Contemporary Challenges in Relation to the Prosecution of Senior
State officials before the International Criminal Court
Patricia Hobbs
Lecturer in Law, Brunel Law School, Brunel University, London
Abstract
The International Criminal Court (ICC) proceedings against Mr Ruto and Mr
Kenyatta have been hindered by a series of arguments and counterarguments aiming
either to avoid prosecution altogether or, at best, to cause significant delays.
Moreover, the African Union (AU) has repeatedly provided additional support to
Kenya’s standpoint, furthering the interests of the region over international criminal
justice. Following Kenya’s legitimate efforts to retain the jurisdiction over the crimes
that took place in 2007-2008, the status of the defendants became an obstacle to
effective prosecutions, giving rise to further areas of dispute, namely immunity, trial
attendance and a general uncooperative attitude towards Prosecution requests, leaving
the ICC virtually unable to proceed. This article highlights the current problems
encountered by the ICC in relation to the Kenya situation, and argues that a stronger
collaboration with the African Union (AU) is vital for the ICC effectiveness in that
region.
Keywords: ICC; AU; Kenya; Immunity; Trial Attendance
1. Introduction
The international community hailed the establishment of the ICC as a major
accomplishment in the fight against immunity. In order to address States’ concerns
about a perceived loss of sovereignty, the Rome Statute was agreed on the basis that
States would retain the primary jurisdiction to investigate and prosecute international
crimes, relegating the ICC to a complementary role, determined by the States’ ability
*)
My thanks to Professor Manisuli Ssenyonjo, Dr Rossana Deplano, Professor Ilias Bantekas and the
other editors for their helpful comments on earlier drafts of this article.
1
and willingness to carry out prosecutions effectively. However, there has been a great
deal of criticism the ICC effectiveness. To begin with, all cases currently at the ICC
deal with situations from Africa, leading the ICC to be dubbed as an African Court
rather than an international one. 1 Then, there is the issue of timing. The fight for
justice includes the notion of speedy trials, not just for the victims of the crimes but
also for the defendants.2 The one that is more pertinent to this paper relates to the
ICC’s ability to prosecute a State official, including a sitting State president. This is
due to the fact that international customary rules concerning immunity appear to clash
with Article 27 of the Rome Statute, which stipulates that the defendant’s status
represents no bar to the ICC jurisdiction. The AU, the body representing the interests
of the African region, however, does not agree with the ICC’s interpretation of the
immunity rules,3 leading to a significant stumbling block to the arrest and surrender of
President Omar Al Bashir of Sudan.4
The Kenya situation represents another facet of non-cooperation, though still in the
context of State officials (including a sitting President). Mr Kenyatta and Mr Ruto –
the sitting President and deputy President of Kenya respectively – have been charged
with international crimes following the post-election civil unrest that took place in
2008.5 Nevertheless, notwithstanding the efforts to settle the immunity issue, more
Mirelle Delmas-Marty, ‘Ambiguities and Lacunae: The International Criminal Court Ten Years on’,
11 JICJ (2013) 553-561.
2)
Cherif Bassiouni, ‘Human Rights in the Context of Criminal Justice: Identifying International
Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke Journal of
Comparative & International Law (1993) 235-297.
3)
See AU Press Release 002/2012, ‘On the decisions of Pre-Trial Chamber I of the International
Criminal Court (ICC) Pursuant to Article 87(7) of the Rome Statute on the Alleged Failure by the
Republic of Chad and the Republic of Malawi to Comply with the Cooperation Requests Issued by the
Court with Respect to the Arrest and Surrender of President Omar Hassan al Bashir of the Republic of
the Sudan’, 9 January 2012.
4)
Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Pre-Trial Chamber I, First Arrest
Warrant issued on 4 March 2009, Second Arrest Warrant issued on 12 July 2010.
5)
Prosecutor v. Uhruru Muigai Kenyatta, ICC-01/09-02/11 (Trial Chamber) and Prosecutor v.
William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11 (Trial Chamber); charges were
confirmed for both Mr Kenyatta and Mr Ruto on 23 January 2012.
1)
2
challenges are arising for the ICC, causing delays in the proceedings and generating
more doubts about the ICC’s ability to deal effectively with certain categories of
defendants. After a brief discussion, in section two, summarising the backdrop to the
Kenya situation, section three of the paper will focus on the specific challenges faced
by the ICC so far in the context of the defendants’ status, namely immunity, trial
attendance and Mr Kenyatta’s proceedings. It is the author’s contention that the
obstacles that have arisen lately are evidence of Kenya’s lack of real commitment
with regard to the prosecution of the crimes perpetrated in 2008. 6 Moreover, the AU
has used the situation to further its aims and objectives, consequently contributing to a
culture of non-cooperation thus severely limiting the ICC effectiveness.
2. Kenya’s journey to the International Criminal Court
2.1. A brief background to the Kenya situation
Kenya signed the Rome Statute on 11 August 1999 and ratified it on 15 March 2005,7
thus allowing the ICC to gain the ability to try international crimes perpetrated in
Kenya, but only if Kenya is unable or unwilling to prosecute such crimes.8 During the
civil unrest that erupted after the 2007-2008 disputed Presidential elections, about
1,200 people died, over 300,000 people were displaced, and numerous counts of
rapes, sexual violence and other forms of assaults took place. 9 A Commission of
6)
The civil unrest that erupted after the 2007-2008 elections led to the death of about 1,200 people,
the displacement of over 300,000 people and numerous counts of rapes, sexual violence and other
forms of assaults. With regard to the crimes against humanity it was stated that senior political figures
were behind the planning and/or financing of the crimes; see http://www.icckenya.org/background (last
accessed on 27 February 2014).
7)
See http://www.icc-cpi.int/en_menus/asp/states%20parties/african%20states/Pages/kenya.aspx (last
accessed on 8 April 2014).
8)
See Articles 12(1) and 17 of the Rome Statute.
9)
See Peter Kagwanja, ‘Courting Genocide: Populism, Ethno-Nationalism and the Informalisation of
Violence in Kenya’s 2008 Post-Election Crisis, 27 Journal of Contemporary African Studies (2009)
365-387.
3
Inquiry was set up to investigate the events and to make recommendations,10 which
determined that crimes against humanity might have been committed, and suggested
the establishment of a special domestic tribunal by the Kenyan government to deal
with the perpetrators.
At that moment in time, however, Kenya did not have any legislation capable of
dealing with international crimes, since the Rome Statute had not yet been
implemented into domestic legislation.11 The International Crimes Act 2008, which
incorporated the Rome Statute into Kenyan domestic law, only applies to
international crimes committed after 1 January 2009; it could not therefore be applied
retrospectively to the 2007-2008 events. There were, of course, national penal laws
that dealt with the crime of murder, serious assaults and sexual offences, which could
have applied in the context of the crimes perpetrated during this particular event.12
However, one contentious issue was, and still remains, that the death penalty was the
maximum penalty applicable according to Kenyan penal law,13 whereas the maximum
penalty for the equivalent crime, as included in the International Crimes Act, is life
imprisonment,
14
in line with the Rome Statute provision.
15
Although such
inconsistency could have been rectified with legislative and sentencing changes,
attempts to set up a Special Tribunal failed, and eventually the Kenyan Government
10)
Waki Report of the Findings of the Commission of Inquiry into the Post-Election Violence in
Kenya established by the Government of Kenya in February 2008.
11)
See Antonina Okuta, 'National Legislation for Prosecution of International Crimes in Kenya’, 7
JICJ (2009) 1063-1076.
12)
Chapter 63 of the Laws of Kenya.
