By Agnieszka Cybulska and Gentian Zyberi
In this third and last post we discuss the interaction between the African Union and the ICC with regard to the Kenyan situation and the possible legal and political repercussions that might have on the work of the ICC.
African Union Summit
Following the ICC's response to the AU's letter, which stated that the request does not constitute a request legally presented within the Court's legal framework, the AU called for a summit on October 12th to debate the future of Africa's relationship with the ICC. The African countries unanimously agreed to a resolution that no sitting president should be tried in international courts while in office, consequently backing Kenyatta against the ICC and asking for immunity.[1] A 20-page letter was drafted as a follow-up to this Extra-Ordinary AU Summit, which was handed to the Security Council President on the 21 October. In the letter, the AU argues that the cases should be put on hold so that the two leaders can focus on leading the fight against international terrorism and easing ethnic tension in the country, which pose a threat to national security.[2] The petition described Mr. Kenyatta and Mr. Ruto as the glue that is holding the country together, and that their absence may undermine the prevailing peace and security of the country.
Request Immunity for Heads of State
The the AU Summit meeting, Chairperson Hailemariam Dessalegn, said to the participants of the meeting "We have adopted our decision, speaking with one voice and sending a strong political message on Africa's relationship with the ICC (…) We have reaffirmed the principles deriving from national laws and international customary laws by which a sitting Head of State or Government and other senior state officials are granted immunities during their tenure of office".[3]
It is commonly accepted that state officials are immune, in certain circumstances, from the jurisdiction of foreign states, derived from customary international law. One type of immunity is applicable to certain state officials attached to a particular office and possessed for as long as the official is in office (immunity ratione paersonae), such as heads of states and diplomats.[4] In the case of Mr. Kenyatta and Mr. Ruto, can such immunities be applied in proceedings initiated by the ICC?
Two provisions of the ICC Statute bear on questions of immunity: Articles 27 and 98[5]. Article 27(1)'s main effect is to establish that the official capacity of a person does not relieve him of individual criminal responsibility. In paragraph 2 of the Article, international and national law immunities are explicitly denied. Article 27 constitutes a waiver of national law immunities by parties to the Rome Statute, since the Court is seeking arrest and surrender from the state of the official concerned in both Kenya cases. However, there are confusing precedents from credible judicial institutions, such as the International Court of Justice (ICJ) , as well as the Appeals Chamber of the International Tribunal for the former Yugoslavia in Prosecutor v. Blaskic case, where the Chamber accepted that international law immunities can be pleaded before an international tribunal. Renowned scholars in the ICC processes have criticised the Court for not seeking an advisory opinion on the issue of immunity. The decision will be of great importance, since this is the first time an incumbent President and Vice-President are being tried at the ICC for crimes against humanity.
A mass withdrawal from the ICC?
On 5 September, the Parliament of Kenya approved a motion for the withdrawal of its membership from the ICC. If the bill is adopted, Kenya will become the first State Party to withdraw from the Rome Statute of the ICC – a regrettable step backward for international justice and accountability. Although this would have no effect on the ongoing criminal proceedings, and Kenya would have to continue to cooperate with the ICC in connection with the trials, this would preclude any future investigations and prosecutions of international crimes in the country.[6]
The question remains, will the rest of the African countries follow suit? In the light of AU's growing discontent with the ICC, the agenda of the summit also constituted a question regarding a mass withdrawal from the Court, which would not only challenge its legitimacy, but also the prospects of its future cases.[7] Leaders on the African continent have long argued that the Court is biased against them, with all 20 current cases pending before the ICC relating to events in the region. Such a mass State Party withdrawal would represent a resort unprecedented in the history of the international legal order. The idea to leave the ICC, however, didn't generate enough support at the Summit meeting, with reports suggesting that the countries were roughly divided in their decision between the Anglophone and Francophone.[8] A warning was nonetheless issued, that should their list of demands not be met by November 12th, the date of Kenyatta's trial at the Hague, there will be another special AU Summit where the countries will reconvene to discuss the issue further.[9]
The proceedings against Kenya's leaders play an important role in the assessment of the ICC's effectiveness and credibility. Because it is a historical trial, a first of this kind, it might work as a precedent for future decisions. The Court's authority and legitimacy could be dependent on holding its ground against Kenya's efforts to undermine the legal processes against their leaders. On the other hand, certain reasonable accommodations seem necessary in this unique case, where the highest State officials have duties and responsibilities at home. Among others, that would also ensure that the ICC does not lose the support of valuable member States – which are parties to the Rome Statute on a consensual basis.
[1] Bullock, AU and the ICC – How They Voted, 15 October 2013, Think Africa Press, available at: http://thinkafricapress.com/legal/au-and-icc-how-they-voted
[2] Menya, Kenya cases threat to peace, warns AU, 27 October 2013, Daily Nation
[3] AU Backs Kenyatta against the ICC, asks for immunity for sitting African leaders. 13 October 2013, Daily Post: Available at: http://dailypost.com.ng/2013/10/13/au-assembly-backs-kenyatta-against-icc-asks-for-immunity-for-sitting-african-leaders/
[4] Akande, Dapo. International Law Immunities and the International Criminal Court. The American Journal of International Law, Vol. 98, No. 3. July 2004 p. 409-410
[5] Article 98(1) is applicable only to state or diplomatic immunity of property, which is not addressed in Article 27. This interpretation is confirmed by the preparatory works concerning Article 98(1) during the negotiations of the Rome Statute (Amnesty International Report, 2010: Bringing Power to Justice: Absence of Immunity for Heads of State Before The International Criminal Court)
[6] Zgonec-Roznej, Misa. The start of the trial in Prosecutor v. Ruto and Sang at the ICC has been overshadowed by Kenya's decision to withdraw from the ICC. 14 September, 2013. Available at: http://ilawyerblog.com/the-start-of-the-trial-in-prosecutor-v-ruto-and-sang-at-the-icc-has-been-overshadowed-by-kenyas-decision-to-withdraw-from-the-icc/
[7] Dersso, Salomon Ayele. News Analysis: Tensions over Kenya threaten viability of the ICC. BDLive: 16 October 2013
[8] Bullock, AU and the ICC – How They Voted, 15 October 2013, Think Africa Press, available at: http://thinkafricapress.com/legal/au-and-icc-how-they-voted
[9] Bullock, AU and the ICC – How They Voted, 15 October 2013, Think Africa Press, available at: http://thinkafricapress.com/legal/au-and-icc-how-they-voted
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