ICC in the Media, Update #6

This week the media has remained focused on the investigation in Kenya, particularly in light of Mutula Kilonzo's (a powerful government MP) recent remarks opposing the ICC's involvement. Kilonzo's comments have forced the international community to again question Kenya's support of the ICC investigation, which was doubted only a month ago by Kenya's failure to arrest Omar al-Bashir. This loyalty has been further called into question by a Mombasa man who has brought suit in a Kenyan court alleging that the ICC probe is inconsistent with the newly adopted constitution. The details of Kilonzo's actions as well as the court proceedings have been summarized by NTV Kenya in the following clip:

In the face of this opposition, several prominent Kenyan MPs have stood up for the ICC's involvement in the region, and have publicly accused Kilonzo of trying to "derail" the justice process. In addition, a recently released poll documents that the majority (54%) of Kenyans are in favor of an ICC trial, with the remainder split between forgiveness and use of local tribunals. Local media has been saturated with criticisms of those opposing the ICC investigations, claiming that they are trying to sabotage Kenya's new start and they underestimate the power of the ICC in preventing future election violence.

The ICC has also responded to Kilonzo's statements, with Chief Prosecutor Ocampo stating that he is confident that Kenya will cooperate with the investigation, and that Mr. Kilonzo himself has reaffirmed his commitment to the ICC. The Office of the Prosecutor will be relying on this cooperation while its detectives perform investigations in Kenya from September 27 - 29, 2010. Photo credit: Daily Nation.

ICC in the Media, Update #5

As we mentioned last week, the ICC recently opened an office in Kenya to facilitate its ongoing investigation into the 2007-8 post-election violence. Although only two weeks have passed since this show of support for the ICC, a prominent member of Kenya's government has spoken out against continuing to support the ICC case. Kenya's Justice and Constitutional Affairs Minister Mutula Kilonzo has publicly stated that, in light of the new constitution, the ICC should "keep off" Kenya. He has argued that the new constitution provides for a new police and judiciary, which would be capable of serving justice for the election violence domestically. However, many have come forward criticizing Kilonzo's statements. Some say that the reforms Mutula is relying on will take at least several years to implement, and this is unacceptable to the victims who have been waiting years for justice. Others reply that Kenya is bound to cooperate with the ICC due to its status as a state party, which it must respect. Lobby groups have responded that Kilonzo's stance is a "betrayal of Kenya's commitment to end impunity for human rights atrocities." Others wonder whether such institutions, when formed, would be credible enough to prosecute those responsible.

In other news, on September 17, 2010 the Arab League backed the African Union's resolution not to comply with the ICC arrest warrant against Omar al-Bashir of Sudan. The ICC and international community haver yet to comment on this development. Photo Credit: Daily Nation.

ICC in the Media, Update #4

The ICC has received less coverage in the media this week in comparison with recent weeks describing the Bashir in Kenya incident. However, the event is still generating media attention, primarily concerned with the consequences of Kenya's choice to ignore its ICC duties. Some, such as the Institute for Democracy & Leadership in East Africa (IDEA) have criticized Kenya's choice domestically, saying that the invitation compromised Kenya's commitment to justice, rule of law, and democracy. Other criticisms have come internationally, such as from the EU Parliament, who has censured Kenya for its actions and plans to ensure the item is fully addressed at the upcoming Tripoli Summit. In other news, the ICC has begun distributing ICC educational materials in Kenya to aid the new office approved last week dedicated to the on-going investigation into the 2007-2007 post-election violence. 200,000 booklets entitled "Understanding the ICC" have reportedly been distributed through a popular newspaper, and are hoped to provide answers to questions Kenyans may have about the investigation and the ICC. The witnesses gathered throughout the investigation, reportedly comprised of 320 individuals and 76 communities, are said to be supportive of a speedy and complete investigation, including inquiry into the roles of President Kibaki and Prime Minister Odinga in the violence. Although this move is outlined within the Waki Report, it is unclear whether the Office of the Prosecutor has investigated these figures yet.

