THE AFRICAN UNION’S RESPONSE IN THE PROSECUTION OF SEXUAL AND GENDER-BASED VIOLENCE IN ARMED CONFLICT SITUATIONS AT
5.3 THE AFRICAN COURT OF JUSTICE AND HUMAN AND PEOPLES’ RIGHTS The Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and
5.3.2 Crimes within the jurisdiction of the International Criminal Law Section of The African Court of Justice and Human and Peoples’ Rights
Article 28A of the statute of the ACJHPR lists 14 international and transnational crimes, which the ACJHPR would have power to prosecute1152 once its Protocol and annexed Statute came into force. These crimes include genocide, crimes against humanity and war crimes. There should be coordinated arrangements for SGBCs to be prosecuted as genocide, crimes against humanity and war crimes.1153 Genocide was defined largely in the same way as in the Rome Statute except for the addition of a subsection ‘[a]cts of rape or any other form of sexual violence’ not included under the genocide article in the Rome Statute.1154 The addition of the words ‘[a]cts of rape or any other form of sexual violence’ indicates that the AU appreciated the decision in the case of Prosecutor v Akayesu, relating to rape and sexual violence. The ICTR stated that rape could constitute genocide when it was ‘committed with the specific intent to destroy, in whole or in part, a particular group, targeted as such’.1155 Ambos is of the opinion that the additional subparagraph does not add value to the traditional scope of genocide crimes. She argues that
‘rape or any other form of sexual violence’ are already covered under subparagraph (b), that is,
‘causing serious bodily or mental harm to members of the group’, and under subparagraph (d), that is, ‘imposing measures intended to prevent births within the group’.1156 Although Ambos draws one’s attention to this fact, this additional subparagraph not only explicitly refers to rape and sexual violence, but also takes into account the argument of feminist scholars for the recognition of these crimes as distinct crimes on their own right.1157 Ambos is also of the opinion, that the drafters of the Malabo Protocol should have added the term ‘political groups’ in
1151 Meeting of Government Experts and Ministers of Justice/Attorneys, General on Legal Matters 7 to 11 and 14 to 15 May 2012, Addis Ababa, Ethiopia, ‘Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights,’ Exp/Min/IV/Rev.7. Article 28E which relates to the crime of unconstitutional change of government was not adopted.
1152 Malabo Protocol, art 28A(1).
1153 Idem at arts 28B (Genocide), 28C (Crimes against Humanity), and 28D (War Crimes)
1154 Idem at arts 28B and 28B(f).
1155 Prosecutor v Akayesu (Trial Judgment) Case No ICTR-96-4, Sept 2, 1998, paras 731 and 734.
1156 Kai Ambos (2017) Genocide (Article 28B), Crimes against Humanity (article 28C), War Crimes (Article 28D) and the Crime of Aggression (Article 28M), in Werle G., Vormbaum M. (eds) The African Criminal Court.
International Criminal Justice Series, vol 10. T.M.C. Asser Press, The Hague, 31 at 39.
1157 See for example chapter 2 regarding the argument made by feminist scholars such as Kathleen M Pratt and Laurel E Fletcher ‘Time for justice: The case for the international prosecutions of rape and gender-based violence in the former Yugoslavia’ (1994) 9 Berkeley Women’s Law Journal 77 at 81.
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the genocide section, as this would have addressed the demands of human rights advocates to have this group included. Adding ‘political groups’ to the genocide aegis would have aligned the protocol with domestic legislation, such as in Columbia,1158 Côte d’Ivoire and Ethiopia.1159 It would be appropriate to include ‘political groups’ in the Malabo Protocol as ‘political groups’ in Africa have historically been targets of genocidal attacks through widespread rape. The 2002 attacks perpetrated in the Ituri region of the DRC against the Lendu ethnic tribe and other political opponents by rape and other inhumane acts by armed groups is an example of this.1160
The definition of crimes against humanity is also very similar to that of the Rome Statute, except for the word ‘enterprise’, included in its descriptive paragraph.1161 The article does not define what would constitute an enterprise. Under its list of what acts could constitute crimes against humanity, the article not only lists ‘[t]orture’ in article 28C(1)(f) but also adds the words
‘cruel, inhuman and degrading treatment or punishment’. Though torture is defined in article 28C(2)(e), no definition is given for these additional crimes. ‘Cruel, inhuman and degrading treatment or punishment’ are additional to the acts provided for in article 7(f) of the Rome Statute, which only mentions ‘torture’. Additionally, the ICC’s ‘Elements of Crime’ provides the elements for the war crimes of inhuman treatment, cruel treatment and outrages upon personal dignity.1162
The definition of war crimes under article 28D in the Malabo Protocol is largely similar to the definition of war crimes in the Rome Statute. In the Malabo Protocol war crimes refers to
‘any of the offences listed, in particular when committed as part of a plan or policy or as part of a large scale commission of such crimes’.1163 The phrase ‘in particular when committed as part of a plan or policy or as part of a large scale commission of such crimes’ was included in the Rome Statute’s definition of war crimes as a compromise after heated debate by delegates at the Rome
1158 See article 101 of the Criminal Code of Columbia. Kai Ambos ‘Genocide (Article 28B), Crimes against Humanity (Article 28C), War Crimes (Article 28D) and the Crime of Aggression (Article 28M)’ at 40.
