International Law and Politics Journal

The highly anticipated International Criminal Court Ruling on the Kenya case

2012-01-23T14:20:00.005-05:00

Today, the Pre-trial Chamber II of the International Criminal Court (ICC) has confirmed charges against four indicted defendants in the Kenya situation. The Pre-trial Chamber, however, has not confirmed charges against two defendants. The four defendants committed to trial are, William Ruto, Uhuru Kenyatta, Francis Muthaura and Joshua Sang. Henry Kosgey and Mohammed Ali are free individuals.The four defendants whose charges were confirmed have vowed to appeal the Pre-trial Chamber II ruling.

Below is today's summary of the case:

resentation for 23 January 2012 in Case 1 and Case 2

Court Officer, please, call the two cases in the Kenya situation.

Thank you, Court Officer.

Good morning, to everyone who is joining us from in and around the Court and also to those joining us from the Republic of Kenya via the internet or otherwise.

Pre-Trial Chamber II of the International Criminal Court composed of Judges Hans-Peter Kaul to my right, Cuno Tarfusser to my left and I – Ekaterina Trendafilova – the Presiding Judge of this Chamber, has decided to appear in Court this morning in order to present an oral summary of its decisions concerning the charges of the Prosecutor against:

William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang in Case 1 and
Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali in Case 2

Before presenting a summary of the Chamber’s findings, I would like to clarify that this is not a hearing or a Court session. The Prosecutor and the Defence teams are not present, the Legal Representatives of victims are also not in attendance, the Registrar and her colleagues are not here, and the Chamber’s legal officers are also absent from the courtroom.

Rather, the Chamber is alive to its role in ensuring that both the public at large and interested Kenyans, are duly informed of the Chamber’s decisions regarding charges emanating from the violence, which engulfed the Republic of Kenya, after the announcement, on 30 December 2007, of the results of the presidential elections.

Read more ...

Chile Eboe-Osuji Makes History As He Becomes 1st Nigerian ICC Judge

2012-01-03T20:47:00.002-05:00

EMPOWERED NEWSWIRE, NY

Nigeria has produced its first Judge of the International Criminal Court, ICC after 15 rounds of voting in New York leading to the election by the United Nations late on Friday of the Mr. Chile Eboe-Osuji, 49, an international legal practitioner.

Chile Eboe-Osuji

Eboe-Osuji, who is enrolled both at the Nigerian and Canadian bars is currently the Legal Advisor of the UN High Commission for Human Rights and before that he was the Head of Chambers for the UN International Criminal Tribunal on Rwanda. This is his second attempt at the ICC Judgeship having stood also in 2008 ICC elections.

But it was a long road for him and Nigeria to clinch one of the 6 vacant seats at the world's permanent criminal court after 18 candidates from 18 countries started the contest on Monday afternoon at the UN headquarters.

Of the 6 vacant seats only two were available for countries in Africa and Western Europe and other states to enter, since the 4 other vacant seats were reserved for Asian countries and the Latin American and Caribbean groups at the UN. In previous elections to the ICC judgeships, groups of Africa and the Western Europe and co nations had their own reserved seats already.

In the event the first 4 winners came from those two groups of Asian states and the Latin America/Caribbean states

Regarding the other two generally opened seats, the fight was a straight one behttp://www.blogger.com/img/blank.giftween 7 African countries, ( namely Nigeria, Burkina Faso, Democratic Republic of Congo, Niger, Sierra Leone, Mauritius, and the Central African Republic, CAR) and two leading western nations, France and United Kingdom.

Although the African Union had endorsed only Nigeria and Mauritius for the election, the 5 other nations from the continent still went on to exercise their rights to nominate candidates for the election, thereby splitting African votes in 7 places and making it impossible for the early emergence of any African nation in the earlier voting rounds. Read more ...

Why do Barristers wear robes?

2012-01-03T12:23:00.002-05:00

Happy New Year 2012!

International Criminal Court updates: The Kenya situation

2011-09-29T01:31:00.006-04:00

The Kenya situation that is before the International Criminal Court (ICC) is in the confirmation of charges stage. According to the Rome Statute, before any case goes to trial (Trial Chamber), the Pre-trial Chamber has to satisfy itself that there are substantial grounds to believe that the person indicted committed each of the crimes charged (Article 61(7) of the Rome Statute).

For those of us who are closely following the confirmation of charges hearing in the Hague, thanks to the Court's initiatives for making these important proceedings open not only to individuals who can travel to the Hague, but also through the Court's website (http://www.cpi.int) , the Kenya case raises serious questions about the legal competence in the Office of the Prosecutor (OTP) when it comes to investigations, and finally the presentation of cases in the Chamber. Having competent lawyers, starting with the chief prosecutor is imperative because the crimes prosecuted are the most serious crimes that are of the concern to the international community. Having weak investigations that are driven by considerations, other than to seek the truth, is a gross injustice to victims of mass atrocity and to the world community as a whole.

