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ABSTRACT
Africa has witnessed a proliferation of international human rights courts as well as criminal courts at different layers of governance – globally operating courts, regional courts as well as sub-regional courts – which suggests that analyzing this phenomenon through the prism of multi-level governance (MLG) will yield interesting insights into the workings of the rule of law in an era of global legal pluralism. One might be inclined to conclude that the more courts there are, the better for the rule of law. However, the dispersion of judicial authority actually has a rather ambivalent impact on the rule of law. While MLG does facilitate forum-shopping, whether or not the simultaneous availability of different fora weakens or strengthens the rule of law depends on who is exploiting this availability. Secondly, legitimacy deficits of courts at one level of governance will spur judicial institution-building at other levels of governance. Third, MLG almost always produces norm collisions; however, the evidence also shows that the involvement of an ‘objective’ third party might resolve these norm collisions. Fourth, in order for courts in MLG to function as a system of checks and balances, they will need the support of compliance constituencies with relatively homogeneous preferences.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Theresa Reinold is Junior professor of global and transnational cooperation research at Duisburg-Essen University. Trained as a Political Scientist, her research interests lie at the intersection of International Relations Theory and International Law. She is currently carrying out a two-year research project entitled ‘The rule of law in African regionalism’, funded by the Thyssen Foundation, which explores how global rule of law scripts are translated into (sub-)regional African practices. Her work has been published inter alia in The American Journal of International Law, the Review of International Studies, the International Journal of Constitutional Law, and Global Constitutionalism.
Notes
1. This does not mean that the proliferation of courts will automatically lead to a culture of respect for the independence of the judiciary – African elites are well known for what has been labelled ‘regime-boosting regionalism’ – a tendency to adopt lofty goals, norms, instruments, etc. on paper with no intention of actually implementing those in practice. See F. Söderbaum, ‘Rethinking Regions and Regionalism’, Georgetown Journal of International Affairs 14, no. 2 (2013): 9–18, at 13. The establishment of international courts could thus be seen as yet another instance of regime-boosting regionalism where leaders merely pay lip service to the rule of law with no intention of translating the commitments made on paper into practice.
2. L. Hooghe and G. Marks, ‘Unraveling the Central State, but how? Types of Multi-level Governance’, American Political Science Review 97, no. 2 (2003): 233–43.
3. See eds. I. Bache and M: Flinders, Multi-level Governance (Oxford: Oxford University Press, 2004); A. Benz, ‘Accountable Multilevel Governance by the Open Method of Coordination?’, European Law Journal 13, no. 4, (2007): 505–22; Hooghe and Marks, ‘Unraveling the Central State’; F. Scharpf, ‘Notes toward a Theory of Multilevel Governing in Europe’, Scandinavian Political Studies 24, no. 1 (2001): 1–26.
4. P.S. Bermann, ‘Global Legal Pluralism’, Southern California Law Review 80 (2007): 1155–237, at 1155.
5. But see the special issue by T. Isiksel and A. Thies in Global Constitutionalism 2, no. 2 (2013); M. Heupel and T. Reinold, The Rule of Law in Global Governance (Basingstoke: Palgrave, 2016); E.U. Petersmann, International Economic Law in the 21st Century (Oxford: Hart Publishing, 2012); as well as A. Føllesdal, R. Wessel, and J. Wouters, Multilevel Regulation and the EU (Leiden: Martinus Nijhoff, 2008).
6. See, e.g. A. Underdal and O.R. Young, eds., Regime Consequences: Methodological Challenges and Research Strategies (Dordrecht: Kluwer Academic, 2004); K. Raustiala and D.G. Victor, ‘The Regime Complex for Plant Genetic Resources’, International Organization 55 (2004): 277–309; S. Oberthür and T. Gehring, eds., Institutional Interaction in Global Environmental Governance: Synergy and Conflict among International and EU Policies (Cambridge: MIT Press, 2006); S. Oberthür and O.S. Stokke, eds., Managing Institutional Complexity: Regime Interplay and Global Environmental Change (Cambridge: MIT Press, 2011); K.W. Abbott, ‘The Transnational Regime Complex for Climate Change’, Environment and Planning C: Government and Policy 30 (2012): 571–90; A. Orsini, J.-F. Morin, and O. Young, ‘Regime Complexes: A Buzz, a Boom, or a Boost for Global Governance?’, Global Governance 19, no. 1 (2013): 27–39; A. Betts, ‘Regime Complexity and International Organizations: UNHCR as a Challenged Institution’, Global Governance 19, no. 1 (2013): 69–81; L. Gomez-Mera, ‘Regime Complexity and Global Governance: The Case of Trafficking in Persons’, European Journal of International Relations 22, no. 3 (2016): 566–95.
7. K. Alter and S. Meunier, ‘The Politics of International Regime Complexity’, Perspectives on Politics 7, no. 1 (2009): 13–24, at 13.
