Impunity Through Immunity: The Kenya Situation and the International Criminal Court
The International Criminal Court and Africa: One Decade On, Forthcoming
17 Pages Posted: 20 Dec 2015
Date Written: December 18, 2015
The International Criminal Court has faced many challenges to its legitimacy and effectiveness. One recent struggle stems from the Kenyatta case, which was confirmed in 2012, and became increasingly politically charged when Uhuru Muigai Kenyatta was elected President of Kenya in 2013. The ICC faces similar difficulties with the trial of William Samoei Ruto, Kenyatta’s running mate, who is currently serving as Kenya’s Deputy President. With the possible exception of the situation in Darfur, no other situation has posed as grave a challenge to the Court, and particularly the Prosecutor, than the investigation and prosecution of the brutal post-election violence which shook Kenya in 2007. In particular, Kenyatta and Ruto have argued that they are not required to appear before the Court because of their high-ranking office. This challenges a foundational premise of the Rome Statute – that it applies “equally to all persons without any distinction based on official capacity,” – a principle codified by the International Law Commission as one of the “Nuremberg Principles” in 1950, and embodied in many international instruments. This essay discusses the Kenyatta case and the issue of Head of State immunity under international criminal law. It analyzes the new rules adopted by the Assembly of States Parties to excuse presence from trial and their application in Ruto, concluding that the Trial Chamber’s application of Rule 134 quarter is incompatible with Articles 63(1) and 27(1) of the Rome Statute.
Keywords: international justice, international criminal court, immunity, Kenya, Africa and international justice, transitional justice, Nuremberg, International criminal law
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