While there is no iota of doubt that crimes, serious crimes were committed during the violence in the aftermath of the general elections in Kenya in 2007, the prosecution is doing a mediocre job of presenting its case, lacks evidentiary competence, at times, unable to cross-examine witnesses, i.e., asking leading questions, etc. This and many other prosecutorial flaws may not properly assist the judges to reach a fair and just decision. This predicament may also be a consequence of investigations that were hurriedly conducted for the purposes of satisfying political considerations and not for the interest of justice and especially the victims in this case, who thousands were displaced, raped, and murdered.

On the other hand, the defense teams have done an extraordinary job to dissect the prosecution case and its theories, analyzing its legal weakness and at times suggesting, not in so many words, how incompetent the prosecutor and his investigators have conducted themselves in preparing for this case.

The ICC Human Resources section needs to do a better job of recruiting seasoned and experienced lawyers in the OTP in order to remedy the incompetency issue. Recruitment that takes into account "who you know" without respect to a person’s qualification and abilities will not only undermine the ability of the court to adjudicate on these serious crimes (genocide, crimes against humanity, war crimes and crimes of aggression), but most importantly, undermine the rule of law and the international criminal justice system that has been founded, not only to bring resolution to disputants, but also to usher in a new day in the fight against impunity.

ICC Kenya case

Libya: Ensuring a Smooth and Peaceful Transition into the Post-Qaddafi Era

2011-08-23T14:41:00.000-04:00

Brussels | 23 Aug 2011
As Libyans prepare for the Qaddafi regime’s imminent demise, the country faces a pivotal moment of historic proportions. Steps taken in the next few days and weeks will decisively shape the post-Qaddafi order. The new, still nascent, Libyan leadership, faces a dual, difficult legacy which it will need to overcome: four decades of an autocratic regime that failed to build genuine state institutions and six months of a civil war that, together with inevitable human and material losses, exposed old divisions and fissures while prompting new ones. The challenge for that leadership, as well as for international actors who enabled its drive into Tripoli, is threefold: to establish a broadly inclusive and representative transitional governing body; address immediate security risks; and find an appropriate balance between, on the one hand, the search for accountability and justice and, on the other, the imperative of avoiding arbitrary score-settling and revenge. Read more ...

Somalia Famine and International Response

2011-08-12T08:47:00.002-04:00

EJ Hogendoorn, Small Wars Journal | 7 Aug 2011

The pictures of starving Somalis are back. Not since the horrific famine and infamous Black Hawk down incident of the early 1990s has a Horn of Africa country dominated so much attention.

Last month the UN declared a famine in parts of southern Somalia, with the whole of the south sure to follow soon unless the international community steps in. The UN estimates over $300 million is necessary in the next two months to combat the crisis. The U.S. should temporarily remove aid restrictions and allow help to start flowing in.

Two years of scant rainfall, regional conflict and soaring world food prices have produced severe food shortages for 11.5 million people in Somalia, Ethiopia and Kenya. Over 3 million of those people, the equivalent of the entire population of Los Angeles, are in Somalia alone. Read more ...

AU angered by latest ICC arrest warrant

2011-07-04T16:26:00.003-04:00

Deep divisions between Africa and the International Criminal Court (ICC) have been in the spotlight over the past week with AU leaders slamming the ICC over the issuing of an arrest warrant for Libya's Muammar Gaddafi. Legalbrief reports that Sudan's President Omar al-Bashir also highlighted the divisions by visiting China in defiance of the ICC, which depends on the goodwill of states to catch him. Last week's summit of AU leaders was overshadowed by the fighting in Libya. The African leaders criticized the international campaign against Gaddafi at the 17th Ordinary Session at the level of Heads of State and Government which was held at a luxury Equatorial Guinea resort. Business Day reports that the leaders demanded that Nato halt its bombing campaign in Libya, while AU Commission head Jean Ping accused the ICC of pouring oil on the fire by issuing an arrest warrant for Gaddafi. The report quotes Equatorial Guinea's leader Teodoro Obiang as saying: The interventions for human rights are nowadays causing a massive scourge to mankind. According to the report, former President Inacio Luiz Lula da Silva drew a standing ovation for his criticisms of the West. He lashed out at the UN for not having an African or Latin American country with a permanent seat on its Security Council. According to a Mail & Guardian Online report, the committee said it agreed on a set of proposals to help Libya emerge from the crisis. It said the proposals would be submitted to the AU assembly for its support. I believe there is certainly a change in the whole perception of Gaddafi. We are in a very different position to the one we were in just five, six weeks ago, said Britain's Minister for Africa, Henry Bellingham, who attended the first part of the conference. He said he had met with many of the foreign ministers of the 53 member nations attending the conference, and found that even those that were previously reluctant to call for Gaddafi's ouster are now privately agreeing that he should go. Read more ...

