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Africa’s Immunity Controversy

NEW YORK – The decision by the African Union (AU), after more than five years of preparation, to confer jurisdiction over international crimes, such as genocide, crimes against humanity, and war crimes, on the African Court of Justice and Human Rights has inspired considerable controversy. Is there any merit to the criticism?

Opponents of the AU’s decision argue that there is no similar regional human-rights court elsewhere, and that the Rome Statute of the International Criminal Court does not account for the possibility of complementary regional systems. But “it has not been done before” is never an adequate reason not to try something new, particularly given that the ICC’s statute is not an unassailable authority of international law on accountability. In fact, the United Nations Charter explicitly authorizes “the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action.”

Another widespread criticism is that Africa lacks the capacity to try international crimes. But the notion that Africa cannot take responsibility for holding accountable Africans who have committed atrocities is patronizing, at best. Capacity is not a static condition. With a strong commitment, any country or institution can build it.

The only legitimate concern over the AU’s decision is the motive behind it. It has been suggested that Africa’s rulers are concerned less with holding accountable those who have committed international crimes than with protecting themselves from prosecution.