아프리카 형사재판소 설립논의와 주요 쟁점— 국가원수 면제를 중심으로 —

초록

Many African States have been the ardent supporters for the operation of the International Criminal Court(ICC), and The African States are the largest group in the membership of the ICC. But over the years some African States have criticized the attitude of the Court for being too focused on their continent. This phenomenon was mainly derived from the fact that the ICC has investigated and prosecuted the incumbent heads of African State or government of Sudan, Libya and Kenya. This criticism urged the Assembly of the African Union to adopt “the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights”(the Malabo Protocol) in June 2014. This new Court will, once its Statute enters into force upon achievement of the 15 required ratification, be a highly ambitious court with three separate chambers: (1) the General Affairs Section, (2) the Human and Peoples' Rights Section, and (3) the International Criminal Law Section. The International Criminal Law Section that has the jurisdiction on the 14 international crimes will function as the African Criminal Court. Until now there is, however, no State that ratified the Malabo Protocol. Article 46A bis of the Malabo Protocol provides for the immunity of the sitting heads of State or government or any other senior state officials before the African Criminal Court, which is contradictory to Article 27 of the ICC Statute. This is the most contentious provision of the Malabo Protocol. From a legal point of view, current customary international law is silent about immunities for sitting heads of State or government before international criminal courts or tribunals. There is no legal rule under customary international law denying immunity of the heads of State or requiring the immunity before international criminal courts or tribunals. Therefore, the Article 46A bis seems to be not contradictory to today's customary international law in that the customary international law does not deny immunities of the heads of State or government before international criminal courts. However, the Article 46A bis seems to undermine the fight against immunity. The African Criminal Court extends its jurisdiction to 14 international crimes, while also expressly including immunity of the heads of State or government. This Article will shield the perpetrators of the international crimes from being tried or punished before international courts or tribunals and consequently harm the fight against impunity by permitting the immunity of the heads of State from the reach of international justice.

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