Is the International Criminal Court condoning impunity?

2011-04-12T16:00:00.011-04:00

The International Criminal Court (ICC) has presently six cases in its docket (Republic of Uganda, Democratic Republic of Congo (DRC), Sudan, Central African Republic, Republic of Kenya and recently the United Nations Security Council referred the Republic of Libya) all from the African Continent. This fact has made some to grumble about the sincere mission of the international criminal justice system, that is, is the ICC representing neo-colonialism and interfering on affairs of explicitly African States? However, the question whether the ICC is condoning impunity is a more serious one that raises some serious questions about the international criminal justice system.

The Rome Statute in its preamble inter alia states that it is "determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes" (these crimes are genocide, crimes against humanity, war crimes and crime of aggression). Sadly, ICC practices of referral of cases to the court suggests otherwise. Research has shown that prior to Uganda and DRC referring their cases to the ICC, there were intensive discussions with government officials that the ICC prosecutor should not prosecute close allies of the said governments (Clark, 2010). In other words Uganda and DRC referred their cases to the ICC when they were assured that some state officials will not be prosecuted. This practice may result to the ICC being used as an tool for eliminating political rivals on the pretenses of violating international law. President Museveni of Uganda, for example, has benefited politically from the ICC's prosecution of the Lord's Resistance Army (LRA); President Joseph Kabila of the DRC has also benefited politically from the ICC prosecutions for Jean-Pierre Bemba's prosecution. Bemba was once first vice-president of the DRC transitional government. The same could be implied in the Kenya case, the prosecution of Uhuru Kenyatta and William Ruto, the main political rivals of Prime Minister Raila Odinga in the 2012 general elections.

The importance of the ICC, a pillar of the international criminal justice system cannot be overemphasized. Nevertheless, recent practices in the office of the ICC prosecutor undermine the mission of the court. Turning the court into a political lynchpin undermines the notion of justice. It is going to be interesting to see whether the prosecution evidence passes muster of admissibility issues and how the judges will treat such evidence in these cases.

Reference:
Clark, P. (2010) The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers (Cambridge Studies in Law and Society)

ICC sets its sights on Africa's ageing strongmen

2011-04-11T10:57:00.002-04:00

Following the popular revolts that spread through North Africa and the Middle East over the past couple of months, the International Criminal Court (ICC) is now setting its sights on some of Africa's ageing strongmen. Legalbrief reports that the ICC has already served notice that it will not back down over Kenya's post-election violence by setting its sights on six high-profile government officials. ICC judges last week confirmed that hearings would be held in September to decide whether the men would stand trial. The court says it has evidence Muammar Gaddafi's government planned to put down protests by killing civilians before the uprising in Libya broke out. The UN Security Council, which on 17 March sanctioned air strikes on Libyan forces to prevent them killing civilians, in February referred Libya to the ICC, the world's first permanent war crimes court. Court prosecutor Luis Moreno-Ocampo is to report back to the UN on 4 May, and is then expected to request arrest warrants. We have evidence that after the Tunisia and Egypt conflicts in January, people in the regime were planning how to control demonstrations inside Libya, Moreno-Ocampo said, according to a report on the News24 site. They were hiding that from people outside and they were planning how to manage the crowds ... the evidence we have is that the shooting of civilians was a pre-determined plan. He added: The plan at the beginning was to use tear gas and (if that failed to work) ... shooting.
Read more ...

Kenya petitions the United Nations Security Council

2011-03-17T10:57:00.003-04:00

The letter from Kenyan Prime Minister Raila Odinga’s Orange Democratic Movement party (ODM) to the UN Security Council on the so-called Ocampo Six wanted by the International Criminal Court is not surprising.

Now the Security Council and the ICC have rival pleas from rival wings of the same government.

The Odinga letter is basically intended to counter a plea from President Mwai Kibaki’s PNU wing of government that they are both sworn to serve.

Apart from taking Kenya’s political infighting to the highest global organs, the letters also serve to expose the crass hypocrisy of our ruling classes where nobody stands for anything other than narrow, selfish and short-sighted political gain.

Let us start with the ODM letter since it is but the latest episode in this live farce.

Mr Odinga has always publicly denied accusations that he is proponent-in-chief of trials at The Hague.

Indeed, in Parliament and elsewhere, he has vigorously defended the position that he was the one pushing for a local tribunal while those who eventually ended up in the crosshairs of ICC prosecutor were chanting the “Don’t be vague, ask for Hague” chorus.

