The African Criminal Court: Questions of Legality and Legitimacy.

Vladykina Anna ORCID: 0000-0003-0036-7163 PhD in Law Senior Lecturer of the Department of State and Legal Disciplines Kazan branch of the Federal State Budgetary Educational Institution of Higher Education "Russian State University of Justice" (Kazan) 420136, Russia, Republic of Tatarstan, Kazan, 99 Amirkhana str., kv 64 anna.arsenyuk@gmail.com Other publications by this author

            Introduction

The African Union adopted in May 2014 the Protocol on Amendments to the Protocol on the Statute of the African Court of Human Rights (Malabo Protocol), which finally established the African Criminal Court ^[1].  Accordingly, this African Criminal Court, which has not yet entered into force, was established 16 years after its establishment in 1998, and in the same year a conference was held in Rome, which resulted in the creation of the International Criminal Court. Similarly, the International Criminal Court, which was established on the basis of the treaty after its adoption and ratification by 120 States parties, entered into force on 1 July 2002. Senegal was the very first State in the world to ratify the Rome Statute, which created the International Criminal Court. Unfortunately for African States and the African Union, the euphoria that came with the creation of the first permanent international criminal court in history was short-lived.^[2]. Therefore, it is necessary to recall that African States actively participated in the creation of the International Criminal Court, and Senegal was the very first State in the world to ratify the Rome Statute, which established the International Criminal Court. Unfortunately for African States and the African Union, the euphoria that came with the creation of the first permanent international criminal court in history was short-lived. Since more than 90 percent of the cases referred to the jurisdiction of the Court concerned the African continent, and the suspects were high-ranking officials of African States enjoying international immunity^[3], the African Union accused the International Criminal Court of prosecuting only officials of African States since its establishment, although this claim has not yet been proven.

Relations between the International Criminal Court and the African Union deteriorated when the International Criminal Court began to indict the current heads of State of the African Union, especially President Uhuru Kenyatta and Kenyan Vice-President Ruto Williams, as well as Sudanese President Omar Al Bashir. Their indictments provoked the African Union to hold a series of meetings that accelerated the process that led to the creation of the African Criminal Court in 2014. This has led the African Union and some African leaders to quickly conclude that the International Criminal Court is only prosecuting African government officials. It is not surprising that the African Criminal Court has recognized the immunity of high-ranking African government officials before its jurisdiction, which directly contradicts the jurisdiction of the ICC. ^[4]

As mentioned earlier, the African Union's dissatisfaction with the International Criminal Court in connection with the prosecution of high-ranking Government officials on the continent and especially the work of the Prosecutor of the International Criminal Court on the crisis in Darfur, which led to the indictment of President Al-Bashir, accelerated the process of establishing a criminal chamber at the African Court of Human and Peoples' Rights. This in itself was a turning point in the relations between the African Union and the International Criminal Court, despite the fact that African States actively participated in the creation of the International Criminal Court.  Unfortunately, the accusations of the African Union against the International Criminal Court are more emotional than legal in nature ^[5]. From a legal point of view, the International Criminal Court has jurisdiction over crimes committed in Africa, despite the fact that, unfortunately, its activities are concentrated in Africa. Thus, the claim that the International Criminal Court persecutes or persecutes only African Government officials has not been proven. It has been proven that the International Criminal Court has jurisdiction to deal with alleged crimes committed in Africa, and therefore the prosecution of African government officials was legally justified. However, the question of the legitimacy of the Court was not justified, given the fact that it focused on the prosecution of crimes committed only in one region of the world, that is, on the African continent.

 Legality and legitimacy of the African Criminal Court.

The creation of the African Criminal Court caused confusion among scientists and other institutions, given the fact that the International Criminal Court has existed for less than two decades, and therefore there was no need for another international criminal court. Other detractors felt that the African Criminal Court might be superfluous, since the International Criminal Court has jurisdiction to deal with some of the most serious international crimes affecting humanity. Perhaps the recognition of the personal inviolability of officials of African States before the jurisdiction of the African Criminal Court was the main criticism against him ^[5]. In order to determine whether the accusations and criticism directed against the establishment of the African Criminal Court are justified, it is necessary to check its legality and legitimacy. Therefore, we will consider the legality of the African Criminal Court in accordance with the Charter of the United Nations (UN) and the Founding Act of the African Union. We will also consider the legitimacy of the African Criminal Court and the legality and legality of the immunity provision enshrined in article 46A of the 2014 Malaba Protocol on the Establishment of the African Criminal Court.