13)
S. 204 of Kenyan Penal Code. Although Kenya has been a party to the ICCPR since May 1972, it
has not signed not ratified the First Optional Protocol allowing for individual petitions, nor the Second
one, the Abolition of the Death Penalty Optional Protocol. It must be noted, however, that in 2009
President Kibaky of Kenya commuted the death sentence for over 4,000 prisoners, following
constitutional challenges regarding the mandatory use of the application of the death sentence and
constitutional irregularities, including allegations of inhumane and degrading treatment according to s.
74 (1) of the constitution of the Republic of Kenya; see Mutiso v. Republic, Court of Appeal of Kenya
at Mombasa, Criminal Appeal No.17 of 2008, 29 February 2008.
14)
Article 77 International Crimes Act.
15)
Article 77 Rome Statute.
4
resolved to use the ordinary criminal courts alongside the establishment of a Truth
and Justice Commission.16
However, the attempts made by the Kenyan Government did not satisfy the Waki
Commission’s recommendations, prompting the ICC prosecutor to initiate an
investigation proprio motu, according to Article 15 of the Rome Statute. 17 The
significance of this referral cannot be underestimated as it sets in motion the wheels
of the ICC’s complementary nature, whereby the ICC becomes the court of
jurisdiction, and the State (in this case Kenya) will complement the ICC by
supporting an effective prosecution through cooperation. Despite Kenya’s efforts to
carry out the prosecutions, it became obvious that Kenya lacked the necessary will
and capacity to deal with these crimes effectively, necessitating the ICC to take over
the jurisdiction from the State.18 This is a delicate balancing exercise that requires the
State to relinquish its right to exercise its criminal jurisdiction over crimes perpetrated
in its territory, but continues to be part of the prosecutorial process through
cooperation.
In line with the Rome Statute provisions, the State has the right to challenge the ICC
decision, and this was indeed a step taken up by Kenya, resulting in the ICC Appeals
Chamber’s judgment that the case was indeed admissible under Article 17 of the
16)
The Truth, Justice and Reconciliation Commission (TJRC) Act became law in March 2009 and
started proceedings in 2010; note, however, that the Commission’s objective is to compile a record of
all human rights violations that took place in Kenya from 12 December 1963 to 28 February 2008 (s.5
(a)). On the transitional justice option for Kenya, see Godfrey M. Musila, ‘Options for Transitional
Justice in Kenya: Autonomy and the Challenge of External Prescriptions', 3 IJTJ (2009) 445-64.
17 )
See ICC Pre-Trial Chamber II Decision Pursuant to Article 15 of the Rome Statute on the
Authorization to Open an Investigation in the Situation of Kenya, ICC-01/09-19 Corr. (26 November
2009); ICC Pre-Trial Chamber II Decision Requesting Clarification and Additional Information, ICC01/09 (18 February 2010) and ICC-01/09-19 (31 March 2010).
18)
See Enrique C. Rojo, ‘The Role of Fair Trial Considerations
in the Complementarity Regime of
the International Criminal Court: From ‘No Peace without Justice’ to ‘No Peace with Victor’s Justice’?’
18 LJIL (2005), 829-869.
5
Rome Statute. 19 As evidence of its willingness to cooperate with the ICC, Kenya
signed a Memorandum of Understanding in 2010 promising to cooperate with the
Court, and both Mr Ruto and Mr Kenyatta appeared voluntarily at The Hague,
following the Summons to appear issued on 8 March 2011. However, a noncooperative attitude soon emerged, as demonstrated by the three areas of difficulties
outlined below.
3. Challenges in relation to the defendants’ status
3.1. The first stumbling block: settling the immunity issue
Achieving justice in the case of Kenya has the potential to be quite difficult, given
that the current criminal proceedings involve two prominent State officials: Mr Ruto
and Mr Kenyatta, respectively the current Deputy President and President of Kenya.20
One of the issues relating to the status of an individual accused of international crimes
concerns the States’ international obligation regarding immunity. According to
Article 27 of the Rome Statute, no special treatment is afforded to individuals due to
their official status; therefore even a sitting Head of State can be prosecuted. 21 In
other words, Article 27 refers to the notion of individual criminal responsibility,
which applies to all individuals, irrespective of his or her official capacity.
19)
See ICC-01/09-19, 31 March 2010 and ICC Appeals Chamber, ICC-01/09-02/11 OA, 30 August
2011. The admissibility test, following the jurisdiction requirement, concerns whether or not the scale
and scope of the crime – in this case crimes against humanity – meet the criteria of the crime under
Article 7 of Rome Statute.
20)
Mr Ruto’s trial started on 10 September 2013; Mr Kenyatta’s trial was scheduled to start on 5
February 2014, following a decision to adjourn the commencement of his trial (ICC-01/09-02/11-847,
31s October 2013). Both Mr Ruto and Mr Kenyatta are accused of being responsible as indirect coperpetrators pursuant to Article 25 (3) (a) of the Rome Statute for crimes against humanity, as set out in
Article 7 of the Rome Statute, namely murder (Article 7 (1) (a)), deportation or forcible transfer
(Article 7 (1) (d)) and persecution (Article 7 (1) (h); in addition, Mr Kenyatta’s criminal liability
extends to rape (Article 7 (1) (g)) and other inhumane acts (Article 7 (1) (k)).
21)
See Article 27 (1) and (2) of the Rome Statute.
6
However, some context must be provided at this point in order to highlight the
African perspective and its previous encounter with the immunity issue in the context
of the prosecution of a sitting Head of State, namely President Al-Bashir of Sudan.
Unlike Kenya, Sudan is not a party to the Rome Statute but the referral of that
particular situation to the ICC 22 revealed some fundamental differences between
Western and African countries, regarding the peace versus justice debate. Simply put,
it is the notion that the prosecution of individuals could jeopardize an existing peace
process, and potentially worsen the situation for the existing victims and endangering
long-lasting reconciliation.23
This was clearly the AU outlook on the issue, and the ICC refusal to defer its
proceedings regarding Sudan 24 angered the AU further and led to a call for noncooperation with the ICC request to surrender President Al Bashir.
25
More
specifically, the call for non-cooperation was made in pursuant to Article 98 of the
Rome Statute, on the basis of the personal immunities to be granted to a sitting
President. This is because Article 98(1) requires the ICC not to proceed with a request
if such request requires the State to act inconsistently with regard to its obligations
under international law concerning State or diplomatic immunity. Despite the arrest
warrants issued by the ICC, 26 the AU has repeatedly argued that, as a sitting
President, Mr Al Bashir enjoys immunity from prosecution on the basis of customary
international law. Consequently the ICC’s attempts to secure the arrest and surrender
of President Al Bashir, as he visited ICC member States, have yielded no success so
22)
See Security Council Resolution 1593 (2005), in pursuance of Article 13 of the Rome Statute.
Eric Blumenson, ‘The Challenge of a Global Standard of Justice: Peace, Pluralism and Justice at
the International Criminal Court’, 44 Colombia Journal of Transnational Law (2005-2006), 801-874.
24)
A deferral of proceedings can be initiated on the basis of Article 16 of the Rome Statute.
25)
See AU 13th Summit of Heads of States, para. 10, 1-3 July 2009.
26)
Arrest Warrants issued by ICC Pre-Trial Chamber I, ICC-02/05-01/09 and ICC-02/05-01/09.
