Deferral vs Excusal from Trial: Justice Chile Eboe-Osuji Has His Say

After a long break, I am back with a short post on the unfolding Kenyan ICC cases.

As we await the ICC's Appeal's Chamber's decision in relation to whether DP William Ruto will be allowed to skip most of his trial, I have read with interest the Trial Chamber's decision to allow President Uhuru Kenyatta to be absent from most of his trial. I am not convinced that the majority decision of the Trial Chamber, as was the case in DP Ruto's excusal decision, sits on firm legal grounding. In my view, justice Chile Osuji reads the politics right though. I read Justice Eboe-Osuji's separate concurring decision as a not-so-coded political message to his colleagues, the prosecutor and the UN Security Council. For the first two ICC actors, he seems to be saying: lets play ball to save the ICC (if AU's threats and the current poisoned environment are to be taken seriously, which he appears to do). Justice Eboe-Osuji presents excusal of the President from attending trial as a clear, and desirable alternative to deferral under Art 16 by UNSC. He sends a message to the UNSC hoping that it will act 'sensibly'. In this regard, he worries about the impact of deferral on the rights of victims noting at para 46 that:

'It is one thing to suggest that no injustice will be necessarily occasioned if Mr Kenyatta's case is deferred pursuant to Article 16 in order to allow room for the ongoing trial of Mr Ruto to proceed with greater speed and ease; it is quite another matter to accept that Mr Kenyatta's trial may not proceed for another five years—possibly ten—when the events in question occurred five years ago.'

It para 41, he reminds that events took place in 2007-2008. He then states, in unambiguous language, apparently not in favour of deferral as follows:

'To hold off proceedings during the term of office of the accused would mean a delay of 10 years at least before the trial begins. It is not necessary also to consider that the accused is entitled to run for a second term of another five years,^^ thus holding out the prospect of delaying the proceedings for 15 years. The delay of 10 years alone is hardly justifiable as reasonable. No victim should have to wait for that long before a trial begins, when it could have begun earlier. Memory does fade. Witnesses do die or become infirm. Evidence does deteriorate.'

With legal problems that excusal has, the stakes could not be higher, especially given that in my view, the deferral request that has reportedly been made by the Kenyan government to the UNSC stands (if it is) on very thin and exhausted legal legs indeed. Interesting times ahead. Post Friday 25 Oct scenarios are many, but that is for another day! One thing is clear though: Friday's decision could decide whether Fatou Bensouda appeals the Uhuru decision, which is substantially the same as the Ruto decision that she appealed. The only difference is that one is President, and the other is not. Will that matter?

Truth Commission Report Challenged in Court Over Mandatory Apology by President

In the wake of an apology and offer of compensation by the British government over colonial era atrocities committed in Kenya, two individuals one Njenga Mwangi and James Mwangi Meru are challenging the report of the Truth Justice and Reconciliation Commission over the recommendation for the sitting President to offer an apology to victims of gross human rights violations attributable to the Kenyan state over the last 50 years of independence.

Although I am yet to read the suit papers, this is a very curious petition, to say the least.

The petitioners want the High Court to stop the Minister in Charge of Justice from tabling the report in 3 days as required by the law establishing the Truth Commission (TJR Act of 2008). The Act provided that the report must be tabled in Parliament for debate 21 days following its publication. This is one of the safeguards built into the Act to ensure that the report of the TJRC does not meet the fate of reports of other commissions: failure to implement.

Read initial media report here. More reports and analysis to follow.

Kenyan Truth Commission publishes report

The report of the Kenyan truth Commission can be accessed here

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.

Scenarios Relating to ICC Confirmation of Charges in Kenya

Watch interview given to Capital FM Radio here and follow the story here

Al Bashir arrest warrant judgement by Kenyan High Court bad in law

The brief post below appeared as an op ed in the Kenyan daily, Standard on 18th December 2011. See here

The judgement by Justice Ombija issuing an order of arrest against President Al Bashir of Sudan has been subject of contestation for several weeks now. I only offer a brief scholarly critique of the judgement in light of my own reading of the law, which is that the judge erred in law: the judge was wrong to issue the order. To summarise Judge Ombija’s decision, he says that Kenya has an obligation to arrest Al Bashir because we ratified the Rome Statute, passed a law domesticating it and have in any case a Constitution that applies every treaty ratified by Kenya as part of our law.

