by Dr Miša Zgonec-Rožej
At the African Union (AU) extraordinary summit on 11 and 12 October 2013, convened to discuss the AU’s relationship with the International Criminal Court (ICC), no decision was taken on the withdrawal of African States from the Rome Statute of the ICC. AU member States, however, agreed that Kenya, with the support of African States, should ask the UN Security Council to defer the trial of Kenyan President Uhuru Kenyatta which is scheduled to start on 12 November 2013.
UN Security Council deferral
Article 16 of the Rome Statute of the ICC provides that the Security Council may adopt a resolution under Chapter VII of the UN Charter requesting the ICC to suspend an investigation or prosecution for a period of 12 months. A Chapter VII resolution can be adopted after the Security Council has determined, in accordance with Article 39 of the UN Charter, the existence of a threat to peace and security and provided that a deferral is necessary for the maintenance of peace and security. A deferral may be renewed by the Security Council under the same conditions.
The AU and Kenya have previously requested the UN Security to defer the proceedings against Kenyan leaders but their requests have so far not been acted upon. Given the increasing international support for Kenya following the attack on the Westgate shopping mall, and Kenya’s important role in regional security and stability, it is possible that the Security Council members will agree that suspending the prosecutions would serve the interest of international peace and security. The deferral, however, even if it were renewed, would not terminate the trials indefinitely but could only postpone them.
The Security Council has previously used its powers under Article 16 of the Rome Statute. In resolution 1422 (2002), acting under Chapter VII of the UN Charter, the Security Council requested that
“the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise;”
The Security Council in effect granted immunity from prosecution before the ICC to UN peacekeepers from States not parties to the ICC for a renewable twelve-month period. The resolution was adopted eleven days after the entry into force of the Rome Statute upon the United States’ threat to veto the renewal of the UN peacekeeping mission in Bosnia and Herzegovina. It should be pointed out that the Security Council did not determine the existence of a threat to international peace and security in accordance with Article 39 of the UN Charter, which is a prerequisite for the adoption of Chapter VII measures, but it merely decided that:
“it is in the interests of international peace and security to facilitate Member States’ ability to contribute to operations established or authorized by the United Nations Security Council”.
For this reason, the deferral, which was renewed in 2003 by resolution 1487, has been criticised as ultra vires the Security Council’s powers as defined in the UN Charter and Article 16 of the ICC Rome Statute. In 2004, the Security Council refused to renew the deferral and the United States, following the revelation of Abu Ghraib prisoners’ abuse, withdrew their request for another renewal.
Immunities under the Rome Statute of the ICC
At the extraordinary summit, the AU reaffirmed its position that under national and international customary law, sitting Heads of State and Government and other senior State officials are granted immunity during their tenure in office. It held, accordingly, that serving Heads of State or Government might not be prosecuted or asked to appear before any international court. While it is true that serving Heads of State and Government enjoy full personal immunity (for official and private acts) from the criminal jurisdiction of foreign States while they are in office, they do not enjoy such immunity before international criminal courts.
The statutes of international criminal courts, including the Rome Statute, remove immunities of serving Heads of State or Government for international crimes, which they might otherwise enjoy under national or international law. Under Article 27 of the Rome Statute the official position of the accused does not free him from criminal responsibility. Even heads of States that are not parties to the ICC, such as the Sudanese President Omar Al-Bashir, are not entitled to immunity, if a situation in that State is referred to the ICC by the Security Council, as has been done in the case of Sudan.
By ratifying the Rome Statute, African States Parties, including Kenya, agreed to the provisions of the Statute, including the provisions concerning immunities. In its decision concerning the question whether Malawi and Chad had breached their obligations of cooperation under the Rome Statute by failing to arrest Al-Bashir when he visited those countries in late 2011, the ICC Pre-Trial Chamber clarified 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”
The trials of Kenyatta and Ruto have been described by the AU as the first occasion upon which a sitting Head of State and his deputy are being tried at an international court. It should be clarified that indicting State leaders is not a novelty in the practice of international criminal courts. The difference is that the sitting leaders that have so far been indicted before international criminal courts, such as the Yugoslav President Slobodan Milošević or the Liberian President Charles Taylor, had either left their office or stepped down before they were arrested and put on trial. During the trial they stayed in custody and were required to be physically present at the hearings.
The trials at the ICC
The AU has also agreed that Kenyatta should not appear before the ICC until the request for a deferral is considered by the Security Council. So far Kenyatta and Ruto have been subject to summonses to appear rather than arrest warrants because they have voluntarily attended the Court proceedings. But if they cease to cooperate with the Court, the Prosecutor may request the ICC to issue an arrest warrant to ensure their presence at trial. If the arrest warrants were issued, Kenya and any other ICC State Parties would be under the obligation to arrest the leaders and surrender them to the ICC.
Kenyatta and Ruto have both requested the ICC to be excused from their continuous presence at their trials. The ICC’s acceptance of variations proposed by the accused could possibly silence opponents of the leaders’ trials, particularly if the two trials are held alternately. The Trial Chambers decided that Kenyatta and Ruto should be physically present during the opening and closing statements and the delivery of the judgement as well as during his trial when victims will be testifying but that they may be absent from the rest of the proceedings. However, on 25 October 2013, the Appeals Chamber overturned the Trial Chamber’s decision in the Ruto case ruling unanimously that the Trial Chamber had interpreted the scope of its discretion under Article 63(1) too broadly. The Appeals Chamber set out the following criteria that the Trial Chamber should consider when making the decision on this matter:
“(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 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.”
As regards Kenyatta, on 28 October 2013, the Prosecutor filed a motion requesting the Trial Chamber to reconsider its decision excusing Kenyatta from continuously being present at his trial in order to permit him to discharge his functions as President of Kenya. Specifically, the Prosecution requested that the Trial Chamber vacate the Kenyatta decision and order that Kenyatta is present during his trial. Alternatively, the Prosecutor requested that the Trial Chamber grant leave to appeal the Kenyatta decision.
The AU has accused the ICC of bias against African States and their leaders. But it should be pointed out that most of the situations have been referred to the ICC by African States themselves (DRC, CAR, Uganda, Cote d’Ivoire, Mali). The Security Council, which is a political body, referred to the ICC the situations in Libya and Darfur in Sudan with the support of its African members. Kenya is the only situation where the ICC Prosecutor acted on his own initiative, but only after Kenya had failed to investigate and prosecute cases domestically.
Regardless of whether the criticism is justified or not, the ICC does not seem to be immune to it. It may be no coincidence that on the first day of the AU’s extraordinary summit, 11 October 2013, the ICC decided, for the first time, that an African State, Libya, could try Al-Senussi, former Head of Military Intelligence, at home despite the widely reported security problems and the dysfunctional judicial system in Libya, the recent kidnapping of Libya’s Prime Minister and Libya’s failure to provide Al-Senussi with access to a lawyer.
It is clear that without African support the ICC may not be able to achieve its objective to end impunity around the world, including in Africa. Instead of undermining the ICC, in whose creation African States actively participated, the African States, which now constitute the largest regional group in the ICC membership, should strengthen their domestic accountability mechanisms in order to enable African victims to access justice at home. The recent rejection by a High Court in Kenya of a case filed by National Conservative Forum seeking to bar Kenyatta and Ruto from attending their trials at the ICC seems to be a step in the right direction.