THE 12TH ASSEMBLY OF STATE PARTIES OF THE INTERNATIONAL CRIMINAL  COURT

THE HAGUE, NETHERLANDS

20 – 28 NOVEMBER 2013

Debate on Prosecuting Heads of State and Government and its Consequences of Peace, Stability and Reconciliation

Remarks by Njonjo Mue, Human Rights Lawyer and Kenyan Transitional Justice Expert

On behalf of Kenyan Civil Society.

Moderator, distinguished delegates, ladies and gentlemen,

I thank you for this opportunity to address the Assembly on these important discussions on the indictments of sitting heads of states.
There is need to look at the impact the proposed head of state immunity will have on victims and affected communities.

Today as we discuss the proposed amendments to the rules of procedure and the Rome Statute it is important to take into consideration the following realities touching on the affected communities, victims and by extension post conflict societies:

1. That the Rome Statute system deliberately ensured that there would be no immunity for any individual on the basis of official capacity. Equality before the law for grave crimes is a fundamental tenet that is not only recognized by the Rome Statute but also by international practice and increasingly adopted by national jurisdictions. For example, contrary to the assertion of the Attorney General, my country Kenya has codified this tenet into its Constitution. Article 143 (4) provides that immunity of the President from criminal prosecutions does not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.

The perspective that the court is a court whose justice applies equally to all regardless of their status in society is the very reason it has received significant support from post conflict countries and more so those that the court is actively involved in.

Most Victims and affected communities have supported the court because of the realization that the court is capable of dispensing justice even when the alleged perpetrators are the most powerful members of society. A reality that does not exist in the judiciaries of most post conflict States.

The proposed amendments are likely to reduce the ICC to the same situation as the national judiciaries that affected communities rarely can place their faith in. In other words, the proponents of these amendments seek to remake the Court in the image of the very inadequate judicial systems that the Court was created to complement.

2. The Rome Statute targets only those most responsible for serious crimes of international concern. Looking at the cases that have been opened both at the ICC and other international tribunals, those most responsible tend also to be influential members of society who have the power and financial wherewithal to organise and plan for systematic commission of very serious crimes.

The proposed amendments would give those individuals the incentive to use their influence to capture power in order to evade accountability. These amendments therefore risk making impunity a prize to be won in an election, as well as a reason why having won that prize, leaders are likely to cling onto power to continue evading accountability.

Kenya’s Attorney General says that Kenya is a willing member of the Rome Statute and was not dragged kicking and screaming to the ICC. I agree with him. But once it became clear who was sought to be indicted, that it was some of the most powerful people in the country two of whom subsequently became President and Deputy President, the government has pulled out all the stops to enable the accused persons to evade accountability. The Prosecutor of the ICC is on record as saying that she has faced serious challenges with regard to cooperation from Kenya.

3. Victims and affected communities would be required by the proposed amendments to postpone their desire for justice, simply because the perpetrator is a head of state. What message would we be sending to the affected communities? That their dignity is dispensable as compared to the dignity of the heads of state who would have a free license to commit serious atrocities and evade justice so long as they are heads of state? Isn’t this the very reason that the deliberations on the establishment of the of the Rome Statue contemplated and forestalled this very threat by enacting Article 27 of the Statute?

4. It has been suggested that the proposed immunity is not substantive, but only postpones the time when a serving head of state may be indicted until after they have left office. However, in states that have weak judicial systems, non-existent or ineffective witness protection agencies, and where witnesses’ lives are put indefinitely on hold sometimes following relocation to unfamiliar foreign countries, proposing that a trial be put on hold for five or ten years will have the practical effect of leading to the effective collapse of such a trial. Immunity will mean impunity.

5. In conclusion, if as we all seem to agree, that justice is vital for sustainable peace and reconciliation, then accepting head of state immunity in circumstances that lead effectively to the collapse of the justice project will undermine rather than promote peace, stability and reconciliation.

Thank you.
22.11.13