Wednesday, August 19, 2009

Of False Impunity Debate, and the Necessity of Domestic Prosecutions in Kenya

Much of the debate in Kenya has been focussed on whether trials should be conducted in Kenya or in The Hague (at the International Criminal Court) and whether the TJRC is an appropriate mechanism to 'try' at least some of the cases linked to the post electoral violence. This is an important debate, but it is a false one. It is a false debate because it avoids or ignores foundational issues, and makes false assumptions. Trials will happen in The Hague not because Waki Commission said so, but because alleged crimes are international crimes: genocide, war crimes or crimes against humanity, and a number of other requirements are met. Those clamouring for mandatory prosecutions in The Hague, or by the Special Tribunal do not seem to have grappled with this fundamental issue, and appear to proceed from Waki's unreasoned recommendation.

Charles Jalloh, argues that much of the debate on options for justice in Kenya, in particular the debate around local trials and The Hague proceeds from the wrong assumptions. He problematises ICC involvement in Kenya and addresses the question as to whether relevant crimes have been committed for the ICC to get involved. He also considers various technical and legal issues and highlights the various thresholds that will inform the involvement by the ICC In Kenya. On the strength of various solid arguments - legal and factual -, he suggests that while the ICC could yet play an important role, domestic prosecutions remain the best option for Kenya.
Read Jalloh's article here.

Charles C. Jalloh is an assistant professor at the University of Pittsburgh School of Law. He previously worked at the Special Court for Sierra Leone and the UN International Criminal Tribunal for Rwanda.

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