Earlier this week, Kenyan foreign minister Amina Mohamed called on the ICC to recognise the social and political realities of the countries it worked with, and said the court had “treated Kenya with suspicion and contempt”.
Human rights groups oppose any moves to shield Kenya’s leaders from justice.
Speaking to journalists at the conference, Stephanie Barbour of Amnesty International said exempting heads of state from prosecution would contradict a “central tenet” of the Rome Statute that no one was above the law.
“If such an exemption exists, senior government officials would be able to commit crimes under the jurisdiction of the ICC with impunity while they hold office, and they may seek to hold on to positions of power at any cost,” Barbour said.
This view was echoed by a representative of the German delegation, who warned that granting immunity to heads of state could lead presidents to cling on to power to avoid being prosecuted.
But Professor Charles Jalloh of the University of Pittsburgh’s law school, who is an expert in ICC-AU relations, told the conference that resolving the problem facing Kenya did not require a change to the Rome Statute provisions that hold heads of state accountable.
He said the statute already included elements that might offer a way forward, such as provisions for the ICC to allow for domestic proceedings to take place.
“For me, it is not a discussion of Article 27,” he said “For me, it is about using the existing law to accommodate different solutions.”
The Norwegian delegation to the Assembly of States Parties conference said that the provision denying legal immunity could not be amended, but that it was open to finding other solutions, such as defendants attending their trials by means of a video link.
Kenya and other states have also tabled proposals that would amend ICC rules so as to allow Kenyatta and Ruto to remain in Nairobi rather than attend their trials in The Hague.
Namibia this week supported the AU resolution, and praised Kenyatta for spearheading efforts to preserve peace and security in the Horn of Africa following the Nairobi mall attack.
Jordan, Lichtenstein and Botswana tabled a proposal for defendants to be able to follow proceedings remotely via a video link. Britain has put forward a similar proposal.
However, any amendment to the rules that would allow defendants not to attend court in person would contravene a provision in the statute which says they “shall be present at trial”.
Amnesty’s Barbour called on all states parties not to consider what she called “backdoor amendments” to the rules on defendants being present at trial.
“Any amendments to the rules must be consistent with the Rome Statute,” she said.
JJ Wangui is an IWPR reporter in Nairobi.
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