Naked threats

Mr Odinga was also present at a number of meetings with President Kibaki from whence came official communiqué that the coalition principals concurred on diplomatic initiatives aimed at securing deferral of the ICC action on Mr Uhuru Kenyatta, Mr William Ruto, Mr Henry Kosgey, Mr Francis Muthaura, Mr Hussein Ali and Mr Joshua Sang. But no sooner had the ink dried on the statements than Mr Odinga’s minions were busy disowning the statements put forth.

Perhaps that is why Mr Odinga’s public protestations have never quite been taken seriously, for he sometimes speaks from both sides of the mouth.

Anyway, with the gloves now off on both sides of the coalition government divide, it has become clear that the Prime Minister sheds no tears for those targeted by ICC Prosecutor Luis Moreno-Ocampo. Maybe for him, as the accusations go, it is good riddance.

Try as I might, however, I fail to see any political advantage he gains when political rivals are sidelined in such a poisonously polarised atmosphere.

Despite everything, accusations that Mr Odinga has conspired with Mr Ocampo to lock up his potential 2012 presidential election rivals are as ridiculous as can be.

Maybe it serves Mr Kenyatta and Mr Ruto well to shore up their political bases by blaming their tribulations on Mr Odinga, but ultimately they must defend themselves with legal argument at the ICC trial chamber, not incendiary soapbox politics.

And that is why, whatever shifting positions Mr Odinga has displayed on the issue, the Kibaki camp’s letters to UN Security Council and the ICC president are completely indefensible.

Kanu kleptocracy

It is inciting, if not downright criminal, to state that trying the Ocampo Six at The Hague will provoke a recurrence of violence and bloodshed in Kenya.

Such naked threats, for that is what they are, have no place when we are trying to get away from the politics of murder and ethnic cleansing.

The Moi-era dictatorship’s self-fulfilling prophecies of ethnic clashes if the campaign for multipartyism was not halted, are still too close in memory.

The incendiary threats now penned on behalf of the Kibaki wing of the coalition government remind us that the unreconstructed orphans of the Moi tyranny have rebounded in full swing and are falling back to their accustomed methods.

The Kanu kleptocracy of the day was kept alive by unrestrained terror. Nyayo House torture chambers, murder and mass jailing of dissidents, and the so-called ethnic clashes centred in the Rift Valley province at the beginning of the 1990s, remain the most dubious legacies of the one-party dictatorship.

It beggars belief that a government that was supposed to herald a bright new era of freedom and liberty can fall back on crass threats of large-scale murder and violence just to secure the power and privileges of a handful of politicians.

President Kibaki would do himself a world of good if he disowned those disgraceful letters and looked for more decent methods to fight for his allies.

After all, it is he who has a legacy to protect, not those looking to secure their positions after his exit.

mgaitho@ke.nationmedia.com

Source: Africa Review

Kenya Government hires British Lawyers

2011-03-13T01:39:00.002-05:00

Kenya's Attorney General Amos Wako has tapped two British lawyers, Sir Geoffrey Nice and Rodney Dixon, both associated with Sudanese President al-Bashir’s legal battles at The Hague, to advise the government on how to defer the cases against the Ocampo Six. Sir Geoffrey Nice, Queen’s Counsel, and Rodney Dixon arrived in the country last week and held their first meeting with Attorney-General Amos Wako on Friday, sources at the AG’s chambers told the Sunday Nation.

The two British lawyers are expected to help the government put up a strong case against the efforts of ICC challenging prosecutor Luis Moreno Ocampo to have six Kenyans indicted for crimes against humanity.

“They are here to form a preliminary opinion on the various issues before I can confirm their appointment,” AG Amos Wako told the Sunday Nation. “I want to handle this professionally, and I want an opinion from people who have practised before the ICC. I want an informed opinion.” Read more ...

Somalia: The Transitional Government on Life Support

2011-02-21T13:22:00.001-05:00

The latest report from the International Crisis Group, analyses structural flaws that hinder peace-building in central and south Somalia. At the core of the governance crisis is a deeply-flawed centralising state model. The international community has not yet learned the lesson that re-establishing a European-style centralised state, based in Mogadishu, is almost certain to fail.

“The logical alternative is a more decentralised system of governance in which most power and resources are devolved to local administrations, while the federal government takes a modest role of primarily coordinating the activities of those administrations”, says Rashid Abdi, Crisis Group’s Analyst.

Despite attempts to push transitional governments to delegate power away from Mogadishu, the political class and much of the international community have remained committed to re-establishing a strong central government. The current TFG is even less willing to share power than former transitional governments, which explains the recurrent tensions between it and self-governing enclaves like Puntland, Galmudug, Ximan and Xeeb and local grassroots movements like Ahlu Sunna Wal Jama’a (ASWJ). As a result, Somalia is experiencing a multi-faceted, chaotic, clan-driven and virtually country-wide revolt against the centre.

