Kenya and the African Union (AU) are raising serious concerns that ultimately question the continuing viability of the International Criminal Court (ICC). Since the ICC was created by the adoption of the Rome Statute in 1998, only Africans have had warrants and charges brought against them. Consequently, there has been a growing sense of discontent in Africa for the ICC and its Office of the Prosecutor (OTP). Now, it seems that the discontent is reaching a crescendo.
Earlier this year, the ICC ruled to confirm the charges against Uhuru Muigai Kenyatta, the current Kenyan president, for his alleged involvement as a co-conspirator to commit several crimes against humanity in violation of the Rome Statute. This is the first time that the ICC has confirmed charges against a sitting head-of-state, and Kenyatta’s trial is scheduled to begin on November 12, 2013.
The real question here, however, is whether the OTP’s prosecution of Kenyatta and the ICC’s scheduling of a trial against him will have the effect of infringing Kenyan national security. Both Kenya and the AU believe that it will, and have publicly criticized the court for its pursuit of Kenyatta, threatening to withdraw from the ICC’s jurisdiction if it does not accommodate their concerns. It is argued that by forcing Kenyatta to attend the proceedings against him the ICC is infringing on the democratically-elected head-of-state’s obligation to over see the national security of his country and implement the Kenyan administration’s policies. And, in light of the recent Westgate Mall terror attack waged by Al-Shabbab, the local authorities are arguing that Kenyan national security is in greater need of presidential oversight than usual.
Pursuant to the Rome Statute, Article 16, the Security Council can hear evidence and decide to defer the prosecution of any person before the ICC for 12 months if it believes that the prosecution will infringe upon a State’s national security. Kenya and the AU have asked the security council to use its Chapter VII powers to rule that such a deferral in the case against Kenyatta is necessary under the current circumstances. But, given the nature of the Security Council (its historically notorious lethargy and inaction), it is probably unreasonable to expect that it will decisively settle the question.
In an obvious effort to show sensitivity toward Kenya and the AU’s protests and concerns, the ICC ruled this morning that it will not require President Kenyatta to attend all of the proceedings before the Court. Instead, said the Court, “Kenyatta’s physical presence will be required only for the entirety of the following sessions: the opening and closing statements of all parties and participants, hearings when victims present their views and concerns in person, the delivery of judgement in his case and any other attendance ordered by the Chamber.” However, at the same time, the Court made it clear that “Mr. Kenyatta’s excusal is strictly granted to accommodate the demanding functions of his office as President of Kenya, and not merely to gratify the dignity of his own occupation of that office,” indicating that the Court’s accommodation is based upon what is best for the Kenyan people, not what is best for the Kenyan premier.
Beyond this singular issue, however, there is the larger question of whether the OTP and the ICC have disproportionately instituted proceedings against the African Continent. It is almost beyond argument that they have, which is the real reason why the AU has taken such a strong stance against the Court in recent months. Once the Court’s greatest block of support, the African Continent is now threatening the Court’s future viability. In the past year, the AU has held summits aimed at articulating to the ICC that there is a unified African front against the Court’s current practices. At last month’s U.N. General Assembly in New York, a spokesperson for the AU stated that “[t]he ICC continues to ignore repeated requests and appeals by the African Union…this attitude has become a major handicap that fails to reconcile the court’s secondary and complementary role in fighting impunity.”
Despite today’s ruling by the ICC and the Security Council’s consideration of deferral under Article 16 of the Rome Statute, should the AU continue to threaten withdrawal from the Rome Statute if the proceedings against Kenyatta are not deferred? To what extent do you think that it is appropriate for an international tribunal to intercede for victims of war crimes on a head-of-state? Do you think that the future of the ICC and international criminal law is under siege by the African delegation?
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