The slow-turning cog-wheels of the international criminal justice system: are victims benefiting from the system?

The world celebrates International Justice Day today 17 July 2013. This day will most likely go unnoticed to many but for victims who have directly or indirectly been affected by criminal acts that violated their dignity as human beings, it may just be a reminder of empty promises of redress for their harm and a second blow of revictimization. A majority of victims of international crimes still do not have access to justice and the possibility of receiving reparations for their suffering remains remote. Although the day is celebrated in commemoration of the significant day fifteen years ago that the Statute of the International Criminal Court was adopted by States in Rome, from a victims’ perspective, not much has been gained in terms of addressing their plight.

Since the ICC opened its doors in 2002, the reality is that the focus on investigations and prosecutions of individual perpetrators of international crimes far outweighs the efforts relating to redress of victims’ harm. This focus is not negative, in fact accountability for these crimes is necessary and provideds a measure of justice to victims and survivors of these crimes. The Rome Statute provides the framework where victims of international crimes have the right to participate in legal proceedings and the right to reparations. The potential of this framework has not fully been tapped into. The challenges currently faced by the ICC in evaluating the large applications by victims in the situation countries to participate in legal proceedings and the limited financial and logistical capacities to provide reparations to these victims must be the heralding call to States to re-assess the access to justice and reparations needs of victims of international crimes. Relegating the task of providing redress to victims of international crimes to a supranational institution such as the ICC is unsatisfactory and has proven to be mired in procedural bottle-necks.

Nation-States should urgently focus on the strengthening of national legal systems to provide redress to its own nationals who have suffered under the cruel hands of perpertrators of what are recognnized as international crimes. The domestication of the Rome Statute by States Parties has largely been driven by the desire to capacitate national criminal justice systems to investigate and prosecute individuals who have committed international crimes within a nation-state. These efforts to ensure that the national criminal justice systems and the ICC are complementary are to be lauded. However, nation-states also need to embark on a comprehesive and coordinated approach to law-making, policy and institutional design that is victim-centered to alleviate the burden on a strained international criminal justice system and provide access at the local level to victims of international crimes.

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The International Criminal Court (ICC) Prosecutor Mrs Fatou Bensouda will be in Kenya from 22-26 October, 2012. Reports from the Office of the Prosecutor (OTP) state that the purpose of Mrs. Bensouda and her team’s trip to Kenya will primarily be to visit victims of the post-election violence as well as to obtain crucial information that would support the prosecution’s cases against four Kenyans whose trials will commence at the ICC next year in April.

A few weeks ago, the Head of Jurisdiction, Complementarity and Cooperation at the OTP Mr Phakiso Mochochoko, wrote to Kenya’s Attorney General (AG) Prof Githu Muigai expressing disappointment for a lack of effective cooperation by Kenya with the OTP. The OTP has been seeking Kenya’s cooperation in obtaining information from different government agencies. Kenya is obligated under Article 86 of the Rome Statute to cooperate with the ICC. The AG blamed the delay in cooperating with the OTP on the failure of certain government agencies who possess the required information to quickly respond to the OTP’s request. The AG has reiterated that Kenya remains committed to her obligations under the Rome Statute. Prof Muigai has also praised Mrs Bensouda’s better approach to her mandate and relations with States Parties to the Rome Statute that created the ICC than her predecessor Mr Louis Moreno-Ocampo. However as Chief Legal Advisor to the government of Kenya, it is his responsibility to ensure that Kenya abides by its international commitments.

It is clear in the past few months that Mrs. Bensouda has been in office as Chief Prosecutor that she has a different leadership style to her predecessor who was shrouded with controversy over his sometimes boisterous approach to his mandate. With such a start to her mandate, the Fatou Effect as I have called it elsewhere is bound to have a more persuasive, endearing and results-oriented function about the OTP. This is a good thing and necessitates cordial relationships between the ICC situation countries and the OTP. Often the first or more prominent organ in the interface between a situation country and the ICC, it is important that the OTP establishes and maintains the right approach to prosecutions and investigations and Fatou has clearly understood this.

