Modes of Responsibility (Article 28N), Individual Criminal Responsibility (Article 46B) and Corporate Criminal Liability (Article 46C)

The Annex to the Malabo Protocol contains several provisions regulating in detail the modes of liability, some of which may be inspirational for future developments of international criminal law: among these, the exclusion of the defence of superior orders for all crimes included in the Annex to the Malabo Protocol, and the inclusion of corporate criminal liability for the crimes under the jurisdiction of the African Court of Justice and Human and Peoples’ Rights. Such an innovation, surely a bold one, is in line with the development of international criminal law. The real challenge will be for the (future) judges of the African Court of Justice and Human and Peoples’ Rights, who will have to interpret the complex and not always coherent provisions of the Protocol. Unfortunately, it can be already anticipated that some provisions, such as the reintroduction of immunity for the African heads of state, will greatly undermine the credibility and efficacy of the Court if not amended.