The TFG needs to be reformed. Somalis should constitute an inclusive consultative forum to amend the transitional charter, deliberate on the constitution and agree on reform of the transitional federal institutions for the period after August, when the TFG’s mandate expires. The forum’s focus should be solely on governance, in particular the relationship between local administrations and the national government in Mogadishu, the structure of that national government and the division of power within it.

The international community also has a key role to play. Focus should be given by the UN Political Office for Somalia (UNPOS) and donors on assistance, including capacity building, directly to emerging local administrations. Efforts are needed to improve revenue collection and management, fight corruption, increase budgetary transparency and strengthen internal auditing capabilities. UNPOS and donors should also investigate, stop supporting and sanction corrupt officials. If the TFG does not show clear signs of progress in reconciliation and governance by August, they should withdraw support and direct it instead at those administrations that are serving the interests of the Somali people.

“The decision to prop up the TFG at all cost has been a failure, feeding complacency and contributing to stalemate and humanitarian crises”, says EJ Hogendoorn, Crisis Group’s Horn of Africa Project Director. “But the situation is not as bleak as it may seem. The extremist Al-Shabaab movement is militarily weaker than many believe. If the right political conditions and strategy are put in place, it would be possible to rapidly re-establish peace and stability in central and south Somalia." Read more ...

Kenya: Chief prosecutor slammed for naming suspects

2011-02-16T21:04:00.000-05:00

International Criminal Court (ICC) judges have strongly criticised chief prosecutor Luis Moreno-Ocampo for publicly naming six Kenyans suspected of playing a prominent role in fomenting the post-election violence. The Daily Nation reports that the three pre-trial chamber judges have ruled that the naming of the six suspects has unfairly exposed them to negative publicity even before the ICC determines whether they have a case to answer or not. In a ruling on an application lodged by former police commissioner Major-General Mohammed Hussein Ali seeking to be enjoined in the proceedings before the pre-trial chamber, Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser said the Chamber is cognisant of the concerns of the applicant with respect to the prejudice suffered due to the public disclosure of his name made by the Prosecutor ... Read more

Corporate Criminality: WikiLeaks cables on Pfizer

2010-12-15T16:05:00.004-05:00

The latest release of confidential cables by whistleblower Web site WikiLeaks has unearthed some damning new revelations, including the fact that the world's biggest pharmaceutical company hired investigators to find evidence of corruption against the Nigerian Attorney-General in order to persuade him to drop legal action over a controversial drug trial involving children with meningitis. Legalbrief

The Guardian reports that Pfizer was sued by the Nigerian state and federal authorities, who claimed that children were harmed by a new antibiotic, Trovan, during the trial, which took place in the middle of a meningitis epidemic of unprecedented scale in Kano in the north of Nigeria in 1996. Last year, the company came to a tentative settlement with the Kano state government which was to cost it $75m. However, the cable suggests that the US drug giant did not want to pay out to settle the two cases – one civil and one criminal – brought by the N igerian federal government. While many thousands fell ill during the Kano epidemic, Pfizer's doctors treated 200 children, half with Trovan and half with the best meningitis drug used in the US at the time, ceftriaxone. Five children died on Trovan and six on ceftriaxone, which for the company was a good result. But later it was claimed Pfizer did not have proper consent from parents to use an experimental drug on their children and there were questions over the documentation of the trial. Trovan was licensed for adults in Europe, but later withdrawn because of fears of liver toxicity. Full report the Guardian

Peace v. Justice: ICC Prosecutor names suspects in the Kenya post election violence

2010-12-15T13:10:00.005-05:00

Luis Ocampo, the Prosecutor of the International Criminal Court (ICC), revealed the names of six suspects who are alleged to commit crimes against humanity during the post 2007 general elections in the East African nation of Kenya. The six named individuals are not just "ordinary" citizens but heavyweight politicians who some are considered as potential candidates for president in Kenya. These individuals are William Ruto, who is currently a Minister of Higher Education, Science and Technology and a Member of Parliament for Eldoret North; Uhuru Kenyatta, a son of the first president of Kenya, Jomo Kenyatta and once a presidential candidate for the Kenya African National Union (KANU), a political party that brought about Kenya's independence. He is also the Deputy Prime Minister and Minister of Finance and Member of Parliament of Gatundu-South; Henry Kiprono, Minister of Industrialization and Member of Parliament for Tinderet; Joshua Sang, a journalist, and Francis Muthaura and Mohamed Ali (former chief of police) who are also high level civil servants in the government of Kenya. All the accused persons have denied any involvement on the post-election violence and made themselves available to the Court's jurisdiction. Kenya is a party to the Rome Statute of the ICC having signed the statute on August 11, 1999 and ratified the statute on March 15, 2005. The government of Kenya referred this case to the ICC according to Article 13(a) of the Statute.