For Kenya, a visit form the ICC Chief Prosecutor can be used to mend fences where the relationship between government and the ICC was strained following Ocampo’s initiation of investigations in the country. We should not however forget that Fatou was the Deputy Prosecutor at the time when the ICC Pre-Trial Chamber authorized OTP’s investigations into Kenya, and it is unlikely that her sentiments on the prosecutions and investigations in Kenya have changed since her taking office as Chief Prosecutor. Rather the Fatou we see now, is seasoned with the experiences – both failings and successes of the OTP over the past 10 years of its operations, which no doubt inform the prosecutorial strategy for the Kenya cases.

Cooperation by States Parties with the ICC can be a two-way street. Within the ambit of positive complementarity – a concept that solidified its footing at the Kampala Review Conference of the ICC’s founding treaty in 2010 – Kenya can request for the support of the ICC in effectively investigating and prosecuting individuals suspected of committing crimes related to the post-election violence. We are certainly not referring to local prosecution for the four Kenyans whose trials are scheduled to start in April 2013, but rather the many other perpetrators of crimes following the 2007 elections in Kenya. The OTP is on record stating that although it will not provide financial support to States that ask for support under the positive complementarity principle, it can provide technical and logistical assistance. Kenya can benefit from the visit by the OTP to request for such assistance. It is important in this transition that Kenya deals with its past and that the many victims of the crimes committed following the 2007 elections are redressed.

In August 2012, a task force set up by Kenya’s Director of Public Prosecutions (DPP) Mr Keriako Tobiko to look into the thousands of files at the DPP’s office relating to the PEV released an interim report with findings that many of the files may have to be closed because evidence that would be necessary to adduce before court for convictions is non-existent. This means that many victims of the PEV will not receive the justice that they have sought for the past five years. There still remain opportunities for meaningful cooperation that would benefit both Kenya and the OTP on matters relating to prosecutions and investigations in Kenya. It will take the concerted efforts of the relevant Kenyan authorities to bring this about.

Africa Looks Forward to ‘The Fatou Effect’

On 16 June Fatou Bensouda of The Gambia was sworn in as the second Chief Prosecutor of the ICC, where she previously served as deputy to Luis Moreno-Ocampo. Bensouda was elected by a consensus of the Assembly of State Parties to theRome Statute in December 2011.

At a recent meeting in Cape Town hosted by the Open Society Foundation and attended by the IJR and other civil society organisations, the new Chief Prosecutor outlined seven key areas that she hopes to prioritise during her nine-year tenure. These are: improving the quality and efficiency of investigations; clarifying areas for preliminary investigations; improving the relations between the ICC and African states; a focus on women and children, as sub-groups among victims of international crimes; institutional development within the Office of the Prosecutor (OTP); strengthening the OTP’s relations with both internal ICC and external structures; and an emphasis on work with civil society.

These priorities come as music to the ears of justice and reconciliation practitioners in Africa, and many lie at the heart of a complex and sometimes contentious relationship between the ICC and state parties on the continent. Optimistically coined ‘the Fatou effect’, many hope that this change will signal a positive turn in Africa’s expectations of and engagements with the ICC.

The ICC is currently active in seven African ‘situation countries’. That its reputation as a singular – and predominantly retributive – custodian of international justice may broaden to include consideration of the confluence between justice and reconciliation is indeed a remarkable state of affairs.

Victims of gross human rights violations, atrocities and international crimes need a system that punishes perpetrators, and Bensouda’s new focus on women and children – who are often the most affected by war and violent conflict – is also to be welcomed. Sexual and gender-based violence have become common instruments of war in a number of ICC situation countries, and victims of these crimes are both female and male. They need a justice system that begins to repair and redress the damage caused by violence and crime, and works to provide lasting guarantees that future generations will not be subjected to further violation in times of conflict. These needs are shared by victims in northern Uganda, eastern Democratic Republic of Congo (DRC), Darfur, Kenya, Cote d’Ivoire, Libya and the Central African Republic (CAR) alike – to live in peace and security and to develop economically without fear of war, conflict and tension.

