Exit from Nuremberg to the Hague: The Malabo Protocol and the Pan-African Road to Arusha

Abstract

In adopting the Malabo Protocol and creating the African Court of Justice and Human Rights, the African Union has established the first ever regional court with international criminal jurisdiction. This milestone signals once again, the role of African institutions in creating and developing norms in international politics. Yet, both International Relations (IR) theories and debates and official narratives of the historiography of the international legal order tend to omit the sustained contributions of African states and institutions. Echoes of the African Union (AU)’s efforts to define and codify crimes that are of concern to its constituents can be found in the African states’ interventions at the International Law Commission during the 1980s and the negotiations that lead to the creation of the International Criminal Court (ICC) in the 1990s. This article argues that beyond the critique and skepticism about the Malabo Protocol and the AU’s agenda, there is a sustained vision and trajectory that underlies African agency in norms creation and attempts to usher in an international legal order that speaks more directly and equitably to the concerns of the continent. Ultimately, I propose a genealogy of those Pan-African visions for an embedded international justice system that provides a fundamental corrective to the Nuremberg to The Hague narrative.