Head of State Immunity under the Malabo Protocol: Triumph of Impunity over Accountability?: Developments in International Law, cartea 76
Autor Kobina Egyir Danielen Limba Engleză Hardback – 22 sep 2021
Beyond the analysis to determine whether the immunity that the AU’s Malabo Protocol of 2014 confers represents a retrogression in international law norms that seek accountability for jus cogens crimes, Daniel provides valuable insights into the status-inspired dialectics and self-serving hero-villain polemics that fuel contestations of right between the AU and the ICC, and the worldviews that respectively seek to overturn/preserve the asymmetry of the international legal order. Through a review of legal history, case law from national and international tribunals, state practice and academic expositions, the book examines the evolution and practice of Head of State immunity as well as recent trends in the practice of the doctrine in light of the countervailing push to establish exceptions to immunity in order to ensure accountability under international human rights and international criminal law.
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Specificații
ISBN-13: 9789004466074
ISBN-10: 900446607X
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Developments in International Law
ISBN-10: 900446607X
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Developments in International Law
Cuprins
Foreword
Acknowledgements
Abbreviations
1au Flirtations with Impunity? An Introduction and Overview
1 Introduction
2 Background to the Progressive Escalation of the au-icc Conflict
3 The Immunity versus Jus Cogens Human Rights Debate
3.1Previewing Immunities
3.2Previewing the Case for Jus Cogens Human Rights Exceptions to Immunities
4 Whither International Criminal Justice in Africa? Objectives of the Monograph
5 Overview of Legal Questions Arising and Commentary Thereon
6 Overview of Chapters
2A Retrospective on the Road Travelled towards the African Court of Justice and Human and Peoples’ Rights
1 Introduction
2 An Early Path to an African Court
3 The Drivers of the Relationship between the International Criminal Court, the African Union (au) and au Member States
3.1Perceived Abuse of the Principle of Universal Jurisdiction by Western States
3.2The Perceived Targeting of African Countries by the icc and the Double Standards of Western Powers
3.3The Perceived Disrespect Shown to African States and the au by the UN Security Council
3.4Overreach by the icc and Other Actors
3.4.1 Prosecutorial Overreach
3.4.2 Judicial Overreach
3.4.3 ngo Overreach
4Habemus Curiam – The Making of an African Criminal Court
5 Rationale for an African Criminal Court
6 The Place of the Expanded African Court within the au’s Judicial Architecture
6.1The African Court on Human and Peoples’ Rights
6.2Court of Justice of the African Union
6.3The African Court of Justice and Human Rights
7 The Legal Status of the Expanded African Court in International Law
8 The Emergence and Proffered Rationale for the Immunity Clause – Article 46A Bis
9 Accountability or Impunity: The Litmus Test
3The Origins and Evolution of the Doctrine of Head of State Immunity
1 Introduction
2Rex Non Potest Peccare: The Origins of the Doctrine of Sovereign Immunity
3 Rationales Undergirding Sovereign Immunity
3.1Sovereign Equality of States
3.2The Theory of Extra-territoriality
3.3Representative and Functional Role of the Sovereign
3.4Courtesies Arising from Comity and Reciprocity
4 Evolution of Sovereign Immunity
4.1The Doctrine of Absolute Immunity
4.2The Commercial Exception to Immunity
4.3The Territorial Tort Exception to Immunity
5 Contemporary Application of Sovereign Immunity
5.1Immunity Ratione Personae
5.2Immunity Ratione Materiae
6 Conclusion
4A Jus Cogens Human Rights Exception to Immunity: Fact, Fiction or Wishful Thinking?
1 Introduction
2 Jus Cogens
2.1Definition of Jus Cogens
2.2Origins and Theoretical Foundations of Jus Cogens
2.3Nature of Jus Cogens
3 The Case for a Jus Cogens Human Rights Exception to Sovereign Immunity and Immunity for Heads of State and Other High-Ranking Government Officials
3.1 Jus Cogens and Normative Hierarchy
3.2Universal Jurisdiction Trumps Immunity
3.3Disqualification of International Crimes as Legitimate Acts of State for Which Immunity May Be Invoked
3.4Implied Waiver of Immunity
4 Interrogating the Case for a Jus Cogens Human Rights Exception to Immunity
4.1 Jus Cogens and Normative Hierarchy
4.2Does Universal Jurisdiction for Jus Cogens Crimes Trump Immunity?
4.3 Jus Cogens Violations Disqualified as Legitimate Acts of State for Which Immunity May Be Invoked
4.4Implied Waiver?
5 Determining Lex Lata through State Practice: Are There Jus Cogens Human Rights Exceptions to Immunity Ratione Personae and Immunity Ratione Materiae
5.1Are There Jus Cogens Human Rights Exceptions to Immunity Ratione Personae?
