On October 6, Prof. Meyer posted an article “Kenya’s dubious
day in Court”, where he describes President Kenyatta’s case before the
International Criminal Court as an “outright farce” and also the Court as a dispenser
of “white man’s justice”. Meyer
concludes that the “World needs an International Criminal Court, not just this
one”. However, Meyer’s main points are
not supported by the procedural history of the case and ignores its future
impact for African domestic justice systems and for the international community.
In particular, Meyer’s analysis doesn’t mention the hundreds
of thousands of African victims who died in the systematic attack during the
Kenyan elections in January 2008. The violence left 1,200 people dead and
displaced tens of thousands more, becoming the worst violence in Kenya since
its independence. As a result, 233 persons have been granted the status of
victims to participate in the Kenyatta trial. This is a remarkable result that
the ICC has achieved and fits perfectly with Kenya’s historical relationship
with the Court and its mandate. As Meyer states in his article, Kenya was a
strong supporter of the Court and of its mandate to end impunity for
perpetrators of the mot heinous crimes. The public opinion in Kenya will not
forget the likelihood that their President was behind the widespread and
systematic attack against the non-Kikuyu population.
First, Meyer underlines that the Court’s reputation has
fallen due to the Prosecutorial decision to postpone first and then to suspend
the beginning of the Trial. These factors, according to Meyer, will support the
charge that “American and European neocolonialists are conspiring to bring the
President and his Deputy down”. Instead, this decision respects and complies fully
with a basic criminal law principle of fair trial contained in Art.64 of the
Statute:” It is in the interest of both defendants and victims that the trial
will be fair and expeditious and is conducted with full respect for the rights
of the accused and due regard for the protection of victims and witness”.
Meyer argues that the
ICC is serving the interest of “white people”. However, the Court is serving
instead the interest of Kenyan victims putting an end to sitting Heads of
States’ impunity. In fact, the legal representatives’ team clearly states that
“it’s in the interest of the victims that the accused appear in person at the
Court”. The Trial Chamber has ruled that “the Common Legal Representative may
file responses to documents but must first demonstrate that the subject matter
at issue is directly related to the interests of victims”.
In meetings between this Unit and victims in Kenya from late
January 2013 until September 2014, the issue of the ‘presence’ by video link of
the accused at trial has been overwhelmingly opposed. They are aware that
persons accused of far less serious crimes than Mr Kenyatta are required to be
physically present in the courtroom in Kenya”. Therefore, the Court is serving
the interest of Kenyan people, not of anybody else.
Furthermore, if the Court was politicized as Meyers argues,
then it would be difficult to understand why most of African situations have
been brought to the Court by States referrals. Uganda, the Democratic Republic
of the Congo, the Central African Republic and Mali – have referred situations
occurring on their territories to the Court. In addition, the Security Council
has referred the situation in Darfur, Sudan, and the situation in Libya – both
non-States Parties. On 31 March 2010, Pre-Trial Chamber II granted the
Prosecution authorization to open an investigation on her own initiative in the
situation of Kenya. Therefore, the ICC’s Prosecutor has never tried to target
Africa inappropriately for political reasons, nor ever has conspired against
its citizens pushed by a neocolonialist idea.
The parallel drawn by Meyer between Uhuru Kenyatta’s trial
and the 1952 trial of his father Jomo Kenyatta when Britain colonial
authorities trumped up charges against him and created false witnesses is very
anachronistic. It certainly does not apply to an independent and impartial
trial whose only goal is to establish justice and to prosecute whoever was
responsible for these most heinous crimes in Kenya.
The lack of evidence which caused the Prosecutor to adjourn
the trial on 19 December 2013 and then the Trial Chamber to suspend it on 19
September 2014 only results from a lack of cooperation between the Government
of Kenya and the Court. The Kenyan government has not complied with the
outstanding cooperation request made on 8 April 2014. This circumstance shows
the unique nature of the ICC: a Court of last resort on one hand and a catalyst
for domestic implementation of International criminal law. If the Kenyan
criminal system had been able to prosecute these crimes, then the ICC would not
have had jurisdiction over any of its nationals.
Moreover, the ICC’s insistence that Kenyatta attend the status conference,
as Meyer claims, is not an action of a “colonial star chamber, with the judges
less concerned about administering justice than affirming the court’s own
standing in the face of eroding support”. Instead, it is
a clear example of the impartiality of the law, establishing that no one is
above the law and enforcing the right of victims to justice.
Paraphrasing Meyer, “the World needs an international criminal court”,
the ICC is it.
Written for AMICC by Miriam Morfino on 10/07/2014
1 comment:
Thiss was lovely to read
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