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The International Criminal Court and the evolution of the idea of combating impunity: an assessment 15 years after the Rome Conference

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TH E I N TERN ATI ON AL CRI M I N AL COURT AN D TH E EVOLUTI ON OF THE I DEA OF COM BATI N G I MPUN I TY:

AN ASSESSMEN T 1 5 YEARS AFTER THE ROM E CON FEREN CE

Pa t r ícia Ga lvã o Te le s

Graduate of t he Facult y of Law of the Universit y of Lisbon; Mast er's Degree and PhD in I nt ernat ional Law from t he I nst it ute of I nternat ional St udies of t he Universit y of Geneva, Swit zerland; Researcher and Mem ber of t he Scient ific Council of Observare and of t he Edit orial Board of Janus.Net ; Legal Adviser of t he Perm anent Represent at ion of Port ugal t o t he European Union in Brussels ( Belgium ) .

Ab str a ct

This art icle1 evaluat es t he I nternat ional Crim inal Court ´ s first years of operat ion, taking st ock of the inst it ut ion’s act ivit y. I t describes and analyzes t he m ain challenges which confront s t his inst it ut ion, nam ely: a) universalit y, com plem entarit y and cooperat ion; and b) peace and just ice. I n t he specific case of Kenya, the President and Vice-President of t he Republic are suspected of com m it t ing crim es against hum anit y. Considering t he posit ions t aken by t he African Union, t he debate is whether the int roduct ion of im m unit y from crim inal j urisdict ion, albeit tem porary, t o Heads of St ate and Governm ent while in Office m ay, or m ay not, com e to represent a st ep backwards for t he idea of com bat ing im punit y for t he m ost serious internat ional crim es.

Ke y w or ds:

I nt ernat ional Crim inal Court ; I nternat ional Crim inal Just ice; I m punit y; I m m unit y; African Union

H ow t o cit e t h is ar t icle

Teles, Pat rícia Galvão ( 2014) . "The I nternat ional Crim inal Court and t he evolut ion of the idea of com bat ing im punit y: an assessm ent 15 years aft er t he Rom e Conference".

JANUS.NET e- j ournal of I nt ernat ional Relat ions, Vol. 5, N.º 2, novem ber 2014-april 2015.

Consulted [ online] on date of last visit , observare.ual.pt / j anus.net / en_vol5_n2_art1

Ar t icle r e ce iv ed on Ap r il, 2 1 2 0 1 4 an d a cce p t ed for p ub lica t ion on Oct ob e r, 9 2 0 1 4

1 Art icle is elaborat ed in t he cont ex t of t he research proj ect " I n t ernat ional Crim inal Just ice: a Dialog

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TH E I N TERN ATI ON AL CRI M I N AL COURT AN D TH E EVOLUTI ON OF THE I DEA OF COM BATI N G I MPUN I TY:

AN ASSESSMEN T 1 5 YEARS AFTER THE ROM E CON FEREN CE

Pa t r ícia Ga lvã o Te le s

I n t r odu ct ion

The signing of t he St at ut e of t he I nt ernat ional Crim inal Court (I CC)2

The I nt ernat ional Crim inal Court is current ly adjudicat ing approxim at ely t went y cases in eight different count ries: Uganda, Dem ocrat ic Republic of Congo, Sudan/ Darfur , Cent r al African Republic, Kenya, Libya, I vory Coast and Mali. The Dem ocrat ic Republic of Congo, Uganda, Cent ral African Republic and Mali sit uat ions were subm it t ed by t he respect ive St at es. The UN Securit y Council has subm it t ed t wo: Darfur and Libya. The final t wo were t he result of t he powers of t he Prosecut or t o invest igat e pr oprio m ot u: Kenya and t he I vory Coast .

t ook place in Rom e on 17 July 1998 and it ent ered int o force on 1 July 2002. There are now 122 St at es part of t his St at ut e, which corresponds t o approxim at ely t wo- t hirds of t he m em bers of t he int ernat ional com m unit y. Specifically , t here are 34 St at es from Africa, 27 from Lat in Am erica and t he Caribbean, 25 from West ern Europe and Ot her s Group, 18 from East ern Europe and 18 from Asia.

The I CC is t he first perm anent int ernat ional crim inal court wit h j urisdict ion t o t ry t hose responsible for t he m ost serious principal int ernat ional cr im es: aggression3

The St at ut e of t he I CC is, wit hout a doubt , one of t he principal t reat ies of t he post - cold war period. I nt ernat ional law received popular support at t he t im e of t he St at ut e, which was at t he cent er of t he polit ical discourse, part icularly in response t o t he m ost serious at rocit ies since World War I I , such as Rwanda and t he Form er Yugoslavia, celebrat ing now t he 20t h anniversar y since t hese cases j ust ified t he creat ion of ad hoc t ribunals.

, genocide, crim es against hum anit y and war cr im es. Today, it is t he m ain forum for int ernat ional crim inal just ice, alt hough ad hoc t ribunals and t he universal j urisdict ion rem ain in exist ence.

During t he genesis and early years of t he I CC, fight ing im punit y was a const ant challenge, regarding t he prevent ion of at rocit ies and t heir repression. Yet , how has t he idea of fight ing im punit y evolved over t he last 15 years and what are t he m ain challenges facing t he I CC t oday ?

2 For det ailed inform at ion on t he I CC, it s cases, organs, et c., see:

3 Despit e t he am endm ent s adopt ed at t he Rev iew Conferen ce in Kam pala in 2010, t he definit ion of t he

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I f t he creat ion of t he I CC was an enorm ous (and for som e an unexpect ed) success, int ernat ional crim inal j ust ice is current ly under pressure. Expect at ions were high and t hus generat ing high expect at ions which m ay explain t he frust rat ion wit h t he fact t hat t he Court , disposing of a subst ant ial budget4, has t aken t en years for t he first convict ion5

Nevert heless, t he m aj or challenges, besides t he delay of j ust ice or t he financial burden of t he inst it ut ion, are polit ical in nat ur e. The fact t hat t he I CC focuses m ainly on cases involving African st at es arouses crit icism of select ivit y. Moreover, in t he absence of full int ernat ional rat ificat ion t here are always "double st andar ds" in t he st ruggle against im punit y,even t hough t his can be rem edied – but only in part - by t he UN Securit y Council since t he " P5" will always be " safe" , given t heir power of vet o) .