ICC in the Media, Update #3

Last week Kenya refused to honor its commitment to the ICC by failing to arrest Bashir, causing international confusion and concern over Kenya's stance on the Court. However, recently Kenya has restated its desire to support and cooperate with the ICC in what is being characterized as an attempt to absolve itself for the Bashir incident. On Friday, September 3 Kenya agreed to let the International Criminal Court set up office within the country to facilitate the on-going investigation into the 2007-2008 post-election violence. The new office, confirmed during the Registrar's recent visit to Kenya, will allow the Office of the Prosecutor to identify perpetrators, collect evidence, and interview witnesses while enjoying logistical support, immunity, enhanced security and victim and witness protection programs. Although many political officials are supportive of the ICC's investigation, others are against it or are concerned about who may be implicated by the Prosecutor. Ocampo, set to finish the investigation by the end of this year, has reportedly collected 396 witnesses prepared to testify at the Hague against potential perpetrators. Amidst these developments the U.S. has spoken out in support of Kenya's cooperation with the ICC in seeking justice for the 2007-2008 post-election violence.

After Refusing to Arrest Bashir, What's Next for Kenya?

In light of Kenya’s unwillingness to arrest Omar al-Bashir, president of Sudan, who is wanted by the ICC and visited Nairobi last week, Pre-Trial Chamber I notified the UN Security Council and the ICC Assembly of States Parties (ASP) of Kenya’s failure to cooperate and asked them to “take any measures they may deem appropriate." Earlier this year the African Union called on its members to refuse to comply with the ICC. Kenya has claimed that their failure to cooperate stems from these AU obligations and a need to keep to keep the peace.

President Omar al-Bashier attending ceremonies in Kenya last Friday.
(Photo by AFP)

This situation has ultimately become a question of competing obligations. Is Kenya bound by AU, UN, or Rome Statue obligations?

There is a common belief among international legal scholars that there is a hierarchy to international obligations. The UN Charter tops the list, with regional economic partnerships falling somewhere near the bottom. Many would agree that Kenya’s first international obligation is to the UN Charter, then to the Rome Statute, and finally to their AU partnership. Taking this hierarchy in to account, it seems that Kenya has not lived up to its legal obligations on several levels. Al-Hadi Shalluf, a French-Libyan lawyer, has explained that the AU resolution did not overrule the Rome Statute. He claimed that “the AU is a regional organization and it is recognized by the United Nations, but it has no authority and no mandate to break international law."

We know from Otto Triffterer’s analysis of the Rome Statute that any failure to comply with the Rome Statue by an ICC State Party is “tantamount to an internationally wrongful act”. He goes on to explain that the Security Council has the authority to urge compliance, condemn the non-cooperating State Party, or, in the most extreme circumstances, call for economic sanctions. The ASP also has the authority to review the situation and make any recommendations as long as they do not conflict with the UNSC. Consequently, Kenya also has obligations stemming from the UN Charter. UNSC Res 1593 (2005) requires Sudan (an ICC non-State Party) to cooperate with all ICC investigations and “urges all States and concerned regional and other international organizations to cooperate fully.”

By not arresting al-Bashir it appears that Kenya has called into question its commitment to the ICC. Kenya is currently under investigation by the ICC for crimes that were allegedly committed following the 2007 election. Some have claimed that failure to assist with other current ICC cases may ultimately harm the justice process within Kenya. Alison Smith, legal counsel with advocacy group No Peace Without Justice, stated that "if the political will is not strong enough to prevent them extending an invitation to al-Bashir to come to Kenya, we have to question if it will be strong enough to extradite suspects from Kenya."

Widespread post election violence in Kenya killed 1,200 and
displaced over 350,000 in 2007. (Photo: Ben Curits/AP)

Would a slap on the wrist from the UN Security Council or the ASP make future cooperation from Kenya any more likely? Given these recent developments in Kenya, the Office of the Prosecutor is already planning to issue sealed arrest warrants, just in case.