But, can the applicants, ICJ-Kenya actually apply for an arrest warrant as they did? I have difficulty identifying what basis they were allowed to address the court on substance. Under the International Crimes Act that domesticates the Rome Statute, only the Minister can approach the High Court for an arrest warrant. Under our law, there are only two possibilities for a private citizen to come to court on this matter: for judicial review asking the court to issue orders compelling the Minister to approach the court for a warrant, or rely on the generous provisions on standing in the constitution by alleging that the constitution, in particular the bill of rights has been violated. Neither of this was done by the ICJ. In short, the judge improperly allowed a private citizen to act as the Minister.

According to the judgement, the crucial link between Kenya’s obligations to the ICC and the duty Al Bashir to arrest is universal jurisdiction. According to the judge’s reading of this principle, any state can arrest, prosecute or extradite anyone who commits an international crime anywhere. The problem with this view is twofold. First, with utmost respect to the judge, a discussion of universal jurisdiction on which he bases his decision should never have been conducted because it is irrelevant: the Rome Statute does not include universal jurisdiction. In my view, the judgement can fall on this score alone.

Secondly, although the judge discusses universal jurisdiction at length and he is broadly right on the principle, he does not consider or discuss the fact that current case law — all of it developed by leading Western courts — is that a sitting head of state is immune from arrest or prosecution by national courts abroad. I argue — again with utmost respect to the judge — that he only arrives at the conclusion that Kenya has an obligation to arrest by considering arguments that should not be relevant to the discussion, but more crucially, by not considering the most crucial issue. This central issue, on the basis of which the warrant issue should be resolved — and on which his decision stands or falls — is regrettably not dealt with by the judge.

The issue is: even when there is an ICC arrest warrant, can a sitting head of state be arrested abroad and handed over the ICC? The judge simply says in a couple of lines that no one benefits from immunity in respect of the ICC. Although he doesn’t cite the provision, this position is represented in article 27(2) of the Rome Statute. It is true that the ICC can indict anyone. However, it is not the correct approach to base Kenya’s obligation to arrest on article 27. If the Rome Statute forms part of our law, one must go on to see what else the Rome Statute says. The judge correctly does that, but he stops at article 91 and 92 which regulate procedure for arrest. By doing that, the judge misses the fact that a sitting head of state is subject to a different procedure of arrest, under article 98(1).

My reading of article 98(1) — which is not uncontroversial — is that because under international law of diplomatic relations and state immunity a sitting head of state ordinarily enjoys immunity from the actions of foreign organs of state — including the Judiciary — a Kenyan court can only properly order arrest of Al Bashir if one of three things exist: Sudan waives his immunity (through national law) or he is removed from office or Kenya removes its recognition of him as the legitimate Sudanese President. The cases of Milosevic of the former Yugoslavia, Charles Taylor of Liberia, and former Ivorian strongman Laurent Gbagbo who now sits in a cell in The Hague months after leaving office all support this view. Until there is a new rule of international law — introduced perhaps by an amendment of the Rome Statute, saying a sitting head of state indicted by the ICC can be picked up when visiting a foreign nation, we are stuck with what we have. It is for this reason that I fault the ICC judges’ ruling made several days ago on this issue (a decision involving Malawi’s refusal to arrest Al Bashir), which I will address, in a future post. However, I have serious doubts that a rule allowing arrest of a sitting head of state will emerge soon. The immunity enjoyed by heads of state and foreign ministers when traveling abroad to conduct diplomacy for their nations — is one of a handful of rules that form the cornerstone of the international system. I cannot visualise a different world — other than an anarchic one — where the legal equality of states did not exist.

My interpretation of article 98 of the Rome Statute does not mean a President cannot be tried: we just have to wait until he/she leaves office. Gbagbo is now in The Hague, seven months after his ouster. Too bad if a country is not a democracy or if — as is the case in Sudan – other states are unwilling, because of their national interests, to remove recognition of the sitting head of state that would enable them arrest him without breaching international law. Right now, resolution of the Bashir issue does not lie in the law: it is political.

Reflections on Fatou Bensouda's Election as ICC Prosecutor: Is it Good for Africa?

