Tuesday, October 6, 2009

Kenya: ICC Prosecutor Will Have to Act on His Own

In a meeting with Kofi Annan, Kenyan President and Prime Minister have reportedly stated that they will not formally write the Prosecutor of the International Criminal Court referring the Kenyan situation to the ICC for investigation and possible prosecution of key perpetrators of crimes committed during the post electoral violence. This is certainly to be met with disappointment from victims and civil society organisations that are currently agitating for prosecutions in The Hague. The Kenyan leaders had perfected the art of vagueness, stating publicly that while they are prioritising reconciliation, 'the door remains open for the ICC to come in'. The apparent refusal to refer the situation is significant. While it is not the only trigger of the Court's jurisdiction - a referral from those exercising the powers of Head of State and Government would signify that the government is behind the process, and that it will support the Court in its investigations and prosecutions should these commence. Lacking any machinery to give effect to its orders, the ICC depends on governments for assistance and cooperation to perform its important work.

Some have bee heard stating that since the 30 September 2009 deadline agreed between the government and the ICC Prosecutor for the government to show progress in establishing progress expired, the Prosecutor can somehow come in automatically. this position does not accord with both the Rome Statute and the the 3rd July 2009 agreement. The agreement - in conformity with the Statute - specifically provides that the government will refer the situation should it fail to make progress towards prosecuting suspects.

And while some Ministers have reportedly been heard proclaiming that the 'Prosecutor is free to proceed' two points must be made here. First, Ministers - unless acting with express authority from Head of State and Government - lack powers to refer a situation to the ICC. A referral - just like ratification of treaties - is an expression of state sovereignty, an exercise reserved for the President or Prime Minster, or in the Kenyan case, both acting together. All the three situations currently being investigated by the ICC prosecutor - DRC, Central African Republic and Uganda - have been ceded to the Court by express written invitation from relevant Presidents.

This said, all is not lost for victims. This brings me to the second trigger mechanism built within the Rome Statute. If the Kenyan Principals do not want to act, the ICC Prosecutor will have to invoke his powers to commence investigations. This will require the Prosecutor to act boldly, despite the challenges posed by such a move. It seems reasonable to conclude that the Prosecutor would only invoke this power where the relevant authority do not want to make the referral to the Court. The danger is that such action would incite opposite reaction from the government - refusal to cooperate - with effects that are not difficult to fathom: stalled investigation or prosecution. It is telling that this power is yet to be invoked by the Prosecutor of the ICC. This is not to suggest that he may not choose to do so in the Kenyan case. One suspects that the Prosecutor could be hinting at this possibility when stating that 'Kenya will be an example to the world'. However, the prospect that the Prosecutor would be seen to act in vain (with serious credibility implications for the Court)- should authorities refuse to cooperate - leads me to reasonably conclude that the he is unlikely to take this route. I am sure that recent perception - although for the most part unfounded - that 'the ICC is targeting Africans' is likely to weigh heavily on Ocampo's mind. Invoking his powers will be a last resort, after all is done to convince the government that acting on their own is the best course of action. It is reported that the Prosecutor is to meet the two leaders in the coming days or weeks. Mr Ocampo will be saying things along the lines I have just described: act, or I will. Perhaps in slightly more diplomatic terms.

I will not discuss the third trigger mechanism, which involves the Security Council of the United Nations making as in the case of Darfur Sudan. This is the least likely route, in view of the fact that Kenya has not been on the agenda of that UN body, and is unlikely to be in view of more pressing matter such as Iran, North Korea, and the like.

The matter will continue to evolve...but I guess the three aspects are perhaps the 'immovable constants'. Give that these choices are for the most dictated by considerations in the political terrain that is susceptible to change, we are bound to see a new twist in the plot, including the government taking seriously the idea of prosecuting suspects locally in which case an ICC process could be obviated.

Its wait and see....

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