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

and willingness to carry out prosecutions effectively. However, there has been a great

) 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.

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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

challenges are arising for the ICC, causing delays in the proceedings and generating

1) 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.

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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

Inquiry was set up to investigate the events and to make recommendations,10 which

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) 365-387.10) 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.

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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

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.

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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

Rome Statute.19 As evidence of its willingness to cooperate with the ICC, Kenya

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, ICC-01/09 (18 February 2010) and ICC-01/09-19 (31 March 2010).18) See Enrique C. Rojo, ‘The Role of Fair Trial Considerationsin 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. 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

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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 non-

cooperative 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.

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.

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 co-perpetrators 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.

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Unlike Kenya, Sudan is not a party to the Rome Statute but the referral of that

particular situation to the ICC22 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 Sudan24 angered the AU further and led to a call for non-

cooperation 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

far.27

22) See Security Council Resolution 1593 (2005), in pursuance of Article 13 of the Rome Statute.23) 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. 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

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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

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

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 ICC-02/05-01/09-96). 28) ICC Pre-Trial Chamber I 02/05-01/09, 12 December 2011, para. 36.29) Ibid, para. 44.30) 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.

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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

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

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 13-15.35) See Jens Iverson, ‘The Continuing Function of Article 98 of the Rome Statute’, 4 Goettingen Journal of International Law (2012) 131-151.

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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

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

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.3.39) Ibid, para. 54.

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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,

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

40) 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. 60.44) Ibid, para. 61.45) 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).

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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

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

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).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.

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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

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

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. SC-SL-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).

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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

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

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.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).

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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

Sang61 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

ensure Mr Ruto’s presence at trial, albeit from a distance.65 As the latter submission

was set aside66 the Chamber now had to consider whether they should grant Mr Ruto’s

waiver,67 despite opposition from the Prosecution and Victims’ Counsel.68 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. 65) Joint Defence Submission on Legal Basis for the Accused Presence at Trial via Video Link, ICC-01/09-01/11-629, 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).

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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

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

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 50.75) See supra, s.3.1.76) Ibid, para 71.

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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

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

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 1/09-01/11-817-Anx.). 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, ICC-01/09-01/11 OA 5, 25 October 2013.81) Ibid, para 56.82) Ibid, para 61.

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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 case-by-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 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

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. 85) Kenyatta’s Decision, para 4.86) See infra footnote 100.87) Kenyatta’s Decision, paras 58 and 59.88) Ibid, para 34.

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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

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

89) Ibid, para 59.90) Ibid, para 60.91) Ibid, para 66.92) Ibid.93) 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.

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Appeals Chamber to rule on the same issue.95 Interestingly, yet another dissenting

opinion from Judge Eboe-Osuji96 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

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 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 13.99) 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).

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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

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

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 13.108) Article 51(5) of the Rome Statute.109) Prosecution Response, supra note 128, para 30.

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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.

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

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.

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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

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.

111) The legitimacy of Mr Alassane Outtara was widely recognised by the international community, including the AU; see also SC Resolution 1975 (2011). 112) 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.

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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

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

113) Ibid, p.500. 114) Article 26 Vienna Convention on the Law of Treaties, 1969.115) 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.africa-union.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.

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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

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

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 jurisdiction over international crimes; see http://www.hrw.org/news/2014/05/12/joint-civil-society-letter-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-second-

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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

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

ordinary-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.123) 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.

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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

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

127) Article 4 of the AU Constitutive Act.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.

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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 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.

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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