My brief remarks below about Fatou Benouda's election and the next Prosecutor of the International Criminal Court appeared in the , a kenyan daily on 15th December 2011. See here

Fatou Bensouda’s election as the second ICC Prosecutor has received mixed reactions, although the majority of voices have been positive. I add my voice by arguing — as someone who has come to know Ms Bensouda personally, and as a follower and participant in developments around the ICC over the last few years — that her election is good for ICC, and for Africa. However, I suggest that it is precisely the fact her election is good for Africa that could be her undoing. It is no exaggeration to say she is assuming the position not only because of her abilities, but also because the African Union (AU) wanted, and fought hard to ensure an African succeeds Ocampo.

Her election is good for the ICC because it ‘buys’ continued support for the ICC from a large part of the African bloc in the ICC, and the AU, which has shown itself — for good or bad — a major player in the sphere of international justice. Bensouda’s election is also good for ICC simply because she is not Ocampo. While she has been at the heart of operations in the Office of the Prosecutor and in many cases handled the technical aspects of constructing cases (with Ocampo mostly as the PR person), she lacks Ocampo’s much reviled abrasiveness that turned many off the ICC. After the fallout between AU and the ICC (read Ocampo) over President Omar Al Bashir, one heard arguments in African capitals — mostly in boardrooms, but also publicly — that the ICC had ‘marginalised Africa’ while focusing entirely on Africa.

At the time when the ICC’s support was plummeting in Africa (in political circles at least), she became somewhat a ‘poster girl’ for the court. And I don’t mean this pejoratively. Accused by AU of being a ‘Western court’ that prosecuted Africans while at staff level relegating Africans ‘to deputy everything’ as some African leaders would gleefully state, the court had gone on a charm offensive by deploying its senior African staff. I was honoured to share platforms with Ms Bensouda in several African cities — Addis, Kampala, Pretoria, Maputo and Midrand (the seat of the Pan African Parliament) while she travelled the continent to market the court and put out fires. She came across to me as someone who is not only smart, but also one with a genuine belief in the ICC project. More importantly, unlike Ocampo, when some of us took the liberty to criticise her office and ICC constructively for the manner in which certain things were done, she was open to acknowledging these failings, but always referenced the need to do justice for victims.

For Ocampo, you were either unquestioningly with the ICC, or you were ‘with the criminals and killers’. She will win the ICC many friends just by being nice and accommodating. The AU’s triumphant fight to see her at the top must be seen in one of two ways. First, the AU hopes — however strange this may sound — to ‘establish balance’ in the court by gaining a foothold at the highest echelons of decision-making. If the idea is to somehow influence things through her however, there will be disappointment. Save for a limited space where the prosecutor enjoys total discretion (who to charge and largely, the charges), pretty much everything else is subject to judicial control of Pre-Trial Chamber.

Second, but linked to this is that there is a desire — and this is not limited to Africa — that the new prosecutor must expand the focus of ICC investigations beyond Africa. For long-term legitimacy of the ICC, many would agree that there must be a genuine attempt to truly internationalise the ICC. This could be Bensouda’s greatest challenge, one that could prematurely end celebrations. Because of the limits in ICC jurisdiction, some situations (non-state parties like Sudan) can only come to it through the UN Security Council. 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. It is a commendable personal victory, but I honestly don’t envy her. She must rethink strategy and re-position the Office of the Prosecutor while remaining on course in existing situations and cases.

The reality is that even though there are proclamations that support for ICC is growing — largely because of new situations opening — in political circles resolve waivers and most doors have closed or near-closed in older situations like Uganda, DR Congo, CAR and Sudan. Even among communities of victims, experience shows that support for ICC reduces sharply as the process advances. This is partly because it becomes evident the ICC — however important — does not deliver quick justice and the promise of reparations from the court remains illusory for the vast majority of victims. Some hard thinking for Bensouda is necessary, but there are limits to what she can reasonably be expected to achieve because some of the problems of the ICC are structural. Only time will tell. She has my best wishes!

ICC Prosecutor Ocampo Admits Double Standards at ICC

One of the most problematic aspects of the ICC is the role assigned to the security council (UNSC) to refer situations to the Court (art 13) and to suspend proceedings before the Court for a year (art 16).

Whatever its justification, it is problematic because it preserves the politicized role of the UNSC in a judicial body and projects the selectivity of the UNSC when acting to create ad hoc criminal tribunals in the past.

