Bonita Ayuko  

Few provisions in African international law have attracted as much critical attention, or as blunt a nickname, as Article 46A bis of the Malabo Protocol. This post takes that nickname seriously. It asks whether the label “impunity clause” is legally earned, politically inevitable, or simply unavoidable given the way African states have approached the ICC. Drawing on the contrast with Article 27 of the Rome Statute and the 2019 Al-Bashir Appeals Chamber judgment, it argues that Africa’s recent trajectory, from Malabo’s immunity clause to the Sahel’s exit from the ICC, is less about rejecting accountability than about a deeply contested struggle over who gets to define it.

A Clause with a Nickname

Legal provisions rarely acquire popular nicknames. When they do, it tends to mean something went wrong. Article 46A bis of the Protocol on Amendments to the Statute of the African Court of Justice and Human Rights, adopted at the AU Summit in Malabo, Equatorial Guinea, in June 2014, has one: the “impunity clause.”¹ That name has stuck.

The text, in relevant part, reads:

“No charges shall be commenced or continued before the Court against any serving AU Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.” ²

Read plainly, that is a categorical bar. The proposed African Court of Justice and Human and Peoples’ Rights (ACJHR) cannot prosecute sitting heads of state or senior officials while they hold office. This is the same court that was meant, at least in theory, to give Africa jurisdiction over genocide, crimes against humanity, war crimes, and the crime of aggression.³ The irony of designing a regional criminal court and then immunizing the very category of persons most likely to bear command responsibility for those crimes is, to put it mildly, hard to overlook.

The question I seek to address is not simply whether 46A bis is a bad policy choice. It is whether it can be considered a violation of international law, what it reveals about the ever-changing conflict between immunity and accountability standards, and what it means for ending impunity on the continent.  

Two Immunities, One Provision

Prior to understanding the purpose of 46A bis, it helps to distinguish between the two types of immunity that customary international law has traditionally recognized, because Article 46A bis appears to blend them in ways that stretch both.

• Immunity ratione personae is personal immunity. It attaches to who you are, not what you did, status rather than function. Sitting heads of state, heads of government, and foreign ministers enjoy it. The scope is wide, it covers private acts as much as official ones, but it expires when the individual leaves office. The ICJ confirmed its existence in Congo v. Belgium in 2002.⁴
• Immunity ratione materiae is functional immunity. It attaches to acts performed in an official capacity, survives the end of office, but is narrow in scope. And here is the critical point: most authorities take the view that it does not extend to international crimes. Genocide and crimes against humanity simply cannot be characterized as “official acts of state” in any legally coherent sense. ⁵

Article 46A bis appears to blend both without fully committing to either. It shields heads of state and government during incumbency, embodying ratione personae. It also extends immunity to “other senior state officials based on their functions,” which sounds like a ratione materiae hook. Yet the temporal limit, “during their tenure of office”, pulls it back toward the personal column. The upshot is a hybrid that may be broader than either category standing on its own. ⁶ It is unclear as to whether that breadth was intentional or a drafting compromise.

The ICC’s Answer: Article 27 and Al-Bashir

The ICC’s position is the sharpest contrast available. Article 27(1) of the Rome Statute is unequivocal: the Statute “shall apply equally to all persons without any distinction based on official capacity.” Article 27(2) goes further, providing that immunities under national or international law “shall not bar the Court from exercising its jurisdiction.”⁷

However, the more significant development came in May 2019. The ICC Appeals Chamber, ruling in Prosecutor v. Al-Bashir following Jordan’s non-compliance with an arrest warrant, went well beyond treaty law. It held, unanimously, that “there is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court.” ⁸ The Chamber’s conclusion was striking: such immunity “has never been recognized in international law as a bar to the jurisdiction of an international court.” ⁹

If that reasoning holds, Article 46A bis does not merely contradict the Rome Statute. It appears to contradict the direction customary law is moving in. The clause preserves an immunity that the Appeals Chamber says was, at least in the context of international tribunals, never there to begin with.

That said, the 2019 judgment has not gone unchallenged. Some scholars argue the Chamber moved too fast, that it collapsed the line between treaty law and customary law, and built a broad conclusion on a thinner body of State practice than the reasoning acknowledged. ¹⁰ This may be the case but even those critics tend to accept the direction of travel: immunities before international criminal courts are being eroded, not consolidated.

Why the AU Put It There Anyway

Clarity on the political logic behind Article 46A bis is important for practitioners advising African governments or civil society organizations on accountability strategies. By 2014, the AU’s relationship with the ICC had become genuinely strained. The indictment of Omar al-Bashir in 2009 and 2010, while he was Sudan’s sitting president, had set off a chain reaction. The cases against Kenya’s President Uhuru Kenyatta and Deputy President William Ruto made things worse. The AU passed resolution after resolution calling for deferral under Article 16 of the Rome Statute, urged member states to ignore ICC arrest warrants, and started commissioning studies on whether ICC processes were compatible with African sovereignty norms. ¹¹

Article 46A bis was a response to that context. More specifically, it was a political bargain, a way to incentivize sitting leaders to sign up to a regional criminal court that might otherwise expose them to prosecution later. The AU’s Legal Counsel, Prof. Hajer Gueldich, has since acknowledged, the clause “has been widely criticized for its perceived incompatibility with Article 27 of the Rome Statute.” ¹²

That acknowledgment is telling because the Malabo immunity clause is not just a normative deviation from the ICC framework. It is a structural flaw in the court that it was meant to strengthen. The ACJHR’s criminal section was designed precisely to try the most serious international crimes, and those crimes are almost always carried out by, or with the direction of, people at the apex of state power. Shielding those people, during the period when they are most likely to be committing crimes, inverts the court’s purpose.

