In his comment to my 12 December post on the The New RPE 134 Provisions, our colleague Boniface Njiru makes some insightful observations on Article 27 of the ICC Statute.The ICC Statute was a work in progress for many years. Drafted by committee and based on political compromises, there are some who claim that it reflects what is (or should be) considered customary international law (CIL). This is an overreach; the jury, as it were, is still out on this. We saw this played out recently over Bashir: while accepting that he had no immunity at the ICC because of the ICC Statute, CIL continues to allow heads of state personal immunity, with some claiming, rather credibly, that a State would be violating CIL by arresting Bashir and turning him in to the ICC for prosecution (see e.g. http://www.crimesofwar.org/commentary/the-icc-bashir-and-the-immunity-of-heads-of-state/).
One thing is certain since Nuremberg: little or no quarter was to be given to political and military leaders for committing acts recognized as international crimes by the community of mankind. Thus, it was to be expected that no political leader, sitting or otherwise, would be immune from prosecution before the ICC. That was the intent of all those who signed on to the Rome Statute, eyes wide open.
I personally think that certain circumstances warrant the use of amnesty, especially if that is the price to avoid further loss of life. Syria is a good example. And, while at the national level amnesties can be issued and thus totally immunizing a suspect or accused from any prosecution, such amnesties may be inconsistent with customary international law (though an argument can be made that such prohibition has yet to crystalize), and thus inapplicable before international or so-called internationalized tribunals. As such, I seriously doubt that the ICC Statute, with respect to Art. 27, was influenced by the ICTY Statute.
My take on Art. 27 is that even for those committed to literalism in interpreting the words of the ICC Statute to restrict the role of the judges (avoid judicial activism), it does not is prohibit the use of judicial discretionary authority as envisaged by the new provisions of Rule 134. Considering that statutes (much like constitutions) set out the general principles, with the rules designed as the engines for the implementation of both the letter and spirit of the statutes, it is to be expected that not all details will be included in statutes. Art. 27 goes to equal treatment, with a fair reading being that political leaders enjoy no special privileges from being prosecuted, and once prosecuted, enjoy no special privileges as accused. But, as I noted, in all international tribunals, as in many national courts, judges are accorded certain discretionary authority in dealing with extraordinary circumstances. Thus, I see no real dilemma.
Boniface accurately notes that in the past, political leaders, sitting or otherwise, were charged and tried when their state of origin was in conflict, post-conflict or collapsed. In those circumstances, the accused were arrested (or turned themselves in to custody), placed in detention, and if provisionally released, subjected to conditions such as being barred from engaging in politics. In these circumstances, there would be no need for a trial chamber to entertain whether an accused sitting political leader should be absent from the trial proceedings to attend state affairs – however important.
Now, for the first time, we have a situation where political leaders from a vibrant and internationally law abiding nation are indicted, and as sitting President and Vice President, are slated to be tried at the same time. This is a dilemma. Kenya is no pariah or failed State. Its stability is vitally important to the international community at large. With no immunity or amnesty available under the ICC matrix – to which Kenya and Messrs Kenyatta and Ruto are requisite participants – the only viable option is a deferment from prosecution under Art. 16, though this would only be for a year, but subject to renewal on an annual basis. Presently, this is a non-option: the UN Security Council appears unmoved in adopting under Chapter VII of the UN Charter a resolution requesting the ICC to defer prosecution. Thus this card may yet be played.
What makes this case instructive (and intriguing) is that when Messrs Kenyatta and Ruto were initially summoned, they were not placed in custody and were not forbidden to engage in political activity, including seeking the highest political offices in their State – Kenya. This was the right decision. While the ICC may not have been satisfied with Kenya’s efforts to investigate and prosecute at the highest level (a non-issue now), the ICC obviously was satisfied with Kenya’s cooperation. It was also obviously satisfied with the cooperation of Messrs Kenyatta and Ruto (and others), which is why they were never placed in custody or ordered to refrain from lawful political activity. Perhaps the possibility of having both the President and Vice President at trial at the same time was not envisaged or imagined. And, of course, who could forecast that Kenya, at about the time of the trial proceedings, would come under terrorist attack – thus underscoring the political vacuum in Kenya, should both the President and Vice President be forbidden to attend certain matters of vital national interest.
To have forbidden Messrs Kenyatta and Ruto from running for office, when presumed innocent and while in principle enjoying all the rights and privileges of any other Kenyan citizen, would have effectively disenfranchised half of Kenya’s electorate who turned out to vote for the candidates of their choice. And, as I pointed out, what if there is an acquittal?
So, with this new dynamic in play, calibrating the RPE to address certain gaps in the rules was essential. The Kenya scenario would have played out sooner or later. The question which begs to be answered, and I think I have answered it to some satisfaction, is whether any of the new provisions to Rule 134 are ultra vires. I think not. Hence, there is no need to amend Art. 27. More importantly, however, amending the ICC Statute is no easy and expeditious process. An immediate solution needed to be found, if possible. When considering what was (and remains) at stake, the exigency of the circumstances, the discretionary authority generally accorded to judges, the guiding criteria set out in Rule 134quater on the exercise of judicial discretion, and the availability of appellate review with the Ruto decision in mind, I think the ASP got this one right.
Should Kenya and the Kenyans suffer as a result of both their President and Vice President being unable to address national interests of the highest nature at a time in need, simply to prove an abstract point of absolute “equality” – a right which in practice is qualified due to the occasional use of judicial discretionary authority – when alternatives measures are available at no cost or prejudice to any of the parties? Justice may not be perfect, but it sure is not reckless.