Prosecution of Sitting Heads of State at the ICC: A Worthwhile Endeavour?

Photo ICC Status Conference Kenyatta Case 8 October 2014

The withdrawal of the case against President Kenyatta by the ICC Office of the Prosecutor (OTP) gives rise to the question whether the prosecution of a sitting head of state is a worthwhile endeavor.  This questioned is further strengthened by the challenges the ICC faces in relation to the refusal of states to arrest and surrender President Bashir of Sudan years after the first warrant of arrest was issued against him. It goes without saying that the prosecution of sitting heads of states is very politically sensitive matter. This is first, because heads of states, being politicians, have very strong supporters (and detractors) in their respective countries. Take President Kenyatta for instance; in the wake of his indictment by the ICC, he was nevertheless elected in democratic and peaceful elections, albeit contested, together with Deputy President Ruto who is himself on trial at the ICC. The election of indicted persons raises the question of how prosecution at the ICC is viewed by Kenyans, and Africans by extension. As Professors Zwart and Knoops put it in the article The Kenyatta case shows that the International Criminal Court needs to reset it relations with Africa –“The presidential elections in Kenya turned into a referendum on the ICC, which emerged with a bloody nose”.

The second reason is that the prosecution of a head of state raises issues of state sovereignty and immunity of heads of state which are the very under pinning of international law and international relations. It does not help matters that the heads of state that have so far been prosecuted are all African. The worsening relationship between Africa and the ICC is proof of this complication.

Aside from these political issues, a very practical challenge relating to prosecution of heads of state is ensuring cooperation of states. As is well known, the ICC does not have an enforcement mechanism and relies entirely on the cooperation of states. This is provided for under article 86 of the Rome Statute. However, as has been demonstrated by the case against Presidents Bashir and Kenyatta, the prosecution of sitting heads of state complicates states parties obligation to cooperate. To begin with, President Bashir’s case gave rise to seemingly conflicting obligations which have been the subject of debate among scholars since the first warrant was issued against him in 2009. The crux of it is that article 27 of the Rome Statute provides that immunities, whether under international or national law, including that of heads of state, shall not apply before the ICC. However, article 98 provides that the ICC shall not request a state to cooperate if such cooperation would make the state breach the immunities of a third state. The argument, therefore, is whether President Bashir is protected from surrender under article 98 of the Rome statute. The matter is not settled yet, some commentators argue that he is protected by article 98 while others opine that he is not.

The second pair of conflicting obligations in the arrest and surrender of President Bashir is faced by African States Parties to the Rome Statute. The African Union (AU) made several decisions urging African States not to cooperate with the ICC in the arrest and surrender of President Bashir. African States have the obligation to comply with AU decisions under article 23 of the AU Constitutive Act. The article also permits the AU to impose sanctions against non compliant states. On the other hand, African States Parties to the Rome Statute have a treaty obligation to cooperate with the ICC. This has resulted in a dilemma for African States parties to the Rome Statute who have responded differently to their cooperation obligation. For example, Chad and Malawi, have relied on the AU decisions to refuse cooperation with the ICC while the High Court of Kenya issued a warrant of arrest against President Bashir.

Apart from the President Bashir case, cooperation was also a problem in the ICC case against

President Kenyatta. Although Kenya says it cooperated with the ICC to the extent possible, the OTP’s statement is that the refusal of Kenya to cooperate led to the withdrawal of the case. The witnesses previously relied on by the OTP either rescinded their statements or refused to testify leading the OTP to allege witness tampering. The result was that the OTP case then relied entirely on documents and financial record that the OTP had requested Kenya supply. The question is, how likely is it that a government led by an accused person would provide possibly incriminating documents to a court? It is very likely that had it not been the head of the Kenyan   government on trial, the government would have been more inclined to cooperate with the ICC.

Be that as it may, if the case against President Kenyatta had resulted in a conviction, it would most likely have resulted in wrangles in Kenya between his supporters and non-supporters akin to the events of 2007-2008 post election violence. Such violence would most likely have been divided along ethnic groups since in Kenyan politics allegiance to politicians is more often than not determined by one’s ethnic group. The imprisonment of a person as popular as President Kenyatta, especially among the members of his ethnic group, the Kikuyu, would most likely result in violence between the Kikuyu and members of other ethnic groups perceived to be somehow responsible for his conviction.

The punishment meted upon ICC conviction seems very lenient compared to the effort and the resources utilized to obtain such conviction as well as its possible consequences in the respective countries. For example, Mark Kersten, in the blog article Looking For Flatmates – Behind the Scenes at Scheveningen Prisondescribes very luxurious conditions among inmates in the said prison. The conditions described are much better than those of many people in Africa not to mention the persons displaced by conflict who live under horrid conditions in camps.

The question is whether the prosecution of a sitting head of state, in light of the above, is a worthwhile enterprise even if conviction can be ensured, which it often isn’t. The consequences of such prosecution, such as, the reluctance of states to cooperate with the ICC when a sitting head of state is involved; the ever deteriorating relationship between the ICC and Africa; as well as the likely loss of more lives and suffering upon conviction, seem to outweigh the benefits of a possible conviction. Although article 27 of the Rome Statute gives the ICC jurisdiction over heads of state and government, for the above stated reasons, the ICC should rethink the prosecution of sitting heads of state.

Guest Post by Phoebe Oyugi (Phoebe is a Kenyan Scholar Completing her LL.M at Rhodes University, Grahamstown, South Africa)