From an African perspective, the African Union has cited the role of the UNSC in its accusations against what it regards as selectivity on the ICC's part. One has to note that this accusation against the ICC may appear unfair because in situations where the court cannot act because a matter cannot get to the court either through a state referral or proprio motu initiative by the prosecutor only the UNSC can trigger jurisdiction. The problem however, is not that the UNSC can, and has in fact referred some situations to the court - Darfur and Libya - but that it has acted selectively. Commentators and the AU point for instance to possible war crimes committed during Operation Cast Lead in Gaza within the same time frame. Some go as far as Iraq and Afghanistan.

Until now, the ICC has been mum about the potential political role of the UNSC in the court. The ICC's supporters for their part have been quick to dismiss this as a minor issue, noting that once a matter gets to the court, only legal criteria become relevant. While this is true, it has to be acknow3ledged that the manner in which the UNSC has evolved not only in referrals but also in refusing to defer (esp Darfur) has had an impact on the international legitimacy of the ICC. In any case, the statutorily protected prosecutorial role in charging suspects is another site for potential politicisation but has received but limited attention until now.

In a surprising turn of events, the outgoing Prosecutor Moreno-Ocampo (perhaps emboldened by his impending departure and can now afford to be frank) has admitted that there is a double standard at the ICC.

Read his recent comments reported by Opinio Juris here.

UK Denies Responsibility for Torture of Mau Mau

The hearing of a case filed by four Mau Mau veterans who waited 50 years for their day in court have commenced in London. The claim by the veterans is that the UK governmnet is responsible for torture they suffered at the hands of the colonial administration. The UK government opened by denying responsiblity, claiming that the UK government was separate from the colonial administration in Kenya which functioned as an autonomous entity. For this reason, the UK government cannot bear responsility for atrocities suffered. Without getting into the merits, the UK argument does not square with the ide of 'Empire': that all foreign possesions were part of the British Empire with London exercising varying degrees of control on the overseas territories. The case may turn on whether sufficient link is established between the two in a manner that infers responsibility for the UK government.

Although it is not clear whether this will feature in arguments, this case raises an interesting question relating to the law of state responsibility. Can governments that take over after the end of colonial rule be hel legally, and morally responsibile for the departed colonial administration?

Two theories are applicable. First, that of universal succession, in terms of which post colonial government inherits all obligations incurred by the departing power. If this were to apply to the instant case, then Kenya is liable to pay compensation to the Mau Mau veterans. The second theory is the 'clean slate' (tabula rasa) approach. This approach holds that the new governmnt starts afresh, and cannot be held liable for the conduct of the departing colonial government. This is most gavoured by newly independent states for obvious reasons. This approach was favoured by Nile basin states that rejected the Nile Water Agreement of 1929, granting Egypt the lion's share of the Nile waters. The Nile Agreement has been replaced with a multilateral one, Nile Treaty of 2010.


On the Mau Mau case, see here

Kenya's Deferral Request Should Worry the ICC

For some thoughts on this issue, see this short piece published by the Royal African Society. In this article, I argue that the kenyan and Sudan are linked in a number of ways, and that while basic legal criteria are not met to secure deferral, links with Sudanese situation complicates decision-making for the UNSC. I conclude that whatever happens, the ICC is unlikely to re-emerge unscathed.

No Need For a Referendum to Withdraw from Rome Statute, Treaties and Conventions

Like the contentious Al Bashir visit, the naming of 6 suspects by ICC Prosecutor Ocampo has evoked very disturbing comments about the new constitution.

For Kenyans to reap fully from the new constitution, we must not interpret the constitution in a manner that undermines rights and offends against the naked letter of the Constitution. Judge Musinga’s recent ruling on boundaries is a good example (jurisdicction).

But we must also not interpret it too restrictively, and without much reflection because this would make it difficult for government to perform its functions, including engaging Kenya in international affairs. The suggestion by some MPs and lawyers that we need a referendum to withdraw from an international treaty – in this case the Rome Statute – is a perfect example.

I suspect that these views are largely due to limited understanding of relevant international law and comparative experience.

I have commented before (during the Al Bashir saga) on the place of international law under Kenyan law, in view of our new constitution. I feel constrained to revisit some of my arguments in view of the current furore.

