QUESTION: Assignment 01
In 2014, the African Union (AU) heads of states and governments
adopted the Malabo Protocol which sought to strengthen Africa’s
international criminal justice system and aid in the fight against
impunity. There is ongoing debate regarding the manner in which the
AU approached the punishment of atrocity crimes on the continent.
Some scholars have argued that Article 46Abis only serves to promote
impunity, and flies in the face of established norms in international law.
The AU has for the most part resorted to the Arrest Warrant case and
general international customary law to justify its standpoint. In a
thoroughly researched essay, critically discuss whether the AU’s
argument holds water in international law; and whether this immunity
clause can be legally justified. Article 46A bis of the Amendment Protocol of the African Court of Justice and
Human and Peoples’ Rights grants immunity to certain state officials by
providing that ‘no charges shall be commenced or continued before the Court
against any serving AU Head of State or Government, or anybody acting or
entitled to act in such capacity, or other senior state officials based on their
functions, during their tenure of office’1. The provision in this article seems to afford the prescribed recipients with
both personal immunity and functional immunity, both of which are provided
for under the customary international law. Personal immunity ( ratione personae ) attaches by virtue of a person’s office
he/she holds and offers complete protection, covering both private and public
acts committed by such officers whilst holding office2. This type of immunity
is, however, temporary and only afforded to officials during their term of
holding their position3. We can, thus, deduce that such immunity will cease
once such persons leave office and can then be prosecuted for conduct
committed while in office. 1Article 46A bis of the Amendment Protocol of the African Court of Justice and Human and Peoples’ Rights. 2 Strydom H et al International Law (Oxford South Africa 2021) 261.3 Strydom et al International 261.This study source was downloaded by 100000832421323 from CourseHero.com on 09-21-2021 04:48:59 GMT -05:00
https://www.coursehero.com/file/102463179/Lcp4801-ASS12doc/This study resource was
shared via CourseHero.com Functional immunity ( ratione materiae) provides immunity for actions carried
out on behalf of the state, irrespective of whether they are officials of the
state4. This from of immunity is permanent as it attaches to the actual
conduct and not the person who carried out the conduct5. As the immunity
attaches to the conduct, not the person holding office, this immunity remains
in force even after the official ceases to hold such position6. Important to note
is that only official conduct will be afforded immunity and not the private acts
of persons7. Further to this, functional immunity also cannot be claimed for international
crimes, regardless of whether such conduct is being tried in an international
or domestic court8. In the Arrest Warrant Case it was noted that war crimes
and crimes against humanity, such as acts of genocide and aggression can
only be carried out with the methods and systems of the State, as part of the
State function, thereby being official acts and immunity should never be
applied to these international law crimes, neither before international courts
not local courts9. One point of criticism is that this subsection is in contradiction with the
founding principles of the AU as encompassed in the Constitutive Act of the
African Union10. Article 4 (o) of this Act provides that the AU must uphold the
sanctity of human life and condemn and reject impunity11. Article 46A bis is
further criticized as being problematic as it offers further protection for senior
state officials for core crimes under international law, whereas such immunity
would not be afforded in terms of customary international law12. 4 Strydom et al International 262.5 Strydom et al International 262.6 Strydom et al International 262.7 Strydom et al International 262.8 Strydom et al International 263.9 Arrest Warrant case (n281) 36 (Dissenting Opinion of Judge Van den Wyngaert).10 https://ijrcenter.org/2014/07/02/african-union-approves-immunity-for-heads-of-state-in-
amendment-to-african-court-of-justice-and-human-rights-statute/ 2014 (Date of use 15 May 2021)11 Article 4 (o) respect for the sanctity of human life, condemnation and rejection
of impunity and political assassination, acts of terrorism and subversive activities . https://au.int/sites/default/files/pages/34873-file-constitutiveact_en.pdf12 Abass A ‘Historical and Political Background to the Malabo Protocol’ in Werle G & Vormbaum M (eds) (2017) 26.This study source was downloaded by 100000832421323 from CourseHero.com on 09-21-2021 04:48:59 GMT -05:00
https://www.coursehero.com/file/102463179/Lcp4801-ASS12doc/This study resource was
shared via CourseHero.com
In 2014, the African Union (AU) heads of states and governments
adopted the Malabo Protocol which sought to strengthen Africa’s
international criminal justice system and aid in the fight against
impunity. There is ongoing debate regarding the manner in which the
AU approached the punishment of atrocity crimes on the continent.