8. Ibid., 13.
9. See also D. Drezner, ‘The Power and Peril of International Regime Complexity’, Perspectives on Politics 7, no. 1 (2009): 65–70.
10. Alter and Meunier, ‘The Politics of International Regime Complexity’, 15.
11. J. Kelley, ‘The More the Merrier? The Effects of Having Multiple International Election Monitoring Organizations’, Perspectives on Politics 7, no. 1 (2009): 59–64, at 61.
12. G. Dancy and K. Sikkink, ‘Ratification and Human Rights Prosecutions: Toward a Transnational Theory of Treaty Compliance’, International Law and Politics 44 (2011–12): 751–90.
13. Ibid., 788.
14. Ibid., 778.
15. S. Quack, ‘Regime Complexity and Expertise in Transnational Governance: Strategizing in the Face of Regulatory Uncertainty’, Oñati Socio-legal Series 3, no. 4 (2013): 647–78, at 647.
16. J. Rosenau, ‘Change, Complexity, and Governance in a Globalizing Space’, in Debating Governance, ed. Jon Pierre (Oxford: Oxford University Press, 2000): 167–200, at 195.
17. J. Rosenau, ‘Strong Demand, Huge Supply: Governance in an Emerging Epoch’, in Multi-level Governance, ed. Bache and Flinders, 3–48, at 46.
18. B. Jessop, ‘Multi-level Governance and Multi-level Metagovernance’, in Multi-level Governance, ed. Bache and Flinders, 49–74, at 61.
19. D. Lanz and R. Gasser, A Crowded Field: Competition and Coordination in International Peace Mediation (Pretoria: University of Pretoria, Center for Mediation in Africa, Mediation Arguments No. 2, 2013), 3.
20. M. Heupel, ‘Human Rights Protection in International Organizations in the Era of Multi-level Governance and Legal Pluralism’, in The Rule of Law in Global Governance, ed. Heupel and Reinold, 149–79.
21. I would like to thank an anonymous reviewer for alerting me to this point.
22. T. Reinold, ‘Constitutionalization? Whose Constitutionalization? Africa’s Ambivalent Engagement with the International Criminal Court’, International Journal of Constitutional Law 10, no. 4 (2012): 1076–105.
23. Article 27 removes immunity for senior officials; Article 98 in turn addresses cooperation with respect to a waiver of immunity and consent to surrender.
24. At the time of writing, the decision was not publicly available yet; however, the CICC did post a summary of it on its website: http://www.coalitionfortheicc.org/news/20180201/globaljustice-weekly-au-seeks-icj-opinion-head-state-immunities-witnesses-take-stand
25. Assembly of the African Union, Draft Decisions, Declarations, Resolution and Motion, Twenty-Eighth Ordinary Session at Addis Ababa, Ethiopia, January 30–31, 2017, https://www.hrw.org/sites/default/files/supporting_resources/assembly_au_draft_dec._1_-_19_xxviii_e.pdf (accessed June 25, 2018).
26. Ibid.
27. BBC News, ‘African Union Backs Mass Withdrawal from ICC’, February 1, 2017, http://www.bbc.com/news/world-africa-38826073 (accessed July 7, 2018).
28. Bettina Ambach (Director of the Wayamo Foundation), interview by the author, February 2, 2018.
29. Coalition for the International Criminal Court, ‘AU Summit 2017: Africa Continues Pushback against ICC Withdrawals’, February 8, 2017, http://coalitionfortheicc.org/news/20170208/au-summit-2017-africa-continues-pushback-against-icc-withdrawals (accessed July 3, 2018).
30. Ajereboh Jespa Tichock (NGO representative from Cameroon), interview by the author, December 5, 2017.
31. Reuters, ‘Gambia Announces Plans to Stay in International Criminal Court’, February 13, 2017, http://www.reuters.com/article/us-gambia-justice-icc-idUSKBN15S2HF.
32. Confidential interview, 2 February 2018.
33. Reuters, ‘South African Court Blocks Government’s ICC Withdrawal Bid’, February 22, 2017, http://www.reuters.com/article/us-safrica-icc-idUSKBN1610RS (accessed July 1, 2018).
34. ISS Today, ‘Can Ramaphosa Revitalise South Africa’s Foreign Policy?’, Daily Maverick, January 11, 2018, https://www.dailymaverick.co.za/article/2018-01-11-iss-today-can-ramaphosa-revitalise-south-africas-foreign-policy/#.Wpcja0siEdV (accessed July 2, 2018).
35. P. Fabricius, ‘Can SA and the ICC Resolve their Differences?’ The Daily Maverick, September 13, 2018, https://www.dailymaverick.co.za/article/2018-09-13-can-sa-and-the-icc-resolve-their-differences/ (accessed February 7, 2019).
