The Prosecution of Sitting Heads of States by the International Criminal Court
22 Pages Posted: 25 Jul 2015
Date Written: 2014
International criminal tribunals have had the opportunity to prosecute former heads of states and governments. However, a foray into the prosecution of sitting heads of states and governments is a recent phenomenon and one that is proving the Achilles heel of the International Criminal Tribunal (ICC). It has also managed to stir controversy because as with other cases before the ICC, the target heads of states happen to be from Africa, a continent that has had a difficult relationship with the tribunal. ICC entered the uncharted waters of prosecuting a sitting head of state with the indictment of the Sudanese President. In a fortuitous twist and somewhat partly due to a galvanizing effect of their indictment, two former Kenyan officials indicted for their alleged role in the post-election violence (PEV) in 2007/2008 were elected as presidents and vice presidents of Kenya in 2013. During the course of this saga, chain of events that took place following their election had thrown into doubt their continued cooperation. The ICC Prosecutor relented from proceeding with the case against President Kenyatta due to the withdrawal of a number of key witnesses crucial to the prosecution’s case. These several instances of maneuvers by Kenya are informed by the principle of complementarity, which accords the national state to priority to prosecute its own suspects. This paper examines the practical problems encountered by the ICC in asserting its complementarity jurisdiction against sitting heads of states. Using the Kenyan situation before the ICC and that of Sudan to an extent, the paper argues that while international law has come a long way in acknowledging the irrelevance of the immunity of heads of states from prosecution, there still remain several practical hurdles that must be overcome before a sitting head of state could be successfully prosecuted by the ICC.
Keywords: International Criminal Law, International Criminal Court, Public International Law, International Dispute Resolution
JEL Classification: K33, K39, K41
Suggested Citation: Suggested Citation