The annual Assembly of State Parties of the ICC (ASP) kicked off yesterday to discuss the management of the court and possible changes to the Rome Statute. While several issues are on this year’s agenda, including victim compensation and progress on ratifying amendments to define the crime of aggression, chief among the concerns of the state parties are the issues surrounding the current cases with Kenya and in particular the prosecution of President Uhuru Kenyatta and Vice President William Ruto.
Despite campaigning on continued cooperation with the ICC earlier in the year, once Kenyatta and Ruto were elected in March, the tune of the Kenyan government changed. Since then the tension between the ICC and Kenya has grown considerably, with arguments over trial attendance, witness intimidation and the existence of the trials in general. In October the African Union floated the idea of a mass walkout on the court by African states in support of Kenyatta’s position. While the walk out did not happen, the holding of an extraordinary session solely on this issue highlights the increasingly contentious relationship between the ICC and Africa.
Last week, also with the strong diplomatic backing by the AU, the Security Council held a vote on whether to defer the cases against Kenyatta and Ruto for one year as allowed under the Rome Statute. The vote split almost directly down the line of those who are and are not ICC members; all members of the court abstained along with the US while all the other non-members voted in favor. In the end, the resolution failed with a vote of 7-0.
On the back of that failure comes the ASP and a new push by several African states to amend Article 27 of the Rome Statute to allow for immunity for sitting heads of state. Back when the Rome Statute was finalized, the lack of immunity for heads of state was seen as a significant step in the right direction for global justice. But now that heads of state are actually indicted, not just Kenyatta but also Omar al-Bashir in Sudan, politics is overriding concerns of justice.
So far those in favor of immunity are presenting it as a peace and justice issue, where immunity will allow for better stability and security for the states involved. Those against the proposed amendment argue that immunity would encourage impunity and could possibly give further incentives for heads of state to not leave power. Thus the stakes for any changes are quite high, but failure to address the concerns of state parties could also hurt the credibility of the ICC.
It is unlikely that any changes to the Rome Statute would help Kenya as the process for amendments is a burdensome one: first, two-thirds of member states must agree to adopt the issue at a meeting of the ASP or an official review conference and then seven-eighths (87.5%) of existing member states must ratify the amendment. As seen with the Kampala Amendments which would define crime of aggression, this process can take years. Those amendments were adopted by the ASP in 2010 but the goal for final ratification is not expected until 2017. Given the far more controversial nature of head of state immunity, any successful process towards full ratification would likely take much longer.
In the meantime, the relationship between the ICC and Kenya – and more largely between “Western” and African member states – is growing increasingly tense. As Mark Kersten notes, the Kenyan cases are far more about politics now than they are about justice, but the future of the court and global justice could very well rest on how these issues shake out.
