Kenyan ICC Cases a Good Test of an ICC Founding Principle

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Max Du Plessis is associate professor at the University of KwaZulu-Natal and Senior Research Associate at the International Crimes in Africa Programme of the Institute for Security Studies. Chris Gevers is a lecturer at the Faculty of Law at the University of KwaZulu-Natal.

Kenya has recently become the epicentre of growing tension between the International Criminal Court (ICC) and Africa. Last month, the ICC prosecutor asked the court’s pretrial chamber to issue summons for six people on the grounds that they committed crimes against humanity in the post-election violence in Kenya in 2007 and 2008 (which claimed more than 1000 lives). The chamber, currently considering the request, authorised the prosecutor’s investigation in March 2009, partly on the basis that, despite indications that it would do so, Kenya had failed to seriously investigate the violence.

Aside from this investigation, Kenya’s relationship with the ICC came into the spotlight after its decision to thumb its nose at the ICC and invite President Omar al-Bashir of Sudan, wanted by the ICC for crimes in Darfur, to the launch of its new constitution last year (see here). The profile of the “O’Campo Six” has inflamed Kenya’s growing anti-ICC sentiment: it includes three senior government officials, one of whom is the son of Jomo Kenyatta, the “father of the nation”.

The latest move by prosecutor Luis Moreno O’Campo has thus sent Kenya’s political elite into reactive overdrive. Kenya’s parliament passed a resolution on December 22 calling for Kenya’s withdrawal from the Rome Statute, which founded the ICC. That decision prompted a backlash from civil society in Kenya and beyond. Although the threat of withdrawal remains in the wings (see here), the immediate focus has apparently shifted to using the African Union (AU) summit next week to procure an AU resolution requesting the United Nations (UN) Security Council to defer the proceedings in Kenya under article 16 of the Rome Statute. Although the strategy clearly does not enjoy the support of all parties in Kenya’s coalition government, Kenyan Vice-President Kalonzo Musyoka maintains he has a mandate “as the special envoy of the p resident of the Republic of Kenya”.

Internal schisms aside, the deferral strategy has gained momentum over the past week, and reportedly has the support of key countries such as South Africa (SA), Nigeria and Ethiopia. Surprisingly, the rationale given for the deferral appears to be to allow the Kenyan authorities to deal with the alleged crimes.

This deferral approach should be discouraged. First, it is bad in law. A deferral (under article 16) 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 ICC’s involvement in Kenya could characterise it as such.

Second , it is unlikely to succeed within the security council. And notwithstanding reports of SA’s support for Kenya’s agenda, upon proper reflection, SA should balk at such an expansive reading of the notion of threats to international peace and security. SA’s siding with Kenya is in contrast with Pretoria’s previous attempts to curtail the security council’s “mission creep” — witness SA’s position on Zimbabwe and Burma.

The request is likely to be associated with a now established pattern on the part of African states (who have made the same request in respect of al-Bashir) to seek deferrals in cases in which political elites are implicated. The outright refusal of the security council to accede to the al-Bashir request suggests Kenya’s request faces a similar fate. The danger is that the request is a hopeless political gesture.

It is difficult not to conclude that it is designed to fail and increase the divide between the ICC and Africa.

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 international 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 the 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 Kenya’s case.

For supporters of the ICC’s investigation in Kenya the request has thus been rejected out of hand.

There are, however, a number of reasons to consider closely Kenya’s reliance on the complementarity principle. More than being a presumption in favour of local prosecutions, the principle of complementarity is at the heart of the ICC’s system. Aside from easing the concerns of states over threats to their sovereignty, the principle serves more noble ends, such as the utility of local prosecutions, and 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 Kenya. 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 for 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 domestically implemented 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 for complementarity, the implication is that neither would the overwhelming majority of other 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 “civilising mission”.

Procedurally speaking, Kenya’s dilatory response to the atrocities means it has already missed chances to halt proceedings on the basis of complementarity. However, complementarity is in substance an continuing assessment. To consider it formalistically — as a static determination reified in time — would allow the ICC to turn a blind eye to positive domestic developments and undermine the principle’s worth.

Presuming there is genuine political will in Kenya to go it at home, Kenya’s newfound vigour for 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 or information. There is no direction in the statute on what new facts of information might form the basis of 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 by Kenya to be allowed to deal with the matter itself, O’Campo 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 resume his investigations or (if necessary) approach the pretrial chamber for a renewed mandate to do so. This would be a unique example of complementarity at work.

Naturally, any decision on complementarity would involve weighing difficult factors. To push ahead with the ICC’s investigation might further alienate Africa at a time when the ICC and the continent are locked in an antagonistic dance. It is also not clear that the ICC will be able to secure Kenya’s future co- operation in any ICC-related investigation. So, too, the prosecutor will have every reason to be cynical of Kenya’s newfound enthusiasm for domestic trials, just as Kenya’s victims of mass atrocities ought to be exhausted by the tired slogan of “African solutions for Africa’s problems”. The drafters of the Rome Statute foresaw the risk of such political manoeuvring. 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 domestic motive for invoking complementarity, then the drafters made it clear that the ICC would close the impunity gap and be accorded jurisdiction.