The Ratification Crisis and What It May Suggest

A decade after adoption, the Malabo Protocol has still not entered into force. As of June 2026, only Angola has ratified the Protocol on Amendments to the Statute of the ACJHR, the treaty that contains Article 46A bis. The protocol requires fifteen AU member states to ratify before it comes into force. ¹³

There is a temptation to read that failure as a neutral administrative delay. It is probably not. Many African governments appear reluctant to commit to even this weakened version of regional accountability that already includes the immunity clause. That reluctance may suggest that no immunity carve-out, however generous, is quite enough to make political elites comfortable with a standing regional criminal court operating over their territory.

In September 2025, Burkina Faso, Mali, and Niger, three Sahel stated under military rule, announced their exit from the ICC Rome Statute, describing the Court as “an instrument of neo-colonialist repression.” ¹⁴ Whether we chose to accept that characterization or not, the announcement deepens the accountability vacuum in a region already experiencing disastrous armed conflict coupled with widespread violations of international humanitarian law. ¹⁵ Taken together, the Malabo immunity clause and the Sahel withdrawals may not represent two separate phenomena. They reflect different expressions of the same underlying impulse: keep international criminal accountability at arm’s length, on terms that allow those in power to decide when it applies.

Pathways Forward

For lawyers engaged with international criminal law in Africa, three arguments deserve sustained attention:

First, a narrow interpretive approach to Article 46A bis. The clause should be read to exclude international crimes from its scope. Crimes against humanity and war crimes cannot, as a matter of law and logic, constitute “functions” performed by a head of state or senior official in any defensible sense. An interpretation that construes 46A bis as purely ratione personae immunity, absolute but temporally limited, would leave the door open to post-incumbency prosecution before the ACJHR, and would align the provision more closely with the ICJ’s analysis in the Arrest Warrant Case.

Second, strengthening domestic jurisdiction. The principle of complementarity, whether under the Rome Statute or the Malabo Protocol framework, places primary responsibility for prosecution on domestic courts. African bar associations, including the ABA’s affiliated bodies on the continent, have a critical role to play in supporting the enactment and operationalization of implementing legislation for international crimes at the national level.

Third, treaty reform. Civil society organizations and regional bar associations should advocate for amendment of the Malabo Protocol to either remove Article 46A bis entirely or to include an explicit exclusion of core international crimes from its scope. The AU has itself created mechanisms, through its Peace and Security Council and the AU Commission, through which such reform can be initiated.

Concluding Thought

A clause that shields the powerful from accountability is always a political choice dressed in the language of law. Article 46A bis of the Malabo Protocol is that choice made explicit. Whether it is ultimately characterized as a restatement of customary immunities, a treaty deviation, or simply a clause that reveals how far Africa’s accountability architecture has still to go, its existence demands a response. This does not mean a retreat from accountability norms, but a disciplined, insistence that immunity and impunity are not synonymous, even if, in Malabo, they were made to look that way.

The author welcomes responses and counter-arguments through the A Contrario ICL comments section.

1. See, e.g., Hajer Gueldich (AU Legal Counsel), quoted in African Union Press Release on the African Court of Justice and Human Rights (June 25, 2024).
2. Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol), Art. 46A bis, adopted June 27, 2014. Full text at the AU Treaty Repository.
3. Atrocities Watch Africa, Malabo Protocol — FAQs (2025); KPTJ, Seeking Justice or Shielding Suspects? (2016).
4. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ Judgment, February 14, 2002, ICJ Reports 2002.
5. Antonio Cassese, International Criminal Law (2nd ed., 2008); Cassese, “When May Senior State Officials Be Tried for International Crimes?” (2002) 13 EJIL 853.
6. Claus Kreß, Preliminary Observations on the ICC Appeals Chamber’s Judgment of 6 May 2019 in the Jordan Referral re Al-Bashir Appeal (Occasional Paper Series No. 8, 2019).
7. Rome Statute of the International Criminal Court, Arts. 27(1) and 27(2). Full text.
8. ICC Appeals Chamber, Prosecutor v. Al-Bashir (Judgment in the Jordan Referral re Al-Bashir Appeal), ICC-02/05-01/09-397-Corr, May 6, 2019, para. 1. ICC Press Release.
9. Ibid.
10. See Kreb (n. 6); Dapo Akande, Why the ICC’s Judgment in the Al-Bashir Case Wasn’t So Surprising, Just Security (April 23, 2020).
11. On the AU–ICC tensions, see Michigan Journal of International Law, Sovereign Immunity, the AU, and the ICC: Legitimacy Undermined (May 2025).
12. Hajer Gueldich, quoted in African Union Press Release (June 25, 2024).
13. Rafâa Ben Achour, “Dix ans après: Le protocole de Malabo…” (2024) 4 Ordine Internazionale e Diritti Umani; Atrocities Watch Africa, Malabo Protocol FAQs.
14. Joint Communiqué of the AES Confederation States, September 22, 2025.
15. Amnesty International, Burkina Faso/Mali/Niger: ICC Withdrawal a Serious Backwards Step (September 22, 2025); Human Rights Watch, Sahel Countries: ICC Withdrawal Endangers Civilians (September 23, 2025).