Head of state immunity under the Malabo protocol : triumph of impunity over accountability?

Abstract

At the 23rd Ordinary Session of the African Union’s Assembly of Heads of State and Government held in Malabo, Equatorial Guinea in June 2014, the Assembly adopted, amongst others, the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol). The Protocol would, amongst others, reform the proposed African Court of Justice and Human Rights (which was to be achieved by merger of the African Court of Justice and the African Court of Human Rights) by creating an International Criminal Section. The Protocol also confers on “serving AU Heads of State or Government, or anybody acting or entitled to act in such capacity” immunity from prosecution during incumbency. Predictably, the immunity provision has spawned widespread and trenchant criticism from international criminal justice advocates who claim that the AU seeks thereby to create a culture of and perpetuate impunity. The AU on the other hand asserts not only that it is standing up for itself against neo-colonialist imperialist forces who have perverted international criminal justice and seek subjugation of African States through the International Criminal Court (ICC), but also that it is a champion for the very soul of customary international law on immunities. What this dissertation sets out to do and has sought to achieve has been to undertake a doctrinal study to determine whether the immunity that Article 46A bis of the Malabo Protocol confers on “Heads of State or Government, or anybody acting or entitled to act in such capacity” coheres with international law – lex lata – or represents a retrogression in international law norms that seek to prevent impunity for international crimes. In assessing the oft-made claim about the AU seeking or cultivating impunity thereby, the study has endeavoured to go beyond the self-serving rhetoric of each party in the hero-villain contestation that has characterized AU-ICC engagement over the past several years. It has sought to determine the veracity on the one hand of the claim that the Malabo Protocol’s immunity provision represents an illegal roll-back by the AU of normative gains in international criminal law to ensure accountability for egregious violations of human rights law. It has also sought to determine the legitimacy of the AU’s claims, on the other hand, that Africa has been unfairly targeted by the ICC, that there is no substance to the accusation that it seeks impunity for the category of officials covered by the immunity provision and that its insistence on immunity is but a reflection of its fealty to current international law. Through a review of legal history, case law from national and international tribunals, state practice and academic expositions, this thesis examines the evolution and practice of Head of State immunity as well as recent trends in the practice of the doctrine in light of the countervailing push to establish exceptions to immunity in order to ensure accountability under international human rights and international criminal law. In order to come to conclusions that answer the titular question, this thesis also interrogates the status-inspired dialectics and self-serving hero-villain polemics and consequent actions that fuel contestations of right between the AU and the ICC as well as the worldviews that respectively seek to preserve and overturn the asymmetry of the international legal order. The thesis finds that notwithstanding the lure of the values-laden-normative-hierarchy-inspired push against impunity, values do not international-law make. On the evidence, the immunity clause and undergirding rationale represent neither an illegal rollback by the AU of accountability standards for international crimes nor an altruistic bid by the AU to champion international criminal justice on the continent. The answer to the titular question of this dissertation therefore lies in shades of grey and somewhere in the middle of the respectively indignant and self-righteous stances of the AU and the ICC.