The relevant parts of the Constitution, articles 2(5) and 2(6) respectively read as follows:

The general rules of international law shall form part of the law of Kenya

Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this constitution.

These two provisions simply regulate the relationship between domestic/national law and international law. They have nothing to do with the supremacy of the constitution. The two provisions were placed in the wrong section of the constitution by COE, but it is not fatal. On the naked letter of those provisions, as well as comparative experience, they need not be interpreted differently simply because they are in the section ‘supremacy of the constitution’.

Contrary to views expressed by by Hon Mutula, Karua, Mungatana and Muite and echoed elsewhere, a plain reading of 2(5) and 2(6) shows that both general rules of international law (custom) and treaties (conventions) form part of Kenyan law and NOT part of the constitution.

This is not an academic distinction. This reasoning is in line with major legal traditions in the world, including our own, unless we want to invent a new tradition which would make it difficult for us to engage internationally. There are other serious implications, but the main one is that Kenya can only join or withdraw from any treaty – even minor bilateral treaties – by approval of a referendum! Even as a matter of pragmatism and policy, it is the wrong interpretation, in view of the number of agreements Kenya signs with foreign nations, and the expense of running a single referendum! Our engagement internationally would suffer significant, unwarranted hiccups......

The only difference is between custom and treaties is how the two categories of rules of international law become part of Kenyan law.

General rules of international law in article 2(5) above refers to customary rules of international law. These are rules over which there is widespread, if not total agreement by states eg the prohibition of genocide, war crimes and crimes against humanity; the equality of states; immunity of heads of states and foreign ministers when travelling abroad; and the prohibition against use of force.

These customary rules, are superior rules and automatically form part of Kenyan law. No legislation is needed to make customary rules part of Kenyan law. Because some customary rules are contained in treaties, once Kenya ratifies an international agreement ie agrees to be bound by it, only the customary rules in that treaty apply immediately. All other rules of international law ie non-customary rules contained in treaties and conventions (art 2.6 above) only form part of Kenyan law when domesticated ie, applied through an Act of Parliament.

The words ‘under this constitution’ at the end of art 2(6) do NOT mean that treaties like the Rome Statute form part of the Constitution. And this is where the MPs named above get it completely wrong. ‘Under this constitution’ means ‘as provided by the constitution’. In other words, the constitution provides how treaties and conventions form part of Kenyan law. Note the difference with article 2(5) which omits ‘under this constitution’, because custom forms part of our law or is incorporated automatically in Kenyan law when a new international custom emerges.

Our constitution provides how treaties form part of Kenyan law by vesting full legislative powers in Parliament. In terms of our constitution, the executive negotiates, ratifies and withdraws from treaties. Parliament translates treaties into Kenyan law by passing legislation. It also has full powers to repeal or amend any law it makes, including the International Crimes Act.

We can question Parliament’s motives or that of the movers of the motion. We can oppose withdrawal from the ICC for other reasons, including the imperatives for justice. And I understand those opposed to repealing the International Crimes Act or withdrawing from the ICC to be saying that it is not advisable, and that it is in fact duplicitous to make this attempt. But it is very strange indeed to suggest that it is unconstitutional for parliament to do legislative work! Under the old and new constitution, and the constitution of any country, it is the work of Parliament to make and unmake laws! In fact, we would be acting unconstitutionally if we prevented Parliament engaging in lawmaking through various mechanisms, including motions.

Constitutionally, parliament’s powers are limited to legislating, which includes translating treaties into Kenyan law. But they cannot negotiate or withdraw from a treaty. They can only pass a motion asking the executive to do so. This is not unconstitutional. It is up to the executive to take the process forward, or refuse to do so. The new constitution demarcates functions but proposes cooperative engagement between the three arms of government and levels of government: national and county. It cannot be unconstitutional for one arm or level of government – while keeping to its functions – to remind or request another to perform a constitutional function.

While noting that repealing the International Crimes Act does not amount to withdrawing from the ICC, the Rome Statute is clear that any State Party can withdraw (art 127). As an international lawyer, I don’t know of any treaty (including the UN Charter) that would bar a party from withdrawing. I explore conditions of withdrawal in another post.

