Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Sebastian Bates
Sebastian Bates is a first-year law student at Keble College, Oxford University.
The International Criminal Court (ICC) has been the subject of controversy since its inception, which stemmed from adoption of the Rome Statute in 1998 (the Court did not come into being until 2002, when the Statute was ratified by the requisite sixty states). Many of the world’s most prominent countries – including China, Russia, and the United States, all permanent members of the Security Council – have not accepted the Court’s jurisdiction. In fact, the United States Congress has passed legislation, signed into law by President George Bush in 2002, that would allow the president to use “all means necessary and appropriate” – up to and including military force – in order to free American or allied personnel from detention by the ICC.  This has often been referred to as the “Hague Invasion Act.” 
Others have criticized the Court for its slow prosecution of those accused of serious crimes under international law. Between 2002 and March 2014, the Court convicted only two defendants, both Congolese warlords.  Indeed, all of the twenty-one cases that have been brought before the ICC originated in the Democratic Republic of the Congo or elsewhere in Africa.  This has led to the most pernicious criticism of the Court: that it is a racist organization and is “nothing more than a tool to extend colonial domination.” 
Defenders of the ICC point to its foundation and structure as evidence that the Court is hardly an imperialist subterfuge. African countries signed and ratified the Rome Statute voluntarily, and played a key role in shaping its contents. The 2010 Review Conference on the Rome Statute, for instance, was held in Uganda.  Furthermore, African nations are represented in each of the three adjudicatory organs of the ICC: Judge Sanji Mmasenono Monageng of Botswana is First Vice-President within the Court’s Presidency and Joyce Aluoch, of Kenya, Chile Eboe-Osuji, of Nigeria, and Akua Kuenyehia, of Ghana, sit with him in the Judicial Division, while the ICC Prosecutor, Fatou Bensouda, is a respected Gambian lawyer.  The Court is also pursuing preliminary investigations in places outside the African continent, such as Afghanistan, Colombia, and Georgia. 
The debate over the alleged anti-African bias of the ICC has come to a head with the case of Kenyan president Uhuru Kenyatta. President Kenyatta stands accused as an “indirect co-conspirator” of five counts of crimes against humanity, including murder and rape, allegedly committed during the violence that engulfed Kenya after the December 2007 presidential election.  Though a majority of his countrymen believe that he should be tried before the ICC for his alleged involvement – a November 2013 poll found that two-thirds of respondents thought he should appear before the ICC – President Kenyatta has been defiant.  He has labeled the Court “a toy of declining imperialist powers” and has joined with other African Union leaders in “promoting an alternative African court, which has conveniently adopted a protocol granting immunity from prosecution to sitting heads of state and ‘senior government officials.’” 
This strategy has drawn criticism in Kenya, but may have borne fruit: in September, prosecutors at the ICC requested a postponement of the trial, scheduled to begin on October 7th, stating that the “accused person in this case is the head of a government that has so far failed fully to comply with its obligations to the court” and that, without the bank and phone records the Kenyan government has yet to turn over, they would not be able to adequately make the prosecution’s case.  In response, the Trial Chamber handling the case issued an order vacating the trial date and “convening two status conferences,” with the purpose of first “to discuss the status of cooperation between the Prosecution and the Kenyan Government” and the second “to facilitate the fair and expeditious conduct of proceedings.”  Writing that the case is now at a “critical juncture,” the Chamber ordered President Kenyatta to be present at the second conference. 
On September 25th, President Kenyatta’s defense team filed a request that President Kenyatta be excused from attending the status conference, or that the conference be rescheduled and President Kenyatta permitted to attend via video-link.  Five days later, with Presiding Judge Kuniko Ozaki partially dissenting, the Chamber denied the request.  (A full analysis of the decision may be found here.)
