College of Law and Management Studies

The rise in universal jurisdiction in Africa after 2002 when South Africa became the first African country to implement legislation enabling the courts to exercise the doctrine, coupled with efforts by the African Union (AU) to regionalise international criminal law, are what inspired PhD graduate Ms Linda Mushoriwa to explore for her thesis the complex relationship between the doctrine of sovereignty and international criminal law on the continent.

‘The tension between the AU and the International Criminal Court (ICC) has been ongoing in recent years, particularly regarding the question of Sudanese President Omar Al Bashir’s immunity before the ICC,’ said Mushoriwa. ‘Sudan is not bound by the Rome Statute of the International Criminal Court and there has been a lot of debate regarding whether or not Bashir is immune,’ said Mushoriwa.

The research titled: The Relationship between International Criminal Law and State Sovereignty in Africa – as seen through the lens of the application of the principles of universal jurisdiction and personal immunities – examines the concerns expressed by African states under the auspices of the AU regarding the perceived abuse of the principle of universal jurisdiction by countries from the global North and the distinct, but closely related, perceived unfair targeting of African Heads of State by the ICC.

‘The thesis asserts that there is a complex relationship between the doctrine of sovereignty and international criminal law; and that this relationship is arguably complicated by the different ways in which European and non-European states historically obtained and enjoyed the protection of the doctrine of state sovereignty,’ explained Mushoriwa.

‘The tensions between African states and European states as well as the ICC respectively are arguably a result of African states’ sensitivity with their colonial past which contributed to their efforts to reassert their sovereignty and reaffirm the immunities of their heads of state and state officials,’ she said.

The study was supervised by Mr Christopher Gevers and Professor Shannon Bosch and has led to Mushoriwa writing an article titled: Immunity before the International Criminal Court: Still Hazy after all these Years, which was published in the South African Journal for Criminal Justice.

Words: Thandiwe Jumo
Photograph: Abhi Indrarajan