The lingering debate on whether sitting heads of State and government should be shielded from prosecution under international law is set to come up at the forthcoming UN General Assembly (Unga) in New York.
Kenya has submitted a request on behalf of the African Union (AU) to have the General Assembly seek an advisory opinion of the International Court of Justice (ICJ) on the matter.
"On behalf of the African States Members of the United Nations, I have the honour to request, in accordance with Rule 13 of the Rules of Procedure of the General Assembly, the inclusion of an item entitled 'Request for an advisory opinion of the International Court of Justice on the consequences of legal obligations of States under different sources of international law with respect to immunities of Heads of State and Government and other senior officials', in the provisional agenda of the 73rd session of the General Assembly under heading F, 'Promotion of justice and international law'.
"I further request that this item be considered directly in plenary meeting," Kenya's Permanent Representative to the UN Lazarus Amayo said in a letter addressed to UN secretary-general António Guterres dated July 9.
ADVISORY OPINION
The 73rd session of the General Assembly will run from September 24 to October 1 at the UN headquarters in New York.
President Uhuru Kenyatta is expected to be among the tens of global leaders who will address the biggest annual gathering of world's heads of State and government.
The decision by Kenya and AU to go through the General Assembly, Zimbabwean international criminal justice lawyer at the Wayamo Foundation Angela Mudukuti told Sunday Nation in an interview is "because Article 96 of the UN Charter states that only the UNGA or the UNSC may request an advisory opinion".
Article 65(1) of ICJ Statute states that the court may give an advisory opinion on any legal question at the request of whatever body may be authorised by or in accordance with the Charter of the United Nations to make such a request.
Article 96 of the UN Charter goes ahead to state that only the General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.
"The African Union cannot itself approach the ICJ because only five UN organs, 15 specialised agencies, and one related organisation may request an advisory opinion from the ICJ," Ms Elise Keppler, the associate director of the International Justice Programme at Human Rights Watch, said.
ICC
Kenya's request comes at a time African countries, among others, have been having problems with the International Criminal Court (ICC) for refusing to effect the arrest and surrender of Sudan President Omar-al-Bashir to the court.
President Bashir has a warrant of arrest hanging over his head since March 2009 when the ICC issued the first warrant for his arrest on five counts of genocide, war crimes and crimes against humanity committed in Darfur.
A second warrant based on three counts of genocide was issued on July 12, 2010.
Under the Rome Statute that establishes the ICC, State Parties including Kenya are obligated to arrest and hand over suspects to the ICC.
In July 2017, for example, the ICC strongly criticised South Africa for the country's failure to arrest President Bashir when he visited Johannesburg for an AU summit in 2015.
The criticism of South Africa prompted then President Jacob Zuma's administration to initiate withdrawal from the Rome Statute but which was later abandoned.
Other countries that have ignored ICC's requests to arrest President Bashir are Kenya, Chad, Egypt and Jordan.
JORDAN'S FAILURE
Ambassador Amayo, in the letter, noted that the advisory opinion "will provide clarity to the evident ambiguity and to competing obligations under international law and will assist States in carrying out their obligations without undermining either the call for ending impunity or the legal regime governing the immunities of Heads of State and Government and other senior officials".
"In recent years, the issue of immunities has become one of the most pressing issues in international law, with countless academic articles offering differing legal conclusions, not helped by conflicting decisions of the Pre-Trial Chambers of the International Criminal Court," an explanatory memorandum annexed to Mr Amayo's letter states.
"By seeking the advisory opinion in the exercise of its powers under Article 96 (1) of the Charter, the General Assembly will be able to bring a lasting resolution to the long-disputed issue of immunities and the conflicting obligations of States under international law," the Kenyan diplomat said in the letter.
Whether or not Unga will adopt Kenya's request and seek the advisory opinion, Ms Mudukuti said, could depend on how the ICC Appeals Chamber rules in the matter regarding Jordan's recent failure to arrest President Bashir.
The Appeals Chamber is scheduled to hear submissions on legal matters raised by Jordan from September 10 to 14, just 10 days to the start of the 73rd session of Unga.