36. On this all of my interviewees agreed.
37. Confidential interview with an ASP insider, December 5, 2017.
38. Protocol on amendments to the protocol on the statute of the African Court of Justice and Human rights (Malabo Protocol), adopted 27 June 2014.
39. Council of the European Union, ‘The AU-EU Expert Report on the Principle of Universal Jurisdiction’, April 16, 2009, http://www.africa-eu-partnership.org/sites/default/files/documents/rapport_expert_ua_ue_competence_universelle_en_0.pdf.
40. Amended ACJHR Statute, article 46A bis (accessed July 5, 2018).
41. Amnesty International, ‘Malabo Protocol. Legal and Institutional Implications of the Merged and Expanded Court’, January 22, 2016, https://www.amnesty.org/en/documents/afr01/3063/2016/en/, p. 24 (accessed July 5, 2018).
42. M.D. Plessis, ‘Shambolic, Shameful and Symbolic. Implications of the African Union’s Immunity for African Leaders, ISS Paper 278, November 2014, https://oldsite.issafrica.org/uploads/Paper278.pdf (accesed July 7, 2018).
43. As confirmed by my interviewees Kwamchetsi Makhoka (political analyst from Kenya January 26, 2018) and Tiina Intelmann (former ASP President, now Estonian Ambassador to the United Kingdom, February 13, 2018).
44. T. Sainati, ‘Divided We Fall: How the International Criminal Court Can Promote Compliance with International Law by Working with Regional Courts’, Vanderbilt Journal of Transnational Law 49 (2016): 191–243, at 196.
45. But see A. Possi, ‘Striking a Balance between Community Norms and Human Rights: The Continuing Struggle of the East African Court of Justice’, African Human Rights Law Journal 15, no. 1 (2015): 192–213.
46. M. Munyaga, ‘EAC Court with Criminal Mandate Good for Integration’, The East African, July 27, 2012, http://www.theeastafrican.co.ke/Rwanda/Opinion/EAC-court-with-criminal-mandate-good-for-integration-/1433246-1464582-22itor/index.html (accessed July 3, 2018).
47. Possi, ‘Striking a Balance between Community Norms and Human Rights’, 212.
48. Confidential interview with two NGO representatives from Burundi, December 4, 2017.
49. BBC News, ‘Hissène Habré: Chad’s Ex Ruler Convicted of Crimes against Humanity’, May 30, 2016, http://www.bbc.com/news/world-africa-36411466 (accessed July 3, 2018).
50. R. Brody, ‘Bringing a Dictator to Justice: The Case of Hissène Habré’, Journal of International Criminal Justice 13, no. 2 (2015): 209–17, at 201.
51. Ibid., 212.
52. Ibid., 212.
53. BBC News, ‘Hissène Habré’.
54. C. Hicks, The Trial of Hissène Habré. How the People of Chad brought a Tyrant to Justice (London: Zed Books, 2018), 74–46.
55. William Nyarko (Executive Director, African Center for International Law & Accountability), interview by the author December 4, 2017.
56. Quoted in Hicks, The Trial of Hissène Habré, 180.
57. Ibid., 180.
58. Brody, ‘Bringing a Dictator to Justice’, 216.
59. Ibid., 216.
60. Committee Against Torture, ‘Decisions of the Committee Against Torture under article 22 of the Convention against torture and other cruel, inhuman or degrading treatment or punishment’, Communication No. 181/2001: Senegal, UN Doc. CAT/C/36/D/181/2001, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno.CAT%2fC%2f36%2fD%2f181%2f2001&Lang.en (accessed July 4, 2018).
61. Hicks, The Trial of Hissène Habré, 5.
62. Brody, ‘Bringing a Dictator to Justice’, 216.
63. There is a burgeoning literature on these courts; see, e.g. K.J. Alter, L.R. Helfer, and J.R. McAllister, ‘A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice’, American Journal of International Law 107, no. 4 (2013): 737–79; K.J. Alter, J.T. Gathii, and L.R. Helfer, ‘Backlash against International Courts in West, East and Southern Africa: Causes and Consequences’, European Journal of International Law 27, no. 2, (2016): 293–328; A.P. Van der Mei, ‘Regional Integration: The Contribution of the Court of Justice of the East African Community’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 69 (2009): 403–25; C. Reichard, The Logic of International Courts: An Exploration of the East African Court of Justice (Stanford: Stanford University, Center on Democracy, Development and the Rule of Law, Undergraduate Honors Thesis, 2015); Sainati, ‘Divided we Fall’; Possi, ‘Striking a Balance between Community Norms and Human Rights’; P.N. Ndlovu, ‘Campbell v Republic of Zimbabwe: a Moment of Truth for the SADC Tribunal’, SADC Law Journal 1 (2011): 63–79; J.A. Hessbrügge, ‘ECOWAS Court Judgment in Habré v Senegal Complicates Prosecution in the Name of Africa’, ASIL Insights 15, no. 4 (2010); S.T. Ebobrah, ‘Human Rights Developments in Sub-regional Courts in Africa during 2008’, African Human Rights Law Journal 9 (2009): 312–35; F. Cowell, ‘The Death of the Southern African Development Community Tribunal’s Human Rights Jurisdiction’, Human Rights Law Review 13, no. 1 (2013): 153–65; L. Nathan, ‘Solidarity Triumphs over Democracy – The Dissolution of the SADC Tribunal’, Development Dialogue (2011): 123–37; L.N. Murungi and J. Gallinetti, ‘The Role of Sub-regional Courts in the African Human Rights System’, Sur International Journal on Human Rights 7, no. 13 (2010): 119–43.