Let's start with the fact that the concept of legality means compliance or non-compliance of a political institution, national or international mechanism with the legal norms governing its establishment^[6]. Legality also means that the statutes of a particular jurisdiction are the basis for any action, agreement or contract in that jurisdiction and that there is no crime if the action is not a crime in that particular jurisdiction ^[6]. In other words, the Prosecutor can only prosecute persons who are criminally liable before the jurisdiction of the African Criminal Court. Now, with regard to the question of the legality of the African Criminal Court, it should be noted that the establishment of the African Criminal Court complies with international law and the UN Charter^[6]. In fact, there is no provision in the Rome Statute prohibiting the establishment of an international regional court similar to the African Criminal Court.  According to Professor Charles Giallo, the modern system of enforcement of international criminal law is based on three main pillars, namely: 1) prosecution for international crimes is carried out in the national courts of the territorial States where the crime was committed^[7]; 2) prosecution in an international court, whether special or permanent, such as the International Criminal Court and the African Criminal Court ^[7]; and 3) modern international criminal law also considers prosecution in the national courts of a third State^[7].

The UN Charter recognizes a regional agreement aimed at maintaining international peace and security. Article 52 of the UN Charter states:

"1. Nothing in the Charter prevents the existence of regional agreements or bodies for dealing with such matters relating to the maintenance of peace and security that are suitable for regional action, provided that such agreements or institutions and their activities are consistent with the Purposes and principles of the United Nations.

              2. The Members of the United Nations concluding such arrangements or establishing such bodies shall make every effort to achieve a peaceful settlement of local disputes through such regional agreements or such bodies before referring them to the Security Council.

              3. The Security Council shall encourage the development of the peaceful settlement of local disputes through such regional agreements or such regional bodies, either at the initiative of the States concerned or on the recommendation of the Security Council."

Accordingly, the UN Charter encourages the creation of a regional organization, such as the African Union, to maintain peace and security in this region. Thus, the establishment of an African Criminal Court is consistent with international law, despite the existence of an International Criminal Court. In other words, the African Criminal Court is neither redundant nor incompatible with the Rome Statute that created the International Criminal Court, and both courts can exist and exercise their jurisdiction simultaneously and harmoniously. Moreover, the UN Charter, which also creates the Statute of the International Court of Justice, encourages the creation by UN Member States of other tribunals besides the International Court of Justice to resolve their respective disputes as follows:

"Nothing in this Charter prevents Members of the Organization from entrusting the resolution of their differences to other courts on the basis of existing agreements or agreements that may be concluded in the future."^[8]

The African Criminal Court was established by the African Union, which falls under "pre-existing agreements", as stated above in Article 95 of the UN Charter. Moreover, the African Criminal Court is a product of the African Court of Human and Peoples' Rights, established on June 27, 2014 in Malabo, Equatorial Guinea ^[9]. The African Court of Human and Peoples' Rights is a merger of the African Court of Human and Peoples' Rights and the Court of the African Union, as amended by the African Union ^[9]. The main purpose of the protocol was to create and establish a criminal chamber in the African Court of Human and Peoples' Rights, which is now called the African Criminal Court ^[10]. In addition, the Founding Act of the African Union provides for the settlement of disputes by peaceful means, which is equally consistent with the UN Charter ^[11]. Finally, there are no provisions in the UN Charter and the African Union prohibiting the existence of an African Criminal Court. Thus, any question of the legality of the African Criminal Court is resolved once and for all, since its existence is recognized by international law, and its statute does not contradict the provisions of any existing international tribunal, such as the International Criminal Court. In other words, the Statute of the African Criminal Court complies with the principles of international law ^[12]. The next issue to be considered is the legitimacy of the African Criminal Court, since its legitimacy is indisputable.

To determine the legitimacy of the African Criminal Court, it is necessary to study the ideas of legitimacy, as it is an important tool for measuring the effectiveness of the body and its authority. The concept of legitimacy includes many principles. Firstly, legitimacy is the moral and psychological recognition of an organ that can be either a political system or an authority on the part of its voters. Thus, a political organization, whether local or international, is considered legitimate when the majority of the population or the institutional electorate expresses a high degree of agreement and approval in its relation. The said institution or political body will be respected and respected for its actions. We call this type of legitimacy the "legitimacy of consent." Secondly, legitimacy is when the majority of the population of a state, authority or institution believes that they are based on value principles and goals that reflect the values of the entire community ^[13]. There is also a "legitimacy of universal values", and this legitimacy is based on the consistency of the political institution with the values common to the entire community within which the institution lives and operates^[13]. For example, in the international community, it can be said that an institution has such legitimacy when it is founded or, at least, does not contradict the imperative norms of international law, also known as jus cogens, or is based on the principle of justice ^[12].

