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Note: Jurisprudential Innovation or Accountability Avoidance? The International Criminal Court and Proposed Expansion of the African Court of Justice and Human Rights

By Kristen Rau. Full text here.

From Nuremburg to The Hague, international criminal justice has evolved dynamically and at times unpredictably. Among recent developments is a proposal to expand the subject matter jurisdiction of the African Court of Justice and Human Rights (ACJHR) to include a mandate to prosecute individuals for serious international crimes. Expansion of the ACJHR concerns observers for several reasons. First, the proposed expansion of the court would create the world’s first combined state-level and individual-level criminal accountability mechanism for human rights violations on an international scale. International criminal law and human rights law have long existed side-by-side in a bifurcated system of accountability, and observers fear that their conflation may be undesirable. Second and perhaps more problematically, expansion of the ACJHR would produce an area of overlapping jurisdiction between the court and the International Criminal Court (ICC) not statutorily contemplated by either court and not definitively addressed by treaty interpretation law. Supporters, however, counter that ACJHR expansion could reflect a welcome jurisprudential innovation.

This Note investigates the ways in which modern developments in international criminal law interact with both long-standing and novel accountability institutions—specifically, how proposed expansion of the ACJHR would relate to existing systems of state- and individual-level accountability for human rights abuses. Following an overview of global judicial human rights mechanisms, this Note examines myriad legal and policy-based issues related to extending the ACJHR’s jurisdiction and suggests approaches through which stakeholders could address procedural and practical difficulties in the event of expansion. Ultimately, this Note predicts that the ACJHR will likely expand as the result of jurisprudential evolution and political will, suggesting that stakeholders should recognize the potential benefits to expansion and develop benchmarks to ensure the court’s integrity and effectiveness.