JURIST Guest Columnist Fred Kennedy Nkusi of the Independent Institute of Lay Adventists of Kigali and Mount Kenya University in Rwanda says that the current pressure by the African Union to demonize the ICC as outside control, misses the greater picture and the opportunity for progress …

On October 12, 2013, in an extraordinary session of Heads of State of the African Union (AU) called to discuss the ICC. In a two-day meeting, the leaders decided to request members of the UN Security Council (UNSC) to defer the cases of Kenyan and Sudanese leaders. As the AU leaders were convening, there was a move to have a mass withdrawal from the ICC by the AU member states.

The AU has determined that no serving heads of state and government or high-ranking officials shall be tried by the ICC or any tribunal. One reason for all this crusading against the ICC, is that the AU leaders have long criticized the ICC for only targeting Africans, especially leaders and other senior state officials; for example, President Omar Al-Bashir [of Sudan], President Uhuru Kenyatta [of Kenya] and his deputy Willliam Ruto. More so, as noted by Theresa Reinold in her paper titled “Constitutionalization? Whose Constitutionalization? Africa’s ambivalent engagement with the International Criminal Court,” the ICC is a hegemonic tool of the neocolonialists intended to exert power on internal matters of Africans.

Let me analyze all the preceding issues in the light of the ICC Statute and other international law.
Earlier, on September 10, 2013, the AU had sent a letter [PDF], which followed an earlier letter dated July 8, 2013, requesting the ICC to defer the investigations and prosecutions in connection to the 2007 post-election violence in Kenya, to allow for a national mechanism to investigate and prosecute the cases under a reformed judiciary provided for in the new constitutional dispensation. In a response, the ICC stated that “the Presidency has no legal powers under the Rome Statute or the subsidiary legal documents to consider the arguments and concerns raised in your letter (AU’s letter) with respect to on-going cases before the Court, nor can the Presidency convey them to the relevant Chambers.”

In that view, a question can be raised: in what capacity does the AU request the ICC to defer the cases under its jurisdiction? To begin with, the AU is a regional organization, and not a member of the Rome Statute. Neither has it entered an agreement with the ICC, as the UN did under Article 2 and 13(b) of the Rome Statute. In my view, even if the AU represents a collective voice of the AU member states, but is not party to the ICC Statute, any concerned AU member state, which is a state party to the ICC Statute, can legally raise such concerns.

Turning to the AU’s request to the UNSC to in turn request the ICC defer investigations and prosecution pursuant to Article 16 of the Rome Statute; this provision does not apply to Kenyan cases, simply because the cases were not referred to the court by the UN Security Council. The Kenyan cases were initiated by the former ICC Prosecutor, Moreno Ocampo, in accordance with Article 15(1): “The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.” Article 16 can only apply to cases referred to the ICC by the UNSC. So, the Kenyan cases are not compatible with the meaning of Article 16.

Arguably, the ICC is not a subsidiary organ of the UN Security Council. Consequently, the UNSC cannot interfere in the court’s business, whereby the court investigated Kenyan cases as provided by Article 15(1) of the ICC Statute. Equally, it can be noted that any UNSC request to the court to defer Kenyan cases to national jurisdiction, which already expressed unwillingness that triggered the matters to be entertained by the ICC, would be regarded as acting ultra vires. The Rome Statute establishing the ICC has treaty-based obligations, but not as an organ of the UN. The ICC, as an independent international judicial body, should strictly observe well-established core principles of independence and impartiality. The court deserves to live up its mandate, and in accordance with its statutory principles.