5.2Are There Jus Cogens Human Rights Exceptions to Immunity Ratione Materiae?
5.2.1 State Practice in Domestic Legislation
5.2.2 State Practice in Decisions of Domestic Courts
5.2.3 State Practice through International Treaties
5.2.4 International Case Law
6 Recent Trends in the Development of International Law on Immunities
6.1Institute for International Law
6.2International Law Commission
7 Conclusion
5Immunity before International Courts and Article 46A Bis of the Malabo Protocol: Deconstructing the Immunity Clause and Assessing Its Application and Coherence with International Criminal Law
1 Introduction
2 A Review of Immunity before International Tribunals
2.1Proffered Grounds for Denying Immunity before International Courts
2.2Immunity and Accountability for International Crimes after World War i
2.3Immunity before Post-World War ii Accountability Platforms
2.4 Ad-hoc Tribunals Created under Chapter vii Powers of the United Nations Security Council
2.5Other Ad-hoc Tribunals Established under Authority of the United Nations
2.5.1Prosecutor v. Charles Ghankay Taylor: Invocation of Immunity
2.5.2 The Ruling of the Appeals Chamber on Immunity
2.5.3 Critique of the Ruling
3 Immunity under the Rome Statute of the International Criminal Court
3.1The Prosecutor v. Omar Hassan Ahmad Al-Bashir: Judgment in the Jordan Referral Re Al-Bashir Appeal: Decision of the Appeals Chamber
3.1.1 Article 27(2) of the Rome Statute as Customary International Law
3.1.2 unsc Resolution 1593 Compels Cooperation by Sudan
3.1.3 Jordan Had an Obligation to Arrest Omar al-Bashir as 1953 Convention Did Not Apply
3.2Critique of the Appeals Chamber Decision
3.2.1 Sleight of Hand in Framing the Principal Appeal Question
3.2.2 Revisiting the Rationale for Immunities – A Resurrection of Chad and Malawi
3.2.3 Article 27(2) as Customary International Law?
3.3Where to from Jordan? – Some Early Thoughts
4 Some Conclusions on Immunities before International Courts
5 Interrogating Article 46A Bis – Understanding the Import of the Immunity Provision of the Malabo Protocol
5.1Scope of Immunity
5.2Type of Immunity: Ratione Personae, Ratione Materiae or Both?
5.3Assessing the Coherence of Article 46A Bis with International Law
6 Conclusion
6The au and International Criminal Justice: Genuine Commitment or Sleight of Hand?
1 Introduction
2 By Their Deeds They Shall Be Known: (Ravening Wolves in Sheep’s Clothing)?
2.1The Shifting Sands of the au’s “Principled Objections”
2.2Withdrawal from the Rome Statute ‘in Pursuit of Impunity’?
2.3A Case of the Apple Does Not Fall Far from the Tree? Reviewing the au’s History of Ineffective Accountability Mechanisms
2.3.1 The African Charter on Human and People’s Rights
2.3.2 Courts Established by the (O)au
2.3.2.1 The African Court on Human and Peoples’ Rights (achpr)
2.3.2.2 The African Court of Justice (acj)
2.3.2.3 The African Court of Justice and Human Rights (acjhr)
2.3.3 Priming the Expanded African Court to Fail
2.3.3.1 Jurisdiction Ratione Materiae of the Expanded African Court
2.3.3.2 Bench of the Expanded African Court
2.3.3.3 Financing the Expanded African Court
3 A Second Look at the au’s Pedigree for Accountability or Alleged Lack Thereof
3.1Treaties to Ensure Accountability
3.2Immunity Not Impunity
3.3The au Withdrawal Strategy
3.4The Sub-Optimal Diligence of the au Commission
3.5Legitimate Scepticism of the icc as a Paragon of International Criminal Justice
4 Does the Malabo Protocol Undermine the Rome Statute?
4.1Definitions of Crimes
4.1.1 Genocide
4.1.2 Crimes against Humanity
4.1.3 War Crimes
4.2Concurrent Jurisdiction over Crimes
4.3Complementarity
5 Conclusion
7Conclusions: Triumph of Impunity over Accountability?
1 Introduction
2 icc Anti-African Bias, au Impunity or a Comedy of Unintended Consequences?
2.1A Second Look at the Anti-African Bias
2.1.1 icc Engagement with Situations beyond Africa
2.1.2 Self-Referrals by African States, Not icc Targeting
2.1.3 Rome Statute Limitations and Jurisdictional Constraints of icc
2.2The au’s Witting or Unwitting Dance with Impunity
3 Whither International Criminal Justice?
4 Some Thoughts on Operationalizing the Expanded African Court
4.1Jurisdiction Ratione Materiae
4.2The Complementarity Question: Achieving Positive Complementarity
4.3Applying Fair Trial Standards.
