Complementary Jurisdiction (Article 46H)

The jurisdictional relationship between African states and the African Court of Justice and Human and Peoples’ Rights and between the latter Court and the International Criminal Court is not entirely clear. While the Malabo Protocol (Annex) has borrowed the complementarity principle from the Rome Statute, the Protocol does not indicate that states’ investigations or prosecutions should be genuine, in order to render a case inadmissible. Moreover, the Malabo Protocol (Annex) is completely silent on the African Court’s relationship to the International Criminal Court. This chapter first discusses whether the leaving out of the term “genuinely” bears any consequences on the assessment of the quality of the performance of states in respect of investigation and prosecution of international crimes. Next, it considers two alternative scenario’s—one in which the International Criminal Court is hierarchically superior to the African Court of Justice and Human and Peoples’ Rights and one in which both courts cooperate as equal partners. The author concludes that the latter model would be feasible if the International Criminal Court and the African Court of Justice and Human and Peoples’ Rights move towards a “division of labor”.