1159 Although Côte d'Ivoire includes ‘political groups’ in its domestic legislation, ‘racial groups’ is omitted. See article 137 of the Code Penal. With regard to Ethiopia, see article 269 of the Criminal Code.
1160 Democratic Republic of Congo – Page 1
1161 Article 28(C)(1) provides that ‘[f]or the purposes of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack or enterprise directed against any civilian population, with knowledge of the attack or enterprise: (emphasis added).
1162 ICC Elements of Crime, war crime of inhuman treatment art 8(2)(a)(ii) – 2, war crime of cruel treatment art 8(2)(c)(i) – 3, war crime of outrages upon personal dignity art 8(2)(c)(ii).
1163 Malabo Protocol, art 28D
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Conference.1164 It was agreed that the ‘plan, policy and scale are not elements or jurisdictional pre-requisites for war crimes’.1165 Instead ‘they are factors which may be taken into account by the Prosecutor in determining whether or not to begin investigations concerning an alleged war criminal.1166 Nothing suggests that the drafters of the Malabo Protocol intended that this phrase should bear the same interpretation as that of the Rome Statutes. Ambos points out that the drafters of the Malabo Protocol should have seized the opportunity to exclude this controversial phrase from the Malabo Protocol, as it was an ‘unnecessary limitation of the war crimes provision, and one not required by international (humanitarian) law’.1167 The drafters of the Malabo Protocol would not have been expected to have made the distinction between international armed conflict and non-international armed conflict in article 28D of the Malabo Protocol, especially as African delegates at the Rome Conference were in favour of having it removed.1168 Scholars such as Jalloh view this distinction as an archaic legal one which gives importance to the nature of the conflict rather than the gravity of the crime.1169 As pointed out by Ambos, most of the crimes listed in article 28D are defined as crimes occurring both in the context of an international and non-international armed conflict, thus making the distinction irrelevant.1170 As a result there is a ‘common category of armed conflict crimes’.1171 Although one may assume that article 28D provides for a ‘common category of armed conflict crimes’ – those crimes which are common to both types of armed conflict – it would avoid confusion if the Malabo Protocol is amended to reflect this.
1164 Krut Dormann ‘War crimes under the Rome Statute of the International Criminal Court with special focus on the negotiations on the elements of crimes’ (2003) 7 Max Planck Yearbook of the United Nations Law 341 at 349.
1165 Ibid.
1166 Ibid.
1167 KaiAmbos ‘Genocide (Article 28B), Crimes against Humanity (Article 28C), War Crimes (Article 28D) and the Crime of Aggression (Article 28M)’ at 42.
1168 Charles Jalloh ‘Regionalizing International Criminal Law?’ (2009) 9 International Criminal Law Review 445 at 475.
1169 Ibid. See also Deidre Willmott ‘Removing the distinction between international and non-international armed conflict in the Rome Statute of the International Criminal Court’ (2004) 5 Melbourne Journal of International Law 1 at 3.
1170 Kai Ambos ‘Genocide (Article 28B), Crimes against Humanity (Article 28C), War Crimes (Article 28D) and the Crime of Aggression (Article 28M)’ at 48. In referring to the Rome Statute, Jalloh also pointed out that it was unnecessary for the Statute to distinguish between international and non-international armed conflicts. He went on to state that the ‘codification of the relevant war crimes in a single place, effectively renders the distinction nugatory in the legal regime applicable before the International Criminal Court. Charles Jalloh ‘Regionalizing International Criminal Law?’ at 475.
1171 Ibid,
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Apart from the new category of armed conflict titled ‘nuclear weapons or weapons of mass destruction’, there are four different categories of war crimes in the Malabo Protocol, which are similar to those in the Rome Statutes. These categories are:
• Grave breaches of the Geneva Conventions of 12 August 19491172;
• Grave breaches of the First Additional Protocol to the Conventions of 8 June 1977 and other serious violations of the laws and customs applicable in international armed conflict1173;
• Serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, which applies in a non-international armed conflict situation;1174 and
• Other serious violations of the laws of customs applicable in armed conflicts not of an international character.1175
Article 28(D)(b), that is, the ‘[g]rave breaches of the First Additional Protocol to the Conventions of 8 June 1977 category’, contains an additional list of seven war crimes, not contained in the Rome Statute, which apply in an international armed conflict context.1176 They derive their legal basis from the 1907 Hague Conventions, the Four Geneva Conventions and the Additional Protocol I.