4.4Ensuring Capacity for the Court
5 A Final Word
Bibliography
Index
Acknowledgements
Abbreviations
1au Flirtations with Impunity? An Introduction and Overview
1 Introduction
2 Background to the Progressive Escalation of the au-icc Conflict
3 The Immunity versus Jus Cogens Human Rights Debate
3.1Previewing Immunities
3.2Previewing the Case for Jus Cogens Human Rights Exceptions to Immunities
4 Whither International Criminal Justice in Africa? Objectives of the Monograph
5 Overview of Legal Questions Arising and Commentary Thereon
6 Overview of Chapters
2A Retrospective on the Road Travelled towards the African Court of Justice and Human and Peoples’ Rights
1 Introduction
2 An Early Path to an African Court
3 The Drivers of the Relationship between the International Criminal Court, the African Union (au) and au Member States
3.1Perceived Abuse of the Principle of Universal Jurisdiction by Western States
3.2The Perceived Targeting of African Countries by the icc and the Double Standards of Western Powers
3.3The Perceived Disrespect Shown to African States and the au by the UN Security Council
3.4Overreach by the icc and Other Actors
3.4.1 Prosecutorial Overreach
3.4.2 Judicial Overreach
3.4.3 ngo Overreach
4Habemus Curiam – The Making of an African Criminal Court
5 Rationale for an African Criminal Court
6 The Place of the Expanded African Court within the au’s Judicial Architecture
6.1The African Court on Human and Peoples’ Rights
6.2Court of Justice of the African Union
6.3The African Court of Justice and Human Rights
7 The Legal Status of the Expanded African Court in International Law
8 The Emergence and Proffered Rationale for the Immunity Clause – Article 46A Bis
9 Accountability or Impunity: The Litmus Test
3The Origins and Evolution of the Doctrine of Head of State Immunity
1 Introduction
2Rex Non Potest Peccare: The Origins of the Doctrine of Sovereign Immunity
3 Rationales Undergirding Sovereign Immunity
3.1Sovereign Equality of States
3.2The Theory of Extra-territoriality
3.3Representative and Functional Role of the Sovereign
3.4Courtesies Arising from Comity and Reciprocity
4 Evolution of Sovereign Immunity
4.1The Doctrine of Absolute Immunity
4.2The Commercial Exception to Immunity
4.3The Territorial Tort Exception to Immunity
5 Contemporary Application of Sovereign Immunity
5.1Immunity Ratione Personae
5.2Immunity Ratione Materiae
6 Conclusion
4A Jus Cogens Human Rights Exception to Immunity: Fact, Fiction or Wishful Thinking?
1 Introduction
2 Jus Cogens
2.1Definition of Jus Cogens
2.2Origins and Theoretical Foundations of Jus Cogens
2.3Nature of Jus Cogens
3 The Case for a Jus Cogens Human Rights Exception to Sovereign Immunity and Immunity for Heads of State and Other High-Ranking Government Officials
3.1 Jus Cogens and Normative Hierarchy
3.2Universal Jurisdiction Trumps Immunity
3.3Disqualification of International Crimes as Legitimate Acts of State for Which Immunity May Be Invoked
3.4Implied Waiver of Immunity
4 Interrogating the Case for a Jus Cogens Human Rights Exception to Immunity
4.1 Jus Cogens and Normative Hierarchy
4.2Does Universal Jurisdiction for Jus Cogens Crimes Trump Immunity?
4.3 Jus Cogens Violations Disqualified as Legitimate Acts of State for Which Immunity May Be Invoked
4.4Implied Waiver?
5 Determining Lex Lata through State Practice: Are There Jus Cogens Human Rights Exceptions to Immunity Ratione Personae and Immunity Ratione Materiae
5.1Are There Jus Cogens Human Rights Exceptions to Immunity Ratione Personae?
5.2Are There Jus Cogens Human Rights Exceptions to Immunity Ratione Materiae?
