The past few weeks have provided a lot interesting developments on the question of the relationship between the ICC and Africa, understandly linked to the trials of Kenyatta and Ruto at the ICC. At the Extraordinary Session of the Assembly of the African Union earlier this month, a decision was issued calling for, among other things, 1) the adoption of a policy at the ICC for not prosecuting sitting head of states and 2) more particularly in the Kenyan situation, for the cases against Kenyatta and Ruto to be deferred in application of Article 16 of the Rome Statute. Just a couple of days ago, a letter was sent to the President of the Security Council asking it to act accordingly.
These developments have received a lot of criticism from a number of organisations that see this as a step back in the move forward to fight impunity. However, I think that some perspective needs to be reinjected in the discussion.
- Two preliminary points
Before commenting on this, two preliminary points. First of all, there is no doubt that, as a matter of law, the ICC can prosecute sitting heads of state in light of Article 27 of the Statute. This might be a contested issue for non-state parties such as Sudan, but is unquestionable for a state party who has accepted this when joining the Court. So the African Union suggestion for not prosecuting sitting heads of state would be a purely prosecutorial policy issue, not a legal issue.
Second of all, I’m not a big fan of the unsurprising anti-colonial rhetoric that follows discussions on the issue. Last May, the Ethiopian Prime Minister said that “the process has degenerated into some kind of race hunting”. More recently, the address from Kenyatta at the AU Summit was full of this kind of rhetoric. I’m personally not entirely convinced that this criticism is true. I wrote a couple of posts on the issue a few years back (here and here) which stress this point.
More importantly, I think this is not a very useful approach because it clouds the fact that the problems with the ICC, while revealing themselves in relation to Africa today, are actually more structural. Making this an African problem is in my view short-sighted. Indeed, the tension between peace and justice, the critical discussion of the poor prosecutorial record in building cases, the poor exercise of prosecutorial discretion or the legal ambiguities of the Rome Statute itself are of concern to everyone, not just Africa.
So after this long introduction, a short defense of the African Union position on the two points mentioned above: immunity for sitting heads of states and deferral of the Kenya cases.
- Granting ICC immunity to sitting heads of State?
On the first point, I don’t see the argument as being so scandalous on principle. Any first year international law student will (or at least should) learn within a few weeks that the personal immunity of sitting heads of state (i.e, the immunity from arrest and prosecution for any act, whether official or private, committed while still in office) is absolute in foreign courts, even for international crimes, in order to allow them to properly exercise their functions in the international arena. There have been some developments on the functional immunity of state officials (i.e, immunity that covers certain acts even when having left office), but no such developments in relation to personal immunity.
Of course, this applies only to inter-state relations and protects the person from domestic prosecutions. International tribunals are arguably different, as the ICJ pointed out in the Arrest Warrant Case. Moreover, Kenya signed and ratified the Rome Statute, in full cognizance of Article 27. Nonetheless, I do think it is useful to recall that the position of the AU is the standard position of international law on this issue, and that international tribunals are the exception. This might make human rights activists cringe, but that is the reality of the law.
And it should be pointed out that this is exactly the logic behind the Pre-Trial Chamber’s recent excusal of Kenyatta from his trial, where the judges affirmed that:
Whenever a national trauma is inflicted upon a country, the eyes of the nation invariably turn to one person—the executive head of state or govemment—with questions and for answers and demands for solutions and hopes of future safety. It is so with natural disasters or massive accidents or intentional acts of terror. But there is much more that the executive head of state or govemment must do in good faith, often unsung and out of sight, to prevent national traumas. And, beyond the management and prevention of emergencies, he or she does so much more. Indeed, the functions of the executive head of state of the average nation will be too numerous to list here. In the outlines, the picture is usefully framed in the following words of Vattel, writing in his Law of Nations: ‘a faithful administrator, to watch for the nation, and take care to preserve it, and render it more perfect; to better its state, and to secure it, as far as possible, against everything that threatens its safety or its happiness.’ Hence, the sovereign functions of an executive head of state or govemment are significantly different from those of any other citizen—even of those who run the most important commercial enterprises within the state.
- Deferring the cases of Ruto and Kenyatta
On the second point, that of the possible use of Article 16, I don’t see what is so shocking either. This article provides that:
No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.
It was a strongly contested provision during the negotiations and was perceived as an unacceptable intrusion of politics in the legal process. Ultimately, it was a compromise between those who wanted no Security Council involment at all, and those who argued that investigations should be approved by the Security Council before being able to proceed further (as Article 23 of the 1994 Draft Statute for the ICC actually proposed for situations already being dealt with by the UNSC).
However, we are not in Rome anymore and Article 16 does exists. Those saying that it should never be used because it would lead to impunity seem to be missing this simple point: apparently, for some people, it is sometimes preferable to delay prosecutions in order to favour other interests. You cannot just claim that it cannot be used and that’s it. For example, Richard Dicker from Human Rights Watch has claimed that: “This request comes from out of bounds; the Kenyan president seems determined to forestall his day in court”. This is not useful. Of course Kenyatta wants to “forestall his day in court”, that is the whole point of Article 16! The real question is when will it ever be considered to not be “out of bounds” ?
Given this fact, and following this logic, I don’t see what would be so wrong to use the article now. Isn’t that exactly what it was designed for, whether the human rights activists like it or not? Indeed, delaying the prosecution of a sitting head of state for a limited period of time, in a difficult political and social climate, who has been elected by the population despite his indictment at the ICC does not seem entirely unreasonable to me.
There is of course no easy answer to this tension between, to put it simply, Peace vs. Justice (or even any answer at all). But this is an important normative and philosophical debate on perceptions and approaches to (criminal) justice in the international sphere. This debate deserves more subtle debators than the human rights radicals on the one side and the anti-colonial preachers on the other.