In conclusion, I must emphasise that there is no need to amend the Constitution because the Rome Statute – just like other treaties ratified by Kenya – does not form part of the Constitution. The argument that the Rome Statute and other treaties form part of the constitution is unsupported by both comparative experience and a plain reading of art 2(6) or any other provision in the Constitution. As argued, to suggest otherwise produces a result that we do not want to live with: making it near impossible for the executive to speedily, effectively engage Kenya internationally through negotiated agreements.

Beyond legal arguments, and while noting that repealing the International Crimes Act neither withdraws Kenya from the ICC nor stops current ICC process, what can be asked of parliament is: what alternatives are we offering for real justice for victims?

I explore the idea of options in another post.

Trial of Somali Pirates Opens in Hamburg

The trial of 10 Somali pirates has opened in the German city of Hamburg. This is the first such trial in 40 years. Read more here.

New Book on Militias, Rebels and Islamist Militants

A new book, Militias, Rebels and Islamist Militants: Human Insecurity and State Crisis edited by Wafula Okumu and Augustine Ikelegbe has been published by the Institute for Security Studies (Pretoria, October 2010).

This seminal work explores how armed non-state groups have emerged as key players in African politics and armed conflicts since the 1990s. The book is a critical,multidisciplinary and comprehensive study of the threats that militias, rebels and Islamist militants pose to human security and the state in Africa. Through case studies utilising multidisciplinary approaches and concepts, analytical frameworks and perspectives cutting across the social sciences and humanities, the book conceptualises armed non-state groups in Africa through their links to the state.

My contribution to the book, (chapter 4)titled, 'Armed non-state entities in international law: status and challenges of accountability' (pages 89-119): attempts to distinguish the various categories of actors – national liberation movements, rebels and militia as well as other relevant groups – in legal context; reviews international law and the branches that are relevant to these groups – in particular rebel movements and militia groups;outlines the legislative responses by the African Union and United Nations to rebels and militia activities win the African context; and provides an overview of the breaches of international law committed by these groups and how international and national legal regimes have held them accountable, and some of the challenges of holding perpetrators accountable under international law.


The 552 page book is downloadable in full at http://www.issafrica.org/pgcontent.php?UID=30496

My New Book on Victims and the International Criminal Court

My new book, Rethinking International Criminal Law: Restorative Justice and the Rights of Victims in the International Criminal Court (2010) has been published by Lap Lambert Academic Publishers in Germany. It is available at major stores in the US and Europe as well as www.amazon.com [see: http://www.amazon.com/s/ref=ntt_athr_dp_sr_1?_encoding=UTF8&sort=relevancerank&search-alias=books&field-author=Godfrey%20Musila] and www.morebooks.de (follow this link https://www.morebooks.de/store/gb/book/rethinking-international-criminal-law/isbn/978-3-8433-6810-0) (Morebooks offers free shipping worldwide).





More About the Book

Since the International Military Tribunal (IMT) at Nuremberg, the first international tribunal to try individuals for international crimes, the role of victims of international crimes in international criminal proceedings has been limited to that of witnesses. The ad hoc international tribunals – the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) did not change this position. As such, the International Criminal Court (ICC) is the first international criminal tribunal to provide for the rights of victims to participate in their own right in criminal proceedings. Similarly, it is the first such tribunal to provide for their right to reparations.

This study focuses on the right of victims to participation and to reparations under the Rome Statute of the International Criminal Court. It argues that the ICC offers an opportunity for the entrenchment of the concerns of victims in the international criminal process. However, it suggests that this depends on what framework of justice the Court adopts. The study further argues that previous international criminal tribunals – the IMT at Nuremberg and the ad hoc International Criminal Tribunals (ICTY, ICTR and SCSL) – operated on retributive and utilitarian theories of criminal justice that are exclusionary of and inimical to specific concerns of victims of international crimes. The largely retributive and utilitarian objects driving these systems limited victims to a peripheral status in the process and failed to address fully the harm occasioned to victims.

This study suggests that the ICC should adopt a restorative justice paradigm in order to give full effect to the rights of victims while protecting the rights of defendants and meeting the law enforcement functions of the Court. The study reviews the relevant texts – the Rome Statute, its Rules of Evidence and Procedure and other instruments – and demonstrates that the ICC framework provides a basis for such a restorative justice paradigm. In order to suggest a trajectory for the operationalisation of the ICC victims’ rights regime underpinned by principles of restorative justice, the study attempts a systematic review of the rights of victims in criminal law processes in select domestic criminal justice systems (including the USA, France, United Kingdom), international human rights tribunals and other international courts. At the same time, the study reviews the implementation of reparations in various contexts and makes suggestions as to how the ICC and the Victim Trust Fund of the ICC should proceed in this regard within the relevant legal and institutional framework.