According to Article 26 of the Vienna Convention on the Law of Treaties (VCLT), which provides that “Every treaty in force is binding upon the parties to it and must be performed by them in good Faith (Pacta sunt servanda).” This is one of the oldest principles of international law that has obviously become a norm of customary international law. As such, Kenya ratified the Rome Statute, and therefore bears the obligation to cooperate with the court as it should and in good faith. And as of now, the incumbent Kenyan president and his deputy have pledged to cooperate with the court, so why should there be a debate of Kenyan cases? Also, why should there be a request to defer Kenyan cases? The ICC is handling the Kenyan cases on the basis of unwillingness as posted in the recent pieces by Charles Jalloh and Roland Adjovi. What the ICC is doing comports perfectly with its statutory framework.

In a political statement issued at the end of AU Session, the AU has resolved that no serving heads of state or government or high-ranking officials shall be tried by the ICC or any tribunal. It should, however, be noted that Kenya is a signatory to the Rome Statute, and Article 27 of the statute disregards official capacity, as provides that:

This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. Immunities 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.

Paragraph 2 of the preceding provision automatically and unequivocally removes immunities of state officials who are states parties to the ICC statute; and no exception to this provision or any preferential treatment to such high-ranking officials enjoying immunity.

With the case of Sudanese leader President Al-Bashir, on contrary, I have contended, in my recent paper, that the ICC arrest warrant against President Al-Bashir is invalid precisely for two reasons: Sudan is non-signatory to the ICC statute and, as a sitting head of state, Al-Bashir enjoys immunity under customary international law. Those desiring an expansion of my views on the subject, may read my paper, “Immunity of State Officials before the International Criminal Court (ICC): the indictment of President Al-Bashir.”

Fortunately, the move that had been politicized by a handful of AU members to have a mass withdrawal from the ICC statute has ended in vain. In fact, the majority of AU member states that are signatories to the Rome Statute are disinclined to pull out. A question can be raised: if genuinely, the AU member states seriously want to fight the reign of impunity as well as promoting human rights, why should there be a withdrawal from the Rome Statute? And why should there be immunity from prosecution of AU incumbent heads of state and government and other high-ranking state officials before the ICC or any tribunal? The two questions remain unresolved. Whatever the reasons I suppose the ulterior reason is not to have a shield from criminal justice.

If, in the future, some countries, from any region, decide to withdraw from the ICC or, non-signatories to the ICC statute, those who are responsible for such violations of international law will not be absolved from criminal responsibility. The UNSC, acting under Chapter VII, can refer any situation to the ICC prosecutor, as set forth in Article 13(b) of the Rome Statute. However, it is noteworthy that P-5 (Permanent Members of the UNSC), who are non-parties to the ICC Statute, will remain difficult to hold their nationals accountable by the ICC.

As much as one would relatively acknowledge the work of the ICC, the court should act quickly and actively when dealing with crimes committed elsewhere, as it does when crimes are committed in Africa. Lack of a consistent and uniform position in handling all these cases, will oftentimes portray nothing other than the double standard.

Last but not least, the court should ensure the positive complementarity. Until recently, the ICC acknowledged the inadmissibility of Libyan cases (Saif Al-Islam Gaddafi and Abdullah Al-Senussi), although all along the ICC insisted that suspects should be transferred to its custody. If positive complementarity is at the forefront of the ICC, it will assuage the existential accusation by the AU; otherwise, truly, the court would seem singling out African leaders. As noted elsewhere, the ICC, as an independent international judicial body, should strictly observe well-established core principles of independence and impartiality. The court deserves to live up its mandate, in accordance with its statutory principles.

Fred Kennedy Nkus is a Rwandan lawyer, Lecturer and Researcher at the Independent Institute of Lay Adventists of Kigali (INILAK) and a part-time lecturer in Mount Kenya University in Kigali, Rwanda. He did his LLB at the National University of Rwanda (NUR) and received an LLM from Groningen University in the Netherlands. His area of specialization is International and the law of international organizations; international criminal law and international environmental law.

Suggested Citation: Fred Kennedy, Africa Should Let the ICC Live Up to its Mandate, JURIST – Forum, Oct 24, 2013, http://jurist.org/forum/2013/10/fred-kennedy-icc-africa.php