Amina Mohamed, Kenya’s cabinet secretary for foreign affairs, addresses ICC states parties in The Hague. © CICC
We definitely don’t think so—but that’s what the Kenyan government is proposing should happen at the ICC.
Unfortunately, other African leaders and AU bodies are supporting Kenya’s proposal.
Last week, the working group on amendments of the Assembly of States Parties (ASP)— the ICC’s governing body—considered a Kenyan proposal to exempt heads of state or other high government officials from criminal responsibility while they are in office by amending Article 27 of the Rome Statute.
Regarding the irrelevance of official capacity, Article 27 of the Rome Statute states:
1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a Member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of Sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
Article 27 has been considered by the Coalition and most ICC governments as a fundamental pillar of the Rome Statute. As such, the Kenyan proposal fundamentally threatens the integrity of the Rome Statute.
All 122 governments that have ratified the Rome Statute, including Kenya, knew of this major provision and approved it. Indeed, the Kenyan constitution and other national constitutions in Africa and throughout the world do not provide immunity to heads of state or government for serious crimes.
In a letter ahead of last week’s meeting, we called on all ICC member states to fervently defend the integrity of the Rome Statute, so that no concessions can be made which would impact on the global fight against impunity as embodied by the ICC.
In considering the amendment proposal, submitted by Kenya to the UN Treaty Office in March 2014, the ASP is confronted with one of its most serious political challenges to date.
Our 2,500 member-strong NGO network remains dedicated to defending the principle of no immunity at the heart of the ICC and Rome Statute system.