These crimes are:
o Intentionally launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects which will be excessive in relation to the concrete and direct overall military advantage anticipated;1177
• Unjustifiably delaying the repatriation of prisoners of war or civilians;1178
• Wilfully committing practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination;1179
• Making non-defended localities and demilitarised zones the object attack;1180
1172 This applies to grave breaches committed in the context of an international armed conflict. Article 28D(a) Malabo Protocol. The corresponding article in the Rome Statute is article 8(2)(a).
1173 Malabo Protocol, art 28D(b). The corresponding article in the Rome Statute is article 8(2)(b). Though the phrase, ‘grave breaches of the First Additional Protocol to the Conventions of 8 June 1977’ is not mentioned in article 8(2)(b) Rome Statute the crimes under this article are a reproduction from this and other Conventions. Krut Dormann ‘War crimes under the Rome Statute of the International Criminal Court’ at 344.
1174 Malabo Protocol, art 28D(c). The corresponding article in the Rome Statute is article 8(2)(c).
1175 Malabo Protocol, art 28D(e). The corresponding article in the Rome Statute is article 8(2)(e).
1176 Malabo Protocol, art 28D(b).
1177 Malabo Protocol, art 28D(b)(v).
1178 Malabo Protocol, art 28D(b) (xxviii).
1179 Malabo Protocol, art 28D(b) (xxix).
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• Slavery and deportation to slave labour;1181
• Collective punishments;1182
• Despoliation of the wounded, sick, shipwrecked or dead.1183
Of these seven crimes1184‘[s]lavery and deportation to slave labour’ is especially relevant to the prosecution of SGBCs as it is based on article 13 of the third Geneva Convention, which provides for the ‘humane treatment of prisoners’; as is article 62 of the same Convention, which provides that ‘[p]risoners of war shall be paid a fair working rate of pay by the detaining authorities direct’,1185 based on article 6 of the annex to IV Hague Convention regarding excessive tasks imposed on prisoners of war.1186 Article 28D(b)(xxvii) of the Malabo Protocol which refers to ‘[c]onscripting or enlisting children under the age of 18 years into the national armed forces or using them to participate actively in hostilities’ in an international armed conflict is also relevant to SGBCs. It differs from article 8(2)(b)(xxvi) of the Rome Statute, which provides for ‘[c]onscripting or enlisting children’ in an international armed conflict situation, as the age specified in the Malabo Protocol for the conscription or enlisting children is higher than that specified in the Rome Statute. Under the Malabo Protocol it is an offence to conscript or enlist children under the age of 18 years, whilst the Rome Statute specifies ‘under the age of 15 years’.1187 However, as with the Rome Statute, which makes ‘conscription or enlisting of children . . . into the national armed forces an offence, the drafters of the Malabo Protocol ought to have seized the opportunity to include non-state actors such as militia groups as potential perpetrators of this crime.1188 Article 28D(b)(xxvii) of the Malabo Protocol differs from its article 28D(e)(vii), which also refers to ‘[c]onscripting or enlisting children under the age of eighteen years’ but ‘into armed forces or groups . .
.
’ applicable to non-international armed1180 Malabo Protocol, art 28D(b) (xxx).
1181 Malabo Protocol, art 28D(b) (xxxi).
1182 Malabo Protocol, art 28D(b) (xxxii).
1183 Malabo Protocol, art 28D(b) (xxxiii).
1184 Malabo Protocol, art 28D(b) (xxxi).
1185 Geneva Convention III relative to the Treatment of Prisoners of War of 12 August 1949. See also Kai Ambos Genocide (Article 28B), Crimes against Humanity (Article 28C), War Crimes (Article 28D) and the Crime of Aggression (Article 28M)’ at 46.
1186 Article 6 annex to the Hague Convention IV, Regulations respecting the laws and customs of war on land. Kai Ambos ‘Genocide (Article 28B), Crimes against Humanity (Article 28C), War Crimes (Article 28D) and the Crime of Aggression (Article 28M)’ at 44.
1187 Rome Statute, art 8(2)(b)(xxvi).
1188 Kai Ambos ‘Genocide (Article 28B), Crimes against Humanity (Article 28C), War Crimes (Article 28D) and the Crime of Aggression (Article 28M)’ at 46.