Volume 4, Fall 2023, Issue 1

INVESTIGATING THE RESPONSES OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS TO THE CRITICISMS OF THE AFRICAN CHARTER

Mujib Jimoh

The adoption of the African Charter on Human and Peoples’ Rights in 1981 and its coming into force in 1986 improved African human rights jurisprudence. Over the years, the Charter has received praise for containing human rights unique to Africans. It is also heavily commended for being the first international human rights instrument to recognize and introduce “new rights.” Notwithstanding these praises, the Charter has been criticized for many reasons. This article discusses four main criticisms that have been levied against the Charter: the inclusion of claw-back clauses, absence of a privacy provision, stringent seizure and admissibility criteria, and an impotent and toothless implementation mechanism. Moreover, this article investigates how the African Commission on Human and Peoples’ Rights, the supervisory body for the Charter, has responded to these criticisms. It finds that while the Commission has responded adequately to the criticism of claw-back clauses, it has yet to adequately respond to others. The article, therefore, recommends that the Commission pay closer attention to these ignored criticisms and provides a variety of possible remedies that may aid the Commission in doing so. Examples include adopting resolutions and soft laws, assuming a more flexible jurisprudence, taking more action through “soft and forceful” approaches, and improving the consistency on its jurisprudence to attain reliability of its decisions.

CAN WE (OR MUST WE) DELETE PARAGRAPH 6?

Ata R. Hindi

This article addresses “blanket immunity” language in United Nations Security Council (“UNSC”) resolutions, which presents one of the central, unresolved, challenges facing the International Criminal Court (“ICC”). The ICC is the apex global forum for pursuing justice and accountability for international crimes, namely genocide, crimes against humanity, and war crimes. A UNSC referral is one mechanism for triggering ICC jurisdiction. However, referrals are effectively limited as certain UNSC members can veto resolutions involving themselves and their allies (e.g. currently, a possible referral for the situation in Ukraine). This referral mechanism was built into the ICC’s founding treaty, the Rome Statute. Since the Rome Statute came into effect, in 2002, two situations have been referred: Darfur (Sudan) and Libya. Discussions surrounding others, such as the situation in Syria, have failed. Referrals come by way of “referral paragraphs” within UNSC Resolutions. However, the resolutions referring the situations in Darfur (Sudan) and Libya (Resolutions 1593 (2005) and 1970 (2011) respectively) have also included language on “blanket immunities” in paragraph 6 of both resolutions, which restrict the ICC from exercising jurisdiction over nationals from States that are not Parties to the Rome Statute. This article tracks the history of the language, its inclusion in both resolutions and similar prior resolutions, as well as the arguments for and against the language by UNSC members. It identifies the normative legal conflicts arising from that language and explores the question of primacy between provisions like paragraph 6 in UNSC resolutions and other treaties. It then analyzes the legal effects of such language and concludes that paragraph 6 creates no legal obligations for the ICC or UN member States, regardless of whether they are parties to the Rome Statute.  Instead, paragraph 6 operates much like a separable provision of an international treaty. The ICC can apply judicial review to this conflict, which may be necessary, if the ultimate objective is ending impunity for international crimes. My proposal offers ideas that can mitigate the problem of blanket immunities that have made it difficult to hold all actors equally accountable for international crimes.

WHAT EVER HAPPENED TO THE AFRICA IN AFRICAN HUMAN RIGHTS?

Thomas Kelley

In the late 1970s, the Organization of African Unity (“OAU”) committed to drafting and adopting a human rights instrument that would uphold African values and traditions—those aspects of African culture that were unique and praiseworthy and, in the opinion of many African leaders, superior to those of Europe. The resulting document, the African Charter on Human and Peoples’ Rights (“the African Charter” or “the Charter”), included numerous provisions intended to do just that. However, in the decades following the African Charter’s adoption, African lawyers, judges, and tribunals produced little jurisprudence applying and further defining those uniquely African values and traditions. This article offers a historical and legal analysis of what the African Charter’s drafters intended and where things went wrong. It argues that certain uniquely African human rights problems – including the alarming loss of African ancestral land resulting from Western-inspired land titling schemes—should be addressed by applying the sort of African human rights the Charter’s drafters thought they had created.

ECOCIDE & THE INTERNATIONAL CRIMINAL COURT: A LONG-AWAITED AMENDMENT

Tia Mitchell
Student Note

As of 2023, there is no criminal liability for committing ecocide, or mass environmental destruction, within the international community. If the international community continues to ignore this issue, our world will eventually collapse under the pressure of today’s countless environmental issues (climate change, deforestation, air/water pollution, biodiversity loss, soil degradation, etc.). This note advocates for ecocide to be added within the International Criminal Court’s jurisdiction. It addresses six possible arguments against an ecocide amendment, including how serious ecocide is as a crime, its various definitions, the mens rea aspect, limited parties to the Rome Statute, limited liability under the International Criminal Court, and a lack of historic basis for the crime. Adding ecocide within the jurisdiction of the International Criminal Court is the first step in mitigating the environmental damage done thus far and preventing even further harm from occurring. Considering the pressing nature of this issue and the ongoing environmental issues, waiting is no longer an option.