Up against growing criticism from Africa that its work on the continent pursues a ‘neo-colonial’ agenda, the OTP would also do well to establish policies that more effectively guide government engagements in the situations it investigates. Although not the only organ of the ICC, the OTP is responsible for both initiating investigations of where it deems these to be necessary, as well as for receiving and acting on requests from both state parties to the Rome Statute and the UN Security Council. As such, the OTP is often seen as the public face of the ICC, and a new tone of engagement may lead to a better understanding of its work, more support and cooperation, and less criticism.

Greater, and more constructive engagement with civil society organisations, as Bensouda has promised, may also go a long way in both improving the quality of ICC investigations and judgments, and increasing the court’s credibility in Africa. Local organisations often possess the dual advantages of access to grassroots intelligence and insight through direct engagement with people and communities, and the experience and agility to negotiate and manoeuvre through governmental and inter-governmental offices and institutions within countries. Many credible civil society organisations are willing and able to act as liaisons for dialogue between these various stakeholders.

Yet despite the anticipation surrounding ‘the Fatou effect’, it remains important to recall that all organs of the ICC are still bound by the provisions of the Rome Statute, including the OTP. Although Bensouda has committed to pursuing a more responsive, engaged and accessible ICC, her responsibilities and that of her office and the court at large remain the pursuit of criminal justice and an end to impunity by perpetrators.

Further, the responsibility for mending the sometimes tumultuous relationships between African states, the African Union and the ICC cannot fall to the court alone. For the sake of Africa’s many victims of international crimes, many of whom have little hope for redress or the resolution of ongoing violent conflict, it is also important that regional and international institutions, organisations and governance bodies uphold their own commitments to the protection, promotion and enforcement of human rights and dignity, and pursue effective and cooperative partnerships that lead to an end to mass violence and gross violations.

This piece first appeared in the South Africa Reconciliation Barometer Newsletter, Volume 10, 2012 also available at http://reconciliationbarometer.org/newsletter/volume-ten-2012/

An ongoing search for Kenya’s panacea

Kenya’s fate as a country struggling with transition was sealed when violence erupted following the publication of the results of highly contested presidential elections at the end of 2007. Almost four years later, in September 2011, the ICC Pre-Trial Chamber II began hearings to confirm charges in two significant cases involving six Kenyans suspected of bearing the greatest responsibility for the December 2007 to January 2008 post-election violence.

These hearings began after the ICC Appeals Chamber conclusively decided in late August that the two cases before the court were admissible. The ICC rejected submissions by the government of Kenya expressing its ability and willingness to handle the post-election violence prosecutions on its own. It is expected that the Pre-Trial Chamber will deliver its ruling to confirm or deny the prosecutor’s charges against the six suspects by the end of this year.

Critically, this decision will certainly shape the course of political manoeuvring in Kenya as preparations gear up for the next general election, expected to be held towards the end of 2012. Stern warnings have already been issued against incendiary statements, and particularly those that may heighten political tension and/or increase the possibility of a repeat of past violent conflict. The so-called ‘Ocampo Six’, named with reference to the ICC
Chief Prosecutor, include deputy prime minister, finance minister and possible presidential candidate Uhuru Kenyatta, as well as other senior public servants and influential political leaders.

However, the tone of the 2012 polls will also be inescapably set by deeply rooted political and historic forces, with influence far beyond that of the ICC’s intervention.

Parallel to the gaining momentum of the ICC process, Kenya’s political elite and their followers have been cruising towards the national election. The work of the Court, in fact, appears to have had only a limited impact on the fluid mindset of the political class. Similar to other pre-election periods in the country, shifts in affiliations and formations of new political alliances for preferential presidential candidates remain a constant feature.

