INTRODUCTION

The International Criminal Court has faced a number of challenges to its legitimacy and effectiveness. One recent struggle stems from the Kenyatta case, which was confirmed in 2012, and became increasingly fractious and politically charged when Uhuru Muigai Kenyatta was elected President of Kenya in 2013. The ICC faces similar difficulties with the trial of William Samoei Ruto, Kenyatta's running mate, who is currently serving as Kenya's Deputy President. With the possible exception of the situation in Darfur, no other situation has posed as grave a challenge to the Court, and particularly the Prosecutor, than the investigation and prosecution undertaken by it in the wake of the brutal postelection violence which shook Kenya in 2007. The Kenya Situation is the only one referred to the Court by the Prosecutor acting truly propriomotu, and has been objected to by the territorial state from the start, which has refused to cooperate with the Court in some respects. Perhaps most problematic, however, is that the accused in the Kenyatta and Ruto cases have argued that they are not required to appear before the Court because of their high-ranking office. Their insistence on special privileges and prerogatives fl owing from their high office is reminiscent of arguments made by the Kaiser following World War I, and the accused before the Nuremberg Tribunal following World War II.

The accused have challenged a foundational premise of the Rome Statute – that it applies ‘equally to all persons without any distinction based on official capacity’ – a principle codified by the International Law Commission as one of the seven ‘Nuremberg Principles’ in 1950,2 and found in countless international instruments, including the Genocide Convention, amongst others. Were Kenyatta and Ruto the only accused to raise this argument, it might be seen simply as aggressive defence tactics.

However, there has been a renewed push from African states and the African Union to prevent the trials of sitting Heads of State, a push that has caused the ICC Assembly of States Parties to adopt a special exception for Heads of State on trial (Rule 134quarter), and has led to blistering attacks upon the Court from partisans of Kenyatta's position.