23)
7
far.27
In fact, the ICC concentrated on the immunity issue, resolved to find an unequivocal
legal answer (regarding the immunity of sitting Presidents) to a very complex
problem. The ICC Trial Chamber’s decision that ‘…immunity of either former or
sitting Heads of State cannot be invoked to oppose a prosecution by an international
court’28 was perhaps intended to end the debate once and for all and finally obtain the
cooperation of the AU and its member States. With regard to the possible conflict
between Article 27(2) and 98(1) and immunity rules, the Chamber reiterated that
Customary international law creates an exception to Head of State immunity when
international courts seek a Head of State’s arrest for the commission of international
crimes. There is no conflict between Malawi’s obligations towards the Court and its
obligations under customary international law; therefore, article 98(1) of the Statute
does not apply.29
At this point the AU expressed the opinion that Article 98(1) had been made
ineffective and redundant by the Trial Chamber’s interpretation of immunity rules,
and clarified its position regarding the two controversial articles, namely that Article
27 concerns general principles of criminal law, whereas Article 98(1) concerns the
27)
See AU Press Release 002/2012, On the Decisions Of Pre-Trial Chamber I of the International
Criminal Court (ICC) Pursuant To Article 87(7) Of The Rome Statute On the Alleged Failure by the
Republic of Chad and the Republic of Malawi to Comply with the Cooperation Requests Issued by the
Court with Respect to the Arrest and Surrender of President Omar Hassan Al Bashir of the Republic of
The Sudan; Decision requesting observations from the Republic of Kenya, ICC-02/05-01/09 (25
October 2010); see also the European Parliament Resolution urging both Kenya and Chad to arrest
President Al Bashir (Official Journal of the European Union, 2011/C 308 E/15); Decision requesting
observations from the Republic of Kenya, ICC-02/05-01/09 (25 October 2010); see also the European
Parliament Resolution urging both Kenya and Chad to arrest President Al Bashir (Official Journal of
the European Union, 2011/C 308 E/15); ‘Decision informing the United Nations Security Council and
the Assembly of the States Parties to the Rome Statute about Omar Al Bashir's recent visit to the
Republic of Chad’, Pre-Trial Chamber I, ICC-02/05-01/09, 27 August 2010. In 2009 and 2010 the
Registry, at the Chamber request, sent a request and a supplementary request for the arrest and
surrender of President Al Bashir to all State parties to the Rome Statute (ICC-02/05-01/09-7 and ICC02/05-01/09-96).
28)
ICC Pre-Trial Chamber I 02/05-01/09, 12 December 2011, para. 36.
29)
Ibid, para. 44.
8
relationship between the ICC and the State parties, and that immunity protection
applies not only to foreign domestic courts but also to international courts.30 Although
there is some limited support for the view that the ICC is not permitted to issue a
request for surrender and that States would be in breach of their international
obligations to proceed with such requests,31 the AU interpretation that Article 98(1) is
ineffective and redundant cannot be supported. This is because it would lead to the
conclusion that there are two sets of immunity rules, one for the parties to the Rome
Statute, and another for non-parties. This interpretation would lead to an unfair and
illogical interpretation of immunity rules, and it cannot be the one envisaged during
the Rome proceedings, which regrettably do not provide any more clarity with regard
to the exact scope of the limitation.32
As the rules on State immunity can be traced back to the nineteenth century, 33 it
would be incorrect to conclude that the concept of absolute State immunity has
always been part of an accurate understanding and application of this principle, as
States’ practice has shown that some have adopted a restrictive policy on State
immunity.34 The stark reality is that
30)
AU Press Release 002/2012, 9 January 2012; the AU was referring here to the ICJ Arrest Warrant
Case (Republic of Congo v Belgium), Judgment, ICJ Reports p.2, 2002.
31)
Paola Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’ 7 Journal of International
Criminal Justice (2009), 315-332.
32)
It was noted above, in the general context of cooperation, for which surrender is a part of, that the
ratification of the Statute could cause constitutional problems and France was in fact one of the few
States that recognised the potential conflict between a constitutional immunity rule and Article 27 of
the Statute. Van Alebeek suggests that States have not spent much time thinking about the possibility
of surrendering a Head of State to the ICC and the minor constitutional changes may be insufficient for
such a transfer, if the issue arises; see Rosanne Van Alebeek, ‘From Rome to the Hague: Recent
Developments on Immunity Issues in the ICC Statute’, 13 Leiden Journal of International Law (2000)
485-93, p. 488.
33)
Rosanne Van Alebeek, The Immunity of States and Their Officials in International Criminal Law
and International Human Rights Law, (Oxford: Oxford University Press, 2008), p. 12.
34)
According to Van Alebeek, a restrictive approach to State immunity was initially practiced by
Belgium and Italy in the nineteenth century, and in a study carried out by Allen and published in 1933,
she suggested that the restrictive practice originally adopted by Italy and Belgium should also include
Switzerland, Egypt, Romania, France, Austria and Greece; see Van Alebeek, supra note 37 at 13-15.
9
International criminal law faces the difficult problem of integrating and making
meaningful multiple conflicting traditions, particularly the universality of human rights
…with the restrictions of classical public international law on immunities and criminal
law.35
In addition, Article 98(1) does not make a direct reference to “Head of State” but it
simply refers to “State or diplomatic immunity”, which begs the question as to
whether Head of State immunity is the same as State immunity. The answer must be
answered in the negative, because individual criminal responsibility attaches itself to
the individual and not the State. The two types of immunities are however related, in
the sense that immunity rationae materiae originates from immunity rationae
personae, and it was the latter that was enjoyed by the Head of State, albeit at a time
when the ruler or Head of State actually personified the State itself. 36 Therefore, when
the House of Lords (HL) had to decide whether Pinochet could be extradited to Spain
for acts of torture perpetrated in Chile whilst he was the Head of State, by a majority
of 3:2 the HL decided that he could not claim immunity for an international crime and
could therefore be extradited to Spain.37 Not long after the Pinochet decision, the ICJ
had to decide a similar issue on immunity, specifically whether and to what extent a
Minister for Foreign Affairs (Congo’s Minister Mr Yerodia) enjoys immunity,
following Belgium’s issuance of an international arrest warrant for Mr Yerodia for
crimes committed in Congo.38 The ICJ determined that Mr Yerodia, in his capacity as
See Jens Iverson, ‘The Continuing Function of Article 98 of the Rome Statute’, 4 Goettingen
Journal of International Law (2012) 131-151.
36)
Jürgen Brohmer, ‘Diplomatic Immunity, Head of State Immunity, State Immunity: Misconceptions
of a Notorious Human Rights Violator’, 12 Leiden Journal of International Law (1999) 361-71, p. 364.
37)
R v. Bow Street Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (1998) All ER 897.
As one of the judges had an affiliation with Amnesty International, which took part in the proceedings,
the HL set aside the decision in a second hearing, and then reconvened for a third time, as a panel of
seven, to decide on the matter again, and concluded again that General Pinochet could not avoid
criminal responsibility through the use of immunity rules.
38)
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgement, ICJ
Reports 2002, p.3.
35)
10
minister of foreign affairs, and in order to allow him to fulfil his diplomatic role
abroad, ‘enjoys full immunity from criminal jurisdiction and inviolability. 39 In
particular, the ICJ made no distinction between acts of a “private” nature and acts of a
“public” nature, a distinction that was originally considered significant by the HL in
the Pinochet case.40 It must be noted that the ICJ was in fact ruling on Belgium’s
ability to exercise its criminal jurisdiction over a Minister for Foreign Affairs, rather
than the exercise of criminal jurisdiction by an international criminal court.41 In fact,
after perusing national practice and international criminal statutes, the ICJ found that
they ‘do not enable it to conclude that any such an exception exists in customary
international law in regard to national courts’.42 The emphasis is therefore on national
courts’ jurisdiction, and the Court was quick to point out the difference between
jurisdictional immunity and individual criminal responsibility: the former is a
procedural rule whereas the latter constitutes substantive law.43
Consequently, there are some situations whereby an incumbent or former Minister for
Foreign Affairs will forfeit jurisdictional immunity: (1) when he is subject to criminal
proceedings in their own country; (2) when the State that he represents decides to
waive such immunity regarding foreign jurisdictions; (3) immunities will cease when
he is no longer in office, and national courts, with jurisdiction under international law,
39)
Ibid, para. 54.
