By Tennen B.D. Tehoungue, IJR 2021 PAREN Fellow
Tennen B. Dalieh Tehoungue, a Doctoral Student at the Dublin City University (DCU), School of Law and Government, and she is researching universal jurisdiction, transitional justice, peacebuilding and reconciliation in Liberia. Her research evaluates the impact of universal jurisdiction, in particular extra-territorial prosecution, on Liberia’s transitional justice process. Tennen is a Liberian feminist and a full-time mom.
This article argues that African states consider extra-territorial prosecution (Universal Jurisdiction) like the African Peer Review Mechanism (APRM) model that fosters self-monitoring. The APRM mechanism advances self-assessment for good governance through the strengthening of economic, social and corporate governance.
What is Universal Jurisdiction (UJ)? Universal Jurisdiction is defined as a “criminal jurisdiction based solely on the nature of the crime, where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.” The principle of UJ argues that war crimes, crimes against humanity, genocide, torture, etc. are grave under international law. It stresses that regardless of the geography of the crime committed, who committed those crimes, these crimes affect humanity and hence must be punished by states with criminal jurisdiction. The Geneva Conventions (1949), Convention against Torture (1984), and Rome Statute are international legal instruments that allow states to assume prosecutorial rights. Many African states have acceded to these instruments and are yet domesticated by national legislatures. This gap makes it problematic for African states to assume prosecutorial jurisdiction for war crimes, crimes against humanity, etc.
The APRM model focuses on social, economic, political and good governance. These self-assessments are made through African states visiting, monitoring and producing reports on the state of affairs amongst themselves. These review processes allow for national dialogue and latitude to draw up interventions. The APRM is not without its flaws; however, it is a tool that has given African states a pathway to rethink national development trajectory. The observations, criticism, and recommendations are from ‘comrades’ and neighbouring states development partners, thus validating comments and observations.
Nevertheless, one can point out that these reforms do not address criminal accountability, despite the minimal reviews carried out within the state’s judiciary. The emphasis is not placed on making legal bodies in African states function for the benefit of good governance and citizens, specifically. This is the gap extra-territorial prosecution can address.
Historically, there is no argument that democratic governance is challenged and our institutions barely work as a continent. However, amongst poorly functioning bodies, legal bodies are the bare minimum. In places where they work, the judiciary is used as a tool for abuse, repression and oppression. The Human Rights Watch and many research bodies make different observations on African states legal system’s ineffectiveness with citizens having little or no trust from the police to judicial officers and the court process. There is an ingrained structural and systematic faultiness within national legal structures and systems that allows for flourishing abuse and inequality. Thus, it is fancy thinking to assert that the nation’s social, economic, and political bodies will work without a functioning legal tool that balances.
Without a doubt, there is a growing increase in civil wars and authoritarian rule in African. The general narrative emphasises the grievance of citizens. Yet, the inability of African states to hold perpetrators criminally accountable for horrendous abuses allows for the breakdown of the rule of law and the abuse thereof. African states must set a deterrent and Universal Jurisdiction is that tool.
UJ provides many opportunities that African states can embrace and not be thought of as neo-colonialism. There exist different organs, structures and models tailored around promoting social, political and economic rights. Yet, what is missing in all these policies, including the African Union Transitional Justice Policy (AUTJP), is a clearly defined legal mechanism that addresses crimes within international law like genocide, war crimes and crimes against humanity. The AUTPJ emphasises the utility of African Traditional Justice Mechanism (for example, Ubuntu-based processes), reparation, redistributive (socio-economic) justice, and memorialisation to address African states’ historical violence and mass atrocities. What is highlighted as problematic is the misconception of dealing with mass atrocities from a holistic community perspective. Tailoring interventions for communities affected by these mass atrocities and abuses ignores the personal injuries individuals sustain within these communities. Furthermore, it over-looks the specificities of victims’ injuries, hence the specific needs for healing and restoration.
Extra-territorial prosecution as a transitional justice mechanism is an efficient tool that serves as a deterrent. It is a visible action that serves as a ‘deterrent’ and reinforcing measure from states that human rights abuses are not tolerable and punishable; re-echoing the destabilisation of statehood and gross violation of people’s inherent rights cannot be shielded by ‘Ubuntu‘.
Regional bodies like the African Court of Justice and Human Rights are relevant bodies that deal with human rights issues. However, this Court lacks the jurisdictional scope to investigate and try historical human rights abuses within the scope of genocide, war crimes, and crimes against humanity. For societies that struggle with historical and systematic abuse of human rights and mass violence, universal jurisdiction is the appropriate legal tool that African states must consider to first hold perpetrators in each African accountable. Extra-territorial prosecution presents two opportunities for African states:
- i) given leadership model for best practices on criminal accountability for gross human rights violation amongst and between states,
- ii) a legal model on best practices for the incoming generation to address historical human rights violations and abuses.
In conclusion, this article notes that the social, economic and political rights of African citizens are not guaranteed outside of legal structures that reaffirm the alienate rights. As African states embrace the model for self-assessment as is with the APRM framework, the same must be embraced with mechanisms like UJ that deals with criminal accountability. Extra-territorial prosecution remains the balancing tool that guarantees a free, fair and balanced society that is not haunted by its unaddressed historical past.
 The Princeton Principle of Universal Jurisdiction