The Crime of Terrorism Within the Jurisdiction of the African Court of Justice and Human Rights: Article 28G of the AU's Malabo Protocol 2014

Abstract

The proposed African Court of Justice and Human Rights is set to become the first regional court to have jurisdiction over a crime of ‘terrorism’, with the adoption of article 28G of the Malabo Protocol 2014. The Malabo Protocol’s crime of terrorism is closely modelled on the Organisation of African Unity (OAU) Convention on the Prevention and Combating of Terrorism 1999, which reflects certain historical experiences and understandings of terrorism in Africa, including a concern to exclude national liberation and self-determination violence from the legal concept of terrorism. This paper examines the drafting history of the Malabo Protocol’s terrorism offence, its elements, the extended modes of criminal liability, and the clauses excluding self-determination struggles, armed conflicts governed by international humanitarian law (IHL), and political or other justifications. In doing so it discusses a range of technical, criminological and human rights issues, and contextualizes the offence within the context of international and regional practice. It argues that the Malabo Protocol replicates problematic features of the OAU Convention, including ambiguous or over-broad definitional elements that infringe the principle of legality and other human rights protected in African and international law. The threshold for damage is also set too low and sweeps up minor harms. There is an unhelpful conflation of terrorism with other political violence, enabling suppression of legitimate democratic resistance. The extended modes of liability are poorly drafted and create great uncertainty and unpredictability about the prospective scope of liability.

Keywords: African Court of Justice and Human Rights, African Union, African crime of terrorism, African convention on the prevention and combating of terrorism, self-determination

JEL Classification: K10, K30, K33