A New Battlefront for the ICC? Presidents Kenyatta and Museveni Speak

After a long break from blogging, I am back.

It is fitting that I return with a post to kick of a discussion about the future of the ICC cases in Kenya, following the election and inauguration of Hon Uhuru Kenyatta and Hon William Ruto. As the region and the world re-adjusts to the election of Hon Uhuru Kenyatta as Kenya's 4th President, many are speculating what will happen now, given that President Uhuru Kenyatta and his Deputy William Ruto are facing trial at the ICC on charges of crimes against humanity linked to the 2007-2008 post election violence. Their trials begin on 9th July and 28 May respectively.

In his inauguration speech on 9 April 2013, President Kenyatta does not mention the ICC specifically but leaves no doubt that his sharp and unambiguous remarks on Kenya's international obligations and treaties address the ICC question. There are nuggets there that point to how his government is likely deal with and engage with the ICC issue. While affirming that his government will abide by Kenya's international obligations, he states that he expects that relations will be conducted on the basis of mutual respect and reciprocity. Here are his relevant remarks:

To the Nations of Africa and The African Union – we assure you that in Kenya, you will continue to have a partner and an ally. If we stand together in solidarity I am confident that we will find the strength to thrive and innovate solutions that work for us. Of course, we join you in continuing to insist on relating with all nations as equals - not juniors. As partners, not subordinates. In our history as nations, we have seen some of the most ardent promoters of ideals of national sovereignty and democracy sometimes fail to live by the principles they espouse, but let us remember that their failure does not justify ours.

To the nations of the world – we acknowledge that in this age of globalization, all of us are interdependent. Our economies are interconnected as indeed are our people. I pledge to continue cultivating the relationships we have had with our traditional partners and I say to all developing and developed nations who desire a deeper and more mutually beneficial relationship with Kenya: we are ready for partnerships, we are open for business and we invite you to invest in our country. I also want to remind the International Community that for the last fifty years, Kenya has been one of the most engaged members and one of the most prolific co-authors of international treaties and instruments. I assure you again that under my leadership, Kenya will strive to uphold our international obligations, so long as these are founded on the well-established principles of mutual respect and reciprocity.

Central to our continued contribution to the international community, will be the understanding that the world is made up of many countries, cultures, political experiences and world-views. We must remember that no one country or group of countries should have control or monopoly on international institutions or the interpretation of international treaties. While each state has a right to its own view, it must respect the fact that it holds just one view amongst many in the community of nations.

On the ICC, it is President Museveni of Uganda, speaking on behalf of invited regional leaders, who stole the show with controversial comments. In his remarks, which he says are his personal views (rather than those of regional bodies he represented), he expresses his disappointment in the ICC. He thanks Kenyan voters 'rejecting the blackmail of the ICC and those who seek to abuse this institution for their own agenda', noting that while he supported ICC at the start, he no longer does, partly because, he contends, it has become a foreign policy tool of some nations who use it to impose their will on others.

Here are his remarks:

This is my own opinion now. Before I was speaking on behalf of the people of East Africa, the COMESA regional trade group and ICGLR...this is my opinion. Furthermore, I want to salute the Kenyan voters on one other issue – the rejection of the blackmail by the International Criminal Court (ICC) and those who seek to abuse this institution for their own agenda. I was one of those that supported the ICC because I abhor impunity. However, the usual opinionated and arrogant actors using their careless analysis have distorted the purpose of that institution. They are now using it to install leaders of their choice in Africa and eliminate the ones they do not like. What happened here in 2007 was regrettable and must be condemned. A legalistic process, especially an external one, however, cannot address those events. Events of this nature first and most importantly, need an ideological solution by discerning why they happened. Why did inter community violence occur? Was it for genuine or false reasons? Even if you assume they were genuine reasons as a hypothetical argument, why should villagers attack one another? Would the villagers have been responsible for whatever mistakes that would have occurred? Instead of a thorough and thoughtful process, we have individuals engaged in legal gymnastics!

In Uganda’s case, between 1966 and 1986, we lost about 800,000 persons killed by the leaders who were in charge of the country. How did we handle that sad history? Have you ever heard us asking ICC or the UN to come and help us deal with that sad chapter of our history? We only referred Joseph Kony of LRA to ICC because he was operating outside Uganda. Otherwise, we would have handled him ourselves. Equally, Kenyan actors are the ones best qualified to sit and delve into their history in order to discover the ideological stimuli the Kenyan society needs. I, therefore, use this opportunity to salute the Kenyan voters again, rejecting that blackmail and upholding the sovereignty of the Kenyan people. The people of Kenya extended hospitality to Ugandans when they had to run out of their country because of criminal rule in Uganda. I thank the people of Kenya and their leaders for this.

