The distinction between ‘international’ and ‘transnational’ crimes in the African Criminal Court

This chapter examines the distinction between ‘international’ and ‘transnational’ crimes in contemporary international legal literature. It considers this traditional division through the lens of the African Union’s Malabo Protocol, adopted in June 2014, which seeks to establish the first regional penal court with material jurisdiction over fourteen crimes. These include well-known “core crimes” such as genocide, crimes against humanity, war crimes, and aggression, but also less known or even novel offenses such as the crime of unconstitutional change of government, illicit exploitation of natural resources, mercenarism, corruption, as well as trafficking in persons, drugs, and hazardous wastes. The author argues that, while the international/transnational crimes distinction may be analytically convenient, the codification of both types of prohibitions into a regional treaty illustrates that some states are less concerned about adherence to crime categories and more interested in proscribing whatever conduct poses threats to their security. While the Malabo Protocol has been controversial, because it is perceived as an outcome of Africa’s backlash against the International Criminal Court and for its temporary immunity provision shielding sitting government officials, it is submitted that the merits of the African Union instrument must be assessed on criteria other than whether it retains the conventional distinction between transnational and international crimes.