64. N. Fritz, ‘SADC Leaders Duplicitous in Axing Tribunal’, Mail & Guardian, September 7, 2012, https://mg.co.za/article/2012-09-07-00-sadc-leaders-duplicitous-in-axing-tribunal (accessed July 3, 2018).
65. SADC Tribunal, Campbell and Others v. Zimbabwe (Merits), Case No. SADC (T) 2/2007, November 28, 2008.
66. Alter, Gathii and Helfer, ‘Backlash against International Courts in West, East and Southern Africa’, 309.
67. Ibid.
68. R.R. Mzikamanda, ‘Constitutionalism and the Judiciary: A Perspective from Southern Africa’ (paper presented at the Conference for Law Reform Agencies for Eastern and Southern Africa, Lilongwe, Malawi, November 7–11).
69. Nathan, ‘Solidarity Triumphs over Democracy’, 132.
70. Ibid., 132.
71. Ibid., 132.
72. Cowell, ‘The Death of the Southern African Development Community Tribunal’, 164.
73. Alter, Helfer and McAllister, ‘A New International Human Rights Court’, 738.
74. Wayamo Foundation, ‘International Symposium. African Justice Mechanisms and Their Interplay with the ICC’, March 22–4, 2016, University of Cape Town, South Africa, 28.
75. Alter, Gathii and Helfer, ‘Backlash against international courts in West, East and Southern Africa’, 299f.
76. ECOWAS Court, Manneh v. The Gambia, ECW/CCJ/JUD/03/08, 5 June 2008; ECOWAS Court, Saidykhan v. The Gambia, ECW/CCJ/RUL/05/09, 30 June 2009.
77. Alter, Gathii, and Helfer, ‘Backlash against International Courts in West, East and Southern Africa’, 296.
78. Ibid., 297
79. Ibid., 298.
80. Ibid., 299.
81. Possi, ‘Striking a Balance between Community Norms and Human Rights’, 201.
82. EACJ, Anyang Nyong’o v. Attorney General of Kenya, Reference No. 1 of 2006, November 27, 2006.
83. Alter, Gathii and Helfer, ‘Backlash against International Courts in West, East and Southern Africa’, 302.
84. Ibid., 303.
85. Van der Mai, ‘Regional Integration’, 410.
86. Reichard, The Logic of International Courts, 5.
87. Ibid., 6.
88. Ibid., 97.
89. BBC News, ‘African Union Condemns “Unfair” ICC’, October 11, 2013, http://www.bbc.com/news/world-africa-24489059 (accessed 8 July 2018).
90. For a discussion of these initiatives from the perspective of global constitutionalism, see Reinold, ‘Constitutionalization? Whose constitutionalization?’
91. International Court of Justice, Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of February 14, 2002, para. 61.
92. Confidential interview, February 2, 2018.
93. Tiina Intelmann (former ASP President, now Estonian Ambassador to the United Kingdom), interview by the author, February 13, 2018.
94. Confidential interview, February 15, 2018.
95. See A. Knottnerus, ‘The Immunity of al-Bashir: The Latest Turn in the Jurisprudence of the ICC’, November 15, 2017, https://www.ejiltalk.org/author/abelknottnerus/.
96. Statement made at an ASP side-event with civil society representatives, December 5, 2017.
97. Confidential interview with an ASP insider, December 5, 2017.
98. Confidential interview with two ICC advisors (December 4, 2017) and one CICC delegate (Alix Vuillemin Grendel, December 5, 2017).
99. Bermann, ‘Global Legal Pluralism’.
100. Kwamchetsi Makhoka (political analyst from Kenya,), interview by the author, January 26, 2018.
101. Statement made at an informal NGO meeting at the 2017 ICC ASP, December 5, 2017.
102. M. Kahler, ‘Conclusion: The Causes and Consequences of Legalization’, International Organization 54, no. 3, (2000): 661–83.
103. According to her, ‘ECOWAS is really ahead in this regard and in many ways’. Confidential interview, October 2, 2017.
104. Confidential interview, December 5, 2017.