Daniëlla Dam de Jong & James G. Stewart, Illicit Exploitation of Natural Resources, in THE AFRICAN COURT OF JUSTICE AND HUMAN AND PEOPLES’ RIGHTS IN CONTEXT 590 (Charles C. Jalloh et al. eds., 2019)
In this chapter, Dam de Jong and Stewart discuss Illicit Exploitation of Natural Resources, a novel crime over which the African Court of Justice and Human and Peoples’ Rights will have jurisdiction, triable in its International Criminal Law Section. The Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (“Malabo Protocol”) criminalizes the “illicit exploitation of natural resources,” under which there are seven sub-offences incorporated in Article 28L Bis. Coupled with the new mandate of the African Court, which includes jurisdiction over corporations for the first time in an international treaty, the crime offers a distinct legal basis for prosecution of acts broader than the war crime of pillage. While this constitutes “an important innovation in international law,” the provision also comes with major limitations, including its broadness and vagueness. For example, the sole limiting criterion—the chapeau—is whether acts of illicit exploitation of natural resources are “of a serious nature affecting the stability of a state, region or the [African] Union.” However, the provision defines neither “exploitation” nor “natural resources.” Dam de Jong and Stewart offer a critical doctrinal overview of the seven sub-offences constituting Illicit Exploitation of Natural Resources, as well as some interpretive possibilities according with recent scholarship on resource predation. Notwithstanding the provision’s potential, the authors conclude that “the absence of any mention of objective or subjective elements capable of proving the offence transgress[es] basic principles in the criminal law” and recommend drafting of those elements.