Which Way Kenya on Icc Proceedings

8/4/2019 Which Way Kenya on Icc Proceedings

1/7

WITHDRAWAL, SECURITY COUNCIL DEFERRAL OR COMPLEMENTARITY:

WHICH WAY KENYA ON THE INTERNATIONAL CRIMINAL COURT

PROCEEDINGS?

Ochieng N. David1

On 15th March 2011, the International Criminal Court (ICC) pre-trial chamber by a majority

issued summons for the six persons suspected to bear the greatest responsibility for alleged

crimes against humanity in the post election violence in Kenya in 2007 and 2008 (which claimed

more than 1000 lives). The chamber had previously authorized the prosecutors investigations in

March 2009, partly on the basis that Kenya failed to seriously investigate and prosecute the

violence. The summons brought into stark relief the consequentialist debate over international

criminal justice. Opponents of impunity celebrated the possibility that the international

community might at last be willing to deal with the culture of impunity in Kenya. On the other

hand, the summoned suspects and their supporters expressed fear that any steps to prosecute the

suspects might set in motion steps that would take the country back to the brink of the precipice

given the fear of recurrence of ethnic violence.

This article examines the legal basis of the Kenyan governments response to the ICC

investigations and intended prosecutions. The article is underpinned by the recognition that states

accede to the Rome Statute aiming to make a promise to deter mass atrocity and so join the

Rome Statute to ensure that this outcome will be obtained. The ICC was in effect envisaged as an

institution that will allow the international community to fulfill both its duty to protect and the

post-Nuremburg promise of ending genocide and crimes against humanity. The ICC thus has a

legal and political imperative to make its promises of prosecution, credible, or risk irrelevance.

As a result of the prosecutors request for summons against the six suspects, parliament passed a

resolution on December 22, 2010 calling for Kenyas withdrawal from the Rome Statute. The

other consequence of the request was that the government (or part of it) embarked on an

initiative to use the African Union (AU) to lobby the United Nations Security Council to defer

the proceedings under Article 16 of the Rome Statute. The rationale for the deferral request is to

allow Kenya to deal with the alleged crimes. The last initiative is the announcement by the

1 LLB (Hons) The writer is a bar candidate at the Kenya School of Law.


2/7

countrys Attorney General, Justice and Foreign Affairs ministers that the government go before

the court to challenge the courts jurisdiction on the basis of the principle of complementarity.

The alternative of withdrawing is legally weak inasmuch as the state remains obliged to

cooperate with respect with respect to ongoing proceedings as envisaged in article 127(2),

although the state in question could still avail itself of its rights under the principle of

complementarity. In any case the sovereignty argument the basis for this argument is also

misguided, the proponents of the withdrawal argued in parliament that Kenya being a sovereign

state could withdraw from the Rome Statute and thus will not be bound by any obligation to the

ICC. A review of the modern conception of the doctrine of sovereignty does not avail to them

this argument.

French political thinker Jean Bodin offered the first systematic approach to the theory of

sovereignty in his work, Lex Six Livres De La Republique in 1576. He defined sovereignty as

States supreme authority over citizens and subjects. Half a century later in 1625, Hugo

Grotious in his seminal workDe Jure Belli ac Pacis Libris Tres, maintained that the laws

governing relations among nations must first safeguard the sovereignty of states themselves

holding that the rules preventing interference in another states jurisdiction would safeguard this

sovereignty. Following the Thirty Years War, the 1648 Peace of Westphalia attempted to codify

an international system based on the coexistence of a plurality of states exercising unimpeded

sovereignty within their territories thus enshrining untrammeled state sovereignty and freedom

from outside interference as the foundation of modern international law.

Although some (including Kenyan parliamentarians) still insist that states are supreme, reality

points to the fact that international law norms have developed rules whose aim is to modulate the

behavior of states. This implies violation of or intrusion upon local authority. International penal

process has significantly contributed to the overall concept of sovereignty. The significance of

international penal process and its accompanying tenet of international justice reflects anevolution in the perception of sovereignty heralding a qualitative shift which necessitates an

ethical vision in which human values supersede state rights. Thus though states remain the

principle actors on the international scene, there is a limitation on their internal power authority

manifest in the international penal institutions like the ICC and ad hoc criminal tribunals in the

enforcement of international criminal and humanitarian law.


