After colonial independence what Al A. Mazrui called “Democracide” has occurred in several parts of Africa, most of the times with deep implications in what concerns to violations of international criminal law.
Following the Second World War (1939-1945) the traditional Grotian international law concept based on state sovereign power has been abandoned towards an “universalist” and “globalized” concept, preferably based on the Universal Declaration of Human Rights (1948), thus developing an international criminal law. This trend has ended up in the creation of the International Criminal Court with the broad aim of investigate and, if so, try individuals indicted with the gravest international law crimes: genocide, war crimes and crimes against humanity.
The problem is that the International Criminal Court focused itself in the African continent as object of its endeavours. That has led to an uncomfortable reaction from African countries and African scholars. The countries are deciding to withdraw from the Court, and scholars criticize the Court accusing it of bias against Africa.
It is in this context of i) critical problems regarding compliance of international criminal law in Africa, and ii) criticism relating ICC`s role, that should be weighed the signature of the Malabo protocol.
This is a protocol adopted in June 2014 by the African Union (AU) which extends the jurisdiction African Court of Justice and Human Rights (ACJHR) to crimes under international law and transnational crimes.
The question is that the ACJHR is not yet been established, and the terms of the protocol are very strict, in fact turning impracticable the prosecution of the main perpetrators of human right abusers: the leaders of African some countries. Therefore, it could be argued that the Malabo protocol is a hollow commitment and serves only to justify at the world stage the departure from the ICC of some African countries. So, it is only a political assertion of African sovereignty, without any legal impact, that in the end will maintain the impunity of some leaders, guaranteeing what Achille Mbembe described as “privatization of sovereignty”.
However, it could be defended, as some authors do, that the protocol is a first step towards an African culture of legal responsibility, establishing a new threshold concerning the legal obligations of individual countries regarding compliance with the international criminal law within the framework of a multilateral organization as the African Union.
In conclusion, the adoption of the Malabo protocol could be interpreted as a way of emptying the ICC and African participation, but it is possible to believe that it represents a new original and African path towards the accountability of African leaders by African institutions.