Head of state immunity under the Malabo Protocol : triumph of impunity over accountability?
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Bibliographic Information
Head of state immunity under the Malabo Protocol : triumph of impunity over accountability?
（Developments in international law, v. 76）
Brill Nijhoff, c2021
- : hardback
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Note
Includes bibliographical references (p. [435]-487) and index
Contents of Works
- AU flirtations with impunity? : an Introduction and overview
- A retrospective on the road travelled towards the African Court of Justice and Human and Peoples' Rights
- The origins and evolution of the doctrine of head of state immunity
- A jus cogens human rights exception to immunity : fact, fiction or wishful thinking?
- Immunity 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
- The AU and International criminal justice : genuine commitment or sleight of hand?
- Conclusions : triumph of impunity over accountability?
Description and Table of Contents
Description
In Head of State Immunity under the Malabo Protocol: Triumph of Impunity over Accountability?, Kobina Egyir Daniel engages the subject of Head of State Immunity in international law against the backdrop of the African Union (AU)'s decision to create a Court with international criminal jurisdiction before which "Heads of State" or persons "entitled to act in such capacity" will have immunity during incumbency. The AU asserts - in justification - not only that it is standing up for itself against "neo-colonialist imperialist forces," which have perverted international criminal justice and target African States through the International Criminal Court (ICC), but also that it is preserving the very soul of international criminal justice as well as customary international law on immunities.
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.
Table of Contents
Foreword
Acknowledgements
Abbreviations
1 au 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
3.1 Previewing Immunities
3.2 Previewing 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
2 A 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
3.1 Perceived Abuse of the Principle of Universal Jurisdiction by Western States
3.2 The Perceived Targeting of African Countries by the icc and the Double Standards of Western Powers
3.3 The Perceived Disrespect Shown to African States and the au by the UN Security Council
3.4 Overreach by the icc and Other Actors
3.4.1 Prosecutorial Overreach
3.4.2 Judicial Overreach
3.4.3 ngo Overreach
4 Habemus 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
6.1 The African Court on Human and Peoples' Rights
6.2 Court of Justice of the African Union
6.3 The 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
3 The Origins and Evolution of the Doctrine of Head of State Immunity
1 Introduction
2 Rex Non Potest Peccare : The Origins of the Doctrine of Sovereign Immunity
3 Rationales Undergirding Sovereign Immunity
3.1 Sovereign Equality of States
3.2 The Theory of Extra-territoriality
3.3 Representative and Functional Role of the Sovereign
3.4 Courtesies Arising from Comity and Reciprocity
4 Evolution of Sovereign Immunity
4.1 The Doctrine of Absolute Immunity
4.2 The Commercial Exception to Immunity
4.3 The Territorial Tort Exception to Immunity
5 Contemporary Application of Sovereign Immunity
5.1 Immunity Ratione Personae
5.2 Immunity Ratione Materiae
6 Conclusion
4 A Jus Cogens Human Rights Exception to Immunity: Fact, Fiction or Wishful Thinking?
1 Introduction
2 Jus Cogens
2.1 Definition of Jus Cogens
2.2 Origins and Theoretical Foundations of Jus Cogens
2.3 Nature 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
3.2 Universal Jurisdiction Trumps Immunity
3.3 Disqualification of International Crimes as Legitimate Acts of State for Which Immunity May Be Invoked
3.4 Implied Waiver of Immunity
4 Interrogating the Case for a Jus Cogens Human Rights Exception to Immunity
4.1 Jus Cogens and Normative Hierarchy
4.2 Does 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
4.4 Implied Waiver?
5 Determining Lex Lata through State Practice: Are There Jus Cogens Human Rights Exceptions to Immunity Ratione Personae and Immunity Ratione Materiae
5.1 Are There Jus Cogens Human Rights Exceptions to Immunity Ratione Personae?
5.2 Are 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
6.1 Institute for International Law
6.2 International Law Commission
7 Conclusion
5 Immunity 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
2.1 Proffered Grounds for Denying Immunity before International Courts
2.2 Immunity and Accountability for International Crimes after World War i
2.3 Immunity before Post-World War ii Accountability Platforms
2.4 Ad-hoc Tribunals Created under Chapter vii Powers of the United Nations Security Council
2.5 Other Ad-hoc Tribunals Established under Authority of the United Nations
2.5.1 Prosecutor 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
3.1 The 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
3.2 Critique 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?
3.3 Where 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
5.1 Scope of Immunity
5.2 Type of Immunity: Ratione Personae, Ratione Materiae or Both?
5.3 Assessing the Coherence of Article 46A Bis with International Law
6 Conclusion
6 The 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)?
2.1 The Shifting Sands of the au 's "Principled Objections"
2.2 Withdrawal from the Rome Statute 'in Pursuit of Impunity'?
2.3 A 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
3.1 Treaties to Ensure Accountability
3.2 Immunity Not Impunity
3.3 The au Withdrawal Strategy
3.4 The Sub-Optimal Diligence of the au Commission
3.5 Legitimate Scepticism of the icc as a Paragon of International Criminal Justice
4 Does the Malabo Protocol Undermine the Rome Statute?
4.1 Definitions of Crimes
4.1.1 Genocide
4.1.2 Crimes against Humanity
4.1.3 War Crimes
4.2 Concurrent Jurisdiction over Crimes
4.3 Complementarity
5 Conclusion
7 Conclusions: Triumph of Impunity over Accountability?
1 Introduction
2 icc Anti-African Bias, au Impunity or a Comedy of Unintended Consequences?
2.1 A 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
2.2 The au 's Witting or Unwitting Dance with Impunity
3 Whither International Criminal Justice?
4 Some Thoughts on Operationalizing the Expanded African Court
4.1 Jurisdiction Ratione Materiae
4.2 The Complementarity Question: Achieving Positive Complementarity
4.3 Applying Fair Trial Standards.
4.4 Ensuring Capacity for the Court
5 A Final Word
Bibliography
Index
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