Human rights activists are dismayed by the decisions taken by member states of the International Criminal Court (ICC) last week to allow heads of state to be physically absent from their trials.
The decisions taken at the ICC Assembly of States Parties (ASP) in The Hague were inspired by the ICC cases against Kenyan President Uhuru Kenyatta and Deputy President William Ruto, for alleged crimes against humanity perpetrated in orchestrating political violence after the 2007 elections.
The Kenyan government argued that the two leaders could not conduct their duties as political leaders if they were obliged to sit through all of their trials.
The changes to the rules of procedure agreed at last week’s ASP would allow persons mandated to fulfil “extraordinary public duties at the highest national level”, to request excusal from presence at trial and to be represented by their legal counsel.
However, it would be up to ICC trial judges to decide on any particular request, taking into account a number of factors, including the interests of justice and the nature of the hearing in question.
The ASP also changed the rules to allow an accused person to appear via video in the courtroom.
These changes were hailed especially by African governments, including South Africa.
The AU had asked for the cases against Kenyatta and Ruto to be deferred by the UN Security Council and for the ASP to amend the Rome Statute governing the ICC to provide blanket immunity to sitting heads of state and government.
Those efforts failed in the Security Council the week before and at the ASP last week.
The Coalition for the International Criminal Court (CICC), representing NGOs fighting for international justice, deplored the rule changes allowing the accused to be excused from court.
“While the Rome Statute’s core principle of no immunity remains in place,” it said, it also viewed “the efforts of Kenya and other African governments to excuse, defer or exempt heads of governments from prosecution as a serious political threat to the integrity of the Rome Statute and ICC”.
The CICC evidently believes that this was but a temporary victory for the Africans and that they will be back – as indeed Kenyan government officials at the ASP implied.
The position of the activists is, of course, correct in principle; there is no judicial reason why Kenyatta and Ruto should be treated any differently from any other accused.
The practical and political reality is unfortunately different. The challenge to the ICC from the AU is very strong and the threat of a mass withdrawal from the ICC of many of its 34 members is real. The ASP evidently recognised that.
The change of rules agreed by the ASP last week to give sitting presidents some leeway so they may pursue their duties without being too heavily burdened by the ICC court hearings, represented a compromise with the AU’s demand for complete immunity for sitting presidents.
But the compromise was on procedure, not on principle.
As the CICC itself acknowledged, “the Rome Statute’s core principle of no immunity remains in place”.
In truth, the ICC’s judicial independence is already politically compromised. Key countries do not belong to it and the UN Security Council, a highly politicised and unrepresentative institution, has the power to refer – or not to refer – cases to it.
That could at best only partly explain why the ICC has so far only prosecuted Africans as the Security Council has referred only two cases to the ICC, the ICC prosecutor two and African governments themselves four.
Nonetheless, the perception of picking on Africa remains a sore point and places a question mark over the court’s ultimate impartiality and independence.
In that environment, the ICC has done well to emerge from last week’s battle with its essential principle of no immunity – or impunity – still intact.
That helps rather than hinders it in the battles to continue preserving that principle that are no doubt still to come.