Arusha, November 19, 2013 (FH) – The twelfth session of the ICC Assembly of States Parties is set to open Wednesday in the Netherlands amid a deep rift between African and Western countries. After African diplomats last week failed to get the UN Security Council to defer the trials of Kenya’s top two leaders, they now plan to ask in The Hague for an amendment to the International Criminal Court’s founding statute.

2 min 4Approximate reading time

The ICC has charged Kenyan President Uhuru Kenyatta and his deputy William Ruto with crimes against humanity committed in their country during post-election violence in 2007-2008. 

 “We are optimistic”Two or three lines in the Statute of Rome are particularly problematic for African countries, which accuse the Court of conducting a kind of “racial hunt” against them. “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,” states Article 27 of the ICC’s founding treaty.

“We are going to the state parties meeting at The Hague to present the AU proposal for amendment of the Rome statute and are optimistic of a positive consideration,” said Kenyan Foreign Affairs Secretary Amina Mohamed, as quoted Monday by Kenya’s Daily Nation newspaper. She said African countries hope to persuade 122 members of the Assembly to support their move.  Apart from Kenya, 33 other countries have ratified the ICC’s Statute. Non-African countries that have done so include France and the UK, whose abstentions last Friday contributed to the UN Security Council’s failure to approve deferral of the Ruto and Kenyatta cases.

“Crucial court” The idea of immunity for sitting heads of state is of course strongly criticized by African and international human rights organizations. In a joint communiqué published on the website of Human Rights Watch, these organizations sound the alarm.

“Immunity for government leaders before the ICC is contrary to the basic principle that no one should be above the law,” said Georges Kapiamba, president of the Congolese Association for Access to Justice. “We should not deny justice to the victims and their families because their tormentors hold high political positions.”

“Human rights abuses by governments and armed groups remain one of the biggest challenges confronting people in Africa,” said George Kegoro, executive director at the International Commission of Jurists-Kenya. “Ideally, domestic courts will ensure justice for these crimes, but the ICC serves as a crucial court of last resort when they are unable or unwilling.”

Plan B According to the Kenyan press, the country’s authorities are going to The Hague with a Plan B. If they do not obtain amendment of Article 27, they may request another amendment which would allow the Kenyan President and his deputy to attend their trials only by videoconference. The ICC Appeals Chamber has already decided that absence from trial cannot be systematic. Ruto, who has been on trial since December, has already participated via videoconference, unlike his boss, whose trial is due to start in February.

Deputy President Ruto is from the Kalenjin ethnic group, whereas President Kenyatta is Kikuyu. The two ethnic groups clashed in deadly violence in late 2007 and early 2008 during which the two accused, who have now formed a powerful alliance, were active in two opposing coalitions.