, especially at a t im e of global econom ic cr isis and aust erit y m easures.

Likewise, t he lack of adopt ion of nat ional legislat ion crim inalizing int ernat ional crim es underm ines t he I CC syst em , which is based on t he principle of com plem ent arit y. Non-cooperat ion and lack of Court cust ody of m any of t he defendant s, part icularly from Uganda and Sudan, weaken t he reput at ion and credibilit y of t he Court .

On t he ot her hand, t he fact t hat t he Court is called t o exercise it s j urisdict ion in som e cases pending conflict resolut ion, and t hat Heads of St at e in office are t he subj ect t o crim inal proceedings, invigorat es t he debat e on " peace" and " just ice" , and which of t hese obj ect ives should be prom ot ed and achieved first .

Therefore, we can group t wo m ain challenges around t he following t hem es: a) Universalit y, Com plem ent arit y and Cooperat ion; and b) Peace vs. Just ice or Peace and Just ice.

The Kenyan case and recent issues raised by t he African Union, clim axing during t he last Assem bly of St at es Part ies in t he aut um n of 2013, also calls for reflect ion. St ill unresolved, t hese t ensions m ay leave a m ark in t he fight against im punit y.

Cu r r en t cha lle n ge s fa cin g t h e I CC

a ) Un ive r sa lit y, Com ple m e n t a r it y a n d Coope r a t ion

Un ive r sa lit y6

Alt hough based on classical int ernat ional law, an int ernat ional t reat y like t he Rom e St at ut e, whose rat ificat ion or accession is a sovereign and volunt ary decision of st at es, is not akin t o ot her m ult ilat eral agreem ent s. Like t he Chart er of t he Unit ed Nat ions or m aj or t reat ies on hum an right s and int ernat ional hum anit arian law, t he St at ut e aspires t o universalit y. To t his end, a cam paign for universal rat ificat ion is consist ent ly prom ot ed ( on t he part of som e m em ber St at es, t he European Union and NGOs) . This is likewise echoed in resolut ions adopt ed annually by t he Assem bly of St at es Part ies ( ASP) of t he I CC7

4 Approx im at ely 120 m illion Eur os per y ear.

, t he polit ical body where t he St at e Part ies convene, as well as

5

Conv ict ion , in 2012, of Thom as Lubanga Dy ilo, sent enced t o 14 y rs. of prison for recruit m ent of child soldiers dur ing t he Dem ocrat ic Republic of Congo conflict . The second sent en ce of t he I CC relat es t o t h e sam e crim e, in t he case of Germ ain Kat anga. The conv ict ion of March of 2014 is st ill sub j ect of appeal.

6 See, e.g., X. Philippe, “ The principles of Univ ersal Jurisdict ion and Com plem ent ar it y : How do t he t wo

principles int erm esh?

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observer St at es. The ASP m eet s at least once annually and is responsible for I CC m anagem ent and legislat ion.

I deally, t he I CC would have j urisdict ion t o t ry t he m ost serious crim es com m it t ed in each count ry, but during t he first decade, at t ent ion was direct ed t oward conflict s in African count ries. This is explained by t hree fact s: at rocit ies were com m it t ed in several St at es t hat are not part y t o t he St at ut e ( st ill approxim at ely a t hird of t he int ernat ional com m unit y) , refer ral according t o t he act ion of t he Securit y Council ( which refereed only t he cases of Sudan8 and Libya9

However, prelim inary invest igat ions have st art ed in several ot her cases, such as Afghanist an, Colom bia, Georgia, Equat orial Guinea, Hondur as, Nort h Korea, and Nigeria. Nevert heless, for t he m om ent , such invest igat ions have not yielded result s.

) , and t hat half of t he cases were subm it t ed by St at es t hem selves, by coincidence African St at es.

On t he ot her hand, Com m issions of I nquiry, m andat ed by t he UN Hum an Right s Council on at rocit ies com m it t ed in Syria and Nort h Korea, recom m ended t he subm ission of such cases t o t he I CC in 2013 and 2014.10 I n t he first case, Syria is not a St at e Part y t o t he I CC and t here was a decision against sending t he case t o t he I CC11

As Navi Navanet hem Pillay, t he Un High Com m issioner for Hum an Right s st at ed,

, despit e t he favorable posit ion of som e of t he UN Securit y Council m em bers. I n t he case of Nort h Korea, which is not part of t he I CC eit her, t he out com e is pending.

br oadening t he reach of t he I CC is necessar y so as t o t ur n t he I CC int o a universal cour t and close t he loopholes of account abilit y at t he int ernat ional level”12.

While t he I CC is not a t ruly universal court - and one wonders if som e day it m ay be - it s " part ial" or " incom plet e" j urisdict ion will always be a challenge, as long as "loopholes

of account abilit y" rem ain open.

Com ple m e n t a r it y

The I CC was designed as a Court of last r esor t, as each St at e has t he prim ary dut y t o prot ect it s populat ion from t he m ost serious int ernat ional crim es and t o prevent and repress t he offences defint ed in t he Rom e St at ut ein accordance wit h nat ional crim inal syst em s.

