On the Issue of Immunity for Heads of State at the ICC

ECCC Court Room 20 July 2009-2
On the Issue of Immunity for Heads of State at the ICC - Sirtaj Kaur

The imminent trial of Kenyan President Uhuru Kenyatta in the International Criminal Court (ICC) has raised a storm, with all the African Union nations rallying to get the February 2014 trial delayed because of Kenyatta’s current position as head of state. The AU countries argue that such trials undermine peace and security, and are trying to push for an amendment to Article 27 of the Rome Statute to provide immunity to incumbent heads of state. But such an amendment might not be in consonance with the tenets of international law.

Although the outcome of this debate at the ICC remains to be seen, it is pertinent to consider the immunity question in the context of the Kenyatta case. Three things are essential to note – (1) that Kenya is a State Party to the Rome Statute governing the ICC, (2) that Article 27[1] of the Rome Statute repudiates the diplomatic immunity generally held by heads of state under international law, and (3) that the post-election violence of 2007 in Kenya was investigated by the Commission of Enquiry into Post-Election Violence (CIPEV), which was answerable to the African Union Panel of Eminent African Personalities. The CIPEV recommended that a special tribunal be established to prosecute the crimes, failing which, consideration was to be given by the AU Panel to forward the names of the alleged perpetrators to the ICC. After several failed attempts at establishing such a tribunal, the names were in fact forwarded to the ICC.

Does the AU’s argument then hold any substantial weight? Customary international law provides for diplomatic immunity to heads of state from criminal as well as civil prosecution and arrest. But Article 27 of the Rome Statute must prevail over customary international law, the state parties being expected to respect pacta sunt servanda (that treaties must be observed and fulfilled in good faith). The principle embodied in Article 27 that official capacity of an individual shall not be considered while prosecuting individuals at the ICC is in consonance with the practice of other international tribunals like the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone.

Also, the entire point of the signing of the Rome Statute – to prevent crimes against humanity and war crimes – would be defeated if such immunity were provided. Nations which see violence and criminality of such nature might be ruled by the same regimes for long periods of time – like Omar Al Bashir of Sudan, who has been in power since 1989, or Robert Mugabe, Zimbabwe’s head of state since 1987. Provision of immunity would severely undermine the accountability that the Rome Statute and the ICC want to establish by allowing crimes to continue until there is a regime change. Also, if prosecution and trial must wait till the regime goes out of power, the regimes will have more of an incentive to stay in power and distort the processes of change in governance.

The sound legal footing of the ICC’s prosecution is unsettled by real political situations like the recent Westgate bombings in Kenya, which led to the death of 67 people. Kenya argues that having its president attend trial in a different country will render weak its peace and security situation. It will also undermine the counter-terrorism efforts in Africa, of which Kenya is an integral part. Additionally, African nations have argued that the ICC only targets them, given that all the cases tried in the ICC have been related to Africa.

Although one can find ample basis for both these arguments, they cannot be deemed so substantial as to override the process of the ICC as envisaged by the Rome Statute. The Statute was established to ensure that “the most serious crimes of concern to the international community as a whole must not go unpunished” and to “put an end to the impunity of the perpetrators of these crimes”. Provision of immunity to heads of state for the period they are in power would be in clear contravention of the intent and purpose of the Rome Statute and will render the ICC an ineffective institution.