ICC in the Media, Update #19

This week the media has once again focused on the ICC's involvement in Kenya. We mentioned last week there were reports indicating that Kenya was seeking aid from the African Union to defer the case until Kenya can pull out of the Rome Statute. Reports this week confirm that a high ranking team of cabinet members led by VP Kalonzo Musyoka have visited fellow African nations seeking support to petition the Security Council to defer the situation in Kenya. The deferral, as set out in Article 16 of the Rome Statute, would last for a year and could be repeated by the Security Council a number of times. This plan reportedly suffered a serious setback on Tuesday at the AU Summit in Addis Ababa when the African Union rejected Kenya's request for the AU to help block ICC prosecutions. However, China has said that it will support Kenya from interference in internal affairs. In the interim the ICC has urged Kenya to deal directly with it as opposed to rallying the African Union. Head of the Assembly of State Parties Christian Weneweser has said that if Kenya is serious about setting up national proceedings, as Musyoka and President Kibaki have claimed, then the ICC will try to support it.

Many members of civil society oppose the government's attempt to escape ICC prosecution. MP Martha Karua has warned that avoiding the ICC may best aid the powerful in the 2012 elections, but it will have lasting negative consequences on everyday citizens. Furthermore, the government itself appears not to be unified on the issue of a deferral. Musyoka, in his campaign across the continent, purported to speak on behalf of President Kibaki. However, Prime Minister Odinga, who has spoken out against the deferral and Kenya's pulling out of the ICC, has confirmed that he was not consulted on Musyoka's activities.

In other news, Callixte Mbarushimana, wanted for crimes in the Democratic Republic of the Congo, has been handed over by the France to the International Criminal Court so that it can begin its proceedings against him. Witness testimony continues in the Jean-Pierre Bemba trial. Witnesses claim that Bemba's soldiers raped and sodomized them, often in front of their families. Finally, reports surfaced this week that South Sudan is considering becoming a member to the ICC if it secedes. Preliminary results from the referendum indicate that secession is likely. Photo Credit: Capital FM.

ICC in the Media, Update #18

For the past several weeks the media has primarily focused on the situation in Kenya. The ICC Prosecutor's naming of six potential perpetrators has stirred a great deal of controversy within Kenya and internationally. Reportedly members of Parliament passed a motion in late December asking the government withdraw its membership from the Rome Statute. Thusfar, neither the President nor Prime Minister has confirmed that they will withdraw. This move has attracted criticism within Parliament, Kenya and the international community. However, Article 127 of the Rome Statute stipulates that the withdrawal process takes over a year, during which time Kenya may be required to cooperate with existing investigations, according to the Kenya National Commission on Human Rights. Furthermore, a new poll has indicated six out of ten Kenyans want the ICC's involvement in post-election violence to continue. Several members of the government appear to have urged other countries to withdraw from the ICC, and are reportedly seeking African Union backing on Kenya's withdrawal. The government has not yet filed a motion asking the other countries within the AU to break their ties with the ICC, and it is not clear whether it intends to. In any event such a motion would take up to 60 days to be admitted for discussion. In early January Henry Kosgey, one of Kenya's named perpetrators, resigned from his position as Industrialization Minister after several corruption allegations. In other news,Callixte Mbarushimana, wanted for war crimes in the Democratic Republic of the Congo, will reportedly be transferred from France to the ICC by the end of January. After he is transferred to the Hague his trial can commence. Photo credit: Voice of America.

John Bolton Warns of ICC's Threat to US Sovereignty in Criticism of Customary International Law

In a new commentary by John Bolton, the former State Department official and US Ambassador to the United Nations argues that the Obama administration aims to subvert the US as a champion of the rule of law by imposing norms on it created through abuse of customary international law by the "academic Left." While recognizing that this type of law, which is based on the practice of countries, is at times sensible, Bolton goes on to imply that the International Criminal Court is one result of this perversion of customary international law which he views "as a fertile field for imposing [the academic Left's] own ideological standards internationally and binding countries to 'laws' they never explicitly approved."

In fact, the ICC was established and is governed by the Rome Statute treaty, hardly customary international law. Thus, Bolton's concerns that the "ICC's enormous potential prosecutorial power awaits only the opportunity to expand almost without limit" fail to recognize the limits placed on the ICC Prosecutor by the Rome Statute. These include jurisdiction limits based on persons, territory, time and the gravity of the crimes. In fact, as long as the ICC is not a State Party to the Rome Statute, the Court will not have jurisdiction over the United States and thus almost no ability to investigate US nationals.


UN Photo/Eskinder Debebe

Bemba Trial Resumes Today in The Hague

The trial against former Congolese Vice President Jean-Pierre Bemba Gombo resumes today in The Hague with the continuation of the prosecution case which began in November 2010. Bemba is charged with atrocities, including rape and gender crimes, allegedly committed in the Central African Republic by troops under his control. The trial is webcast on the ICC website with a 30-minute delay. The courtroom calendar is available here.