Ibid, para. 55. For a critique of the ICJ approach in this case, see J. A. N. Wouters, 'The Judgement
of the International Court of Justice in the Arrest Warrant Case: Some Critical Remarks', 16 Leiden
Journal of International Law (2003) 253-67.
41)
The ICJ also noted that the immunities of foreign officials remain, even when national jurisdictions
extend their criminal laws in response to obligations undertaken under international law (para.59). See
Van Alebeek, supra note 37, p. 169; Manisuli Ssenyonjo, ‘The International Criminal Court Arrest
Warrant Decision for President Al Bashir of Sudan', 59 ICLQ (2010) 205-25, p. 209.
42)
Arrest Warrant case, para. 58.
43)
Ibid, para. 60.
40)
11
can institute criminal proceedings for acts committed before or after he held office, or
for acts of a personal nature whilst in office.44
Immunities will also cease in the context of certain international criminal courts,
including the ICC.45 The ICC’s objective is to complement the States’ jurisdiction to
prosecute perpetrators of international crimes, and therefore contributes to ending the
culture of impunity. It would be incongruous for the Rome Statute to include a
provision that would de facto re-confirm the impunity culture. This practice receives
further support by the Nuremberg and Tokyo Tribunals46 and more recently by the
ICTY indictment of a sitting Head of State, President Milošević. 47 Also, when
Liberian President Charles Taylor was indicted for war crimes and crimes against
humanity by the Special Court for Sierra Leone (SCSL),48 an attempt was made to
quash the indictment49 on the basis of his official position.50 More specifically, one of
the arguments put forward by his defence team was that the SCSL was not an
44)
Ibid, para. 61.
Ibid, para. 61; examples given include the International Criminal Tribunal for the Former
Yugoslavia (ICTY) (adopted on 25 May 1993 by SC Resolution 827), the International Criminal
Tribunal for Rwanda (ICTR) (adopted on 8 November 1994 by SC Resolution 844).
46)
London Charter of the International Military Tribunal (Nuremberg Charter), 8 August 1945, Article
7; International Military Tribunal for the Far East Charter (IMTFE Charter), Tokyo, 19 January 1946,
Article 6.
47)
Prosecutor v. Milošević, Case No. IT-99-37, Indictment (May 24, 1999); the initial indictment was
amended twice; the first amendment took place on 29 June 2001 (Case No. IT-99-37-I) and the second
on 16 October 2001 (Case No. IT-99-37-PT). Note that at the time of his arrest he was no longer Head
of State, as he was voted out of office in September 2000. He was transferred to the International
Tribunal on 29 June 2001 and his first appearance at the Trial Chamber took place on 3 July 2001;
Prosecutor v. Milošević, Order for Detention on Remand (3 July 2001). He was indicted on sixty-six
counts, including war crimes, crimes against humanity and genocide, but after four years of trial
proceedings, he was found dead in his cell on 11 March 2006, bringing the trial to an untimely end; see
Gillian Higgins, ‘The Impact of the Size, Scope, and Scale of the Milosevic Trial and the Development
of Rule 73bis before the ICTY’, 7 Northwestern Journal of International Human Rights (2009) 239-60
and Mary M. Penrose, ‘The Emperor’s Clothes: Evaluating Head of State Immunity under International
Law, 7 Santa Clara Journal of International Law (2010) 85-143.
48)
Established by an Agreement between the United Nations and the Government of Sierra Leone,
pursuant to SC Resolution 1315 (2000) of 14 August 2000, Article 6 (2).
49)
Though an attempt to quash an indictment is not the same as the refusal to surrender an individual
to an international criminal tribunal, the argument here is that immunity is used to provide a shield to
prosecution.
50)
Applicant’s Motion made under Protest and without waiving of Immunity accorded to a Head of
State President Charles Ghankay Taylor requesting the Trial Chamber to quash the said approved
indictment of 7 March 2003 of Judge Bankole Thompson and that the aforesaid purported Warrant of
Arrest and Order of transfer and detention...be declared null and void...(23 July 2003).
45 )
12
international tribunal and therefore customary international law in relation to
immunity should apply, in conformity with the ICJ reasoning in the Arrest Warrant
case. The Appeals Trial Chamber disagreed and confirmed that the SCSL is in fact an
international tribunal and, in line with the Constitutionality Decision, it is not a
national court of Sierra Leone and it is not part of the judicial system of Sierra
Leone.51 Therefore, it concluded that the immunity granted in international customary
law does not apply in the context of an international tribunal in its exercise of
jurisdiction for international crimes.52 The SCSL reiterated that ‘the principle seems
now established that the sovereign equality of states does not prevent a Head of State
from being prosecuted before an international criminal tribunal or court’.53
The preceding discussion on immunity points to the conclusion that the time has come
for a clear legal-political debate about the contemporary development and application
of immunity rules in international criminal law. At the time of its inception, the Rome
Statute did not include the necessary details regarding the applicability of Article
98(1) and its relationship to Article 27, perhaps because at that point the priority was
to find a ‘common minimum denominator’ in order to attract as much support as
possible. As the ICC activities increase and become more complex, an elucidation of
51)
Decision on Immunity from Jurisdiction, SCSL Appeals Chamber, 31 May 2004, paras. 40-41; see
also Decision on Constitutionality and Lack of Jurisdiction, SCSL Appeals Chamber, 13 March 2004.
52)
Ibid, para. 53.
53)
Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone, Case No. SCSL-2003-01-I,
Decision on Immunity from Jurisdiction, 31 May 2004, Appeals Chamber, para. 52. He was found
guilty of aiding and abetting war crimes and crimes against humanity and on 30 May 2012 he was
sentenced to 50 years in prison, upheld by the Appeals Chamber on 26 September 2013, Case No. SCSL-03-01-A. Although the issue appears to be settled in the context of international crimes prosecuted
by international courts, the recent decision by the European Court of Human Rights (ECtHR, Fourth
Section) in Jones and Others v UK (Applications No. 3456/06 and 40528/06, 14 January 2014) sends
mixed messages in the context of civil liability of foreign officials, upholding the House of Lords
decision (Jones v Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi
Arabia, 2006 UKHL 26) to grant immunity to State officials in the face of serious allegations of torture.
Moreover, the mudding of the waters between immunity of the State and immunity of State officials
represents a backwards step in the context of modern developments in the context of serious human
rights violations; see H. Fox QC & P. Webb, ‘Immunity of the Individual acting on behalf of the State’
in Hazel Fox QC & Philippa Webb, The Law of State Immunity (OUP, 2013, 3rd Edition).
13
the contemporary application of immunity rules must be actively sought. Such
clarification must take into consideration current developments in human rights law,
state practice and the practice of international criminal tribunals.
In the context of this paper, the lack of a clear and coherent understanding of the
immunity rules has led to a lacuna in international law. In turn, this lacuna has been
used to provide an excuse to withdraw the much-needed cooperation between the ICC
and its member States, and has paved the way to the uncooperative spirit that is
currently pervading the proceedings regarding the Kenya situation, as it will be seen
below.
3.2. Attendance of trial proceedings
Article 63(1) of the Rome Statute clearly states that the defendant ‘shall be present
during the trial’. The word ‘shall’ denotes a clear mandatory conduct, in the sense that
no discretion is to be exercised regarding whether or not the accused attends his
criminal proceedings.