The St at ut e st at es clearly, in t he pream ble, t hat t he I CC is int ended t o j udge t he crim es of great er severit y and, in part icular, Art icle 17 est ablishes t he principle of com plem ent arit y, whereby t he I CC only has j urisdict ion t o t ry crim es when t he St at e

8 Resolut ion 1 593 ( 200 8) . 9 Resolut ion 1 970 ( 201 1) . 10

I t was also t he case in relat ion t o Darfur and t o Liby a, wh ose report s of t he UN Com m issions of I nquiry led t he Securit y Council t o refer t hese cases t o t he I CC in 20 05 and 2011.

11

Cf. Resolut ion 21 18 ( 2013) .

12 Opening Rem ark s at t he Side- Ev ent at t he 24t h Session of t he UN Hu m an Right s Coun cil, “ The

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having j urisdict ion over t he sam e crim e is "unwilling" or "unable" t o exercise t hat j urisdict ion.

To t his ext ent , t he appr opriat e legislat ion and t he capacit y for effect ive invest igat ion and j udicial procedures are necessary at t he nat ional level. This is encouraged and support ed by t he I CC and t he ASP ( cf. Resolut ion I CC- ASP/ 12/ Res. 4) in order t o avoid t he so-called "im punit y gap" , i.e. crim inal cases t hat are not j udged at t he nat ional or int ernat ional level13

However, not all of t he 122 St at es Part ies t o t he Rom e St at ut e have t he appr opriat e legislat ion or com pet ent j udiciary t o prosecut e cr im es wit hin t heir jurisdict ion. A t horough analysis of nat ional legislat ion, t o ensure it s appropriat eness, rem ains t o be done and t echnical assist ance can be provided t o help t hese St at e Part ies im prove and adopt t he necessary dom est ic legislat ion.

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On t he ot her hand, it is not always evident how t o det erm ine t he sit uat ions in which a m em ber St at e, in accordance wit h Art icle 17 (1) of t he St at ut e, refuses or lacks t he capacit y t o carry out t he nat ional j urisdict ion over cr im es. Only in t he case of a negat ive assessm ent , can t he Court declare t he case inadm issible. As of yet , consolidat ed case law det erm ining wit h cert aint y if t he St at e " does not want " or " does not have t he capacit y" is lacking. Nor is it t he pract ice of St at es on when t o invoke such an obj ect ion of inadm issibilit y or of t he Prosecut or for not pur suing invest igat ions.

Are t here ot her ways t o avoid t he "im punit y gap" ?

Coope r a t ion

Non- cooperat ion wit h t he Court is a phenom enon t hat st rongly affect s t he credibilit y of t he I CC. The St at es Part ies are under an obligat ion t o cooperat e in accordance wit h Part I X of t he St at ut e, specifically, in t he im plem ent at ion of t he decisions of t he Court and execut ion of t he arrest warrant s. I n t he event of cases referred by t he Securit y Council under Chapt er VI I of t he Chart er, it would be fair t o say t hat even t he St at es not part y shall be obliged t o cooperat e wit h t he Court , in accordance wit h, at least , t he aspect s referred t o in t he resolut ion.

The m ost serious case of non-cooperat ion is, of course, t he non- com pliance wit h arrest warrant s or request s for delivery. Arrest warrant s or request s for delivery of m ore t han half of t he defendant s have gone unheeded, as is out lined in t he Resolut ion I CC- ASP / 12/ Res.3. Considering t hat all t he m em bers of t he int ernat ional com m unit y are under obligat ion t o cooperat e, arrest , or surrender t hose under warrant t o t he Court , it is st riking t hat t he t he accused in sit uat ions subm it t ed by t he Securit y Council under Chapt er VI I ( Darfur, President Bashir14

Pur suant t o Art icle 63 of t he St at ut e, t he accused shall be present during t he t rial. Since t here is no provision for t rials in absent ia, t he Court 's role dim inishes, as a case cannot proceed t o t rial by reason of non- presence of t he accused.

, and Libya) or in t he first case, init iat ed in 2005 by Uganda, none of t he suspect s are in Cour t cust ody.

13 Cf. I nform al Sum m ary by t he Focal Point s, “ St ock t ak ing of int ernat ional crim inal j u st ice - Tak ing st ock of

t he principle of com plem ent arit y : bridging t he im punit y gap” , Rev iew Conference of t he Rom e St at ut e, Kam pala, 31 May - 11 June 2010.

14 See G. P. Barnes, " The I nt ernat ional Crim inal Court 's I neffect iv e Enfor cem ent Mechanism s: t h e

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6 b) Pe a ce vs. Ju st ice or Pe a ce a n d Ju st ice1 5

The idea of peace and j ust ice, whet her conflict ing or com plem ent ary, is a relat ively new issue, com ing t o light by t he creat ion of t he I CC. Previously, inst ances of est ablishm ent of int ernat ional crim inal t ribunals t ook place at t he end of t he conflict as a consequence of crim es com m it t ed. The cases of t he m ilit ary court in Nurem berg or t he ad hoc

t ribunals for t he Form er Yugoslavia and Rwanda dem onst rat e t his point .

I n t he I CC´ s case, j urisdict ion can be t riggered during any st age of t he conflict , provided t hat t here is suspicion t hat cr im es, in accordance wit h t he St at ut e, have been com m it t ed and t hat t he sit uat ion will be referred by t he St at e in whose t errit ory t he crim es are com m it t ed, by t he Securit y Council, or in accordance wit h t he powers

pr opr io m ot u by t he Prosecut or of t he Court .

Likewise, being t hat t he m aj orit y of current conflict s are int rast at e or civil wars, t heir resolut ion will depend on a process of negot iat ed int ernal peace, where it is oft en necessary t o gat her all t he conflict ing part ies t o t he negot iat ing t able. I t is frequent ly t he case t hat som e of t hese part ies - governm ent or rebels - have com m it t ed cr im es, i.e., war cr im es or crim es against hum anit y.

