The Nature of the Crimes in the African Criminal Court

Abstract

This article examines the distinction between ‘international’ and ‘transnational’ crimes in contemporary international legal literature. It considers this traditional division through the lens of the African Union (AU)’s Malabo Protocol, adopted in June 2014, which seeks to establish the first regional penal court with material jurisdiction over 14 crimes. The author argues that, while the international/transnational crimes distinction may be analytically convenient for scholars, the codification of both types of prohibitions into a regional treaty illustrates that some states are less concerned about adherence to crime categories and more interested in proscribing whatever conduct pose threats to their peace and security. While the Malabo Protocol has been controversial, because it is among other things perceived as an outcome of Africa’s backlash against the International Criminal Court and for its temporary immunity provision shielding sitting government officials from prosecutions, it is submitted that the merits of the AU instrument must be assessed on criteria other than whether it retains the conventional distinction between transnational and international crimes.