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.

New Blog on International Criminal Law

My good friend Charles C Jalloh, a Professor at University of Pittsburg School of Law and an avid scholar on issues related to Africa and international criminal justice, has recently launched a blog: International Criminal Law in Ferment. It is an excellent read .....Follow here

Al Bashir's Presence in Kenya Did Not Violate the New Constitution

This article appeared as an op ed in The Star newspaper (Nairobi) on 4th September 2010.

The saga relating to the presence of President Al Bashir in Kenya continues. Some have argued that Kenya violated its obligations relating to the International Criminal Court (ICC) by inviting an individual against whom an ICC arrest warrant exists.

Lately, it has also been argued that the government breached the new constitution by hosting Al Bashir. One writer, Howard Varney notes that Kenya ‘despoiled the new constitution’ by this act.

In a previous piece, I have addressed the first argument, noting that the hosting of Al Bashir did not violate the Rome Statute of the ICC. Today, I consider why this act in no way violates the new constitution. I will refer to contrary arguments made by others on this issue. However, I will not address any political underpinnings of the invitation or its alleged links to the ICC investigation in Kenya. The argument is that whatever its motives, the act stands on sound legal legs.

A number of Kenyan lawyers and Howard Varney have suggested that since Kenya ratified the Rome Statute, hosting Al Bashir violates article 2 of the New Constitution. The relevant parts, 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.

This issue cannot be understood by resorting to general arguments such as those above. There is a specific issue that these commentators deliberately ignore or shy away from discussing: the immunity of a serving head of state from the jurisdiction of foreign nations, and by extension the ICC. General arguments about article 2 do not shed any light on the key issue.

Before addressing what international law and the Rome Statute in particular says about immunity of heads of state, it is useful to consider which part of international law actually forms part of Kenyan law as per article 2 above.

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. Examples include 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 automatically form part of Kenyan law, no matter their source. Once Kenya ratifies an international agreement ie agrees to be bound by it, only the customary rules in that treaty apply immediately. Customary rules in any case apply in the absence of any act of ratification.

All other rules of international law – that are not customary in character – only form part of Kenyan law when domesticated ie, applied through an Act of Parliament.
Informed by our own dualist tradition (see relevant provisions of new constitution regarding law making authority) and comparative experience, there is no other way of understanding article 2(6) of the New Constitution. It cannot therefore be suggested - as some have attempted to do - that the Rome Statute as a whole forms part of Kenyan law because we ratified it. It forms part of our law because Parliament passed the International Crimes Act in order to domesticate it.

Back to the issue that previous commentators have avoided, but which perhaps is the only relevant issue in the Al Bashir saga: immunity of heads of states. Article 27 of the Rome Statute says that the official position of an individual does not prevent the ICC from exercising jurisdiction. This means anyone can be investigated, indicted and an arrest warrant issued. There international lawyers who take a stricter view, suggesting that serving heads of states and foreign ministers are excluded and that any act the mere act of attempting to charge would be illegal. This links to rules in the Rome Statute that appear to preserve customary law immunities of senior state officials.

Article 98 (1), which I have commented on before (see previous blog posting), is easily the ‘elephant in the Rome Statute’ that many prefer to treat as a black hole. Fervently pro-ICC people hate it, and prefer to ignore it in their analysis. It is fair to suggest that this approach only renders their understanding of the Statute partial, subjective or downright dishonest.

Article 98(1) says that the ICC may not proceed with a request for surrender or assistance which would require the requested state to violate its obligations under international law with respect to the state or diplomatic immunity of a person ….

I want to state emphatically that 98(1) codifies one of the oldest rules of customary international law, and which is rightly one of the pillars of the international legal order as we know it. It affirms the equality of states, and oils inter-state relations by protecting presidents and senior envoys from small and weak nations from willy nilly arrests abroad.

The ICC has changed some things, but this is one rule it cannot change, at least not in its entirity. And that is why it is preserved in article 98(1) in a treaty that declares war on impunity. Both article 27 and 98(1) form part of Kenyan law automatically but also through the International Crimes Act passed by Parliament in 2008. So when people say Kenya violated its international law obligations, and its New Constitution, they must tell us which obligation.

The truth is: that Kenya finds itself, like other nations, in a position in which it can choose to arrest a head of state in compliance with a weaker and definitely younger rule of customary international law (art 27 was introduced by the Rwanda and Yugoslavia tribunals in 1994) or host him at will, in compliance with a rule older than the modern state founded in 1648.

As I have argued before, Al Bashir can only be arrested once states remove the recognition he enjoys as the President of Sudan or if his immunity is removed: after he leaves office either by losing an election or removal by the Sudanese Parliament. The supposedly all powerful UN Security Council cannot legally do this.

(Re)Writing History After Rwanda's Genocide: A Response to Peter Erlinder

Recent reports that President Kagame's Rwandan Patriotic Front may have committed serious crimes in the DRC in the 90s has raised the temperatures again, with Rwandan threatening to withdraw its troops from Darfur, Sudan if the UN publishes the report, which the Rwandan government has criticised heavily.

