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International Criminal Court; Kenya: Office to Open with Immunity for Staff, Property, and Witnesses

(Sept. 8, 2010) The Kenyan government signed an agreement with the International Criminal Court (ICC), effective September 3, 2010, to allow the ICC to setup operations in Kenya and to facilitate the ICC's work of investigating and prosecuting perpetrators of the 2007 post-election violence in Kenya (Lucas Barasa, Kenya Allows Hague Free Run in Poll Probe, DAILY NATION (Sept. 3, 2010), http://www.nation.co.ke/News/Govt%20signs%2
0deal%20for%20ICC%20base%20in%20Kenya/-/1056/1002892/-/view/printVer
sion/-/ib431qz/-/index.html
).

The agreement, which contains 16 provisions, extends diplomatic immunity to the ICC property and staff. It provides that the officials and staff of the ICC will enjoy the privileges and immunities necessary for the independent and effective performance of their mandate. In addition, all means of communication used by the ICC field office are to be afforded the same privileges and immunities as communications of diplomatic missions (id.).

The agreement also affords limited privileges and immunities to the persons and to the property of individuals who deal with the ICC, including witnesses, victims, attorneys, and experts, to ensure that they discharge their respective functions effectively and independently. It provides that these individuals “shall enjoy immunity from personal arrest or detention and inviolability of their documents, materials, and communications” (id.).

This special agreement was necessary because Kenya did not give effect to the privileges and immunities provision of the Rome Statute of the International Criminal Court. Although Kenya implemented the Rome Statute through an act that entered into force on January 1, 2009, most of Part IV of the Statute, which, among other matters, provides for privileges and immunities of the Court, judges, prosecutors, attorneys, and witnesses, was excluded. (The International Crimes Act, 2008, art. 4(2), KENYA LAW REPORTS, http://www.kenyalaw.org/kenyalaw/klr_app/fr
ames.php
(last visited Sept. 3, 2010); The Rome Statute, §48, ICC portal, http://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30
E16/0/Rome_Statute_English.pdf
(last visited Sept 3, 2010)).