ICC: The African Union's Attempts To Legalize Impunity

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Kenya's Uhuru Kenyatta -- in AU bid for deferral or immunity mid-stream

[Global Commentary: Justice]

The rejection of a joint request from the African Union (AU) and Kenya by the United Nations Security Council to defer the ongoing cases of the President of Kenya, Uhuru Kenyatta and his Deputy, William Ruto, is a positive contribution to the development of international criminal justice.

The three African States --Rwanda, Morocco and Togo-- sitting as non-permanent members of the Security Council (hereafter the AU) made a diplomatic error on insisting on a vote when it became apparent that they could not obtain the minimum nine positive votes with the concurrence of the five permanent members necessary to adopt a draft resolution.

The AU failed to persuade at least eight members of the Council that continued prosecution of the Kenyan leaders would constitute a threat to international peace and security. Further, the AU failed to establish a nexus between the tragic terror attack at the Westgate Mall in Nairobi and the broader threat to international peace and security as stipulated in Chapter VII of the UN Charter.

Instead of appreciating the position taken by the US and the UK in abstaining, and thereby remaining neutral, the AU blamed the US and the UK for not voting for the deferral even after it was clear that the AU presentation at the Council meeting did not meet the minimum UN Chapter VII threshold.

The unfortunate voting pattern that emerged is that all seven members of the Council, including Africa’s representatives, voted for the deferral of the cases. All the states are not State Parties to the Rome Treaty.

On the other hand, of the eight members who abstained, seven are State Parties to the Rome Treaty.

However, while the United States is not a State Party, the Obama administration has consistently supported the ICC. The US ambassador for War Crimes, Mr. Stephen Rapp, is a strong advocate of international criminal justice and has consistently supported the ICC. His past experience as Senior Trial Attorney and Chief of Prosecutions at the International Criminal Tribunal for Rwanda; and later, as Chief Prosecutor at the Special Court for Sierra Leone, has placed him in a unique position to advocate for, and advance the cause of international criminal justice, as well as to influence policy options taken by the United States on the ICC.

After losing the battle for deferral, the AU has now moved on to undermine the core objectives of the Rome Treaty by seeking amendments to provide immunity from prosecution to sitting Heads of State.

In the preamble of the Rome Treaty, States Parties agreed to put an end to impunity for the perpetrators of genocide, crimes against humanity, war crimes and aggression. The objective is to contribute to the prevention of such crimes.  Because of this determination to end impunity, the State Parties adopted Article 27 (1) which provides for the equality of all accused persons before Court. The article states: “This Statute shall apply equally to all persons without any distinction based on official capacity…” And, Article 27(2) states that whatever immunity or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Because these provisions are fundamental, any proposed amendment to any of these provisions requires three months’ notice.  This would give State Parties opportunity to study the proposal and make meaningful contribution during deliberations on the matter. Kenya, acting under the AU and also as a State Party to the ICC, flagrantly ignored the rules on notice. Why indeed?

Article 121(2) of the Rome Treaty states: “No sooner than three months from the date of notification, the Assembly of States Parties, at its next meeting, by a majority of those present and voting, decide whether to take up the proposal...” And, under Article 121(4) of the Rome Treaty, “an amendment shall enter into force for all State Parties one year after instruments of ratification have been deposited with the Secretary General of the United Nations by seven-eighths of them.”

The Assembly of State Parties scheduled a meeting to be held from 20 November to 28 November 2013. In breach of Article 121(2) of the Rome Treaty, Kenya submitted its proposed amendment on November 4, 2013 and November 7, 2013 respectively.

On November 4, 2013, Kenya’s Permanent Representative to the United Nations, Mr. Macharia Kamau gave notice to the ICC seeking to amend Article 63(1) and Rule 134 of the Rules of Procedure and Evidence (the Rules).

Article 63(1) stipulates a mandatory requirement of an accused to be present during his trial. Kenya’s proposed amendment to Article 63(1) seeks to provide for ‘excusal’ of an accused from continuous physical presence at trial.

On November 7, 2013, Kenya’s Deputy Permanent Representative to the United Nations, Koki Muli-Grigon, wrote to the ICC requesting for four additional amendments, namely (a) amendments to Articles 27, 70, 122; (b) amendment to the preamble to capture the principle of complimentarity at the regional level.

Article 27 declares that the Rome Statute shall apply equally to all persons without any distinction based on official capacity. The article also excludes immunity from the jurisdiction of the Court even where an accused may enjoy immunity from prosecution of such crimes in other national or international jurisdictions.

Notwithstanding that Kenya did not comply with Article 121(2), the Chairperson of Assembly of State Parties (ASP), accepted the Kenya proposal to be tabled for discussions. Had the proposal been rejected, as strict compliance with the Rome Treaty would demand, allegations of bias against Africa would have probably been made.  The Chairperson of ASP correctly accepted the proposal notwithstanding the procedural flaws made by Kenya.

Legal scholars tend to agree that even if Articles 27 and 63 were to be amended and eventually ratified under Article 121(4), the new amendment will not come into force until after one year (see Article 121(6)). It is therefore unlikely that any new amendments to the substantive articles of the ICC Statute will cover on-going Kenya cases.

Overall, ASP is encouraged to examine amendments of the Statute and the Rules in general terms and not to address specific cases currently before the Court. The process of examining proposed amendments broadly will enhance the positive development of international criminal law. 

Obote Odora, A is Consultant in International Criminal Law and Policy Sweden. 

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