Hello, it's nice to see you again. I hope you enjoyed the interview. Today's video involves the case study on the protection of global values. In previous videos we have discussed the ICC's different purposes and the diverging expectations that emerge therefrom. Ending impunity is set to be the ICC's central goal. As already indicated, we should understand this phrase as a horizon rather than as a fulcam objective that must be attained immediately and fully. Just like on the national level, criminal justice processes do not end crime as such. So we should be more nuanced in our expectations and appreciate the DICC's main function is to serve as an accountability mechanism. The ICC contributes to holding perpetrators of international crimes accountable, rather than it immediately ends all crime. Today, we'll move beyond a discussion of primary purposes and we will explore what other global values the ICC can protect. Such a discussion can have many forms, and respond to a variety of questions such as, can the ICC be instrumental in protecting socioeconomic rights? Can it contribute to protecting the environment? For our case study, we will zero in on a different global value, namely democracy. If we failed it provocatively, the lead question of today is, can and should the ICC protect democracy? And if so, how? Of course, such a question presupposes that democracy is a global value, a question that merits discussion in itself. But this would go beyond our course. We thus prefer to tackle more concrete questions. One such concrete question is, whether and to what extent the ICC should deal with situations of post-election violence. These types of situations have come before the court in the cases of Kenya and Côte d’Ivoire. In particularly in the Kenya case, the judges were divided over the question whether the ICC should take this cases on, or whether the crimes committed be best addressed by domestic systems. Another question is, how should the value of democracy and state sovereignty influence discussions on the immunity of sitting Heads of State? This question is pertinent specifically for the cases against Bashir, the Head of State of Sudan and the cases against Kenyatta and Ruto the President and Vice-President of Kenya respectively. In the case of only former President has been charged, which does not present the same problems regarding immunity. From a legal perspective, the starting point for our inquiry is Article 27 paragraph 2 of the ICC Statute which states that immunities shall not bar the ICC from exercising its jurisdiction. This rule makes an exception to the general rule of international law that heads of state enjoy absolute immunity. And that they may not be prosecuted by courts of third states. All states which become party to the ICC Statute accept Article 27 and they thus waive immunity of their heads of state for the ICC specifically. In the case of Sudan, and specifically the case against Bashir, the complicating factor is that Sudan is not a party to the ICC statutes. As you may recall, the situation therefore referred to the ICC by the security council. So how does this impact on applicability of Article 27 and the questions whether heads of state of non state parties are immune from ICC prosecutions. In dealing with this question, ICC chambers have given various answers. In first decisions, pretrial chambers held that customary international law creates an exception to Head of State immunity in proceedings before international tribunals. These decisions were subject to criticism and it was questioned whether clear cut practise exists to support such a finding and custom. In later decisions, other chambers held that the Security Council Resolution referred the situation of the to the ICC could be seen as a basis to argue that Sudan had become bound to the statute as such and thus also to Article 27(2) lifting Head of State immunity. This is probably a more convincing line of reasoning, although it does read more into referring Security Council Resolution 1593 than this resolution actually says. Perhaps even more difficult question concern the position of third states that report to the ICC and which Bassir visited. These states like Malawi, Chad, DRC, South Africa, being ICC parties have an obligation to cooperate with the ICC and thus to implement the ICC requests to arrest and surrender. However, these states also have an obligation under customary international law to respect the immunity of heads of states of other states. So when Bashir visited, and the ICC made requests for arrests, these third states were confronted with competing obligations vis-a-vis the court on the one hand and Sudan on the other. Article 98(1) of the ICC Statute is meant to regulate such situations. And it reads, the Court may not proceed with a request for surrender or assistance which would require the requested state to act inconsistently with its obligations under international law with respect to the state or diplomatic immunity of a person or property of a third state. Direct application of this provision could seem to me that states like Chad, Malawi, the DRC, and South Africa, cannot be asked to violate immunity obligations they have toward Sudan. Yet also, in this context, customary international law or the legal power of Security Council Resolution 1593 have been invoked to circumvent Article 98(1). What is important to realize nonetheless is that a fundamental difference exists between immunity of Heads of State from prosecution for International Courts on the one hand and immunity from arrest by National Authorities on the other. Even in situations where Head of State has no immunity from prosecution before international court, he may still have immunity from arrest by third states. In the Kenya situation, the applicable legal framework was different. As Kenya is an ICC state party, it has agreed to the Statute and to Article 27 in particular and so there is no Head of State immunity. Questions that did emerge in this situation concerns 1, presence of the accused at trial. And 2, the possibility of deferring cases. Let's explore. What was peculiar in the Kenya situation was that Kenyatta and Ruto were elected president and vice president of Kenya, after ICC arrest warrants had been issued against them. Having taken up these leadership positions, Kenyatta and Ruto challenged the rule of Article 63(1) of the statute which requires that accused be continuously present at proceedings. Kenyatta and Ruto both asked to be excused. So that they could discharge their functions as President and Vice-President. These requests were granted and challenged and ultimately this lead to the amendment of the rules of procedure and evidence by the ICC assembly of state parties. And the adoption of the rule 134 ter which indicates that, indeed, an accused, who is mandated to fulfill extraordinary public duties at the highest national level, may submit a request to be excused. So this created an exception to article 631 of the statute. In a very different vein, the Kenyan proceedings have also unleashed discussion concerning Article 16 of the ICC Statute. This provision regulates the relationship between the ICC and the Security Council and it enables the council to defer to thwart investigations or prosecutions. It allows a certain political intrusion in a judicial process. The security conscious powers to do so have by Article 16, a security council can only defer when acting under Chapter VII of the UN Charter. The council must thus demonstrate that a certain persecution is a threat to peace and that deferral is required to maintain international peace and security. And now the limits included in Article 16 is that deferral will expire after one year unless renewed. Several attempts have been made to the council to make sure it would issue a differing resolution by Kenya and by the African Union. Despite closed quotes ultimately such resolutions never materialized To conclude. In the discussion on whether and how sitting heads of states can be prosecuted by the ICC, we see a balanced approach in the sense that the procedure of frame work has been adjusted, so that indicted but incumbant state leaders do, in exceptional cases not always need to appear for all proceedings. Article 16 of the ICC statute allows for the possibility of a one year deferral, if this is deemed expedient. But ultimately, the ICC framework, and particularly Article 27 confirmed that no one is, or should be above the law. Not even heads of states. Or perhaps you should say especially not heads of states, who after all, more than anyone else have the moral responsibility to embody and represent the law and its fundamental principles, rather than to violate those. To stimulate your thinking on these matters, I invite you to read the Daily Maverick of Professor Dugert's on how every guy can fix the ICC, and I thank you for watching.
