On Tuesday, 10 September 2013, the trial of Kenya’s Deputy President, William Ruto and his co-accused, former radio presenter, Joshua Sang, began before the International Criminal Court (ICC). The trial of Kenya’s President, Uhuru Kenyatta, is scheduled to start on 12 November 2013. Just a week ago, on 5 September 2013, the Parliament of Kenya approved a motion for the withdrawal of its membership from the ICC. If the bill is adopted, Kenya will become the first State Party to withdraw from the Rome Statute of the ICC.
The Rome Statute of the ICC allows a State Party to terminate its ICC membership by written notification addressed to the Secretary-General of the United Nations, who acts as a depository of ratifications. The withdrawal, however, takes effect one year after the date of the receipt of the notification. Article 127 of the Rome Stature clarifies that a State Party is not discharged, by reason of its withdrawal, from the obligations arising from the Statute while it was a Party to the Statute.
Kenya’s withdrawal would thus have no effect on the criminal proceedings against Kenyatta and Ruto which commenced prior to the date when the withdrawal might become effective. Kenya would continue to be under the obligation to fully cooperate with the ICC in connection with the trials of its two leaders. But as soon as the withdrawal would come into effect, it would preclude any investigation and prosecution of future international crimes by the ICC.
Although a withdrawal of one State as such should not greatly affect the ICC, Kenya’s termination of its ICC membership might be of much greater significance. It would constitute a withdrawal of one of the eight States the situations of which have been referred to the ICC and one of the two States the investigation of which has been triggered by the Prosecutor on his own initiative. It could potentially encourage other States to consider their withdrawals, particularly those States that have been under preliminary examination by the Prosecutor.
The ICC, unlike domestic courts, has no police force so it depends on States’ cooperation. If Kenya failed to comply with a request to cooperate, the Court could refer the matter to the Assembly of States Parties for further action. However, all the Assembly could do is to recommend resolution of non-cooperation issues through diplomatic means, such as through “good offices” intervention by the President of the Assembly, the effectiveness of which remains questionable.
Kenya’s efforts to stop the trials of Kenyatta and Ruto at the ICC
The decision to end its membership at the ICC is yet another attempt by Kenya to prevent the ICC from conducting effective proceedings against its leaders. While arguing that it has been fully cooperating with the ICC, Kenya has attempted a number of times to interfere with the ICC’s proceedings. For example, Kenya successfully lobbied the African Union for the latter’s support for the termination of the proceedings at the ICC and the referral of the cases for trial in Kenya. In May 2013, Kenya requested the UN Security Council to end the proceedings against its leaders, but the request has so far been ignored.
The ICC is also facing serious challenges in two other situations – Sudan and Libya – both referred to the ICC by the UN Security Council. Apart from Sudan’s persistent refusal to arrest and surrender its President Omar Al Bashir, States Parties such as Malawi and Chad had breached their obligations of cooperation by failing to arrest Bashir when her was on a visit to those countries. The ICC Judges have formally reported those breaches to the Security Council, but the Security Council has not yet taken any action. Similarly, the ICC’s authority continues to be undermined by Libya’s refusal to surrender Saif Gaddafi despite the Court’s repeated reminders that it is obliged to do so. The Court recently rejected the request to suspend the order for the surrender of Gaddafi pending the appeal of the admissibility decision, in which the Pre-Trial Chamber found that Libya was unable genuinely to carry out an investigation against Gaddafi and confirmed the admissibility of the case against him.
Controversies concerning Ruto and Kenyatta’s trials
The proceedings against the two leaders who are charged with crimes against humanity committed during the post-election violence in 2007 and 2008, which left more than 1,000 people dead and more than half a million displaced, have been plagued by controversy. Charges against two out of six original suspects were not confirmed due to a lack of evidence. The investigation has been bedeviled by problems of witness intimidation, bribery and disappearances. Due to security concerns, a number of witnesses have withdrawn their cooperation with the ICC. The accused, however, have been allowed to remain at liberty pending the trial which allowed them to campaign freely in the run-up to 2013’s presidential elections. The Prosecution, on the other hand, has been criticized for its failure to comply with its disclosure obligations, which resulted in the withdrawal of the charges against Kenyatta’s co-accused, Francis Muthaura, the former head of Kenya’s civil service. More recently the Nairobi High Court Judge reportedly decided to forbid the media and the public from following the proceedings at the ICC.
Although a person’s official position does not entitle him or her to immunity from prosecution before the ICC, the ICC is facing a difficult task in managing the conduct of the leaders’ trials in a way so as to strike the right balance between their ability to perform their functions and requirements of justice. The accused request to move the venue of their trial from The Hague to either Kenya or Tanzania, using the Rwanda Tribunal’s facilities, has been rejected by the Judges. In their decision, the Judges took into account the security and cost of holding proceedings outside The Hague, the potential impact on victims and witnesses, as well as potential impact on the perception of the Court. The accused have also requested for permission to be excused from their continuous presence during the trial. If their request is approved it would constitute a novelty in the practice of other international criminal courts, which require that the accused attend the hearings and stay in custody during the trial. Until the ICC renders a final decision on the modalities of the trial, Ruto is required to be physically present during the trial at the seat of the ICC in The Hague. Once Kenyatta’s trial begins, the sittings in the two trials may be organized in alternation so that the accused leaders are not away at the same time.
The proceedings against Kenya’s leaders play an important role in the assessment of the ICC’s effectiveness. If Kenya’s efforts to undermine the proceedings against Ruto and Kenyatta prove successful, the two trials may end up weakening the ICC’s authority and could damage the ICC’s long-term ability to ensure international justice. It is questionable whether the initiation of criminal proceedings relating to a State outside Africa could enhance the ICC’s credibility, but it could at least deflect accusations of bias on the part of the ICC against African States and their leaders.
Culled from iLawyer Blog
© 2013, Newstime Africa. All rights reserved. – Newstime Africa content cannot be reproduced in any form – electronic or print – without prior consent of the Publishers. Copyright infringement will be pursued and perpetrators prosecuted.
131 total views, 2 views today