Thursday, March 4, 2021

Botswana’s proposed amendment to ICC causes international stir

A proposed amendment to the Rome Statute sponsored by Botswana to shield sitting heads of state from trial at the International Criminal Court has met strong opposition from international NGOs.

Netherlands Civil Society groups appearing at the assembly of State Parties to the Rome Statute last week opposed the proposed amendments.

The NGOs among them, The Human Rights Watch, who are members of the Coalition for the International Criminal Court, met on the sidelines of the ASP and said the amendments support impunity. They charged that the amendments being sponsored by Botswana, which will lead to a change in the regulations and exempt Kenyan President Uhuru Kenyatta from attending the trials personally, is a contradiction of the Rome Statute. She said it will allow impunity and encourage such leaders to continue staying in power.

Presenting Botswana’s position, which is backed by the African Union, Attorney General Athaliah Molokomme argued that states parties “should be mindful of the fact that the Rome Statute is our own creation. Therefore, any imperfections in this instrument can only be addressed by none other than ourselves. It is in this spirit that Botswana has been working closely with like-minded States Parties delegations in initiating amendments to the Court’s Rules of Procedure and Evidence in order to address the question of presence of an accused person at a trial. Through the proposed Amendments, we hope that greater flexibility can be applied in the interpretation and application of Article 63. We have been very encouraged by the positive spirit which delegations have exhibited in this effort. We trust that States Parties will hold fruitful deliberations and reach consensus on the proposed Amendments during this Session of the Assembly.”

Molokomme further argued that, “the Court constantly needs to strike a balance between judicial and political imperatives of a given situation with which it is confronted.” Molokomme was echoing the popular sentiment among African governments. Rwanda, Burundi and Tanzania have recently written to the ICC asking the international court to strike a balance between its jurisdiction and the responsibilities of those who occupy high office. The three are among five African countries which include Uganda and Eritrea that have written to the ICC to exempt Kenya’s deputy president William Ruto from attending all hearings of his case in The Hague. Tanzania, Burundi, Rwanda, Uganda and Eritrea want the court to allow Mr Ruto room to execute his constitutional duties. They also want to contest the interpretation of Article 63 of the Rome Statute, which disposes that “the accused shall be present during the trial”.”The court has so far received requests from five African countries asking for leave to submit amicus curiae filings…the filings, if authorised, will present their views on the correct interpretation of the Rome Statute article 63.

Delegates agreed Wednesday to hold a special session Thursday proposed by the African Union on the indictment of sitting heads of state and its effect on peace and security, but Tina Intelmann, the president of the court’s 122-nation Assembly of States Parties, said she did not expect the session to produce any changes in the court’s founding principles

The assembly of the states that are members of the court also was discussing possible amendments to the court’s rules of procedure and evidence that would allow defendants to be present at a trial using video conferencing and let sitting heads of state waive their right to be present at a trial ÔÇö possibly allowing Kenyatta to stay at home for his.

It was not immediately clear if the proposed changes would be put to a vote. It was also not clear whether such changes would have a major effect: judges in Ruto’s trial already have allowed him to remain home in Kenya during parts of his trial to conduct state business.


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