While these developments are an unprecedented step in the international criminal justice system, we ought to critically analyze them in my view on the peace versus justice paradigm. Since the Rome Statute came into force in 2002, four (4) cases have been referred to the Court, cases from Democratic of the Congo (DRC), Central African Republic (CAR), Uganda and Sudan (Darfur). All these nations are in Africa. The Kenya situation adds up the list to five. The tension between this peace v. justice paradigm is significant, especially in post conflict societies. The question is whether prosecuting particular persons, as in this case of Kenya has the potential to destabilize the polity should such course be pursued. What is the goal of criminal prosecutions vis-a-vis other methods of conflict resolution, such as, truth commissions, indigenous dispute processes, and others in bringing lasting peace and reconciliation in a post-conflict society. Would the prosecution of these six individuals lead to a greater breakdown of social control? Will other "alternatives" to criminal prosecution that promote peace and reconciliation be deemed as facilitating the culture of impunity? Is peace and/or justice a political and not a law courts question? All these are important questions to consider as the Pre-trial Chamber of the ICC considers the prosecutor's subpoena request.

The post-election conflict data shows that 1,133 people died and 650,000 were displaced. While the intention is not to minimize the number of victims in this situation, the parties involved in the conflict that steamed from allegations of voting irregularities, with the help of the international community were able to halt the violence, and through negotiations formed a government of national unity (GNU), which included all necessary parties. Through negotiations, the people of Kenya have been able to draft a new Constitution through the democratic process. Stability has returned and the government functions are dispensed with due diligence. So what will the prosecution of these individuals attain? As a realist, I think that it is dangerous to attempt to isolate legal justice from the political context. Already Prosecutor Ocampo states that the prosecution of these individuals will ensure a peaceful 2012 general elections in Kenya. This statement affirms my thesis on the correlation between legal justice and politics in international crimes. Ocampo's statement is a mere assertion that is not supported by any empirical evidence. The volatile political compromise and historical events in Kenya negates Ocampo's assertion.

The need for prosecutions of perpetrators of international crimes cannot be overemphasized. It is essential that perpetrators be brought to justice (accountability through punishment) while taking into account all the factors for the purposes of bringing peaceful co-existence in society. International criminal prosecutions need to go beyond rendering justice to establishing peace in the Grotian sense, that is the absence of order-destabilizing conflict.

The Assembly of States Parties to the Rome Statute opens its ninth session

2010-12-09T20:20:00.001-05:00

The Assembly of States Parties to the Rome Statute of the International Criminal Court (“the Assembly”) opened its ninth session at UNHQ, which will last from 6 to 10 December 2010.

Opening remarks were delivered by the President of the Assembly, Ambassador Christian Wenaweser, the United Nations Secretary-General, Mr. Ban Ki-moon and the President of Colombia, Mr. Juan Manuel Santos, followed by senior Court officials.

The United Nations Secretary-General, Mr. Ban Ki-moon, recalled the historic Review Conference in Kampala and its momentous achievements with regard to the definition of the crime of aggression and the provisions under which the Court will exercise its jurisdiction with respect to the crime and urged all States to ratify the amendments. Furthermore, Mr. Ban Ki-moon recalled that the Court is the centerpiece of the system of international criminal justice. He also emphasized the crucial importance of States complying with their responsibilities to enforce all outstanding arrest warrants. Read more ...

Bemba trial begins at the ICC

2010-11-29T13:56:00.001-05:00

The start of Jean-Pierre Bemba's war crimes trial at The Hague last week has attracted international coverage and placed a great deal of pressure on the International Criminal Court (ICC) which came into operation eight years ago. After all, it is the first case before the ICC focused almost exclusively on sex crimes. In addition, the charges are against the highest level accused to go on trial before the ICC. Legalbrief reports that Bemba, who was the leader of the Movement for Liberation of Congo (MLC) rebel group, is charged with three counts of war crimes and two of crimes against humanity for the alleged atrocities of about 1 500 fighters of his MLC between October 2002 and March 2003. The former DRC Vice-President, who was arrested in Belgium in 2008, pleaded not guilty to all the charges. Bemba sent his troops into the Central African Republic after the country's then President Ange-Felix Patasse asked for help in quelling a rebellion led by former armed forces chief Francois Bozize, now the CAR President. Bemba is charged with failing to stop his rebels from robbing, raping and killing CAR civilians where they intervened to support Patasse who was ultimately toppled by the country's current leader Francois Bozize. Read more ...

