vienna Convention on the Law of Treaties regarding
incompatibility between successive treaties on the same subject matter, the
Draft Protocol, when it enters into force, would be deemed to prevail over
the Rome Statute for those States Parties to the later treaty. Such a develop-
ment would have disturbing implications for the integrity of the ICC. For
those States that refuse to sign up to the Protocol the Rome Statute would
continue to govern. Furthermore, given that the ICC has ruled that
jurisdiction has also been conferred under the UN Security Council’s
Chapter VII powers in accordance with Article (b) of the Rome Statute,
) Aust, supra note , pp. -; Grant and Barker, supra note , pp. -;
P Malanczuk, Akehurst’s Modern Introduction to International Law th rev. ed. (Routledge,
London, ), pp. -. Transnational corporations may acquire rights and duties as a
result of ‘internationalized’ contracts concluded with States, R.L. Bledsoe and B.A. Boczek,
International Law Dictionary (ABC-Clio, Santa Barbara, ), p. . Under the concept of
state responsibility, States are under a positive obligation to take measures to protect rights-
holders from interference with their rights by non-state actors such as corporations, Social
and Economic Rights Action Center, supra note . See F. Coomans, ‘e Ogoni Case before
the African Commission on Human and Peoples’ Rights’ () : International and
Comparative Law Quarterly pp. -.
) Article E bis () of the Draft Statute. It is therefore unclear whether the ICL Section
is meant to complement or rival the ICC, du Plessis, supra note , pp. -.
) Prosecutor v. Omar Hassan Ahmad Al Bashir,  December , International Criminal
Court Pre-Trial Chamber I, Decision Pursuant to Article () of the Rome Statute on
the Failure of the Republic of Malawi to Comply with the Cooperation Requests Issued
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446 International Organizations Law Review 9 (2012) 383–449
it follows that, if a clash were to arise between an African State’s obligations
under the Protocol and a suitable ICC decision, the latter would have to
prevail consistent with Article  of the UN Charter.
Practical considerations may militate against proceeding further with
the Draft Protocol. It has been pointed out that the nancial and human
resources associated with an ICL Section are likely to be prohibitive.
Furthermore, there are policy considerations, principally the relationship
with the ICC, to be taken into account.
11. Critique and Conclusions
e institutional structure of the AU seems incomplete without the exis-
tence of a judicial organ. e drafters of the Constitutive Act could
perhaps be criticized for not properly establishing the ACJ in the rst place
but instead leaving everything to be determined in a future Protocol.
Although the haste with which the AU was founded could explain this
decision (after all, other organs were set up in similar manner), the conse-
quences have been unfortunate. On the other hand, it is only true to say
that African countries have never been particularly enthusiastic about
the creation of judicial organs at a continental level. Despite the fact
that the culture of impunity that has prevailed in Africa has somewhat
receded of late, there are still ongoing proceedings that should cause
embarrassment, such as the attempts to organize the trial of Hissene
Habré, the former dictator of Chad, and the charade surrounding
by the Court with respect to the Arrest and Surrender Omar Hassan Ahmad Al Bashir,
Corrigendum, para. . See also Prosecutor’s Application Pursuant to Article  as to Muammar
Mohammed Abu Minyar Gadda, Saif Al-Islam Gadda and Abdullah Al-Senussi, ICC-
/-/- () : International Legal Materials p. , para. .
) du Plessis, supra note , pp. -.
) e AU is formally committed to ghting impunity under Article (h) and (o) of
the Constitutive Act and Article  of the African Charter on Democracy, Elections and
Governance, adopted  January , entered into force  February , as well as under
a number of Assembly resolutions, e.g., Decision on the Implementation of the Assembly
Decision on the Abuse of the Principle of Universal Jurisdiction (Assembly/AU/Dec. (XII)),
para. ; and Decision on the Abuse of the Principle of Universal Jurisdiction (Assembly/AU/
Dec. (XVI)), para. . However, this stated opposition to impunity is dicult to recon-
cile with the unfortunate practice to support African leaders with poor human rights
records, who have been indicted by the ICC, by asking Member States to refrain from
giving eect to ICC arrest warrants; for al-Bashir, see AU Assembly, Decision on the Report
of the Commission on the meeting of African States Parties to the Rome Statute of the
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al-Bashir. On the whole, it would appear that African leaders, especially of
the older generation, are still reluctant to contemplate the possibility
of being judged for their actions or omissions. e considerable period
of time that elapsed before the  Protocol entered into force and the
way its proper functioning has been handled cannot but bring into
question the willingness of African leaders to address the most complex
issues aecting their countries as a whole, to solve inter-state disputes in a
peaceful manner and, at the same time, to cultivate the protection and the
promotion of human rights. ere is no doubt that adopting an instru-
ment bringing to completion the existing mechanism for the safeguarding
of fundamental freedoms across Africa is a bold move and a huge step
forward. However, it will remain a dead letter if it is not implemented
promptly and eectively.
e decision of African leaders to merge the two judicial organs might
have been misplaced, wrong or ill-advised. But a reality it is and one should
be prepared to view the AU Court from this perspective alone. e AU
Court, as it emerges from the  Protocol, constitutes an unparalleled
international judicial entity in that it combines the jurisdiction of the legal
organ of an intergovernmental organization with the jurisdiction of a
regional human rights court. It is like bringing together the ECJ (the so-
called ‘Luxembourg Court’) with the European Court of Human Rights
(the ‘Strasbourg Court’). Even though from an institutional point of view
this is not possible, it is an appropriate example to demonstrate the
potential advantages and dynamics of the AU Court.