Thus, unless President Kenyatta’s counsel attempts, and succeeds, to have the Trial Chamber grant leave to appeal (which seems unlikely), he will be obliged to come before the International Criminal Court on October 8th. If this happens, this will be the first such appearance by a sitting head of state in the Court’s history. As it is very possible that the case may be dismissed, President Kenyatta has little, if any, reason to disobey the order. Instead, he will likely plead his innocence in The Hague, surrounded by perhaps as many as one-hundred and fifty Kenyan members of parliament.  When he returns to Nairobi, it will be for the Court to decide whether he does so as a man cleared of suspicion or as president who has failed to live up to his nation’s treaty obligations – and a president suspected of crimes against humanity.
 The American Service-Members’ Protection Act (Title 2 of H.R. 4775, 116 Stat. 820, enacted August 2, 2002). Coalition for the International Criminal Court, “US Congress Passes Anti-ICC ‘Hague Invasion Act,’” http://www.iccnow.org/documents/07.26.02ASPAthruCongress.pdf.
 “International Criminal Court: 12 Years, $1 Billion, 2 Convictions,” Forbes, accessed October 15, 2014, http://www.forbes.com/sites/daviddavenport/2014/03/12/international-criminal-court-12-years-1-billion-2-convictions-2/.
 International Criminal Court. Accessed October 14, 2014. http://www.icc-cpi.int/en_menus/icc/situations and cases/cases/Pages/cases index.aspx.
 “Can the International Criminal Court Play Fair in Africa?,” The Brookings Institution, accessed October 15, 2014, http://www.brookings.edu/blogs/africa-in-focus/posts/2013/10/17-africa-international-criminal-court-kimenyi.
 “SA’s Bold Proposal Shows up the Flaws in the Rome Compromise,” Business Day Live, accessed October 15, 2014, http://www.bdlive.co.za/articles/2009/12/29/sa-s-bold-proposal-shows-up-the-flaws-in-the-rome-compromise.
 International Criminal Court. Accessed October 14, 2014. http://www.icc-cpi.int/en_menus/icc/structure of the court/Pages/structure of the court.aspx. Note: the Court’s fourth branch, the Registry (which is “responsible for the non-judicial aspects of the administration and servicing of the Court”), is headed by a Dutch national.
 International Criminal Court. Accessed October 14, 2014. http://www.icc-cpi.int/en_menus/icc/structure of the court/office of the prosecutor/comm and ref/Pages/communications and referrals.aspx.
 International Criminal Court. Accessed October 14, 2014. http://www.icc-cpi.int/en_menus/icc/press and media/press releases/Pages/pr1041.aspx.
 “Deferral Denied,” The Economist, November 16, 2013, http://www.economist.com/blogs/baobab/2013/11/kenya-and-icc.
 “Off the Hook?,” The Economist, September 13, 2014, http://www.economist.com/news/middle-east-and-africa/21617062-indicted-kenyan-leaders-battle-against-court-seems-be-succeeding.
 Reuters, “Kenya President Uhuru Kenyatta’s ICC Trial Collapses,” The Guardian, September 5, 2014, sec. World news, http://www.theguardian.com/world/2014/sep/05/kenya-president-uhuru-kenyatta-icc-trial-collapses.
 The Prosecutor v Uhuru Kenyatta, “Order vacating trial date of 7 October 2014, convening two status conferences, and addressing other procedural matters,” ICC-01/09-02/11, 19 September 2014.
 The Prosecutor v Uhuru Kenyatta, “Defence Request for Excusal from Attendance pursuant to Rule 134quater or to Adjourn the Status Conference Scheduled for 8 October 2014 and Permit Mr Kenyatta to Attend on a Rescheduled Date by Means of Video-link pursuant to Rule 134bis,” ICC-01/09-02/11, 25 September 2014.
 The Prosecutor v Uhuru Kenyatta, “Decision on Defence request for excusal from attendance at, or for adjournment of, the status conference scheduled for 8 October 2014,” ICC-01/09-02/11, 30 September 2014.
 “Kenya MPs ‘to Back Leader at Hague,’” BBC News, accessed October 15, 2014, http://www.bbc.com/news/world-africa-29483657.
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