If Kenya’s complementarity request is approved, that success would place a rightfully heavy burden on Kenya — to show the world that its courts and prosecutors are genuinely willing and able to prosecute domestically. Kenya should thus be careful what it wishes for. And if Kenya’s posturing is a political ploy to protect its powerful, then the ICC will remain in the picture — something a large majority of Kenya’s population have all along insisted is a good thing.

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Bruce Broomhall says

February 9, 2011

Professor Du Plessis,

A helpful summary of the situation. Just to add a word on each of the three exit points (complementarity, withdrawal, Security Council deferral), the limit on complementarity challenges is set out in art. 19(4): "The challenge shall take place prior to or at the commencement of the trial," or exceptionally later if it is based only on double jeopardy considerations (art. 17(1)(c)). This and the rest of article 19 undoubtedly gives Kenya ample room in the event it wanted to avail itself of this principle, without needing recourse to art. 54.

The alternative of withdrawing is of course legally weak inasmuch as the State remains obliged to cooperate with respect to ongoing proceedings (art. 127(2)), although the State in question could still avail itself of its rights under the principle of complementarity.

Pursuing Security Council deferral under art. 16 is indeed a fool's errand: the temporary suspension of the threat of prosecution (and of the need to resort to domestic proceedings to avoid it) is certain to expire when the political configuration in the Council changes, as we saw with SC Res. 1422. To your argument regarding the expanded scope of Ch. VII a proponent of deferral might reply that language could be added seeking to neutralize such an interpretation ("in the particular circumstances ... would contribute ... to the maintenance and restoration of peace," as the Council said in SC Res 1315 (2000) on the Special Court for Sierra Leone), but this would be cold comfort to States truly concerned about the precedent. Those closer to the diplomacy can judge whether the strategy is really driven by the political calculation that it is best to throw the request at the SC only to see it fail, the better to justify non-cooperation from behind the shelter of an anti-Africa argument.

Bruce Broomhall
Professor of Law, U. of Quebec at Montreal
Visiting Fellow, Liu Institute for Global Issues (2010-2011), UBC

Samuel Kamau says

March 6, 2011

A good analysis of the Kenya case. However we the ordinary non-political class in Kenya know too well that there is no genuine urge to try anyone at home. This is just another scheme to allow for the protection of the political untouchables in Kenya. We know and they too know so well that they want a local process that they can influence. One of the ICC suspects has cases in courts in Kenya and the files in his cases keep missing mysteriously. Certainly none of them can go steal and destroy case files at ICC therefore for the sake of justice to the weak and non-politically connected citizens of the republic of Kenya who suffered in the hands of these lords of impunity, they must be tried in an environment where their power and influence cannot stand on the way of justice. ICC gives us that platform. Trials for the complementarity can be done with the upcoming Libyan case but not in Nairobi.

obuya says

March 8, 2011

good work.Go ahead and complement the work the Kenyans want but a majority of the political class is unwilling to do.When did the Kenyan government sit down to negotiate with a chicken thief?they fill Kenyan priisons and they are made to sing and dance for murderers whenever they visit the prisons.The hague is such a good gift to Kenyans.Long live Mr Ocampo.can Occcampo's term be renewed as a reward for his good work?

kinyanjui says

March 8, 2011

the six should go to hague, since the judicial system is full of corrupt judicial officials, from the cleaners to judges, most are corrupt more than the devil.. ask any ordinary kenyan who has been through a judicial process..its murky and messy. However it would be unfair to take the six without the president and the prime minister ,they are the main culprits. And further the US goverment should keep off, ICC issues with Kenya. Since its the leading country with crimes against humanity

Kennedy says

March 9, 2011

This is the time that Kenyan people should rise up and take up the positions about to be left by the Ocampo six.We dont want those who tend to politize everything but we want leaders who can motivate every Kenyan to do the impossibles.The Motive of the defferal is not to put our house in order but we a farmiliar the Kenyan system of delaying justice,obstruct the public and eventually forget the priorities.

bob dobchinsky says

March 10, 2011

Dear Professor, it is all good except that since 2008, there is nothing to show for the great Kenyan effort at preosecution. Secondly, we only have 6 of the possible hundreds if not thousands of other suspects. Let Kenya proceed from number 7 onwards but these 6 should be shipped off to the Hague like last week!

Tony says

April 4, 2011

The real suspects are well know, where are those leaders who cal 4mass action? The six are innocent

jonny cusson says

April 5, 2011

There is no need to worry if these people are innocent