The truth beneath the surface in this seemingly peaceful East African country is that elections have always been a show of Kenya’s limited success in dealing with its lurking demons of ethno-political intolerance. In 48 years of independence, state patronage in dispensing the country’s bounty has always been circumscribed along ethno-political lines. With each regime change has come an inevitable vilification of the preceding government as having been incapable of confronting the nation’s challenges and of realising the proverbial golden pot at the end of the rainbow. Numerous ethnic communities are disenfranchised through these processes, evoking uneasy analogies to the plight of the majority of black South Africans under apartheid. And though Kenya’s ethnic divisions are less blatantly segregating than the policies of apartheid, corruption, the embezzlement of state resources and irregular land allocation based on political favours remain rife, and these have far-reaching effects on ordinary citizens.

As long as significant divides persist along ethnic lines, prospects of future electoral violence remain a real possibility. In this respect, little has changed since the ICC’s intervention. Prosecutorial zealots have argued in response that the Court should not
be seen as a panacea for Kenya’s problems. The arm of the law can only go so far in bringing about profound social change; rather, it has been used with more success to address impunity gaps, for example.

However, both domestic and international law have also arguably lagged behind some of the most pressing challenges of the times. The Rome Statute of the ICC, adopted in 1998, is the first international treaty to codify the crime of apartheid – ‘committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime’ (Article 7.1[h]) – as a crime against humanity. This is laudable, but South African apartheid is now a monster of the past, slain by universal suffrage in 1994 well before the adoption of the Rome Statute. Although the effects of apartheid policies are felt to this day, these effects are not criminalised and neither is there the capacity or the political goodwill to conceive of such a criminalisation. These lingering effects of oppressive regimes and armed conflict often eat into whatever is left of the remaining societal fabric.

It does appear that the tone and intensity of political verbiage around ethnicity in Kenya has changed since the commencement of the ICC interventions. There have been significant steps towards promoting national reconciliation and social cohesion through national institutions such as the National Cohesion and Integration Commission among others. Tribal politics seems to be getting less coverage. The current cases before the ICC have also ensured that the issue of inter-ethnic differences remains a prominent issue in public discourse in a manner that cultural practices traditionally have not allowed. In many ethnic communities in Kenya, it is culturally unacceptable to confront wrong-doing, particularly when the offender is in a position of authority. This practice has, in some places, prevented open confrontation and critique of the underlying causes behind the electoral clashes of 2007.

What now needs to happen, beyond the current cases before the ICC and indeed the Court’s remit altogether, is substantive work to build lasting social cohesion across Kenya’s ethnic groupings. This will be essential for sustainable peace in the country. This cohesion must go beyond mere tolerance and coexistence, and should not rely on coercion to enforce cordial relations where deep-rooted resentment remains. Rather, these negative sentiments among ethnic groups must be challenged and resolved in order to build a cohesive nation, within a context of celebrating the good practices of cultural diversity.

Kenya is not alone in this challenge of social cohesion, which can also be found in other nations in transition on the continent. Perhaps as a continent, through the offices of inter-governmental agencies such as the African Union and civil society organisations, and even through communities and individual efforts, we should identify these challenges as universal but focus on localised and locally owned solutions. Failure to do so will compromise our efforts towards justice and reconciliation across Africa.

This article was first posted on the SARB Newsletter Vol 9 2011 available at http://reconciliationbarometer.org/volume-nine-2011/an-ongoing-search-for-kenyas-panacea/

Decision to prosecute Kenyan four over post-election violence a lesson for all

In January 2012, the ICC’s Pre-Trial Chamber II confirmed criminal charges against four Kenyans for bearing the greatest responsibility for the death of 1,100 civilians and the displacement of approximately 600,000 in the violence immediately following the disputed election results in December 2007.

Summaries of the long-awaited decisions were concurrently read out on 23 January 2012 by the presiding judge Ekaterina Trendafilova. She confirmed charges against Uhuru Kenyatta (Deputy Prime Minister, Minister for Finance, son of the Kenya’s first President and currently a presidential aspirant), Francis Muthaura (Head of Kenya’s Civil Service and Secretary to the Cabinet), William Ruto (suspended Minister for Agriculture and currently a presidential aspirant) and Joshua Sang (journalist) for potentially having committed crimes against humanity either as indirect co-perpetrators or as contributors to the crimes. Continue reading