I n t he case of such peace negot iat ions, som e argue t hat it is necessary t o carry out t he peace process first and, subsequent ly, com m ence t he fight against im punit y and for j ust ice16 t hr ough a process called "sequencing" . This is illust rat ed by t he exam ple of Uganda, where t he case was brought t o t he Court by t he governm ent in an at t em pt t o weaken t he rebels of t he “Lord's Resist ance Arm y”. However, t he warring part ies would only accept negot iat ions if t he peace agreem ent gave t hem im m unit y from I CC indict m ent s17

The Rom e St at ut e and general int ernat ional law seem incom pat ible wit h grant ing am nest y for t he m ost serious int ernat ional cr im es. Yet , t he Rom e St at ut e recognizes t he im port ance of suspending invest igat ions or t rials in cases of t he m aint enance of int ernat ional peace and securit y ( Art icle 16) , when t he cr im es are subj ect t o processes at t he nat ional level (Art icle 17) , or when t he Prosecut or believes t hat suspension best serves t he int erest s of j ust ice ( Art icle 53) .

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For t he I CC and t he ASP, t hese concept s are com plem ent ary: " Ther e can be no last ing peace wit hout j ust ice and ( ...) peace and j ust ice ar e t hus com plem ent ary

r equirem ent s" ( Resolut ion I CC- ASP/ 12/ Res. 8)18 Moreover, it is t he only way t o

enhance t he effect of det errence19

1 5 For a brief int erest ing su m m ary of t his debat e, it s hist ory and different posit ions, see Draft Moderat or

Sum m ary , " St ock t ak ing of in t ernat ional cr im inal j u st ice - Peace and Just ice" , Rev iew Conference of t h e Rom e St at ut e, Kam pala, 31 May - 11 June 20 10. See also t he " Nurem berg Declarat ion on Peace and Just ice" , Annex t o t he let t er dat ed 13 June 200 8 from t he Perm anent Represent at iv es of Finland , Germ any and Jordan t o t he Unit ed Nat ions addressed t o t he Secret ary - General ( A / 62/ 885) .

regarding t he com m ission of t he m ost serious

16

See t he opinion of t he African polit ical figure, Thabo Mbek i, co- aut hor of an art icle in t he New York Tim es, published in February 5, 2014, wit h t he prov ocat iv e t it le of " Court s can' t end civ il wars."

17 Cf. L. M. Keller, " Achiev ing peace wit hout j ust ice: t he I nt ernat ional Crim inal Cour t and Ugandan

alt ernat iv e j u st ice m echanism s" , and L. M. Keller, " The false dichot om y of Peace v ersu s Ju st ice and t h e I nt ernat ional Cr im inal Court " .

18

See also t he art icle of t he Prosecut or of t he I CC, Fat ou Bensouda, t he New York Tim es, 19 Mar ch 2013 , ent it led " I nt er nat ional Ju st ice and Diplom acy ."

19 K. Cronin - Furm an, " Managing ex pect at ions: I nt ernat ional cr im inal t r ials and t he prospect s for det errence

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int ernat ional crim es, which was t he init ial rat ionale for t he creat ion of t he first perm anent int ernat ional crim inal court .

Th e I CC, t h e ca se of Ke nya , t he Afr ican Un ion ( AU) a n d t he fu t ur e of t h e idea of com ba t in g im pun it y

I n t he aut um n of 2013, t he African Union raised concerns20

The African Union has t aken several t ough posit ions on t he quest ion of universal j urisdict ion, t he fight against im punit y,

direct ed t oward t he I CC, especially concerning t he case of Kenya, hit t ing it s clim ax in t he Assem bly of St at e Part ies. St ill ongoing, t hese t ensions cont inue t o challenge t he idea of com bat ing im punit y.

21

Regarding Kenya, t he case was not referred t o t he I CC by t he St at e direct ly, alt hough it is a part y t o t he Rom e St at ut e, but t riggered by a Prosecut or invest igat ion pr opr io

m ot u. The referral occurred aft er t he discovery t hat crim es against hum anit y were

com m it t ed in t he wake of t he 2007 nat ional elect ions. Specifically, m urder, rape, form s of sexual violence, deport at ion, forced t ransfer of populat ions, and ot her inhum ane act s were report ed. The Prosecut or´ s findings led t o t he 2010 indict m ent for cr im es against hum anit y of t hree suspect s, t wo of whom were elect ed in 2013, President Uhuru Kenyat t a (t rial post poned) and Vice President William Rut o ( t rial st art ed in 2013) of t he Kenyan Republic.

and t he I nt ernat ional Crim inal Court , specifically wit h t he cases of Sudan and Kenya.

Dur ing t he 21st Session of t he Assem bly of t he African Union in May 2013, t he African Union, by resolut ion ( Assem bly / AU/ 13 (XXI ) , reit erat ed it s,

" st r ong convict ion t hat t he search for just ice should be pur sued in a way t hat does not im pede or j eopar dize effort s at pr om ot ing last ing peace" and t he " AU's concern wit h t he m isuse of indict m ent s against Afr ican leaders."

As a result of t his decision, a let t er22

20 For an ev olut ion of t he relat ion s bet ween t he I CC and Africa see N. Waddell and P. Clark , Court ing Conflict ?