Based on the consideration of the concepts of legitimacy presented above, there is no doubt that the African Criminal Court is a legitimate international court. Despite the fact that the Court has not yet entered into force, given that the ratification process has been very slow and only 15 African Union member States have signed the Malabo Protocol, the fact that the African Criminal Court has proved beyond reasonable doubt that it is a legal institution in international law created by the mutata mutandis treaty, it is also legal^[12]. In other words, contrary to many critics, the Malaba Protocol on the Establishment of the African Criminal Court satisfied the requirements of both legality and legitimacy as an international criminal court. Moreover, as in the case of any other international court, the legitimacy of the court will be called into question when the court finally enters into force. Some examples of such issues that will challenge the legitimacy of the African Criminal Court include the strategies of prosecutors, trials and political considerations. However, with proper legal formalization and support, especially from the African Court, all these obstacles will be overcome, and the Court will make a significant contribution to the development of the global rule of law and expand the family of international criminal law through newly created crimes. In general, the difference between legality and legitimacy boils down to the following:

The legality of an action or policy is assessed with reference to legal texts and precedents. Challenges and appeals can be put forward as part of the judicial process, but there is a clear and final opinion either for or against. The action is always either legal or illegal; it cannot be partially legal. On the contrary, legitimacy is mobile and changeable — it depends on perception and results. As a subjective interpretation of what is desirable and appropriate, legitimacy can be maintained by continuous efforts to ensure compliance with the normative expectations of affected voters. Legitimate solutions are based on democratic participation, in which affected individuals have the opportunity to raise their voice. When legitimacy is separated from democratic participation, it risks being subjected to ideological and self-serving manipulations. Legitimacy is a relative measure, it depends on the perceived acceptability of the rules governing the act and on the actor himself.

Finally, an international criminal court, such as the African Criminal Court, must meet the criterion of legality and legitimacy for its authority. However, one of the key areas where the African Criminal Court is sharply criticized is that it recognizes the inviolability of employees of high-ranking African leaders^[12]. As mentioned earlier, the inclusion of this provision caused many to distrust the authority of the court.

The immunity provision under the 2014 Malaba Protocol appears to undermine both the legitimacy and legitimacy of the African Criminal Court. This is due to the fact that the modern international Criminal Court does not recognize any form of immunity of public officials if they are charged before its jurisdiction ^[9]. Accordingly, article 46A of the 2014 Malaba Protocol reads as follows: "No charges may be brought or continued in Court against any acting Head of State or Government of the African Union or any person acting or having the right to act in that capacity, or other high-ranking persons." But the recognition by the 2014 Malaba Protocol of the immunity ratione personae of high-ranking government officials of the African Union does not mean impunity. This is due to the fact that personal immunity of civil servants is granted on the basis of their status and position, and this immunity is consistent with the fight against impunity and ends when a civil servant is in office longer^[8].

In addition, just as the immunity provisions in the Rome Statute that created the ICC have caused a lot of controversy about whether the Rome Statute recognizes or waives the immunity of non-State parties, so does the immunity provision in the 2014 Malaba Protocol, which recognizes the immunity of high-ranking government officials of the African Union. In both cases, the provisions on immunities do not contradict either the norms of international law on the immunity of public officials or the fight against impunity ^[20]. Accordingly, the legality and legitimacy of the immunity provision in the 2014 Malaba Protocol is also beyond doubt, since these provisions are always determined by the statute of the court, on the one hand, and on the other hand, they are also consistent with the norm of customary international law on the immunity of public officials. Again, despite the fact that the provision on immunity in the 2014 Malaba Protocol may contradict the principle of justice and impartiality in the current trend of international criminal law, the African Criminal Court is fighting impunity for serious international crimes for the following reasons: 1) the fact that the Court recognizes immunity ratione personae only for the highest State officials of the African Union; 2) immunity ratione personae of high-ranking State officials of the African Union is also recognized by a foreign criminal court, and these courts also oppose impunity; 3) recognition of the immunity of State officials in accordance with customary international law is determined by law on the establishment of the Court, and not international law^[8]; and, finally, 4) The African Union and the African continent still have the majority of States parties that have ratified the Rome Statute, and more than half of the member States of the African Union are still parties to the Rome Statute, which previously did not recognize immunities in its jurisdiction^[9]. This means that the Rome Statute is still applicable to more than 30 States out of 55 African States. Accordingly, if the African Union intended to combat impunity for serious international crimes by using the immunity clause, then the Rome Statute would not continue to apply to the member States of the African Union, and withdrawal from the Rome Statute would be binding on the member States of the African Union. In other words, the immunity provision under the African Criminal Court does not prevent the fight against impunity for serious international crimes, even if it may deter African Union civil servants and senior officials from criminal liability while they are in office^[22].