International Criminal Court (ICC) (Assembly/AU/Dec. (XIII) Rev. ) and Decision on
the Progress Report of the Commission on the Implementation of the Assembly Decisions on the
International Criminal Court (ICC), supra note ; for (the now deceased) Gadda, see AU
Assembly, Decision on the Implementation of the Assembly Decisions on the International
Criminal Court (Assembly/AU/Dec. (XVII)).
) A good example is Robert Mugabe, the President of Zimbabwe, and the failure, primar-
ily, of the SADC to confront him for the many years of misrule and gross violations of
human rights (although in March  a SADC troika did issue a condemnation of human
rights abuses in Zimbabwe, United Kingdom Foreign & Commonwealth Oce, Human
Rights and Democracy: e  Foreign & Commonwealth Oce Report, April , p. 
<www.gov.uk/government/news/human-rights-and-democracy-report-->,  January
).
) Although the EU shall accede to the ECHR in accordance with Article () TEU the
issue of the ECJ’s competence still needs to be resolved, see Opinion /, Accession by the
Community to the ECHR,  March , European Court of Justice, [] ECR I-.
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e present article has analyzed the  Protocol and the Court Statute
with perhaps an overcritical eye. ere are undisputed strengths but also
many weak points, inconsistencies, contradictions and lack of clarity. e
drafters had adequate time to prepare the texts and should have thought
out the consequences and the repercussions of the choices they made.
Moreover, they had at their disposal the experience of other transnational
and regional judicial entities and they could have drawn inspiration, not to
mention guidance, from their workings and their jurisprudence. If (and it
is a big if) and when the Protocol enters into force, it is submitted that the
Statute, as it now stands, might prove to be dysfunctional. e judges will
face too many and complex issues that will require to be resolved but also
to break away from old understandings. e present article has attempted
to record the many issues that may arise and to oer suitable solutions.
When it will be called upon to exercise its duties and competencies, the
AU Court should take full advantage of its right to prepare and adopt its
own Rules. is will present a unique opportunity to address the omis-
sions, to clarify the inconsistencies, and to close the lacunae in the best
possible way.
Taking into consideration that no other AU organ will be involved in
the adoption of the Rules, the AU Court could proceed with inserting dar-
ing provisions that a political organ, such as the Assembly, would never
even contemplate. But above all, the AU Court should realize that it has
been designed to operate as two separate Sections. e General Aairs
Section and the Human Rights Section have evidently dierent aims and
needs and this should be reected and accommodated in the Rules.
Naturally, there are bound to be questions (suce to mention two theo-
retical examples: whether the situation in Darfur constitutes genocide and
whether in instances of mass violation of human rights the population has
the right to forcefully overturn the government) that will not t in either
Section or will be too sensitive not to be adjudicated by all judges. In these
instances, the Full Court should oer leadership and acting on a step by
step basis prepare the future where the AU Court will become synony-
mous with integrity, consistency, and reliability to confront dicult
questions.
It will have been noted that, even though the Statute has been heavily
inuenced by the ICJ Statute, a number of lacunae as well as vague or
badly drafted provisions have managed to slip through. e AU Court will
be called upon to clarify the meaning of such passages, to nd solutions in
covering the gaps and, generally speaking, to continue what the drafters
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left unnished. Regarding what the drafters could have done, it is submit-
ted that it is regrettable that the experience of the ECJ has not been taken
into account. It is not known whether this was a deliberate act or whether
it was simply overlooked. However, given that, from a structural point of
view, the AU resembles the architecture of the European Union (not to
say that it aspires to it), one would have expected that the drafters would
have paid heed to the signicant experience the ECJ has created over the
last  years and to the authority that accompany its judgments. If Africa
at long last is to proceed towards greater political and economic integra-
tion, and the issue of supranationality came into play, it is obvious that
the AU Court will have to be endowed with competences similar to those
of the ECJ. If for no other reason, the Statute may have to be amended as
soon as it comes into force.
Notwithstanding this criticism, on the one hand, the Statute, in con-
junction with liberal Rules of Procedure, and on the other hand, judges
who are prepared to tackle tough questions and deliver, should, at least for
the initial crucial period of time, allow the AU Court to full its role as the
‘principal judicial organ’ of the AU with success. But the AU Court must
be allowed to operate eciently and without impediments if it is to help
bring about the much-needed rule of law across Africa, contribute to the
protection and promotion of human rights and fundamental freedoms,
and ght impunity. is is easier said than done: both the other AU organs
and the Member States must be convinced that their disputes and dis-
agreements can nd a solution through judicial settlement and that the
AU Court has a central place in their various dealings. If the AU architec-
ture fails to grasp the signicance of its own judicial arrangement, the AU
Court will end up as yet another false dawn for Africa.
) See supra notes  and .
) Note that two separate procedures for amending the Statute are envisaged. Under
Article  thereof, a State Party may make a written request to the Chairperson of the
Commission, who will forward it to the Member States; it will then be up to the Assembly
to adopt the proposed amendments by a simple majority and after the Court has given its
opinion. Under Article , the Court itself may propose to the Assembly any amendments
deemed necessary; again it will be up to the Assembly to accept them.
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... Estas razones, unidas a la hasta hoy ausencia de firmas del pro- tocolo, han llevado a considerar que la iniciativa responde más a un deseo de expresar el descontento contra la CPI, que a una verdadera voluntad de adoptar un instrumento internacional para combatir la impunidad (Killander, 2016, p. 540). Más bien, parecieran un síntoma preocupante para quienes creían que la "cultura de la impunidad" estaría terminando en África (Naldi & Magliveras, 2012, p. 446). ...
Chapter
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