Now French Appeals Court targets African leaders

2010-11-16T12:59:00.002-05:00

The deep divisions between Africa and Western powers over past and present fugitive leaders has been underscored by the saga surrounding Sudanese President Omar al-Bashir. The International Criminal Court (ICC), in particular, is showing no signs of backing off despite growing concerns that it unfairly targeting Africa. Legalbrief reports that al-Bashir is back in the spotlight after Kenyan president Mwai Kibaki last week extended an invitation for him to attend the Inter-Governmental Authority for Development (IGAD) special summit that will tackle the South Sudan referendum next January. However, it is unclear when or where the IGAD summit will take place.

The Sudan Tribune reports that organisers last month moved the summit from Nairobi to Addis Ababa after the Kenyan Government came under pressure not to receive Bashir who is wanted by the ICC for war crimes and genocide committed in Darfur. Theoretically, Kenya as a full ICC member has a legal obligation to arrest him should he set foot on its territory. However, last August it chose to invite the Sudanese President to attend the promulgation of the countrys new constitution without apprehending him. The decision places Kenya under intense criticism from Western countries and even caused rifts within its coalition government as Prime Minister Raila Odinga condemned the visit. In a new development, al-Bashir has reportedly travelled to Saudi Arabia to perform the Muslim pilgrimage to Islam's holiest sites. According to a report on the News24 site, al-Bashir left Khartoum on Saturday for the annual hajj in Mecca. Al-Bashir has travelled freely to Chad, Kenya and Qatar since the ICC warrant was issued in 2009. Those countries refused to arrest the Sudanese leader. The ICC has no police force and is reliant on member states to enforce its orders. Read more ...

At the same time according to a BBC News report, anti-corruption group Transparency International has accused the three of using African public funds to buy luxury homes and cars. The Times reports that a lower court had ordered a halt to the probe targeting Gabon's late leader Omar Bongo, the Republic of Congo's President Denis Sassou-Nguesso and President Teodoro Obiang of Equatorial Guinea. That court said there was not enough evidence of wrongdoing, prompting an outcry from Transparency International and Sherpa, the two groups that launched the initial complaints against the leaders. Gabon's ruling party has lashed out at the court after it authorised judges to probe corruption charges against Bongo, notes a report on the News24 site. Dismissing the ruling as ridiculous, the Gabonese Democratic Party (PDG) accused the court of supporting French colonial rule and of failing to understand international law. The PDG is led by Ali Bongo, the son of the late leader who ruled the country for more than 30 years until his death in 2009. Bongo is accused of amassing a wealth of assets in France through embezzlement. Read more ..

IGAD Summit Postponed Amid Controversy Surrounding Bashir Attendance

2010-11-03T06:42:00.001-04:00

General: Rift over Al-Bashir widens

Following intense pressure, the Intergovernmental Authority on Development (IGAD) has postponed a summit which was originally scheduled to be held on Saturday in Nairobi. Legalbrief reports that, once again, the issue of war-crimes suspect Omar al-Bashir attending has deepened the rift between Africa and the International Criminal Court (ICC). ICC president Sang-Hyun Song last week urged the international community to intensify efforts to arrest eight people sought for alleged war crimes, crimes against humanity or genocide including Sudan's President. He cited al-Bashir's recent visits to Chad and Kenya which are parties to the Rome Statute that established the court and the failure of both governments to arrest him despite outstanding warrants for alleged war crimes, crimes against humanity and genocide in the Darfur region of Sudan. In September, the African Union asked the Security Council to delay al-Bashir's prosecution for a year because a trial would interfere with efforts to end the seven-year conflict in western Darfur which has left up to 300 000 people dead and forced 2.7m to flee their homes. Read more ...

DOJ's troubled case against Uthman

2010-10-11T10:04:00.002-04:00

Two men were tortured for more than a year inside the CIA's secret prisons program. One committed suicide at Guantánamo Bay. Another was driven "psychotic" from interrogations.

These are the witnesses whose contradictory, fragmentary and internally inconsistent statements provide the bulk of the evidence against Uthman Abdul Rahim Mohammed Uthman, a detainee the Obama administration has designated for indefinite detention.

Government secrecy has made it nearly impossible for the public to assess the evidence against detainees still at Guantánamo, much less those slated to be held possibly for life without charge. Former Vice President Dick Cheney often described those men as "the worst of the worst." President Obama has said they "pose a clear danger to the American people." Read more ...

International Bar Association Human Rights Institute welcomes Kenya’s landmark ruling declaring death penalty unconstitutional

2010-09-24T12:08:00.002-04:00

The International Bar Association’s Human Rights Institute (IBAHRI) welcomes the Kenyan Court of Appeal’s decision that the mandatory application of the death penalty for the crime of murder is unconstitutional.