Vertical harmonization of the African Criminal Court with the International Criminal Court through complementarity.

Despite the differences created by their respective provisions on immunities, the African Criminal Court recognizes the immunity of high-ranking public officials of the African Union who are in office before its jurisdiction, and the Rome Statute does not recognize or revoke all immunities granted to public officials before its jurisdiction, and the African Criminal Court and the International Criminal Court can be harmonized vertically due to complementarity^[12]. In accordance with the principle of subsidiarity, the national jurisdiction of all States Parties is authorized to prosecute all crimes provided for in article 5 of the Rome Statute. The 2014 Malaba Protocol and the Rome Statute have jurisdiction over the crime of genocide, crimes against humanity, war crimes and the crime of aggression, therefore, the principle of complementarity will contribute to harmonization in this regard. Thus, the complementarity of the African Union and the International Criminal Court will mean the following: 1) when a case is being investigated or prosecuted in accordance with the jurisdiction of the African Criminal Court, it will be unacceptable for consideration by the jurisdiction of the International Criminal Court, except in cases where the African Criminal Court is really unwilling or unable to carry out an investigation or prosecution ^[11]; 2) when the case was investigated within the jurisdiction The African Criminal Court, and the Court also really decided not to prosecute the crime, the International Criminal Court should also declare the crime inadmissible, except in cases where the decision taken by the African Criminal Court not to prosecute the crime was based on unwillingness or inability not to initiate criminal proceedings^[11]; 3) when the crime has already been initiated or considered by the African Criminal Court For the conduct that is the subject of the complaint, the International Criminal Court should also not have jurisdiction or consider the crime unacceptable^[11]; 4) finally, when there is not sufficient seriousness to justify further actions before the jurisdiction of the African Criminal Court, this should also be unacceptable in the jurisdiction of the International Criminal Court. Apart from the fact that they complement each other through the jurisdiction and judicial bodies of the African Criminal Court and the International Criminal Court, the prosecutor of both the African Criminal Court and the International Criminal Court should complement each other, especially during the investigation and prosecution of crimes ^[10]. Moreover, the harmonization of these jurisdictions will equally divide the burden of investigations and prosecutions for the most serious crimes of international concern between the African Criminal Court and the International Criminal Court.

The harmonization of the African Criminal Court and the International Criminal Court will strengthen their relationship. Accordingly, instead of strained relations, harmonization will break the barrier due to complementarity between the African Criminal Court and the International Criminal Court, since both institutions have the same jurisdiction over the most serious crimes of concern to the international community ^[11]. Another rationale for the harmonization of the African Criminal Court and the International Criminal Court is that it will lead to a more effective fight against impunity through cooperation. Instead of competing with everyone; harmonization will lead to the effective use of resources to combat impunity. This will ultimately maximize the criminal budget of both the African Criminal Court and the International Criminal Court, often spent on investigations and prosecutions, on the one hand, and will also prevent double prosecution, on the other hand. In addition, the harmonization of the African Criminal Court and the International Criminal Court will strengthen both their legitimacy and legitimacy as outstanding international criminal institutions, and ultimately the universality of the International Criminal Court with respect to crimes falling under its jurisdiction^[9].

Harmonization will certainly create mutually beneficial relations between the African Criminal Court and the International Criminal Court and will further strengthen the fight against impunity for serious international crimes affecting our society^[13]. In addition, harmonization through complementarity will enhance the capacity of judges of the African Criminal Court, as they will have access to the jurisprudence of the International Criminal Court on complementarity and other issues dealt with by judges of the International Criminal Court^[8]. This is also possible because both jurisdictions have similar provisions regarding complementarity. Finally, harmonization will promote positive complementarity and burden-sharing between the African Criminal Court and the International Criminal Court, and will also avoid duplication of jurisdictions.

The alignment of the interests of the African Criminal Court and the International Criminal Court will create a good tandem that will fight impunity for international crimes on the African continent and in the rest of the world. Therefore, instead of competing and challenging each other, which leads to a fiasco, the African Criminal Court and the International Criminal Court should complement each other and cooperate in order to combat impunity for serious international crimes. Moreover, the legality and legitimacy of both criminal institutions is justified and indisputable.  Thus, the African Criminal Court is not an African alternative, but an addition to the International Criminal Court. Cooperation between the two courts is mandatory, since both the African Criminal Court and the International Criminal Court are different players in the same team, whose goal is to win the fight against impunity for the most serious crimes of concern to the international community.