In relation to the right to participate, the study concludes that Article 68(3) of the Rome Statute – the general provision on the subject – strikes the right balance between the right of victims to participate, defence rights to an expeditious trial and the law enforcement function of the Prosecutor. However, it argues that the scope of victim participation at various stages of the proceedings will depend on, among others, the paradigm of justice adopted by the Court and, in view of the Prosecutor’s seemingly knee-jerk opposition to victim participation, the attitude adopted by the Court itself to this new right of victims. The study reviews relevant texts and concluded that the Rome Statute’s victims’ rights regime presupposes a restorative model of justice – understood as values and principles rather than ‘practices’ and ‘methods’ as applied in some national criminal justice systems. Restorative justice contemplates a central role for victims of crime in relevant proceedings. Henceforth, the rights of defendants must not only be weighed against the concerns of the Prosecutor but also the right of victims to participate.
The study concludes further that the tests established for victims’ participation – appropriateness, the requirement for their personal interests to be affected and the rights of defendants – present serious challenges in view of the fact that ICC crimes for the most part will involve mass atrocity. The number of victims who may eventually participate in particular proceedings is thus very small. The study notes that while the provision for legal representation of victims alleviates some of the difficulties associated with participation by a varied mix of victims in complex proceedings, it may be considered as diminishing the impact of direct participation. While the scope and modes of victim participation will vary at various phases of proceedings, current jurisprudence at the ICC shows that the Court seems to favor a broad presumption of victim participation. Since full realization by victims of the right to participate will depend on the role that the Court will play, it is crucial that the right paradigm of justice is adopted.

With respect to the right to reparations, the study notes that this is perhaps the greatest innovation in the Rome Statute. The study finds that the Rome Statute establishes two ‘focal points’ for purposes of reparations – the Court and the Victim Trust Fund (VTF) – in close relationship with each other. Drawing from the experience of national criminal justice systems, the study acknowledges the practical difficulties involved in vesting a criminal court with a reparation function argues that this will pose particular challenges to the Court. These include the need to protect the right of a defendant to a speedy trial, the presumption of innocence and to conduct efficient proceedings. Having reviewed the texts and relevant jurisprudence, the study concludes that various mechanisms, including various permissive rules and the creation of the Victim Trust Fund make it possible to address some of the difficulties associated with the right to reparations in the ICC.

The study further notes that while a reading of the relevant provisions establish the possibility of the Court and Victim Trust Fund instituting independent reparations schemes, it is imperative that the two collaborate in order to give full effect to that function. In any case, while Regulation 56 of the Court’s Regulations provides for the possibility of considering reparations issues during the main trial, the fact that a reparation order against an accused is dependent on finding of guilt of the accused, it necessarily means that a definitive finding on reparation has to come after that.

Further, the study concludes that in context of mass atrocities and the possibility that numerous victims may prove the requisite links to a case to obtain reparations, holding joint proceedings would complicate and burden the trial. However, the study endorses the initial view of the Court that evidence concerning reparations could, at least in part – where appropriate, and in the interest of efficiency and victims – be considered during the trial.

The study further concludes that the Victim Trust Fund, which presents greater flexibility than the Court in terms of standards of proof, the requirement for criminal liability and various other mechanisms should be allowed a more prominent role in the processing of reparations. A survey of various mass reparation schemes – Holocaust reparations, South African Truth and Reconciliation Commission, the Rwandan Gacaca model and the United Nations Compensation Commission (UNCC), as well as the United States’ Alien Tort Claims Act (ATCA), a particular mass tort litigation mechanism – offer some useful lessons on a range of challenging reparation related questions.

The study concludes that while the Rome Statute offers an important opportunity for victims in terms of reparations, various challenges including shortage of funds and the large number of victims requires that situation countries – those states under investigation by the ICC and from which victims are drawn – cannot abandon their primary responsibility of providing appropriate remedies for victims. The ICC is not, and cannot be a panacea for the concerns of victims of international crimes.