Just ice, Peace and t he I CC in Africa; A. Arieff et al, I nt er n at ional Crim inal Court Cases in Africa: St at us and policy issues; E. Keppler, " Managing set back s is t h e I nt ernat ional Crim inal Cou rt in Africa" ; A. Warrior, The resist ance of t he African St at es t o t he j urisdict ion of t he I nt ernat ional Crim inal Cou rt ; F. M. Benv enut o, " La Cour Penale I nt er nat ionale en j uge" ; and C. C. Jalloh, " Reflect ion s on t he indict m ent of Child Heads of St at e and Gov ern m ent and it s con sequences for peace and st abilit y and reconciliat ion in Africa" -

was addr essed on 10 Sept em ber, coinciding wit h t he st art of t he t rial of Vice- President Rut o, t o t he President of t he I CC referring t o t he need of t he creat ion of a nat ional m echanism t o invest igat e and prosecut e crim es

21

On t his t hem e see " The AU- EU Ex pert Report on t he Prin cip al of Univ ersal ( AHJ) ( Council of t he European Union 867 2 1/ 09, 1 6 April 2009) . The t hem e of univ ersal j u risdict ion and t he I nt ernat ional Crim inal Cour t has cau sed w ide frict ion bet ween t he African Union and t he European Union, w hich gav e rise t o t he abov e- m ent ioned report . The Declarat ion of t he m ost recent EU- Africa Su m m it , which t ook place in Brussels on 2 and April 3 , 2014 , w it h t ot al absen ce of refer ence t o t he I CC, st at es in paragraph 10 : “ We confirm our rej ect ion of, and reit erat e our com m it m en t t o, fight im punit y at t he nat ional and int ernat ional lev el. We undert ak e t o enhance polit ical dialogue on in t ern at ional cr im inal j ust ice, in cluding t he issue of univ ersal j urisdict ion, in t he agreed fora bet ween t he part ies.”

22

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com m it t ed in t he cont ext of t he post - elect oral violence in Kenya in 2007. The sam e let t er st at ed t hat t he Court proceedings affect t he abilit y of Kenyan leaders t o lead, who - despit e possible liabilit y for t he crisis of 2007 - , are dem ocrat ically elect ed and m ust rem ain in t he count ry t o fulfill t heir const it ut ional responsibilit ies. Furt herm ore, t he t rial period requiring t he physical presence of t he President and t he Vice- President at The Hague would not be feasible, since t he Const it ut ion of Kenya st at es t hat when t he President is abroad, t he Vice- President cannot be also, and vice versa.

I n response, t he I CC denied any procedural st at ut e t o t hat let t er or t he May decision since it fell out side t he scope of t he process and was not sent t he request of t he part ies or t he Securit y Council, and responded negat ively t o t he pret ense of suspending t he process23

I n Oct ober 2013, a Special Session of t he Assem bly of t he AU adopt ed a new resolut ion, t his t im e ent it led: "Decision on Afr ica's r elat ionship wit h t he I nt er nat ional

Cr im inal Court" ( cf. Ext / Assem bly/ AU/ Dec .1 ( Oct . 2013) ) . This resolut ion reit erat ed

t he concern wit h t he polit icizat ion and m isuse of accusat ions against African leaders by t he I CC. Regarding t he quest ion of Kenya, t he resolut ion st at ed t hat t he indict m ent prom pt s a serious and unprecedent ed sit uat ion in which bot h t he President and Vice President in Office of a count ry are t he t arget of a int ernat ional crim inal process, affect ing t he sovereignt y, st abilit y and peace in t hat count ry, as well as t he nat ional reconciliat ion and t he norm al funct ioning of const it ut ional inst it ut ions.,The resolut ion decided, int er alia, t he following:

.

- For t he safeguarding of const it ut ional order, st abilit y, and int egrit y of t he Mem ber St at es, no prosecut ion can be init iat ed or cont inued by any int ernat ional t ribunal against any head of St at e or Governm ent in Office or som eone who act s or wit h t he right t o act in t hat capacit y during his t enure;

- That t he t rials of t he Chairm an Uhur u Kenyat t a and t he Vice- president William Sam oei Rut o, who are t he current leaders in Office of t he Republic of Kenya, m ust be suspended unt il t heirt erm s are com plet ed;

- Creat ion of a Cont act Group of t he Execut ive Board, t o be headed by t he President of t he Council, which shall consist of five m em bers ( one per region) t o conduct consult at ions wit h t he m em bers of t he UN Securit y Council (UNSC) , specifically, t he five Perm anent Mem bers, wit h a view t o collaborat e wit h t he UNSC in all concerns of t he AU on t heir relat ionship wit h t he I CC, including t he post ponem ent of t he cases against Kenya and t he Sudan, in order t o obt ain t he answer before t he beginning of t he t rial, t he 12 Novem ber 2013;

- Accelerat e t he ext ension process of t he African Court on Hum an and Peoples' Right s ( TADHP) m andat e t o j udge int ernat ional crim es, such as genocide, crim es against hum anit y, and war crim es;

- The African St at es Part ies t o t he Rom e St at ut e t o propose relevant am endm ent s t o t he Rom e St at ut e, in accordance wit h Art icle 121 of t he St at ut e;

- Ask t he African St at es Part ies t o t he Rom e St at ut e of t he I CC, in part icular t he m em bers of t he Bureau of t he Assem bly of St at es Part ies, t o include in t he Agenda of t he next session of t he ASP t he quest ion of t he prosecut ion of a Head of St at e and

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of Governm ent in Africa in Office by t he I CC, and it s consequences for t he peace, st abilit y, and reconciliat ion in t he Mem ber St at es of t he African Union.

- That any m em ber St at e of t he AU wishing t o refer a case t o t he I CC should inform and obt ain t he approval from t he African Union;

- That Kenya should send a let t er t o t he Securit y Council of t he Unit ed Nat ions, request ing post ponem ent of t he case against t he President and t he Vice President of Kenya, in accordance wit h Art icle 16 of t he Rom e St at ut e, which is support ed by all African St at es Part ies;

- I n accordance wit h t his Decision, ask t he Court t o post pone t he t rial of President Uhuru Kenyat t a, m arked for Novem ber 12, 2013 and t o suspend t he procedure against t he Vice- president William Sam oei Rut o up t o t he m om ent in which t he UN Secur it y Council considers t he request of Kenya for deferral, support ed by t he AU.

- That t he President Uhuru Kenyat t a not be required t o appear before t he I CC unt il t he m om ent t hat t he concerns raised by t he AU and it s Mem ber St at es have been duly considered by t he Secur it y Council of t he Unit ed Nat ions and t he I CC.

