Member countries of the International Criminal Court (ICC) should reject efforts to provide immunity from prosecution to sitting government leaders, Human Rights Watch said today. The court’s 122 member countries are expected to take part in the annual session of the Assembly of States Parties, which begins on November 20, 2013, in The Hague.
At the request of the African Union (AU), a special segment of the meeting will discuss the indictment of heads of state in office and its impact on peace and stability. In October the AU called for immunity from prosecution for sitting national leaders, and for the suspension of the ICC’s cases against President Uhuru Kenyatta and Deputy President William Ruto of Kenya . On November 14, an AU-endorsed request to suspend the cases against Kenyatta and Ruto failed to obtain enough votes in the United Nations Security Council for passage.
“ICC members should hold fast to the core principles of accountability and judicial independence,” said Elizabeth Evenson , senior international justice counsel at Human Rights Watch. “The Security Council was right not to suspend the Kenya cases. Giving immunity to sitting leaders would create perverse incentives for them to hold onto power.”
In a report  to ICC governments on November 13, Human Rights Watch called on member countries to strengthen their support for the ICC’s mandate.
The ICC’s treaty, the Rome Statute, is clear in article 27 on “Irrelevance of official capacity,” that is, the ICC may prosecute sitting government officials, no matter how senior, consistent with the fundamental principle that no one is above the law. The Kenyan government has submitted an amendment to article 27 to provide an exception for “serving Heads of State, their deputies and anybody acting or is entitled to act as such … during their current term of office.” The proposal will not be formally considered at the upcoming meeting because it was introduced too late.
Kenyatta and some other African leaders have sought to disparage the court as a “tool of Western imperialism” because all eight of current ICC investigations are in Africa. However, African governments requested five of these investigations and the United Nations Security Council referred two others. At the same time, however, international justice has suffered from double standards. Among the reasons are that several powerful countries have not joined the ICC and Security Council referrals have been inconsistent.
At the upcoming session, member countries should make a commitment for greater efforts to carry out the Assembly’s 2006 plan to increase ratification of the Rome Statute, Human Rights Watch said. The member countries should also promote greater engagement between the ICC and African countries, including holding ICC meetings in African capitals and working to establish an ICC office at the seat of the AU, Addis Ababa.
The Assembly of States Parties session will feature, for the first time, a dedicated discussion of victims’ issues. Under the Rome Statute, victims have rights to make their views known to the judges and to apply for reparations, even as the ICC has struggled to give these rights full effect. ICC member countries should use the discussion of victims’ issues to assess how the ICC can increase the protection of victim rights in its work, Human Rights Watch said.
ICC member countries also should use the meeting to highlight the potential for the court’s positive impact in delivering justice for victims, Human Rights Watch said. The court’s current proceedings are helping to bring justice to African victims. African civil society groups have repeatedly called  on their governments to increase their support to the ICC, as a vital court of last resort for victims of mass murder and rape.
The assembly is also expected to consider a number of proposals to amend the court’s Rules of Procedure and Evidence regarding the physical presence of defendants at trial, an issue that has received intense attention in recent months. The AU has called for Kenyatta not to appear for his trial until its concerns are addressed. The ICC’s appeals chamber in October held that absence of a defendant from trial could only be permitted in exceptional circumstances, as a last resort, and for limited periods.
Member countries should ensure that amendments to any rules are consistent with the Rome Statute and ICC decisions, Human Rights Watch said. This includes whether to permit the use of video conference technology and the creation of special rules for sitting government leaders.
“International debates on the ICC’s role are an essential part of the annual meetings, but they shouldn’t result in the court compromising on its core principles,” Evenson said. “ICC members should instead commit to doing all they can to help the ICC deliver more fully on its promise.”
The International Criminal Court (ICC) is the world’s first permanent court mandated to bring to justice people responsible for war crimes, crimes against humanity, and genocide when national courts are unable or unwilling to do so.
The Assembly of States Parties was created by the Rome Statute to provide management oversight of the administration of the court. It consists of representatives of each member country and is required to meet at least once a year. The current assembly president is Ambassador Tiina Intelmann of Estonia.
The court’s jurisdiction over alleged international crimes may be triggered in one of three ways. ICC member countries or the United Nations Security Council may refer a situation, meaning a specific set of events, to the ICC prosecutor, or the ICC prosecutor’s office may seek on its own motion authorization by a pretrial chamber of ICC judges to open an investigation.
The ICC prosecutor has opened investigations in the Central African Republic , Côte d’Ivoire , the Darfur region of Sudan , Democratic Republic of Congo , Kenya, Libya , Mali , and northern Uganda .
Investigations in Central African Republic, Côte d’Ivoire, Democratic Republic of Congo, Mali, and northern Uganda were opened at the request of the government. The situations in Darfur and Libya were referred by the Security Council, while the ICC prosecution acted of its own motion to open the investigation in Kenya. It did so, however, only after national authorities failed to take steps to prosecute those most responsible for the deadly 2007-2008 post-election violence.
At the November session, ICC member countries are expected to agree to develop an action plan for arrest strategies. Arrest warrants remain against 13 individuals in ICC cases, presenting a real barrier to justice.
The prosecutor is also examining  a number of other situations in countries around the world. These include Afghanistan , Colombia , Georgia , Guinea , Honduras , Nigeria , and South Korea .
The ICC trial  of Kenyan Deputy President William Ruto and the radio broadcaster Joshua arap Sang began on September 10. The trial of President Uhuru Kenyatta is scheduled to begin in February 2014. Kenyatta, Ruto, and Sang face charges of crimes against humanity for their alleged roles in Kenya’s 2007-2008 post-election violence. Cases against three other Kenyans were dropped.
None of the Kenyan defendants are subject to arrest warrants, and all have voluntarily appeared in court proceedings.
The Kenyan administration that took office in April has sought political support to end the ICC’s Kenyan cases . In Kenya, civil society activists  speaking up in support of the ICC have faced increased harassment and hostility. The cases before the ICC have been dogged by allegations of interference with both prosecution and defense witnesses. On October 2, the ICC unsealed an arrest warrant against a Kenyan journalist, Walter Osapiri Barasa, on charges of tampering with prosecution witnesses. Barasa, who was based in the Rift Valley town of Eldoret, is alleged to be acting on the basis of a “criminal scheme devised by a circle of officials within the Kenyan administration,” according to an ICC statement.