54
However, the Rome Statute allows for three specific
situations whereby the accused person’s absence from the proceedings is permitted:
first, the accused can waive his right to be present during the Pre-Trial Chamber
hearing to confirm the initial charges;55 secondly, the Appeals Chamber may deliver
its judgment in the absence of the person acquitted or convicted; 56 thirdly, if the
accused continually disrupts the trial proceedings he can be removed from the trial,
but this is to be carried out only in exceptional circumstances.57
54)
Note, however, that the maxim expressio unius est exclusio alterius should be applied as a guide
rather than a rigid rule, in order to avoid the construction of statutes that lead to unfair and irrational
results; see Colquhoun v Brookes (1888) 21 QBD 52. As the discussion unfolds it will become clear
that just because clear provisions exist concerning the presence of the accused in court, it does not
mean that courts do not retain an element of discretion.
55)
Article 61 (2) (a) Rome Statute.
56)
Article 83 (5) Rome Statute.
57)
See Articles 63 (2) and 67 (1) (d) Rome Statute.
14
The insistence, especially in criminal trials, on the presence of the accused during the
trial proceedings, is in conformity with the defendant’s right to be tried in his
presence, and in accordance with international standards of fairness and justice. 58
Although trials in absentia may be allowed in civil jurisdictions (e.g. Italy, France and
Germany) strict rules apply in order to ensure compliance with minimum human
rights protection. 59 Moreover, this has become the normal practice among most
international and hybrid tribunals, confirming the protection of the accused person’s
rights and the coherent approach with international human rights instruments.60
Notwithstanding the above, current developments in the Prosecutor v. Ruto and
Sang 61 case is causing some concern as the strict rule on the accused person’s
attendance appears to have acquired a certain level of flexibility with regard to State
officials. Trial Chamber V(a) recently62 had to make a decision concerning Mr Ruto’s
request not to be continuously present in court ‘in order to enable him to perform his
functions of state as Deputy President of Kenya’.63 Prior to considering the Excusal
Application,64 a submission had been made to use video link technology in order to
58)
See Article 67 (1) (d) Rome Statute; Article 14 (3)(d) of the International Covenant on Civil and
Political Rights (UN Doc. A/6316, 1966); Article 6 (3) (c) European Convention on Human Rights;
Article 8 (2) (d) of the American Convention on Human Rights (1969); Article 75 (4) (e) of the
Additional Protocol I (1977); Article 6 (2) (e) of the Additional Protocol II (1977); Article 17(4)(d) of
Statute of the Special Court for Sierra Leone (2002); Article 12(2) of the 2003 UN-Cambodia
Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the
Period of Democratic Kampuchea and implemented by Cambodia’s Law on the Establishment of the
Extraordinary Chambers in the Courts of Cambodia; Article 16 (4) of the Statute of the Special
Tribunal for Lebanon (SC Res. 1757 (2007)); Article 21 (4) (d) of the ICTY Statute (1993) and Article
20 (4) (d) of the ICTR Statute (1994).
59)
See, for example Colozza v. Italy, (1985) 7 E.H.R.R. 516, paras 27 and 29. Note, however, that it
has become an accepted practice in international law that, if a defendant refuses to appear in court, the
trial proceedings will continue; see Nahimana, Barayagwiza and Ngeze v Prosecutor, International
Criminal Tribunal for Rwanda (ICTR) Appeals Chamber, Case No. ICTR-99-52-A, 28 November 2007.
60)
Note that the Statute of the Special Tribunal for Lebanon (SC Res. 1757 (2007)) is the only one
that allows trials in absentia (Article 22).
61)
Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Situation in the Republic of Kenya,
ICC-01/09-01/11.
62)
Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11,
18 June 2013 (henceforth Mr Ruto’s Decision).
63)
Ibid, para 1.
64)
Defence Request pursuant to Article 63(1) of the Rome Statute, ICC-01/09-01/11-685.
15
ensure Mr Ruto’s presence at trial, albeit from a distance.65 As the latter submission
was set aside 66 the Chamber now had to consider whether they should grant Mr
Ruto’s waiver,67 despite opposition from the Prosecution and Victims’ Counsel.68
The first strand of the Chamber’s reasoning rests on the interpretation of the relevant
Rome Statute provisions, starting with a reasoned construction of Articles 63 and 27,
interpreting the Statute as a whole, rather than analysing single provisions without
context.69 In particular, the question arose as to whether Article 63(1) refers to a right
or a duty to be present at trial, the latter being the correct interpretation as the
Chamber found support for this view from other provisions with regard to the arrest
warrant and a summons to appear.70 According to the Chamber, this interpretation
ensures judicial control over the trial proceedings,71 placing the duty clearly on the
defendant and not on the Chamber itself, resulting in the continuation of trial
proceedings in the case of the defendant absconding. 72 On the basis of the above
assertions, the Chamber reasoned that, in exceptional circumstances, it may exercise
discretion on the basis of Article 64(6)(f), 73 and the status of the Deputy Head of
Kenya represents such exceptional circumstance.74
65)
Joint Defence Submission on Legal Basis for the Accused Presence at Trial via Video Link, ICC01/09-01/11-629, 28 February 2013 (the joint submission included Mr Sang).
66)
Mr Ruto’s Decision (fn. 84), para 14.
67)
It must be clarified that the waiver sought by Mr Ruto’s defense concerned his physical presence at
the trial, and not rights associated with his participation in the proceedings or the right to be effectively
represented by Counsel (ibid, para 16).
68)
The Prosecution’s argument rested on the fact that the waiver would contradict the plain reading of
Article 63 (1) of the Rome Statute, the Rules of the Court and would also contradicted the substance of
Article 27 (1) of the Statute concerning differential treatment on the basis of the status of the accused
(ICC-01/09-01/11-713 paras 5-6); the Victims’ Counsel submission contested that the integrity of the
proceedings would be endangered by such a request (ICC-01/09-01/11-749, paras 9-10).
69)
Mr Ruto’s Excusal Request Decision, paras 31 et seq.
70)
Ibid, para 40; more specifically, see Articles 58(1)(b)(i) and 58(7) Rome Statute.
71)
Ibid, para 42.
72)
Ibid, para 44.
73)
Ibid, para 49; note that this provision stipulates that ‘[i]n performing its functions prior to trial or
during the course of a trial, the Trial Chamber may…rule on any other relevant matters’.
74)
Ibid, para 50.
16
Having decided that the Chamber can exercise such discretion as to allow a State
official not to take part in the trial proceedings, the analysis moved to Article 27(1),
previously discussed in the context of immunity of State officials.75 Whilst reiterating
the aim of the Rome Statute to combat impunity for international crimes irrespective
of the perpetrator’s status, the Chamber concluded that it is not
‘[t]he object of Article 27…to remove from the Trial Chamber all discretion to excuse
an accused from continuous presence in an ongoing trial, when the excusal is
recommended by the functions implicit in the office that he or she occupies’.76
Satisfied that the excusal of a State official from trial proceedings complies with
general rules of international law,77 the Chamber granted Mr Ruto the request to be
excused from trial proceedings.78
After allowing leave to appeal on the basis of the extent of the Trial Chamber’s new
test and its discretionary power in the context of Article 63(1),79 the Appeals Chamber
reversed the Trial Chamber’s decision. 80 The Appeals Chamber reasoned that the
Trial Chamber did not err in law regarding the exercise of discretion in exceptional
circumstances, but reference to Article 64(6)(f) of the Rome Statute was misplaced as
75)
See supra, s.3.1.
Ibid, para 71.
77)
Ibid, paras 81-102.
78)
In para 104 the Chamber clarified that Mr Ruto must be present for the following hearings: the
entirety of the opening statements of all parties and participants; the entirety of the dosing statements of
all parties and participants; when victims present their views and concerns in person, the entirety of the
delivery of judgment in the case; the entirety of the sentencing hearings (if applicable); the entirety of
the sentencing (if applicable); the entirety of the victim impact hearings (if applicable); the entirety of
the reparation hearings (if applicable), and any other attendance directed by the Chamber; Judge
Herrera Carbuccia’s dissenting opinion rested mainly on the resulting differential treatment based on
the official status of the accused, contrary to Article 27 Rome Statute.