5.2.1 State Practice in Domestic Legislation
5.2.2 State Practice in Decisions of Domestic Courts
5.2.3 State Practice through International Treaties
5.2.4 International Case Law
6 Recent Trends in the Development of International Law on Immunities
6.1Institute for International Law
6.2International Law Commission
7 Conclusion
5Immunity before International Courts and Article 46A Bis of the Malabo Protocol: Deconstructing the Immunity Clause and Assessing Its Application and Coherence with International Criminal Law
1 Introduction
2 A Review of Immunity before International Tribunals
2.1Proffered Grounds for Denying Immunity before International Courts
2.2Immunity and Accountability for International Crimes after World War i
2.3Immunity before Post-World War ii Accountability Platforms
2.4 Ad-hoc Tribunals Created under Chapter vii Powers of the United Nations Security Council
2.5Other Ad-hoc Tribunals Established under Authority of the United Nations
2.5.1Prosecutor v. Charles Ghankay Taylor: Invocation of Immunity
2.5.2 The Ruling of the Appeals Chamber on Immunity
2.5.3 Critique of the Ruling
3 Immunity under the Rome Statute of the International Criminal Court
3.1The Prosecutor v. Omar Hassan Ahmad Al-Bashir: Judgment in the Jordan Referral Re Al-Bashir Appeal: Decision of the Appeals Chamber
3.1.1 Article 27(2) of the Rome Statute as Customary International Law
3.1.2 unsc Resolution 1593 Compels Cooperation by Sudan
3.1.3 Jordan Had an Obligation to Arrest Omar al-Bashir as 1953 Convention Did Not Apply
3.2Critique of the Appeals Chamber Decision
3.2.1 Sleight of Hand in Framing the Principal Appeal Question
3.2.2 Revisiting the Rationale for Immunities – A Resurrection of Chad and Malawi
3.2.3 Article 27(2) as Customary International Law?
3.3Where to from Jordan? – Some Early Thoughts
4 Some Conclusions on Immunities before International Courts
5 Interrogating Article 46A Bis – Understanding the Import of the Immunity Provision of the Malabo Protocol
5.1Scope of Immunity
5.2Type of Immunity: Ratione Personae, Ratione Materiae or Both?
5.3Assessing the Coherence of Article 46A Bis with International Law
6 Conclusion
6The au and International Criminal Justice: Genuine Commitment or Sleight of Hand?
1 Introduction
2 By Their Deeds They Shall Be Known: (Ravening Wolves in Sheep’s Clothing)?
2.1The Shifting Sands of the au’s “Principled Objections”
2.2Withdrawal from the Rome Statute ‘in Pursuit of Impunity’?
2.3A Case of the Apple Does Not Fall Far from the Tree? Reviewing the au’s History of Ineffective Accountability Mechanisms
2.3.1 The African Charter on Human and People’s Rights
2.3.2 Courts Established by the (O)au
2.3.2.1 The African Court on Human and Peoples’ Rights (achpr)
2.3.2.2 The African Court of Justice (acj)
2.3.2.3 The African Court of Justice and Human Rights (acjhr)
2.3.3 Priming the Expanded African Court to Fail
2.3.3.1 Jurisdiction Ratione Materiae of the Expanded African Court
2.3.3.2 Bench of the Expanded African Court
2.3.3.3 Financing the Expanded African Court
3 A Second Look at the au’s Pedigree for Accountability or Alleged Lack Thereof
3.1Treaties to Ensure Accountability
3.2Immunity Not Impunity
3.3The au Withdrawal Strategy
3.4The Sub-Optimal Diligence of the au Commission
3.5Legitimate Scepticism of the icc as a Paragon of International Criminal Justice
4 Does the Malabo Protocol Undermine the Rome Statute?
4.1Definitions of Crimes
4.1.1 Genocide
4.1.2 Crimes against Humanity
4.1.3 War Crimes
4.2Concurrent Jurisdiction over Crimes
4.3Complementarity
5 Conclusion
7Conclusions: Triumph of Impunity over Accountability?
1 Introduction
2 icc Anti-African Bias, au Impunity or a Comedy of Unintended Consequences?
2.1A Second Look at the Anti-African Bias
2.1.1 icc Engagement with Situations beyond Africa
2.1.2 Self-Referrals by African States, Not icc Targeting
2.1.3 Rome Statute Limitations and Jurisdictional Constraints of icc
2.2The au’s Witting or Unwitting Dance with Impunity
3 Whither International Criminal Justice?
4 Some Thoughts on Operationalizing the Expanded African Court
4.1Jurisdiction Ratione Materiae
4.2The Complementarity Question: Achieving Positive Complementarity
4.3Applying Fair Trial Standards.
4.4Ensuring Capacity for the Court
5 A Final Word
Bibliography
Index
Notă biografică
Kobina Egyir Daniel, LLD (2019, University of Pretoria), is a Senior Private Sector and Investment Policy Specialist who works with African governments on policy, institutional, legal and regulatory reforms to support private sector development and create markets for investment. He is also an unremunerated Senior Researcher to the South Africa Research Chair in International Constitutional Law. He has contributed a number of articles and book chapters to peer reviewed publications on the subject of immunities in international law.