Some scholars have argued that Article 46Abis only serves to promote
impunity, and flies in the face of established norms in international law.
The AU has for the most part resorted to the Arrest Warrant case and
general international customary law to justify its standpoint. In a
thoroughly researched essay, critically discuss whether the AU’s
argument holds water in international law; and whether this immunity
clause can be legally justified. Article 46A bis of the Amendment Protocol of the African Court of Justice and
Human and Peoples’ Rights grants immunity to certain state officials by
providing that ‘no charges shall be commenced or continued before the Court
against any serving AU Head of State or Government, or anybody acting or
entitled to act in such capacity, or other senior state officials based on their
functions, during their tenure of office’1. The provision in this article seems to afford the prescribed recipients with
both personal immunity and functional immunity, both of which are provided
for under the customary international law. Personal immunity ( ratione personae ) attaches by virtue of a person’s office
he/she holds and offers complete protection, covering both private and public
acts committed by such officers whilst holding office2. This type of immunity
is, however, temporary and only afforded to officials during their term of
holding their position3. We can, thus, deduce that such immunity will cease
once such persons leave office and can then be prosecuted for conduct
committed while in office. 1Article 46A bis of the Amendment Protocol of the African Court of Justice and Human and Peoples’ Rights. 2 Strydom H et al International Law (Oxford South Africa 2021) 261.3 Strydom et al International 261.This study source was downloaded by 100000832421323 from CourseHero.com on 09-21-2021 04:48:59 GMT -05:00
https://www.coursehero.com/file/102463179/Lcp4801-ASS12doc/This study resource was
shared via CourseHero.com Functional immunity ( ratione materiae) provides immunity for actions carried
out on behalf of the state, irrespective of whether they are officials of the
state4. This from of immunity is permanent as it attaches to the actual
conduct and not the person who carried out the conduct5. As the immunity
attaches to the conduct, not the person holding office, this immunity remains
in force even after the official ceases to hold such position6. Important to note
is that only official conduct will be afforded immunity and not the private acts
of persons7. Further to this, functional immunity also cannot be claimed for international
crimes, regardless of whether such conduct is being tried in an international
or domestic court8. In the Arrest Warrant Case it was noted that war crimes
and crimes against humanity, such as acts of genocide and aggression can
only be carried out with the methods and systems of the State, as part of the
State function, thereby being official acts and immunity should never be
applied to these international law crimes, neither before international courts
not local courts9. One point of criticism is that this subsection is in contradiction with the
founding principles of the AU as encompassed in the Constitutive Act of the
African Union10. Article 4 (o) of this Act provides that the AU must uphold the
sanctity of human life and condemn and reject impunity11. Article 46A bis is
further criticized as being problematic as it offers further protection for senior
state officials for core crimes under international law, whereas such immunity
would not be afforded in terms of customary international law12. 4 Strydom et al International 262.5 Strydom et al International 262.6 Strydom et al International 262.7 Strydom et al International 262.8 Strydom et al International 263.9 Arrest Warrant case (n281) 36 (Dissenting Opinion of Judge Van den Wyngaert).10 https://ijrcenter.org/2014/07/02/african-union-approves-immunity-for-heads-of-state-in-
amendment-to-african-court-of-justice-and-human-rights-statute/ 2014 (Date of use 15 May 2021)11 Article 4 (o) respect for the sanctity of human life, condemnation and rejection
of impunity and political assassination, acts of terrorism and subversive activities . https://au.int/sites/default/files/pages/34873-file-constitutiveact_en.pdf12 Abass A ‘Historical and Political Background to the Malabo Protocol’ in Werle G & Vormbaum M (eds) (2017) 26.This study source was downloaded by 100000832421323 from CourseHero.com on 09-21-2021 04:48:59 GMT -05:00
https://www.coursehero.com/file/102463179/Lcp4801-ASS12doc/This study resource was
shared via CourseHero.com