79)
Decision on Prosecution’s Application for Leave to Appeal the ‘Decision on Mr Ruto’s Request for
Excusal from Continuous Presence at Trial’, Trial Chamber V(a) ICC-01/09-01/11, 18 July 2013
(Judge Eboe-Osuji dissenting; see “Dissenting Opinion of Judge Eboe-Osuji”, ICC-O 1/09-01/11-817Anx.). Note that during the interim period the Appeals Chamber’s granted the Prosecutor’s request for
suspensive effect and required Mr Ruto to be present at trial, pending the decision by the Appeals
Chamber (‘Decision on the request for suspensive effect’, ICC-01/09-01/11 OA5, 20 August 2013).
80)
Judgment on the Appeal of the Prosecutor against the decision of the Trial Chamber V(a) of 18 June
2013 entitled “Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, ICC01/09-01/11 OA 5, 25 October 2013.
76)
17
the basis for their limited discretion stems from Article 63(1) instead.81 The Appeals
Chamber reiterated that the exercise of such discretion is indeed limited and should be
used with caution, as demonstrated by the removal of a disruptive defendant from
trial, such removal being a measure of ‘last resort i.e. after other reasonable
alternatives have proved inadequate’.82 The Appeals Chamber went further still and
set out the extent of the Trial Chamber’s discretionary power in the context of Article
63(1), namely:
(i) the absence of the accused can only take place in exceptional circumstances and
must not become the rule; (ii) the possibility of alternative measures must have been
considered, including, but not limited to, changes to the trial schedule or a short
adjournment of the trial; (iii) any absence must be limited to that which is strictly
necessary; (iv) the accused must have explicitly waived his or her right to be present at
trial; (v) the rights of the accused must be fully ensured in his or her absence, in
particular through representation by counsel; and (vi) the decision as to whether the
accused may be excused from attending part of his or her trial must be taken on a caseby-case basis, with due regard to the subject matter of the specific hearings that the
accused would not attend during the period for which excusal has been requested.83
Just before the Appeals Chamber clarified the law concerning the discretionary
powers to be exercised by the Trial Chamber regarding the attendance by the Deputy
President of Kenya at trial proceedings, Trial Chamber V(b) was deciding on the
same issue regarding the Mr Kenyatta’s trial attendance, the sitting President of
Kenya.84 Applying a similar reasoning as Trial Chamber V(a) had done in relation to
Mr Ruto’s Decision, Trial Chamber V(b) decided (Judge Kuniko Ozaki dissenting)
that Mr Kenyatta should be excused from continuous attendance of trial
81)
Ibid, para 56.
Ibid, para 61.
83)
Ibid, para 62.
84 )
Decision on Defence Request for Conditional Excusal from Continuous Presence at Trial
(Kenyatta’s Decision) ICC-01/09-02/11-830, 18 October 2013.
82)
18
proceedings,85 apart from the selected hearings set out by Trial Chamber V(a) in the
context of Mr Ruto’s attendance.86
It is certainly a point of concern that just a few days before the Appeals Chamber was
due to give its decision on Mr Ruto’s excusal from trial, Trial Chamber V(b) thought
it judicious to decide on the very same issue currently under appeal. It is also
surprising that Chamber V(b) dedicated a very small discussion on this issue under
the heading of ‘judicial economy’. 87 The Prosecution initially raised the issue of
‘judicial economy’, pointing out that it would make sense to wait for the Appeals
Chamber’s decision on the merits of the appeal of the Ruto’s decision,88 a request
ignored by Trial Chamber V(b), stating that it is the ‘prerogative of the Chamber to
worry about judicial economy’. 89 Instead, Trial Chamber V(b) politicised the
proceedings by reminding everyone about the Westgate Mall terrorist incident and the
need for Mr Ruto, as the serving vice-President of Kenya, to return to Kenya to deal
with the aftermath as part of his official duties. 90 Moreover, with reference to the
decision taken by Trial Chamber V(a) concerning Mr Ruto’s excusal from trial, Trial
Chamber V(b) recognised that ‘the entirety of the material reasoning employed in that
decision was fully applicable to the current request of Mr Kenyatta, with necessary
variations’.91 Those necessary variations merely referred to the fact that Mr Kenyatta
is the Kenya’s President, and therefore his excusal from trial attendance is even more
applicable.92 The remainder of the Trial Chamber V(b) decision concentrated mainly
on issues of interpretation and policy, adding very little in substance to the decision
85)
86)
87)
88)
89)
90)
91)
92)
Kenyatta’s Decision, para 4.
See infra footnote 100.
Kenyatta’s Decision, paras 58 and 59.
Ibid, para 34.
Ibid, para 59.
Ibid, para 60.
Ibid, para 66.
Ibid.
19
by Trial Chamber V(a) but certainly driven by the desire to ensure that the status of
the defendant is given due deference.
Having reversed the Trial Chamber decision in the case of Mr Ruto, the Prosecution
put forward a motion for the Trial Chamber to reconsider its decision in the case of
Mr Kenyatta, either to vacate his excusal decision or to appeal against it, noting that
in particular that the vacating option would be based on judicial economy.93 Although
the Rome Statute does not provide guidance on reconsideration, the Chamber
concluded that, in exceptional circumstances, it can reconsider past decisions that are
‘manifestly unsound and their consequences are manifestly unsatisfactory’, 94 also
noting that it would go against the principle of judicial economy to require the
Appeals Chamber to rule on the same issue. 95 Interestingly, yet another dissenting
opinion from Judge Eboe-Osuji 96 strongly criticises the Chamber’s decision to
reconsider Mr Kenyatta excusal judgment. 97 The dissent is based on several
arguments, one of them being driven by recent developments taking place at the AU,
the UN Security Council and the Assembly of State Parties.98 With regard to the AU,
it had made it clear that it was opposed to African heads of State standing trial at the
ICC and, for this purpose, it was seeking collaboration with the UN Security Council
Prosecution’s Motion for Reconsideration of the “Decision on Defence Request for Conditional
Excusal from Continuous Presence at Trial” and in the alternative, Application for Leave to Appeal,
ICC-01/09-02/11, 28 October 2013, para 3.
94)
Decision on the Prosecution motion for reconsideration of the decision excusing Mr Kenyatta from
continuous presence at trial, Trial Chamber V(b) ICC-01/09-02/11, 26 November 2013, para 11.
95)
Ibid, para 12. On 23 January Trial Chamber V(b) issues the Order vacating the trial date of 5
February 2014, convene s status conference, and addressing other procedural matters (ICC-01/09-02/11)
and on 6 February Trial Chamber V(b) issued an order scheduling a status conference on 13 February
2014.
96)
Note that Judge Eboe-Osuji was part of the majority opinion in Mr Kenyatta Excusal Decision; he
was also part of the majority opinion in Mr Ruto Excusal Decision and dissented in the Decision to
appeal Mr Ruto’s Decision for excusal from continuous presence at trial (ICC-01/09-01/11-817-Anx,
18 July 2013).
97)
ICC-01/09-01/11-863-Anx-Corr (27 November 2013).
98)
Ibid, para 13.