What do you think?

AU Maintains Stance on Al Bashir, Apparently Threatens Malawi

An interesting read on the Al Bashir and ICC issue. See here

AU v ICC: ICC Prosecutor Fatou Bensouda Fires First Salvo

In a previous post written soon after Ms Fatou Bensouda's election as the ICC's new prosecutor, I noted that she assumes office with a heavy burden on her shoulders. I suggested that this burden consists of balancing a number of often competing objectives: cultivating waning support for the ICC in Africa by presenting the Office of the Prosecutor in a less abrasive way; remaining focused on her job while navigating a mined geopolitical terrain and; pushing forward current situations and cases while reorienting the direction ICC in order to truly internationalize its operations.

I argued that while her election was rightly celebrated in Africa, those who expect her to be soft on Africa or to make drastic changes would be disappointed. I noted that while it is accurate that she got the job partly because there was a need to keep AU members in the fold, she confronts challenges of a structural nature that she will not be able to change. Equally, I suggested that she could be compelled to act tough on Africa precisely because she would like to avoid criticism that she was going easy on Africa (because she is African). In this regarded, I noted that:

There is no doubt the AU will watch her every move, and I will not be surprised if some demands are made on her in the Al Bashir matter. She may have no choice but to rebuff these overtures. Her burden clearly is do her job in a way that does not open her to criticism globally for being ‘soft’ on Africa, merely because she is African. My suspicion is that it is precisely for this reason that she could be firmer than Ocampo, although in a more diplomatic and accommodating way.

My words are turning out to be prescient. In a recent speech that has been analyzed in an interesting post by Alana Tiemessen on Justiceinconcflict Blog, Ms Bensouda has fired the first salvo. Her comments suggest - as I speculated in my earlier post - that it would not only be business as usual (a la Ocampo), but she would actually be tougher on African states than her predecessor. Interesting times ahead. The ceasefire could have been breached. The honeymoon is over.

Is Ocampo Taking Sides in Cote d'Ivoire?

Louis Moreno-Ocampo, the outgoing Prosecutor of the ICC, has apparently sent a letter to Guillaume Soro congratulating him for his election as the Speaker of the National Assembly in Cote d'Ivoire. Mr Soro is the immediate former Prime Minister, an ally of President Ouattara, and (former) leader of Forces Nouvelles (FN), an armed group that once controlled the North of the Country. FN were part of the coalition of armed forces that removed Laurent Gbagbo from power. Reports have linked FN, under the leadership of Soro, to serious crimes committed in the recent conflict that the ICC should at least investigate.

Kevin Jon Heller of Opinio Juris analyses this, and other previous missteps by Ocampo., Read HERE.

Does this gesture indicate that the Office of the Prosecutor has taken sides, in ways that would suggest bias against Gbagbo's side? Is victors justice at work in Cote d'Ivoire?

The ICC and the Limits of Deterrence

An interesting piece on JIC regarding the deterrent effect of the ICC. This analysis examines whether, in the context of the ICC's work in the DRC and the recent conviction on 14th March 2012 of Lubanga, the ICC's work a deterrent effect.

Read here.

Is the ICC and International Justice Racist?

A few days ago, Courtenay Griffiths, Charles Taylor's defence lawyer at the Special Court for Sierra Leone sitting in the Hague injected a-not-so-new but previously unspoken claim against the ICC, and international criminal justice in general:that the ICC is racist. this adds a new strand to the the accurate, yet not universally accepted criticism of international justice as selective justice.

Mr Griffiths, is reported to have stated as follows:

“If one goes down to the Old Bailey… on any given day if you troll around the court, you’ll find that roughly ninety percent of all the defendants on trial in that Court are, guess what? Black. … What we’re seeing in terms of international law currently is the replication of that association between criminality and black-ness which one sees at the national level not only here in the United Kingdom but in any significant Western country with a black population.”

This claim is already generating debate among scholars. In response to this claim - Mark Kersten of JusticeinConflict Blog, one of the more informative blogs on the subject, has taken the issue head on. Kersten's rather problematic argument that while the ICC can rightly be criticized for selectivity but not as racist because African states joined willingly has rightly provoked vigorous responses.

Read the blog post here, and be sure to read the comments at the end!

Impact of ICC Confirmation of Charges Decisions on Kenyan Life

As we await the decisions of the ICC tomorrow (23 January 2012) on whether any or all of the six Kenyans facing ICC charges have a case to answer and will thus be committed to trial, two interesting reports - one by the International Crisis Group (ICJ) and the other by the Brookings Institution in the USA - consider the impact of the decisions on politics and other aspects of life in Kenya. Access the ICG report here and the Brookings one here.