In the early hours of July 17 1998, following four weeks of intense negotiations, the Rome Statute of the International Criminal Court (ICC) was adopted. Establishing for the first time a permanent international judicial mechanism to investigate and prosecute perpetrators of genocide, war crimes, and crimes against humanity, the treaty created not just a single institution, but an entire system of international justice.
BACKGROUND
The Rome Statute, which established the International Criminal Court, is one of the most progressive international legal instruments as regards to protection of human rights. The statute came into force on July 1, 2002 following ratification by 60 countries. The primary mission of the International Criminal Court is to help put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, and thus to contribute to the prevention of such crimes. It is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression.
This year’s day will mark the 20th anniversary of the Rome Statute. This anniversary year provides an unparalleled opportunity to take stock of the first two decades of the Rome Statute system of international justice; implement concrete measures to address the most pressing challenges facing the system as a whole; renew support of, and commitment to, the ICC; and, perhaps most importantly, look ahead to the future of the fight against impunity for international crimes in an increasingly complex global climate.
KENYA
Kenya signed the Rome Statute on August 11,1999 but only ratified the international treaty on March 15, 2005. The International Crimes Act, which domesticated the Rome Statute was adopted on December 12, 2008 and took effect on January 1,2009. It gives the High Court jurisdiction over war crimes, crimes against humanity and genocide.
In the Walter Baraza vs Cabinet Secretary for Interior and Coordination case the court found that the Minister had not made any regulations under any of the stated sections. The absence of regulations made by the Minister pursuant to Sections 172 & 173 of the ICA means that the Act is not yet fully operational.
A number of International Treaties oblige Kenya to investigate and prosecute international crimes or extradite suspects to another State Party willing to do so. The Geneva Conventions and Additional Protocol mandate state parties to prosecute war crimes that constitute ‘grave breaches’. This principle also exists in the 1984 Torture Convention and the Convention on Enforced Disappearances. The duty to prosecute international crimes becomes sharper when the particular state passes implementing legislation rather than the direct application of international in the domestic system. Prosecuting international crimes under ordinary penal statutes runs the risk of the State failing to fulfil its duty. By passing and implementing legislation the State demonstrates the seriousness of the crimes committed for example the modes of liability.
On May 9, 2012 the Judicial Service Commission (JSC) set up a working committee mandated to study and make recommendations on the viability of establishing an International Crimes Division (ICD) in the High Court of Kenya. After visiting several countries to study various approaches to domestic prosecution of international crimes, the committee produced its first report in October 2012. The report observed that the Rome Statute obligates member states to punish international crimes and that the ICC cannot deal with all post-election violence cases.It also notes the continuing demand for justice following the failure to establish a special tribunal.
POST ELECTION VIOLENCE
Following Kenya’s disputed presidential elections in 2007, violence broke out around the country. This dark period of the country’s history, now commonly referred to as the post-election violence (PEV), resulted in the death of at least 1,133 Kenyans, the displacement of over 350,000 others, sexual violence, arson, maiming, looting and the destruction of property worth millions of shillings.
The search for justice for victims of post-election violence began with the establishment of a Commission of Inquiry on Post-election Violence (CIPEV), mandated to investigate the facts and circumstances surrounding the violence and the conduct of state security agencies in handling it and to make recommendations on these matters. CIPEV recommended the creation of a Special Tribunal for Kenya with Kenyan and international judges to sit in the country to try perpetrators of the violence. It set specific timelines during which the tribunal should be created and operationalized, failing which it recommended that Kofi Annan, who chaired Kenya’s mediation process, hand over an envelope containing a secret list of alleged perpetrators to the International Criminal Court (ICC) Prosecutor. Despite three separate attempts, the government failed to form the tribunal, causing the ICC to intervene. The ICC cases against high ranking government officials including the current President of Kenya (Uhuru Kenyatta) and his deputy (William Ruto) and other Kenyans ended with their termination or withdrawal by the Prosecutor of the ICC.
The ICC Chief Prosecutor ‘s decision in 2009 to institute of proprio motu investigations into the situation in Kenya following the post-election violence of 2007 brought the country’s obligations under the Rome Statute into sharp relief.
The issuance of summonses to appear for six individuals, the confirmation of charges hearing and the subsequent charging of four suspects – among them the country’s president and deputy president and the collapse of the two cases tested the efficacy and practicability of the Rome Statute system and the application of its founding principles.
Experiences from the two Kenya cases have highlighted tensions between states expectations of the ICC and what the court can deliver while surfacing critical challenges emanating from the court’s international design in the context of global politics. Evolving state interests such as became apparent during the hearing of the Kenya cases have opened and deepened fissures around the interpretation and application of international treaties.
The high ambitions of international criminal justice are largely predicated on state cooperation but this in turn raises important questions about whether such a system can survive state aggression. The question of how Kenya discharged its cooperation obligations under the Rome Statute is the subject of an unresolved referral to the Assembly of States Parties.
The ICC’s claim to be a court of last resort has been severely tested not just in Kenya, but also in other jurisdictions where heavy investments in complementarity have not yielded commensurate returns. Without a vibrant base of municipal justice processes, the ICC’s credibility is coming into question especially given the heavy financial investments that go into running it, the long periods trials take and the low justice yield for victims. When the ICC’s processes produce acquittals or discharge of suspects, the court still faces attacks alongside disappointment from victims who pin their hopes of justice on it. Inchoate cases, such as presented from the situation in Kenya, have undermined the court’s credibility on two critical fronts: the court has not succeeded in becoming a forum for truth telling, and victims’ hopes of justice have been shattered.
The ICC’s claim to be a victims’ court rings hollow against the reality of only a few of their number being selected for limited participation in proceedings. The promise of reparations and assistance to victims has remained limited in its scope and taken far too long to materialize.
The difficulties experienced by the ICC, the international community and Kenya around the Kenya cases provide ground for deep reflections on critical issues around cooperation and complementarity even as the ICC seeks to establish itself as a universal court.
It is in this regard that The Kenyan Section of the International Commission of Jurists, Amnesty International, Strathmore Institute of Advanced Studies in International Criminal Justice (SIASIC), The International Centre for Transitional Justice and Physicians for Human Rights hosted a Symposium on Tuesday July 17, 2018 at Strathmore University in Nairobi to have reflections and discussions as to whether the Rome Statute needs reform, or states will adapt to fit into the new international criminal justice culture the ICC seeks to universalize.