On Novem ber 15, 2013 t he Securit y Council rej ect ed, t hough ext rem ely divided ( 7 vot es in favor and 8 abst ent ions) a draft Resolut ion ( doc. S/ 2013/ 660) which sought , pursuant t o Art icle 16 of t he Rom e St at ut e and Chapt er VI I of t he Chart er, t o defer t he invest igat ion and t rial of t he President and Vice-President of Kenyan, for a period of one year. Vot ed in favor Azerbaij an, China, Morocco, Pakist an, Russia, Rwanda and Togo. Abst ained Argent ina, Aust ralia, France, Guat em ala, Luxem bourg, t he Republic of Korea, Unit ed Kingdom and USA ( for individual explanat ions of vot e see S/ PV. 7060) .

Nevert heless, t he 12t h session of t he ASP included, at t he request of t he African Union, a special segm ent ent it led, " I ndict m ent of Sit t ing Heads of St at e and Governm ent and

it s consequences on peace and st abilit y and reconciliat ion."

During t he Novem ber 2013 int ervent ion on behalf of t he AU in t he ASP, it was st at ed;

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support ed and advocat ed for is no longer a Court for all but only t o deal wit h Africans in t he m ost rigid way”24

.

According t o t he proposal subm it t ed by t he African St at es - adopt ed by consensus - subst ant ial am endm ent s t o t he Rules of Procedure and Evidence of t he I CC - nam ely Rule 134 – were draft ed, specifically allowing t he j ust ificat ion of absence or t hat of physical presence in t he t rial t o be replaced by part icipat ion via video t echnology. I n accordance wit h t he Resolut ion I CC- ASP/ 12/ Res. 7, t he following was insert ed aft er Rule 134 of t he Rules of Procedure:

“Ru le 1 3 4bis

Pr e se nce t h rou gh t he u se of vide o t ech nology

1. An accused subj ect t o a sum m ons t o appear m ay subm it a writ t en request t o t he Trial Cham ber t o be allowed t o be present t hr ough t he use of video t echnology dur ing part or part s of his or her t rial.

2. The Trial Cham ber shall rule on t he request on a case- by- case basis, wit h due regard t o t he subj ect m at t er of t he specific hearings in quest ion.

Ru le 1 3 4t e r

Ex cusa l from pr e sen ce a t tr ia l

1. An accused subj ect t o a sum m ons t o appear m ay subm it a writ t en request t o t he Trial Cham ber t o be excused and t o be represent ed by counsel only during part or part s of his or her t rial.

2. The Trial Cham ber shall only grant t he request if it is sat isfied t hat :

( a) except ional circum st ances exist t o j ust ify such an absence;

( b) alt ernat ive m easures, including changes t o t he t rial schedule or a short adj our nm ent of t he t rial, would be inadequat e;

( c) t he accused has explicit ly waived his or her right t o be present at t he t rial; and

( d) t he right s of t he accused will be fully ensured in his or her absence.

3. The Trial Cham ber shall rule on t he request on a case- by- case basis, wit h due regard t o t he subj ect m at t er of t he specific hearings in quest ion. Any absence m ust be lim it ed t o what is st rict ly necessary and m ust not becom e t he rule.

Ru le 1 3 4 qu a r t e r

Ex cusa l from pr e sen ce a t tr ia l du e t o e x t r aor din a r y pu blic du t ie s

1. An accused subj ect t o a sum m ons t o appear who is m andat ed t o fulfill ext raordinar y public dut ies at t he highest nat ional level m ay subm it a writ t en request t o t he Trial Cham ber t o be excused and t o be represent ed by counsel

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only; t he request m ust specify t hat t he accused explicit ly waives t he right t o be present at t he t rial.

2. The Trial Cham ber shall consider t he request expedit iously and, if alt ernat ive m easures are inadequat e, shall grant t he request where it det erm ines t hat it is in t he int erest s of just ice and provided t hat t he right s of t he accused are fully ensured. The decision shall be t aken wit h due regard t o t he subj ect m at t er of t he specific hearings in quest ion and is subj ect t o review at any t im e.”

There will be t hose who quest ion t he com pat ibilit y of t hese am endm ent s wit h Art icle 27 of t he Rom e St at ut e and t he principle of equal t reat m ent . The Court , in a decision from Novem ber 26 2013 on t he Kenyan process, cont ended t hat t he absence of t he accused should only occur in except ional circum st ances and be lim it ed t o what is st rict ly necessary. Alt hough t he t rials in absent ia were allowed in t he Nurem berg t rials, t hey were excluded, as a general rule, in t he Tribunals for t he form er Yugoslavia, Rwanda and by t he St at ut e of t he I CC.

Art icle 27 of t he I CC St at ut e confirm s, in addit ion, t hat t he official capacit y of a defendant is irr elevant for t he purposes of a t rial before t his Court , providing t hat im m unit ies or special procedural rules t hat m ay be inherent t o t he official dut ies of a person, according t o nat ional or int ernat ional law, does not prevent t he Court from exercising it s jurisdict ion over such a person. I n addit ion, Art icle 98 of t he St at ut e does not refer t o t he personal im m unit ies of Heads of St at e, Governm ent , or Minist ers of Foreign Affairs in absolut e t erm s, but rat her t o t he diplom at ic im m unit ies bet ween Mem ber St at es and t he possible need t o obt ain consent prior t o t he delivery of a suspect t o Court .

