The International Criminal Court’s (ICC) Assembly of States Parties (ASP) meeting, which will take place from November 20 to 28, 2013 in The Hague, comes at a time of great challenges for the ICC in regard to Africa. The ICC proceedings against Uhuru Kenyatta and William Ruto, who were elected as Kenya’s president and vice president respectively, have generated intensified backlash against the court.

The ASP session’s general debate and scheduled special segment, as requested by the African Union (AU), on the “[i]ndictment of sitting Heads of State and Government and its consequences on peace and stability and reconciliation” provide important opportunities for African ICC states parties to affirm support for the court in ensuring the delivery of justice for the gravest crimes. We urge your delegation to use these opportunities to maximum effect for the reasons set forth below, which were developed with African civil society organizations across the African continent who are also using this document in advocacy around the ASP session.

The ICC has its shortcomings, but it remains a crucial court of last resort. Human rights abuses sponsored or orchestrated by governments and non-state armed groups remain one of the biggest challenges confronting people in many African countries. Ideally, domestic courts will have the capacity and willingness to ensure justice. The reality, however, is that the judiciary in such countries often is weak. Regional courts have also faced difficulty in their judgments being respected or continuing to operate after taking independent decisions.

There is a need to improve and expand the ICC’s reach, not to retreat from the court. There are double standards in the delivery of international justice. Some powerful states have not joined the court and the United Nations Security Council has used its power to refer situations to the ICC inconsistently. But justice should not be denied where it is possible because it is not yet possible everywhere. African governments should press for justice wherever the worst crimes are committed, such as in Syria, but should not hinder the prospects for justice in Africa.

The ICC is crucial for African victims. There is the need to have in place a strong institution that makes it possible to seek justice for victims of human rights abuses. More than 1,000 individuals were killed in Kenya’s post-election violence and hundreds of thousands displaced. Kenyan authorities have failed to take adequate steps to prosecute those who allegedly organized or financed this violence. The ICC’s Trust Fund for Victims also brings assistance to victims in Democratic Republic of Congo and northern Uganda.

Immunity means impunity. The AU summit decision calls for immunity for sitting officials before international courts. However, the irrelevance of official capacity at the ICC under article 27 of the Rome Statute is at the core of its mission to ensure those responsible for grave crimes are held to account. Victims and their families should not be denied justice because individuals hold powerful positions. This has been a cornerstone of international law since the post-World War II trials at Nuremberg, and is included in the statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda and the Special Court for Sierra Leone. The Kenyan constitution in article 143 also notably prohibits presidential immunity for crimes “under any treaty to which Kenya is party and which prohibits” immunity.

Indictments can help promote peace and stability. Experience has shown in countries such as Sierra Leone, the Democratic Republic of Congo, Angola, Sudan, and Kenya that impunity for past offenses often fosters future crimes. In Kenya, the 2007-2008 post-election violence was preceded by similar episodes around the 1992 and 1997 elections that were never prosecuted. In contrast, the indictment of Bosnian Serb leader Radovan Karadzic by the International Criminal Tribunal for the former Yugoslavia is credited with contributing to the success of negotiations to end the Bosnian war, and the indictment and trial of former Liberian president Charles Taylor is believed to have helped herald in a period of greater stability in West Africa.

Amendments to the ICC rules of procedure and evidence should be scrutinized. Efforts to clarify the requirement of suspects’ physical presence at court are expected to be pursued at the session. We encourage your government to carefully consider such proposals to ensure that revisions to the procedural rules are consistent with the Rome Statute and decisions by ICC judges. 

Deferral of the ICC’s Kenya cases is not merited by the facts and risks fostering impunity for the grave crimes committed during Kenya’s post-election violence. The ASP is not the forum to consider the AU’s call for deferral of the ICC’s cases: only the Security Council may grant a deferral under article 16 of the Rome Statute. Deferral of the ICC’s Kenya cases moreover is only permissible in exceptional circumstances on the basis of threats to international peace and security. Both Kenyatta and Ruto pledged to continue their cooperation with the ICC should they be elected and indicated their election would not conflict with the ICC’s proceedings. Meanwhile, victims in Kenya have been waiting years for justice for the abuses they suffered. In addition, concerns over witness intimidation and harassment suggest that deferral risks justice being denied.

The ICC is not targeting Africa or any other region. To date the ICC Office of the Prosecutor has acted entirely on its own initiative to open an investigation in one situation, Kenya. In all other situations, the governments on whose territories the crimes were committed requested the ICC’s involvement—Uganda, Democratic Republic of Congo, Central African Republic, Côte d’Ivoire, and Mali—or the UN Security Council referred the situation to the ICC, as with Libya and Darfur, Sudan. African governments that requested the ICC’s involvement have a particular responsibility to clarify inaccurate claims that the ICC is targeting Africa.