ICC’S NIGHTMARE: THE PROSPECT OF TRYING AN INCUMBENT HEAD OF STATE IN A FOREIGN COUNTRY. Part 1


How Far Can The ICC Stretch Article 27 Of The Rome Statute?

Article 27 of the Rome Statute has turned out to be the most problematic provision for the ICC. This is because the rule for exclusion of immunities for Heads of State and other high state officials as originally formulated in the Nuremberg Charter and Tokyo Proclamation arose out of the horrifying experiences during the First and Second World Wars situations. State officials who had subverted instruments of government from their legitimate purpose and turned them into instruments of terror and for committing heinous crimes were pursued across the country by victorious armies, captured and then prosecuted in hastily contrived courts. The same may be said concerning the UN established tribunals, the ICTY and ICTR. The rule however has taken a revolution under the Rome Statute and heads of state and officials of otherwise stable states and legitimate governments may now be summoned to The Hague to answer charges for committing ICC crimes. This seriously threatens State sovereignty hitherto guaranteed under UN Charter. But is there a limit to the extent the ICC and other international criminal tribunals can exclude the traditional immunities attaching to heads of states and other high ranking officials, even for the most serious crimes?
1. INTRODUCTION
A crisis could be looming at the International Criminal Court concerning the Kenyan situation. In the next few months Kenyans will go into a General Election where they will elect a new Head of State . Among the contenders for the office of the President will be two ICC indictees, Uhuru Muigai Kenyatta and William Samoei Ruto . The prospect of having a Head of State with an appointment to keep with The Hague is no longer an idle thought, but is a serious possibility that is already causing jitters around some circles. The ICC has so far studiously remained aloof from the whole debate, refusing to interfere with Kenya’s democratic process and leaving it all for Kenyans to decide for themselves. But the matter is certainly disturbing given the number of high level international visitors to Kenya who feel constrained to offer the Kenyan voter some unsolicited advice on how to cast their vote.
The focus of this article is on article 27 of the Rome Statute which excludes immunities and privileges ordinarily enjoyed by heads of state and other government officials under international law, if they are indicted before the ICC. The historical origin of the exclusion clauses contained in article 27 is here examined and the question posed is whether the ICC can properly exercise criminal jurisdiction over an incumbent Head of State democratically elected in a free and fair election and then proceed to put him on trial in a foreign country over conducts that were not committed while he was Head of State. Is there a limit to the jurisdiction that international courts may exercise over incumbent Heads of States and other government officials or do they hold an unlimited jurisdiction in this respect? Sovereign immunity is a fundamental principle of international law and is an essential tool in international intercourse between states and for maintenance of peace . It is suggested in this paper that by putting to trial a head of state of a democratic state, the ICC would be exercising an exorbitant jurisdiction. In criminal law a court exercises an exorbitant jurisdiction over an accused person when though valid rules are applied according to the court’s own procedure, the assertion of jurisdiction is nevertheless unreasonable, unfair and excessive . It is a jurisdiction often exercised by courts of powerful states with a political goal in mind. Such a jurisdiction would obviously be inappropriate for an international criminal court. The ICC was created by states through a self-contained multilateral treaty of the category known as law making or regime creating treaties which also settled the basis of the Court’s jurisdiction . Of course the ICC can simply stick to the black letter of the law and just assert its jurisdiction, but by doing so it will have to ignore a number of important things, one being the diplomatic embarrassment the trial of a sitting president is likely to cause the Governments of Netherlands and Kenya. The state of Netherlands currently hosts the International Criminal Court at The Hague. The ICC will also have to ignore the negative resulting impact the trial may occasion on stifling the democratic aspirations of Kenyans. Kenya of today is by all standards not the same that it was some five years back when the events under consideration by the ICC took place. Since that time Kenyans have accomplished the great feat of adopting a new constitution through a national referendum that was conducted in the year 2010, and have taken other impressive strides towards giving Kenya a brand new face of a democratic State. New institutions of governance have sprung up to enhance our democratic gains and there is a reinvigorated judiciary that is credibly delivering quality judgements that meet international standards. Free expression has been spurred up everywhere and public debate on important public issues is common; and then there are impressive development projects that have given Kenya a facelift and are there for everyone to witness.
In this comment we opine that the jurisdiction that the international courts exercise and one which allows them to set aside sovereign immunities for heads of states and other state officials was not created with the aim of upsetting the international rules that encourage states to intercourse, but arose out of the horrifying experiences of the First and Second World Wars situations. State officials in Hitler’s government subverted legitimate instruments of government and turned them into instruments for committing heinous crimes. State machinery and apparatus were so extensively debased by the Nazi state officials that the entire government became one criminal enterprise engineered towards committing unspeakable acts of cruelty. It was certainly incumbent on the international community to take appropriate steps to confront this genre of evil through adoption of freshly improvised criminal law tools. For state officials to use institutions of government for a criminal purpose is totally unacceptable, but then for them to shield themselves from criminal accountability by invoking the fiction of state sovereignty and official immunity from prosecution for their despicable conducts, is simply outrageous. It is remarkable that the architects of so much evil were never brought to justice to account for their abhorrent crimes. Hitler and Mussolini just vanished in a cloud of rumours while Emperor Hirohito somehow escaped justice amidst inexplicable excuses by the Allies. About 25 years previously Kaiser William of Germany another war criminal of the First World War was allowed to escape justice in a similar fashion when Netherlands refused to surrender him.

This article was originally written months before the Kenyan general elections on March 4 2013 by Boniface Njiru* and it is available at http://www.kenyalaw.org/klr/index.php?id=168
I have divided the article into three parts which will be published separately for easier reading on this blog.

*LLB (University of Nairobi), LLM International and European Law (University of Amsterdam), Diploma in International Criminal Law (European University Institute, Florence). The author is an Advocate of the High Court of Kenya and a Lecturer at the Presbyterian University of East Africa. He is first Kenyan lawyer to be placed on the List of Counsel of the International Criminal Court.

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