93)
20
in order to defer the current African situations under Article 16 of the Rome Statute.99
However, the resolution never reached sufficient affirmative votes to allow the
Security Council to request the ICC, under Chapter VII of the UN Charter powers, to
defer the trials of Mr Ruto and Mr Kenyatta for twelve months.100
In conjunction with the deferral request, there were also developments at the
Assembly of State Parties regarding the Court’s Rules of Procedure and Evidence,
including proposals that would affect the attendance at trial by certain categories of
defendants.101 In fact, the Assembly of State Parties adopted a resolution,102 whereby
new Rule 134ter allowed the defendant to be excused from his trial or parts of his
trial, but only in exceptional circumstances and as long as alternative measures had
been investigated.103 However, the resolution goes further still as it allows excusal
from trial due to extraordinary public duties.104 This seemingly blanket excusal, which
is likely to benefit senior State officials or Heads of State, appears to run counter to
the Appeals Chamber decision to overturn the Ruto decision as well as the Trial
Chamber decision to vacate the Kenyatta decision. A defence request to excuse Mr
Ruto from trial based on Article 63(1) of the Rome Statute and Rule 134quater105 was
soon followed by a strong prosecution response,106 citing in particular the apparent
inconsistency between the new Rule and the Rome Statute.107 In particular, Article
Extraordinary Summit of Heads of State and Government of the AU, Decision on Africa’s
Relationship with the International Criminal Court, EXT/Assembly/AU/Dec1, 12 October 2013.
100)
See also Security Council Resolution Seeking Deferral of Kenyan Leaders’ Trial Fails To Win
Adoption (with 7 in favour and 8 abstaining), 18 November 2013 (SC111/76).
101)
Judge Eboe-Osuji Dissenting Opinion, para 13.
102)
Resolution ICC-ASP/12/Res.7, 27 November 2013.
103)
Rule 134ter 2(a) and (b).
104)
Rule 134quater.
105)
Defence Request pursuant to Article 63(1) of the Rome Statute and Rule 134quater of the Rules of
Procedure and Evidence to excuse Mr William Samoei Ruto from attendance at trial, Trial Chamber
V(a) ICC-01/09-01/11, 16 December 2013.
106)
Prosecution response to Defence request pursuant to Article 63(1) and Rule 134quater for excusal
from attendance at trial for William Samoei Ruto, Trial Chamber V(a) ICC-01/09-01/11, 8 January
2014.
107)
Ibid, para 13.
99 )
21
51(4) of the Rome Statute clearly states that ‘[t]he Rules of Procedure and Evidence,
amendments thereto and any provisional Rule shall be consistent with this Statute’
and ‘[i]n the event of conflict between the Statute and the Rules of Procedure and
Evidence, the Statute shall prevail’.108 This is clearly evident by the need to ensure
that the meaning of Article 63(1), as interpreted by the Appeals Chamber, is
incorporated within the meaning and application of Rule 134quater. If coherence is
not achieved, with priority given to the Rome Statute, the extent of the Trial Chamber
discretion regarding the presence of the accused at trial will be the subject of
controversy, as it could lead to a discrepancy between the Appeals Chamber’s clearly
defined law on this issue on the one hand, and Rule 134quater which appears once
again to overreach such discretion, as previously done by Trial Chambers V(a) and
(b). As the Prosecution Response clearly points out, ‘…the recent amendments cannot
“overrule” the Appeals Chamber’s interpretation of Article 63(1).109
Although it may not be considered to be essential to the effectiveness of the Court, the
challenge concerning the trial attendance has represented a clear stumbling block in
the continuation of the proceedings against the sitting President and Deputy President
of Kenya.. Their status has been used to accord them a privileged treatment, and such
approach can be construed to be a continuation of the uncertainty created by the
immunity rules. What is more surprising, however, is the lack of cooperation between
the Trial and Appeals Chamber with regard to the procedural complications caused by
the Trial Chamber’s impatience.
108)
109)
Article 51(5) of the Rome Statute.
Prosecution Response, supra note 128, para 30.
22
4. Concluding Reflections and Suggestions
The dispute in relation to Mr Ruto and Mr Kenyatta has progressed from the
immunity of a sitting Head of State (in relation to Mr Kenyatta), to a more narrow
challenge regarding trial attendance, due to their official status. Indeed,
notwithstanding the fact that the actual trial proceedings against Mr Kenyatta have not
yet materially started, some optimism must be drawn from the fact that these are
uncharted grounds for the ICC. After all, the ICC is for the first time, prosecuting a
sitting President and a Deputy President, who willingly appeared at their hearings
following the Pre-Trial Chamber II decisions that they would not pose a flight risk
and that there was no reason to believe that they would not cooperate fully with the
Court.110 This state of affairs can be contrasted with Mr Al Bashir, for whom, though
a sitting President, trial proceedings will clearly not start until he is arrested and
surrendered to the ICC. In the case of Mr Laurent Gbagbo, the former President of the
Côte d’Ivoire, it can be argued that at the time of his arrest and surrender to the ICC in
2011, he was no longer a sitting President, as the result of the 2010 presidential
election clearly indicated that Mr Alassane Outtara was the winner, despite Mr
Gbagbo’s opposition to the results.111
As such, it is submitted that the Kenya situation has highlighted an issue in
international law that merits some further discussion because of its impact on the
relationship between the State and the ICC, namely the complex relationship between
110)
Situation In The Republic Of Kenya in the Case of the Prosecutor v. Francis Kirimimuthaura,
Uhuru Muigaikenyatta and Mohammed Hussein Ali, Decision on the Prosecutor's Application for
Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein
Ali, Pre-Trial Chamber II ICC 01/09-02/11 (8 March 2011), para. 55; Situation in the Republic Of
Kenya in the Case of the Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap
Sang, Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto,
Henry Kiprono Kosgey and Joshua Arap Sang, Pre-Trial Chamber II ICC 01/09-01/11 (8 March 2011),
para. 56.
111)
The legitimacy of Mr Alassane Outtara was widely recognised by the international community,
including the AU; see also SC Resolution 1975 (2011).
23
the ICC, the State and the regional organisation. It is contested that a better
understanding and refinement of these relationships can help prevent some of the
disputes that occurred vis-à-vis the Kenya situation. In other words, the ‘competing
efforts to make credible commitments’112 by the ICC, the AU and Kenya need to be
further harmonised in order to improve the ICC effectiveness.
4.1. ‘Competing efforts to make credible commitments’
In order to be effective, the machinery of international justice is in need of a
cooperative effort, by all interested parties, to achieve the aim of securing justice for
international crimes. The Kenya situation reveals three important participants, and all
three play a vital role towards effective prosecutions by the ICC. However, although
the role of the ICC is unambiguous, as clearly stated in Article 1 of the Rome Statute,
both Kenya and the AU contend with a variety of competing efforts.
With respect to Kenya, just like most States, its credible commitment to end a culture
of impunity is demonstrated by its ratification of the Rome Statute.113 According to
the principle of pacta sund servanda (‘promises shall be kept), States have an
obligation to perform international treaties in good faith.114 Therefore, by ratifying the
Rome Statute, Kenya committed itself to prosecuting international crimes perpetrated
in its territory and, in the event of the ICC exercising its jurisdiction, Kenya
committed itself to cooperate with the Court. However, Kenya’s membership to the
This phrase is borrowed from Tim Ginsburg, ‘The Clash of Commitments at the International
Criminal Court’, 9 Chicago Journal of International Law (2008-2009) 499-514, p. 499.
113)
Ibid, p.500.
114)
Article 26 Vienna Convention on the Law of Treaties, 1969.
112)
24
AU has created an added layer of obligations, leading Kenya to follow AU policies
and distance itself from the promises made under the Rome Statute.115
The AU, just like any other international organisation, has a great influence on its
members. 116 Unity, solidarity and sovereignty represent the AU’s core values and
objectives;117 on this basis it can be argued that ‘internal cooperation’ (amongst AU
member States), in order to achieve a homogenous regional entity, takes priority over
‘external cooperation’ with an international body, such as the ICC. However, it is not
suggested that the AU does not have any interests in international justice, because the
AU foundational principles clearly include the respect of human rights, 118 the
rejection of impunity,119 and intervention in the event of international crimes120.