3/7

The Security Council deferral approach is also bad in law. The power of the Security Council

over ongoing proceedings before the ICC is that the council can adopt a resolution under Chapter

VII of the UN Charter requesting the court not to commence an investigation or prosecution, or

to defer any proceedings already in progress. The Kenyan request is fundamentally flawed as it

not only misinterprets both the Rome Statute and the UN Charter through its expanded

construction of the Security Councils Chapter VII authority, more fundamentally, it conflates

the principle of complementarity and the realpolitik exception in article 16 that allows

international peace and security to temporarily suspend the pursuit of justice. Not only does this

weaken the former in principle, more practically it means that any respite Kenya receives from

the Security Council will be temporary-article 16 requires the annual renewal of any deferral-

whereas the proper exercise of complementarity would offer a permanent opportunity for Kenya

to pursue domestic mechanisms (on condition that the government is willing to and able to

prosecute the offenders domestically).

A deferral under article 16 of the Rome Statute can be used only if the UN Security Council

determines that there is a threat to international peace and security. Not even the most pessimistic

assessment of the ICCs involvement in Kenya would characterize it as such. This argument has

at its core an expansive reading of the notion of threats to international peace and security.

However, the proponents of the deferral can find solace in that there seems to be precedent for an

expanded reading of the scope of Chapter VII of the United Nations Charter. This view is

informed by the language used by the Council in SC Res 1315(2000) on the Special Court for

Sierra Leone that in the particular circumstanceswould contribute.to the maintenance

and restoration of peace.

At any rate, the African Unions support for the deferral seems to be founded on the misguided

notion that the ICC has been focusing only on situations in Africa. (It should be noted that none

of the African cases apart from the Kenyan case was initiated at the prosecutors own motion, in

fact it is arguable that the Kenyan case was as was undertaken under the auspices of the AU

through the intervention of the Panel of Eminent persons and the Waki Commission). It must be

recalled that the African Union was behind a similar request for deferral regarding the Al-Bashir

case. In any case the Al-Bashir case request could be argued to have been justified given the

international concern for the war in Darfur and the need to guarantee a peaceful referendum in


4/7

South Sudan that needed the co-operation of Sudan. The outright refusal by the Security Council

to accept such a request is instructive and suggests a similar fate for Kenyas request.

Indeed pursuing Security Council resolution under article 16 is fools errand: the temporary

suspension of the threat of prosecution (and of the need to resort to domestic prosecutions to

avoid it) is certain to expire when the political configurations in the Security Council changes, as

we saw with SC Res. 1422. (On July 12, 2002 upon the entry into force of the Rome Statute, the

Security Council passed resolution 1422 at the insistence of the United States granting immunity

from prosecution UN peace keeping personnel from countries that were not party to the ICC;

however, the Security Council refused to renew the exemption again in 2004 after pictures

emerged of U.S. troops abusing Iraqi prisoners in Abu Ghraib, and the U.S. Withdrew its

demand.)

The deferral request conflates two distinct aspects of the ICC: the power given at Rome to the

Security Council to halt proceedings for one year in order to maintain peace and security, and the

principle of complementarity which ensures that the ICC is a court of last resort that intervenes

only when national jurisdictions are unwilling or unable to do so. These two processes have

differing ends and means, but Kenyas request seeks to use the means of article 16 to further the

end of complementarity. While it is possible that the two may align they do not in Kenyas case.

The ICCs jurisdiction is subject to the regime of complementarity described in article 17 of the

Rome Statute, under which the ICC must find a case inadmissible if it is being prosecuted by

competent national authorities. (the alternative of complementarity jurisdiction is primacy

jurisdiction) Because a state can avoid prosecution of its nationals by initiating a credible

investigation or prosecution, the only states likely to have their nations prosecuted are those that

either (1) want prosecution to go forward (say because of domestic regime change) and wish the

international community to bear the costs of prosecution; or (2) have too little state capacity to

initiate a credible prosecution or investigation. Kenya forms a potential third category: arecalcitrant state that wishes to avoid prosecution.

More than being a presumption in favour of local prosecutions, the principle of complementarity

is at the heart of the ICC system. Aside from easing the concerns of states over threats to their

sovereignty, the principle serves nobler ends, such as the utility of local prosecutions, and


5/7

recognises the very real limitations of an ICC with potentially universal jurisdiction.

Therefore, should Kenya genuinely wish to conduct local trials, there are a number of reasons for

allowing it to do so. First, it would relieve pressure on an already overburdened ICC. Second,

should Kenya be allowed to do so, it would have positive effects for the ICC beyond diluting the

mounting tension in the country. It would demonstrate to detractors in Africa that the ICC is

designed to function only when national legal systems are unwilling or unable to prosecute

international crimes. Third, complementarity has never been put to any real work, even though it

is designed as an integral part of the Rome System. If the principle is to become effective, it must

be taken to a test drive. Kenya presents an opportunity to do so.