The proposals m ade during t he ASP for am endm ent t o t he Rules of Procedure, it s accept ance policy and st rat egy of cont ainem ent , did not prevent , however, t he Governm ent of Kenya from not ifying, on Novem ber 22, 2013, t he Secret ary-General of t he Unit ed Nat ions,25 as deposit ary of t he Rom e St at ut e, t he following proposed changes t o t he St at ut e in accordance wit h Art icle 121 ( 1) , in part icular wit h regard t o Art icles 63 (Trial in t he Presence of t he accused) , 27 (I rrelevance of official capacit y) and t o t he paragraph of t he Pream ble on com plem ent arit y:

Ar t icle 6 3 ( 2 ) - t h e Pre sen ce of t he a ccu se d a t t r ia l

" Not wit hst anding art icle 63(1) , an accused m ay be excused from cont inuous presence in t he Court aft er t he Cham ber sat isfies it self t hat except ional circum st ances exist s, alt ernat ive m easures have been put in place and considered, including but not lim it ed t o changes t o t he t rial schedule or t em porary adj our nm ent or at t endance t hr ough t he use of com m unicat ions t echnology or t hr ough represent at ion of Counsel.

( 2) Any such absence shall be considered on a case- by- case basis and be lim it ed t o t hat which is st rict ly necessary.

( 3) The Trial Cham ber shall only grant t he request if it det erm ines t hat such except ional circum st ances exist and if t he right s of t he accused are fully ensured

25

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in his or her absence, in part icular t hr ough represent at ion by counsel and t hat t he accused has explicit ly waived his right t o be present at t he t rial."

Ar t icle 2 7 ( 3 ) - I r re le va nce of officia l ca pa cit y

“ Not wit hst anding paragraph 1 and 2 above, serving Heads of St at e, t heir deput ies and anybody act ing or is ent it led t o act as such m ay be exem pt from prosecut ion during t heir curr ent t erm of office. Such an exem pt ion m ay be renewed by t he Court under t he sam e condit ions”

I n t r oduct or y Pa r a gr a ph on Com ple m e n t a r ity

" Em phasizing t hat t he I nt ernat ional Crim inal Court est ablished under t his St at ut e shall be com plem ent ary t o nat ional and regional crim inal j urisdict ions."

I f t he proposed am endm ent t o Art icle 63 - t he new rules int roduced in ASP 2013 are t o som e ext ent already accept ed - represent s a 60 year st ep backwards t o t he t rials in

absent ia of t he Nurem berg Tribunal, t he proposed am endm ent t o Art icle 27 goes

against a fundam ent al " sacr osanct " principle upheld since Nurem berg and incorporat ed in t he St at ut e of all crim inal court s: int ernat ional crim inal law applies t o everyone, regardless of official capacit y. Art icle 7 of t he Chart er of t he I nt ernat ional Milit ary Tribunal st at ed “t he official posit ion of defendant s, whet her as Heads of St at e or r esponsible officials in Governm ent Depart m ent s, shall not be considered as freeing

t hem fr om r esponsibilit y or m it igat ing punishm ent.”

The proposal for t he am endm ent of Art icle 27, support ed by t he African St at es and proposed for discussion in an ext raordinary ASP, would alt er a fundam ent al principle of t he St at ut e and cust om ary int ernat ional crim inal law, recognized by I CJ in t he Case Arrest Warrant of 2000. I t would be "a sham eful r et reat in t he global fight against im m unit y" .26

I n our view, and as m ent ioned above, t he appropriat e safeguards for com plex cases, such as t he case of Kenya are already incorporat ed in t he Rom e St at ut e, t herefore, no change t o t he aforem ent ioned art icles is required. However, t he safeguards in Art icles 17 ( Com plem ent arit y and Adm issibilit y) , 53 ( Powers of t he Prosecut or ) and 61 and 63r ( Presence of t he accused at t rial) , could be readdr essed t o im proved consist ent and cont inuit y. I n any case, in ext rem e circum st ances, t he power t o appeal will rem ain, and in cases in which peace is seriously t hreat ened, t he Securit y Council, pursuant t o Art icle 16 of t he St at ut e, m ay suspend, for periods of 12 m ont hs, t he proceedings before t he I CC. The fact t hat t hat body has not accept ed t he use of t his prerogat ive in Sudan´ s Addit ionally, according t o t he sam e aut hor, t his Am endm ent t o Art . 27 could even be a st ronger incent ive for t aking power ( by dem ocr at ic m eans or not ) in order t o avoid a t rial in The Hague. The proposal, likewise, cont radict s t he principle of speedy j ust ice for t he vict im s, because t he Court would be prevent ed from exercising j urisdict ion wit h regard t o persons t hat occupy high polit ical posit ions.

26 C. C. Jalloh, " Reflect ions on t he indict m ent of sit t ing Heads of St at e and Gov ernm ent and it s

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case, where it did not form ally t ake a decision, or Kenya, where t he request was denied by a narrow m argin, does not m ean t hat t his safeguard is ineffect ual.27

Con clu sion s

Due t o t he challenges of t he current cases, som e perceive t he idea of com bat ing im punit y and int ernat ional crim inal j ust ice as declining. Ot hers view t his as a process of st abilizat ion developing in t he I CC; which aft er a revolut ionary achievem ent , despit e m at uring over m any decades, m at erialized in a relat ively short period.

However, t he African at t em pt t o int roduce im m unit y from crim inal j urisdict ion for current Heads of St at e for t he m ost serious int ernat ional cr im es - even if t em porarily - is a severe set back t o t he idea of fight ing im punit y.

The fut ure credibilit y of t he I CC´ s role, pur suant on how and when t hese challenges and ideas are appr oached, await s j udgm ent . The proposal for a separat e I nt ernat ional Crim inal Court for Africa (suggest ed by t he African Union and t he proposed am endm ent t o t he St at ut e of Rom e from Kenya) and t he possible wit hdrawal from t he I CC St at ut e ( aut horized but wit h lim it ed effect s on current cases) by Art icle 127 (2) by som e African st at es has yet t o m at erialize.

Kofi Annan succinct ly clarified t he issue when he st at ed,

" it is t he cult ure of im punit y and individuals who ar e on t rial at t he I CC, not Afr ica"28.