It follows, therefore, that the interests of the AU and Kenya, at a theoretical level, are
not very different from the aims of the ICC. In other words, the effort to make
credible commitments can be recognised by the Kenyan ratification of the Rome
Statute and by the AU founding principles. Why then is the AU intending to warp the
cooperation between the ICC and its State parties? It is contended that the present
state of affairs has developed due the AU perception that the ICC machinery is biased
against African States. If trust is an essential component of any cooperative
relationship, then it can be argued that the trust between the AU and the ICC has been
fading away for some time.121 The immunity dispute that developed in the context of
115)
Adopted on 5 September 2013, the Kenyan Parliament Motion to withdraw from the Rome Statute
exemplifies Kenya’s conflicting aims regarding international justice.
116)
For example, according to Article 23(2) of the AU Constitutive Act, sanctions will be imposed on
member States that fail to comply with its decisions and policies, at http://www.africaunion.org/root/au/aboutau/constitutive_act_en.htm, last accessed on 30 April 2014.
117)
Article 3 of the AU Constitutive Act.
118)
Article 4(m) of the AU Constitutive Act.
119)
Article 4(o) of the AU Constitutive Act.
120)
Article 4(h) of the AU Constitutive Act.
121)
The latest development is represented by the Draft Protocol on Amendments to the Protocol on
the Statute of the African Court on Justice and Human Rights, aimed at creating an African Court with
25
the arrest and surrender of Mr Al Bashir has clearly permeated the subsequent ICC
proceedings regarding Kenya. The reason for this is twofold: first, the Kenyan
defendants are the sitting President and Deputy President; secondly, there is a
historical precedent set out by the AU not to cooperate with the ICC. Although this
precedent was in relation to the arrest and surrender of Mr Al Bashir, it is argued that
the lack of trust, which began at that stage, still remains a contentious issue for the
African region. In fact, the AU opposition to the ICC remains as strong now as it was
when Sudan was referred to the ICC, demonstrated by the strong language adopted in
a recent AU Assembly Session which reiterated again their opposition to the trial of
sitting Heads of State, and concluded that:
(i) African states parties should comply with African Union Decisions on the ICC and
continue to speak with one voice to ensure that the African proposals for amendments
to Articles 16 and 27 of the Rome Statute of the ICC are considered by the ASP
working Group on amendments as well as by the forthcoming sessions of the Assembly
of States Parties (ASP) to the Rome Statute;
(ii) There is an imperative need for all
member states to ensure that they adhere to and articulate commonly agreed positions
in line with their obligations under the Constitutive Act of the African Union;
(iii) The
group of African states parties in New York and the African members of the bureau of
ASP should follow-up on the implementation of various Decisions of the Assembly on
ICC, in collaboration with the Commission and ensure that the African proposals and
concerns are properly considered/addressed by the ASP and report to the Assembly
through the Commission on actions taken regularly.122
4.2. Realigning the interests between the AU and the ICC
If it is acknowledged that the fight against impunity is present in the foundational
principles of the AU, certain strategies need to be adopted to ensure that the AU aims
are realigned with the aims of the ICC. A correlation of this proposition is that, once
the trust is regained between the AU and the ICC, the cooperation between State
jurisdiction over international crimes; see http://www.hrw.org/news/2014/05/12/joint-civil-societyletter-draft-protocol-amendments-protocol-statute-african-court (last accessed on 20 June 2014).
122)
Assembly of the Union, Twenty-Second Ordinary Session, Assembly/AU/Dec.490-516 (XXII)
Assembly/AU/Decl.1(XXII), Decisions and Declaration, 30-31 January 2014, p.2 (available at
http://au.int/en/content/addis-ababa-30-31-january-2014-–-assembly-african-union-twenty-secondordinary-session, last accessed on 7 March 2014; also note that the same Session discussed the AU
request to defer proceedings at the ICC and gives thanks to the UN Security Council Member States
that supported it.
26
parties and the ICC can be strengthened too. For example, the ICC Prosecutor lately
issued a statement concerning the opening of a new preliminary investigation in the
Central African Republic (CAR),123 where she pointed out that her ‘Office’s efforts
will be coordinated with those of the AU and the United Nations in CAR’.124
A closer and more strategic collaboration with the AU is the best way forward for the
ICC in order to ensure better State’s compliance and cooperation.125 In simple terms,
this can be achieved through the appointment of an AU official as an Observer to the
preliminary investigations carried out by the ICC Prosecutor concerning an African
situation. Such an appointment can strengthen the relationship between the two
institutions by creating a dialogue of participation and mutual respect, thus avoiding
the deep antipathy developed by the AU towards the ICC in recent years. This
procedure can be introduced through an amendment to the ICC Rules and Procedure
and put forward in accordance with Article 51 of the Rome Statute. Given that any
State party to the ICC can propose such amendment126, it is suggested that the AU
should elect a representative to make the proposal. Similarly, an official from the
Office of the Prosecutor should be admitted as an Observer to the AU Sessions with
the aim of making contributions that would stir the AU towards its foundation
principles of human rights protection, good governance, the rule of law and the fight
against impunity.127
It is also suggested that the Bureau of the Assembly of State Parties should establish a
Working Group to examine the possibilities, if any, of bias towards African States or
See ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on opening
a new Preliminary Examination in Central African Republic’ (7 February 2014).
124)
Ibid.
125)
Also note that the appointment of Mrs Fatou Bensouda as the ICC Prosecutor in 2011 may benefit
the relationship between the AU and the ICC in the long term too.
126)
Article 51(2)(a) of the Rome Statute.
127)
Article 4 of the AU Constitutive Act.
123)
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to carry out a thorough and impartial examination regarding situations where human
rights atrocities took place but did not lead to prosecutions, either by domestic courts
or by the ICC. Indeed, it would not be just the AU that would greatly benefit from this
but the international community at large because the ICC must be seen by all to be a
truly international and unbiased court.
As a final point, a by-product of improving the dialogue between the ICC and the AU
is to strengthen its human rights culture; this is the best way forward in order to
ensure a more objective approach to the prosecution of prominent State officials, even
a sitting President. In fact, the Organization of African Unity (OAU), 128 the AU
predecessor, had as its main objective the promotion of unity and solidarity amongst
its member states, 129 and only due regard was to be given to the Declaration of
Human Rights.130 The AU took over from the OAU in 2002131 and, although more
emphasis is given to human rights protection, in practice the promotion of unity and
solidarity appears to be still very strong, evidenced by the AU declaration calling for
state parties to comply with AU decisions, to speak with one voice and to articulate
commonly agreed positions. 132 It is only in the context of a well-established and
entrenched human rights culture that a geo-political solidarity will be superseded by a
human rights-centred solidarity.133 This is because the human rights ideology, even in
its most basic interpretation – for example, human dignity – can be understood as
‘elementary considerations of humanity’,134 which entails an objectivity that cannot
128)
See OAU Charter, available at http://www.au.int/en/sites/default/files/OAU_Charter_1963_0.pdf
(last accessed on 20 February 2014).
129)
Ibid, Article II(1)(a).
130)
Ibid, Article II(1)(e).
131)
The Constitutive Act of the AU was ratified in 1999 and entered into force on 26 May 2001.
132)
See Article 3 of the AU Constitutive Act.
133)
See Federico Lenzerini, The Culturilization of Human Rights Law (OUP, 2014), p.20 et seq.
134)
Corfu Channel Case (United Kingdom v. Albania), Judgment of 9 April 1949, ICJ Reports 1949,
p. 22.
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be displaced, even in the face of political or geographical unions. Ultimately, the
dialogue that must be established between the ICC and the AU is founded on the
protection of human dignity as a foundational principle for both the ICC and the AU.
29