OUVRAGE : K.E. Daniel, Head of State Immunity under the Malabo Protocol: Triumph of Impunity over Accountability?

Kobina Egyir DANIEL

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

I. 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
4 Whither International Criminal Justice in Africa? Objectives of the Monograph
5 Overview of Legal Questions Arising and Commentary Thereon
6 Overview of Chapters

II. 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
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
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

III. 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
4 Evolution of Sovereign Immunity
5 Contemporary Application of Sovereign Immunity
6 Conclusion

IV. A Jus Cogens Human Rights Exception to Immunity: Fact, Fiction or Wishful Thinking?

1 Introduction
2 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
4 Interrogating the Case for a Jus Cogens Human Rights Exception to Immunity
5 Determining Lex Lata through State Practice: Are There Jus Cogens Human Rights Exceptions to Immunity Ratione Personae and Immunity Ratione Materiae
6 Recent Trends in the Development of International Law on Immunities
7 Conclusion

V. 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
3 Immunity under the Rome Statute of the International Criminal Court
4 Some Conclusions on Immunities before International Courts
5 Interrogating Article 46A Bis – Understanding the Import of the Immunity Provision of the Malabo Protocol
6 Conclusion

VI. 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)?
3 A Second Look at the au’s Pedigree for Accountability or Alleged Lack Thereof
4 Does the Malabo Protocol Undermine the Rome Statute?
5 Conclusion

VII. Conclusions: Triumph of Impunity over Accountability?

1 Introduction
2 ICC Anti- African Bias, au Impunity or a Comedy of Unintended Consequences?
3 Whither International Criminal Justice?
4 Some Thoughts on Operationalizing the Expanded African Court
5 A Final Word

Bibliography
Index

Kobina Egyir DANIEL, Head of State Immunity under the Malabo Protocol: Triumph of Impunity over Accountability?, Leiden, Brill/Nijhoff, 2021 (520 pp.)