In its judgement of 30 July 2010 in the case of Godfrey Ngotho Mutiso v Republic of Kenya, the Court of Appeal ruled, ‘that section 204 of the penal code which provides for a mandatory death sentence is antithetical to the Constitutional provisions on protection against inhumane or degrading punishment or treatment and fair trial.’

Mr Mutiso was convicted of murdering Mr Patrick Waweru in Kongowea on 4 November 2009. He appealed against the conviction, saying the death sentence was unconstitutional as it amounted to inhuman punishment and denied him his right to a fair trial.

In reference to case law from Africa, the Americas and Europe, and after considering international trends in both the abolition and reconsideration of the scope of the death penalty, the court concluded that, whilst the possibility of the death sentence in a case of murder remained, it was the maximum sentence available for consideration, but not the only one.

The court recognised that the scope of the crime of murder covered a wide range of situations from the pre-meditated crime, to one of passion, to a murder committed in the course of another crime or a murder committed by an adolescent or mentally ill person. The Court noted that in similar cases from neighbouring countries likewise addressing the constitutionality of a mandatory death penalty, such a sentence was found to violate the constitutional guarantee to be free from subjection to inhumane or degrading punishment or treatment, and held that, considering such case law, the mandatory death penalty must be held to be unconstitutional.

Martin Šolc, IBAHRI Co-Chair remarked, ‘I commend Judges Omolo, Otieno and Waki in their analysis of the case and the conclusions drawn, and in the positive recognition of the primacy of respect for human rights standards.’ He added, ‘While the IBAHRI welcomes the ruling, we would very much like to see Kenya join the ever-increasing list of countries that have abolished the death penalty altogether.’

Information on the IBAHRI’s Resolution on the Abolition of the Death Penalty page can be found on the IBA website.

Rwanda: Genocide victims sue Belgium

2010-09-13T18:18:00.000-04:00

Belgian troops left 2 000 Tutsi refugees to the mercy of Hutu militia who hacked and machine-gunned them to death at the start of Rwanda's 1994 genocide, said a lawyer for survivors. According to a report on the News24 site, the charge was made at the opening of a civil trial in Brussels brought by two genocide survivors against the Belgian state and three soldiers for failing to protect the refugees. In spring 1994, the Belgian contingent formed the backbone of the UN Assistance Mission for Rwanda that was deployed to the central African country after a power-sharing peace agreement between Hutus and Tutsis. But after 10 Belgian soldiers were killed, Belgium decided to withdraw from the UN mission and ordered its soldiers to focus on the evacuation of Belgian citizens from its former protectorate. Read more ...

Leave Rwanda alone, Kagame tells Western critics

2010-09-08T14:33:00.004-04:00

President Paul Kagame of Rwanda used his swearing-in ceremony on Monday to respond to growing criticism from a section of the international media and human rights activists.

He vowed not to let Western critics derail the country from the path of the massive economic, social and political progress it has made in the last 16 years.

Kagame, who had just been sworn in for a second successive seven-year term after winning a landslide in last month’s presidential election, emphasised that the Rwandan people would determine their own destiny and would not be distracted by what critics say.

Addressing a packed Amahoro National Stadium shortly after taking the oath of office amid tight security, he said Rwanda has had enough troubles and problems and would not listen to detractors masquerading as masters of democracy and human rights. Read more ...

Kenya: Violence witnesses placed under ICC protection

2010-07-27T16:24:00.000-04:00

The International Criminal Court (ICC) has placed three key post-election violence witnesses under its protection. The Daily Nation reports that the disclosure came as it became evident that the government had not set aside funds for a Witness Protection Agency meant to offer security to witnesses with crucial information on the chaos that followed the 2007 elections. The three were among nine people who were placed under the protection of the Kenya National Commission for Human Rights. According to the report, the ICC took them in following fears they could be targeted. Read more ...

A Multinational Company convicted of Dumping Toxic waste in Africa: Any lessons?

2010-07-23T21:04:00.004-04:00

Trafigura, a Dutch multinational company has been convicted by a Dutch court of exporting and dumping toxic waste in the Ivory Coast. Trafigura had previously denied any wrongdoing. Before exporting this waste to Abidjan, Ivory Coast they attempted to dump the hazardous waste in Amsterdam. As the result the toxic waste dumped in the Ivory Coast has had devastating health problems on people there. United Nations statistics show that more than 100,000 people have sought medical attention on health issues and some dozen people are reported dead.

The issue of dumping toxic waste in the African continent is not a new phenomenon. Western countries have been using the continent as a dumping field for many years, while doing that with impunity. Perhaps this judgment is a wake-up call to all States that their multinational companies ought to respect human rights in their own jurisdictions and abroad. Trafigura has been fined $2.7 million as damages. Read more ...