Fourth, there is a danger in refusing Kenya the opportunity to exercise its jurisdiction over the

crimes under the principle of complementarity. Kenya has one of the best developed judiciaries

in Africa. It is also one of the few African states to have domesticated the Rome Statute, and the

resulting legislation is impressive and progressive. In fact, until recently, Kenya was a model

ICC state. If Kenya does not meet the threshold of complementarity, the implication is that

neither would the overwhelming majority of African states, making the principle a dead letter in

Africa. This would be a sad reflection on domestic legal systems in Africa, and would embolden

those who wish to present the ICC as an imperialistic mechanism on a civilizing mission.

The late Thomas Franck (T. Franck, The Power of Legitimacy among Nations (1990))postulated

that the legitimacy of international norms and institutions rested in large part upon certain

important factors, notably whether the norm or institutional process was validated through

commonly accepted means, whether it was clearly understood by those upon whom it operated,

whether it cohered with other norms and institutions, and whether it was well-grounded in

secondary rules of international law concerning law formation. Thus given that the ICC depends

heavily on perception of its authority to galvanize the support of states and non-state actors, and

without which support, the ability of the ICC to investigate suspects, to take into custodyindictees, and to issue authoritative decisions will be severely inhibited if not crippled. Thus

Franck posited that the greater the legitimacy enjoyed by a rule or institution, the greater the

degree of compliance that the rule or institution would command. Where an international rule or

institution lacked legitimacy, its compliance pull would be very weak.


6/7

Procedurally speaking, Kenyas dilatory response to the atrocities means it has already missed

chances to halt proceedings on the basis of complementarity. The limit on complementarity

challenges is set out in article 19(4): The challenge shall take place prior to or at the

commencement of the trial, or exceptionally later if it is based on double jeopardy

considerations i.e. article 17(1) (c). However, complementarity is in substance a continuing

assessment. To consider it formalistically-as a static determination reified in time- would allow

the ICC to turn a blind eye to positive legal developments and undermine the principles worth.

Presuming there is genuine political will in the country to pursue a local mechanism, the

countrys envisaged domestic prosecutions might be accommodated by the prosecutor exercising

his discretion under article 53(4) of the Rome Statute to halt his investigation on his own accord

based on new facts and information. There is no direction on the statute on what new facts and

information might form the basis for such a decision, but the initiation of local proceedings could

qualify.

What is more, there is no limitation on when such a decision can be taken. Based on the

increased push for the country to be allowed to deal with the matter itself, the prosecutor might

use this article to conditionally suspend his investigation on the understanding that Kenya

pursues its own investigations and prosecutions. The prosecutor could then monitor the

proceedings in Kenya and if, he is not satisfied with them, either resumes his investigations or (if

necessary) approach the pretrial chamber for a renewed mandate to do so.

But there are reasons for the prosecutor to be cynical about Kenyas newfound enthusiasm for

domestic trials, this is given the absence of a guarantee that the ICC will secure the countrys

cooperation in any ICC-related investigation in the future. The framers of the Rome Statute

foresaw any attempt at political maneuvering that many suspect the Kenyan government to be

engaged in. They guarded against it by insisting that the complementarity principle may not be

abused by a state merely wishing to shield its own from justice. If that was the true domesticmotive for invoking complementarity, then the framers made it clear that the ICC would close

the impunity gap and be accorded jurisdiction.

If Kenyas complementarity request is approved, that success would place a heavy burden on the

country-to show the world that its courts and prosecutors are genuinely willing and able to


7/7

prosecute domestically. Kenya should thus be careful what it wishes for. And if Kenyas

posturing is a political ploy to protect its powerful, then the ICC will remain in the picture.

Article 17 of the Statute outlines processes for judicial review of national court decisions. Under

the theory of complementary jurisdiction, the ICC can exercise jurisdiction if a state shows an

unwillingness or inability to genuinely prosecute crimes. The ICC will be able to assume

jurisdiction over a person who has already been subjected to court proceedings in a domestic

court if the ICC determines that the proceedings were undertaken for the purpose of shielding

the person concerned from criminal responsibility, or were otherwise not conducted

independently and impartially. This determination lies solely with the ICC itself. Thus any quest

or hope of evading justice through a local process is misguided and wishful thinking.

Documents

Which Way Kenya on Icc Proceedings