On a related issue, my good friend, Charles Jalloh, a JURIST Guest Columnist and Professor at the University of Pittsburgh School of Law (Pennslyvannia USA) has written as excellent piece responding to Peter Erlinder's article Rwanda: Flawed Elections and the Politics of 'Genocide Denial'. He argues that certain of Erlinder's criticisms of the ICTR are political or unfounded...


You can read his article here...

States Parties to the ICC Have No Obligation to Arrest Al Bashir

The ongoing saga over the presence of President Al Bashir at the promulgation of Kenya's new constitution raises interesting questions which I addressed four weeks ago in op eds in the Standard and Star Newspapers (Nairobi) following Al Bashir's first visit to a state party of the ICC: Chad.

The same arguments apply to the recent visit to Kenya:

At its summit in Kampala, the AU has repeated its call last made in July 2009 at its Summit in Sirte Libya requesting African countries not to cooperate with the ICC to arrest President Al Bashir. It comes in the wake two significant developments.

The first is the issuance of a second arrest warrant against Al Bashir by the ICC for charges of genocide after the previous arrest warrant in 2009 for alleged war crimes and crimes against humanity. The second development is the first ever visit since the arrest warrants by Al Bashir to a state party to the ICC: Chad.

The African Union (AU) has been heavily criticized by many for its stand on Al Bashir. The argument has been that African countries that are party to the Rome Statute, including Kenya have an obligation to arrest and surrender Al Bashir.
There are legal and political reasons why it would be folly to arrest Al Bashir. It will focus on the legal ones.

Those who have urged Al Bashir arrest – largely non-governmental organizations – have asserted that states parties have an obligation to arrest and surrender. They have insisted that article 27 of the Rome Statutes does not allow immunity, including that of head of state.

Yet the legal position is less straightforward than suggested.
I argue that there is no automatic obligation to arrest and surrender – and no obligation whatsoever – for these states to arrest Al Bashir, a serving head of State of a country that does not accept the jurisdiction of the ICC.
Although it is true that article 86 of the Rome Statute requires states parties to cooperate fully with the ICC and that article 27 removes immunity from the jurisdiction of the Court, that is only half of the story.

Despite the general obligation in article 86, there is no automatic obligation to arrest and surrender because article 89 provides that the Court must make a request for cooperation to a state containing specific information outlined in article 91.
However, – and this is where trouble lies for proponents of Al Bashir’s arrest – the fact that the ICC has made a request for arrest does not solve the legal problem.

Article 98(1) says that the ICC may not proceed with a request for surrender or assistance which would require the requested state to violate its obligations under international law with respect to the state or diplomatic immunity of a person ….

As confirmed by the International Court of Justice in the Arrest Warrant Case, foreign ministers and by extension heads of state cannot be subjected to judicial authority of another country, irrespective of what they are alleged to have done.

Article 98(1) was intended to preserve obligations of states that existed under customary law even before the ICC was created. These obligations that allows heads of states and their representatives to travel freely ensure smooth relations between states.

While states continue to recognize Al Bashir as President of Sudan, who is designated by Sudanese people to transact for them abroad, they cannot touch him. Otherwise, they will be in breach of article 98.

In fact, while knowing that States have these obligations, the Court will itself be violating the statute if it requests them to arrest. What is surprising that the ICC judges have missed two opportunities to clarify this issue.

Some people argue that recognizing immunity for sitting heads of states defeats the objects of the ICC. I beg to differ. We must distinguish immunity from jurisdiction and immunity from execution.

The operation of article 27 allows the ICC to indict even a head of state. However, article 98(1) prevents the execution of an arrest warrant in respect of a sitting head of state.

Article 98(1) then provides how we should proceed in this case: request for waiver of immunity. Only Sudanese people can waive the immunity of their President, with support for states: state unequivocally that they do not recognize Al Bashir’s Presidency.

As long as they do not do this, they cannot arrest him legally. The legal alternative is to wait until he leaves office. It is in fact duplicitous to want to do business with Al Bashir (on Darfur, the CPA in the South and resources) while insisting that other states should arrest him.

It is exactly this that the AU opposes in different words: turning the ICC into an instrument of foreign policy.

The ICC has changed a lot of things, but it cannot change the foundations of the international legal system: the equality of states and facility in inter-state relations which is premised on ease of travel those who represent states abroad.

TJRC remains relevant in the new constitutional order

On four arguments why the TJRC remains pertinent in the new constitutional order, read here

Reflections on Kenyan Justice

Although the event was captured on camera as one of the most atrocious events of the post-electoral violence of 2007-2008, the murder trial of the police officer alleged to have shot two demonstrators in Kisumu has yielded a 'not guilty' verdict. Read the report here.

Indemnity Act, 1972 Cannot Bar the TJRC's Work