The conflict benveen A1ticles 27 and 86 of the Rome Statute 2vith respect to an accused incumbent head of state and its effect on the effectiveness of the trial process'
Date
2016
Authors
Kimani, Patrick Mwangi
Journal Title
Journal ISSN
Volume Title
Publisher
Strathmore University
Abstract
Under customary international law, incumbent heads of states are accorded certain immunities whose purpose is to ensure the smooth conduct of international relations of their state which, in turn, require an effective process of communication between states. It is safe, therefore, to say that immunities for sitting heads of states undergird the stability of the international community. The development of international criminal law in the last seven decades has seen a gradual erosion of the integrity of immunities for heads of states. The journey from Nuremberg to The Hague has resulted in a permanent International Criminal Court established under the Rome Statute. Article 27(2) of this Statute disregards immunities as an effective bar to the jurisdiction of the International Criminal Court. Heads of states have been stripped off their "invisibility cloak" from international criminal prosecutions. Establishing international criminal jurisdiction in a particular case is one thing. Conducting a successful international criminal trial is another. One of the core elements in the latter is the investigation process. The Rome Statute places its reliance on the situation state's authorities by imposing an obligation on the state to cooperate with the Court in its investigation and prosecution of crimes. This general obligation to cooperate, found under Article 86 of the Rome Statute, is determinative of not only the success of any trial process but also the legitimacy and credibility of the Court. A special tension is noticeable in circumstances where an incumbent head of state is accused at the Court- which is now possible following the stripping of the "immunities cloak"- while his state is placed under the general cooperation obligation with the Court. This tension is clearly manifest, at least practically, in the two criminal processes against Uhuru Kenyatta and Omar AI Bashir. Bearing in mind the significant political muscle a sitting head of state wields in their state, it is quite unlikely and indeed evident from the two cases above, that the state authorities will be very reluctant to discharge their Article
86 obligation. While the prosecution of former heads of states is possible and has actually happened, the prosecution of sitting heads of states remains a challenge. Is it time to rethink the structure of the Court or the implementation of the Rome Statute? This dissertation is an analysis of the tension or conflict between the implication of Article 27 and the obligation under Article 86 of the Rome Statute with respect to a sitting head of state. It is a qualitative research focused on some principles of international criminal law and their inter-relationship. To heal the tension, I recommend in the last chapter, a redefinition of the structure of the Court. This redefinition entails significant reduction of the role the state may play in determining the success or direction of a criminal trial.
Description
A dissertation submitted in partial fulfillment of the Bachelor of Laws (LL.B) degree