I t is our hope t hat t he ent ire int ernat ional com m unit y will underst and t hese words of wisdom and t hat t he st ruggle against " im punit y" will not lose it s " p" and becom e, in fact , for som e, ” im m unit y" from crim es against hum anit y.

Re fe re n ce s

Ar ieff, A et al. ( 2010) . I nt ernat ional Crim inal Court Cases in Afr ica: St at us and policy

issues. Diane Publishing.

Barnes, G.P. ( 2011) . “ The I nt ernat ional Crim inal Court ’s I neffect ive Enforcem ent Mechanism s: t he I ndict m ent of President Om ar Al Bashir.” Fordham I nt er nat ional Law

Jour nal, Vol. 34, No. 6: 1584- 1619.

Beauvallet , O. ( ed.) ( 2012) . “ 10e anniversaire de la Cour Pénale I nt ernat ional” , La

Sem aine Jur idique, Vol. 86, No. 52: 1- 24.

Bellelli, R. ( ed.) . ( 2010) . I nt ernat ional Crim inal Just ice: law and pr act ice fr om t he Rom e

St at ut e t o it s r eview. Ashgat e.

27

On t he relat ionship bet ween t he I CC and t he UN Secur it y Council see H. Mist ry and D. Ruiz Verduzco ( Rapport eurs) , “ The UN Securit y Council and t he I nt ernat ional Crim inal Court , I nt ernat ional Law Meet ing Sum m ary ” ; D. Kay e et al, “ The Coun cil and t he Court : I m pr ov ing Securit y Council Support for t h e I nt ernat ional Crim inal Cou rt ” ; e J. Trahan. “ The relat ionship bet ween t he I nt ernat ional Crim inal Cour t and t he UN Securit y Council: Param et ers and best pract ices” .

28

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Benvenut o, F.M. ( 2013) . “ La Cour Pénale I nt ernat ionale en accusat ion.” Le Monde

Diplom at ique, Vol. 60, No. 716: 11.

Blaise, N. ( 2012) . “ Les int eract ions ent re la Cour Pénale I nt ernat ionale et le Conseil de Sécurit é : j ust ice versus polit ique?” Revue de la Facult é de Dr oit de L’Universit é de

Liége, Vol. 57,no. 1-2: 61- 98

Boas, G., W. Schabas and M. Scharf (eds.) ( 2012) . I nt ernat ional Crim inal Just ice:

legit im acy and coher ence, Elgar.

Cronin- Furm an, K. (2013) . “ Managing expect at ions: I nt ernat ional crim inal t rials and t he prospect s for det errence of m ass at rocit y” , The I nt ernat ional Journal of Transit ional

Just ice, 1-21.

Guerreiro, A. ( 2012) . A r esist ência dos Est ados Africanos à j urisdição do Tribunal Penal

I nt ernacional, Alm edina.

Jalloh, C. C. ( 2014) . “ Reflect ions on t he indict m ent of sit t ing Heads of St at e and Governm ent and it s consequences for peace and st abilit y and reconciliat ion in Africa” ,

Legal St udies Resear ch Paper St udies, Universit y of Pit t sburgh, Working Paper.

Kaye, D. et al, (2013) “The Council and t he Court : I m proving Securit y Council Support for t he I nt ernat ional Crim inal Court .” School of Law, Universit y of California.

Keller, L.M. ( 2008) . “ Achieving peace wit hout just ice: t he I nt ernat ional Crim inal Court and Ugandan alt ernat ive j ust ice m echanism s” , Connect icut Jour nal of I nt ernat ional Law, Vol. 23: 209-279.

Keller, L.M. ( 2008) . “ The false dichot om y of Peace versus Just ice and t he I nt ernat ional Crim inal Court ” , Hague Just ice Journal, Vol 3, No. 1: 12- 47.

Keppler, E ( 2012) . “ Managing set backs for t he I nt ernat ional Crim inal Court in Africa.”

Jour nal of Afr ican Law, Vol. 56, No. 1: 1- 14.

Mendes, E. (2010) . Peace and Just ice at t he I nt er nat ional Crim inal Court : A Cour t of

last r esort. Elgar.

Mist ry, H. and D. Ruiz Verduzco ( Rapport eurs) . ( 16 Março 2012) . “ The UN Securit y Council and t he I nt ernat ional Crim inal Court , I nt ernat ional Law Meet ing Sum m ary” , London: Chat ham House.

Philippe, X. (2006) . “ The principles of Universal Jurisdict ion and Com plem ent arit y: how do t he t wo principles int erm esh?” I nt er nat ional Review of t he Red Cross, Vol. 88, No. 862: 375-398.

Piranio, C. et al. (2011) . “ Reflect ions on t he Rom e St at ut e.” Cam bridge Review of

I nt ernat ional Affair s, Vol. 24, No. 3: 307- 447.

Roach, S. C. ( 2013) . " Legit im ising negot iat ed j ust ice: t he I nt ernat ional Crim inal Court and flexible governance.” I nt ernat ional Jour nal of Hum an Right s, Vol. 7, No. 5- 6: 619-632.

Schabas, W. (2012) . “ The I nt ernat ional Crim inal Court : st ruggling t o find it s way.” A. Cassese ( ed.) , Realizing Ut opia: t he fut ur e of I nt ernat ional Law, OUP.

Sidiki, A. ( 2012) . “ La Cour Pénale I nt ernat ionale: une j ust ice a double vit esse?” Revue

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Trahan, J ( 2013) . “ The relat ionship bet ween t he I nt ernat ional Crim inal Court and t he UN Securit y Council: Param et ers and best pract ices.” Crim inal Law Forum, Vol. 24: 417-473.

Waddell, N. and P. Clark. ( 2008) . Cour t ing Conflict ? Just ice, Peace and t he I CC in

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