ICC in the Media, Update #7

This week all eyes continue to be on Kenya as the investigation progresses. MP Mutula Kilonzo's comments opposing the ICC's involvement have now been rejected both domestically and internationally. Kilonzo has publicly attempted to clarify his position, saying he intended his support for local tribunals to encourage their formation in conjunction with the ICC, not as a replacement. ICC Prosecutor Luis Moreno-Ocampo has stated that Kilonzo reaffirmed his commitment to the investigation, and has made clear that it will continue as planned. In continuing the investigation the Office of the Prosecutor has begun collecting sensitive information from the Kenyan government's security meetings during the post-election violence. Although it possesses copies of the minutes, it has been met with opposition from security officials in trying to obtain originals. Security chiefs have refused to give statements to the Prosecutor and the government has refused to provide the original minutes from potentially crucial meetings. The ICC requires originals for the documents to be admissible as evidence; however, Kenya is hesitant to release them because the minutes include information unrelated to the investigation involving sovereignty and national security issues. The following video addresses the situation:

Some have come forward suggesting that this refusal is an example of top officials attempting to sabotage the investigation. It has been reported that they are also trying to sabotage the ICC's involvement by insinuating that the Court has targeted ethnic groups. On Friday a number of MPs from the Party of National Unity (PNU) stated that the ICC investigations had unfairly targeted the Kikuyu ethnic group as the perpetrators of the post-election violence. These remarks have subsequently been recognized as 'hollow', and have been called 'irresponsible' in light of the ethnic component of the post-election crimes.

In other news, Judge Richard Goldstone has publicly stated that the often invoked criticism that the ICC targets Africa is 'unfair'. He argued that the ICC is a court of last resort that is often self-referred by African states, which creates an unfair perception that the ICC picks on Africa. Photo credit: Daily Nation.

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.

ICC in the Media, Update #2

This week's media coverage has been dominated by one topic: the travels of Omar al-Bashir, President of Sudan. On August 27, 2010 Omar al-Bashir defied his ICC arrest warrant by visiting Kenya in celebration of its new constitution. Despite urges from the ICC and international community, Kenya failed to uphold its duty as a member state of the ICC to arrest Bashir during his brief visit. In response to this act of defiance, the ICC has reported the incident to member states and the UN Security Council. The Kenyan government initially defended its actions, saying that Bashir was invited because he is a neighbor and inviting him would enhance stability in the region, but the decision has been widely criticized. President Obama has released a statement expressing his "disappointment" that Kenya failed to arrest Bashir, and Kofi Annan has called for Kenya to clarify its position on the ICC in light of its actions. Several members of the Kenyan government, most notably Prime Minister Odinga, have called the decision to invite Bashir 'wrong'. Odinga has stated that Kenya should apologize to the international community, and especially to the ICC, for the incident in acknowledgement of its duties as a state party to the Rome Statute. On the heels of this controversy, reports have surfaced that Bashir will fly to Senegal on Sunday to take part in the Common Market for Eastern and Southern Africa (COMESA). Senegal, like Kenya and Chad before it, is also a member state to the ICC.

ICC in the Media, Update #1

This post is the first in a series of weekly updates of ICC media coverage. This past week there have been a variety of ICC developments in the media, including:

1) On August 18, 2010 Saint Lucia ratified the Rome Statute and joined the International Criminal Court. The Rome Statute will enter into force on November 1 for the nation, making it the 113th member state of the ICC.

2) The U.K.'s recent announcement of increasing trade with Sudan, despite Bashir's indictment by the ICC for atrocity crimes and in defiance of US sanctions, has generated significant backlash. Africa Minister Henry Bellingham has stated that such a policy will undermine international efforts to protect human rights and bring those responsible for the atrocities in Darfur to justice.

3) In the wake of the African Union's decision not to support the ICC's arrest warrant for Omar al-Bashir, President of Sudan, opponents of the Court have revived claims of anti-African discrimination by the ICC. However, this argument lacks force because, although all five situations are situated in Africa, three were referred by the countries themselves, one was referred by the UN Security Council, and one was opened by the Prosecutor with the support of the relevant member state. Regardless, some argue that opening a case outside the continent of Africa will be necessary to rebut this argument, but will be politically very challenging for the ICC to do without "stepping on the toes" of its member states.

4) Thomas Lubanga of the Democratic Republic of the Congo is in the midst of the trial appealing his release at the International Criminal Court. The appeals judges recently decided to allow victims of Lubanga's crimes to provide testimonials to the Court, even though they did not share their experiences in the original trial. The victims' submissions are to be presented to the Court today.

5) The Lord's Resistance Army attacks in Uganda, south Sudan, the Central African Republic and the Democratic Republic of the Congo continue. Since January, approximately 25,000 individuals have been forced from their homes by the LRA. Their leader, Joseph Kony is wanted by the ICC on charges of war crimes and crimes against humanity. National efforts backed by legislation, such as the US bill passed in May, are said to be important to apprehending Kony bringing him to justice.