Category Archives: Kenya

BREAKING NEWS: Charges Dropped by the ICC Prosecutor in the Kenyatta Case

Earlier this week, the Trial Chamber in the Kenyatta case at that ICC told the Prosecutor to either bring new evidence or drop the charges. I predicted without to much doubt that the charges would indeed be dropped. Just this morning, the OTP promptly confirmed this in a press release and in a notice of withdrawal filed with the Trial Chamber.

As I said, this was the only possible outcome, given that the Prosecutor herself had acknowledged that, as things stood, there was not enough evidence to prove the case beyond a reasonable doubt. I will not repeat here what I think are the consequences of this turn of events for Kenyatta, the Court and the OTP. I just want to add three extra points. Continue reading

An ICC Trial Chamber brings the Kenyatta case closer to an end

[Cross-posted on Invisible College]

Today, a Trial Chamber at the International Criminal Court (ICC) issued two decisions in the case against President Kenyatta of Kenya. Together, these decisions bring the case yet closer to a close, even before the trial even started. As you might know, a few weeks ago, the Trial Chamber held two status conferences at which was discussed the question of Kenya’s alleged lack of cooperation with the Prosecutor’s investigation, the OTP request for another adjournment of the trial and the Defense’s corresponding request for a termination of the proceedings.

Today’s decisions when read together can only be read as an unmitigated disaster for the Office of the Prosecutor (OTP). In the cooperation decision, the Trial Chamber, while recognizing some elements of bad faith and finding overall non-compliance (§78) on the part of Kenya, ultimately considers that it would be inappropriate to make a referral of non-compliance to the ASP because ultimately “while cooperation by State Parties is crucial for the functioning of the Court, the primary responsibility for investigation lies with the Prosecution” (§85). In light of this, the Chamber considered that the OTP did not do all it could to follow through on its own request for cooperation. Continue reading

A response to Dersso on Chapter VII, the ICC, Kenya and healthy tensions in International Law

In a recent post, on Ejil Talk!, Solomon Dersso provides his take on the recent AU summit outcome in relation to the ICC. While I shared my own views on the issue here a few days ago, his post raised a couple of interesting issues which I think deserve further attention: on the scope of the use of Article 16 in the Kenya cases and on the general question of the “sour” relationship between the ICC and the AU.

1) On the use of Article 16 in the Kenya cases

As recalled by Dersso, a deferral of the cases would require that the UNSC act under Chapter VII of the UN Charter. Article 16 of the Rome Statute specifically provides that:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

Dersso deals with this Article in the following way:

Second, the UNSC can exercise its authority under Article 16 only after determining that continuing with the prosecution constitutes a threat to international peace and security within the framework of Chapter VII of the UN Charter. Looking at the cases against Kenyatta and Ruto, there is little evidence to suggest that their trial would lead to such a threat – unless UNSC members determine politically that the threat of terrorism facing Kenya (following the Westgate attacks) is reason enough to warrant the deferral.

This reasoning raises some new questions. Indeed, Article 16 does not require that the prosecution itself constitute a threat to international peace and security. As long as there is a resolution adopted under Chapter VII, then the case is deferred. Moreover, I don’t understand the emphasis on the word “politically” in the second part of the sentence. As opposed to what? I understand that there are political considerations in Chapter VII decisions, but it would not be more political to decide that Kenya is facing a threat of terrorism than to decide that prosecutions would constitute a threat to peace and security. Determinations under Chapter VII are always political.

In any case, as I said before, if the ICC Prosecutor herself considers Westgate to possibly be an international crime, then it’s not a far cry to think that allowing Ruto and Kenyatta to deal with it is necessary for international peace and security. Another argument, if a little twisted, could be that deferral is necessary to avoid the continued acrimony between the AU and the ICC, which is a setback for international justice, and therefore a possible threat to international peace and security.

A related question that is not dealt with by Dersso is what the ICC could do if it disagreed with the UNSC evaluation of the situation under Chapter VII. The issue of the judicial control of the use of Chapter VII is a long standing debate in international law. More particularly, it has come up a number of times in relation to international criminal tribunals. In the famous Tadic interlocutory appeal, the ICTY Appeals Chamber had engaged in a cursory discussion of whether the UNSC had validly used Chapter VII to create the tribunal. More recently, however, the Trial Chamber of the Special Tribunal for Lebanon, confirmed by the Appeals Chamber, refused to engage in such discussion. I personally agree with the STL case law and believe that a Chapter VII resolution would automatically trigger Article 16 of the Rome Statute with no discretion for the judges to exercise any judicial control over it.

2) The general question of the relationship between the AU and the ICC

The tone of Dersso’s post seems to suggest that the current tension between the ICC and the AU is necessarily a bad thing. However, beyond appearances, I am not sure that this is the case. Indeed, it highlights the real tensions in international law today between competing cosmogonies that are not easily reconcilable: criminal justice vs. political realism, human rights vs. sovereignty, universalism vs. regionalism…

Nobody is actually to blame for this situation. The ICC has a mandate that it is perfectly legitimate in trying to accomplish, but African states are also legitimate in voicing their concerns. As far as I know, the opinion of states is still an important aspect of international law and if these states decide to withdraw from the Rome Statute, it is not a defeat for international law, but a consequence of how international law works.

It is ultimately healthy for the system that these tensions come out in the open, rather than be swept under the carpet to create an illusion that everything is running smoothly. Whatever one’s own view of how international law should be, ignorance of reality is a recipe for irrelevance. In the current situation, blind defense of the ICC and dismissal of AU concerns might just end up being an example of that.

Ruto Required to attend ICC Trial (for the moment)

This morning the Appeals Chamber delivered its Judgment in the Ruto case on the Trial Chamber’s decision to excuse him for most of his trial. It found that 1) The Rome Statute (Article 63(1)) does allow a person to be excused from his trial in exceptional circumstances, contrary to what the Prosecutor had argued and 2) the Trial Chamber abused its discretion in excusing Ruto for most of his trial even before the start of it. As a result, the Trial Chamber decision was reversed.

Just a few thoughts on the interpretation of Article 63(1) and what this means for Ruto and Kenyatta.

1) The interpretation of Article 63(1)

This article provides that: “The accused shall be present during the trial.” In a nutshell, the question is whether this means that this is a duty and that he cannot be excused (which is what the Prosecutor argued) or whether this is a right that can be waived (which is what Ruto argued). I won’t go into the details of the argumentation on both sides, but for those who have an interest in question of interpretation international law, and as pointed out by William Schabas, these decisions, especially the Kenyatta one, provide some interesting insights on how to interpret the Rome Statute.

I have a lot of sympathy for the Trial Chamber’s interpretation of the Statute, in terms of common sense and policy, but I must say that the Prosecutor, as well as the Appeals judges who issued the separate opinion this morning have a strong case. The fact is that the Statute does not provide for this kind of excusal and Article 63(2) which explicitly provides for one situation of removal from court suggests that if other exceptions were considered, they should have been put in the Statute. The result of ignoring this is that we have a Trial Chamber and an Appeals Chamber disagreeing about something that does not exist and discussing the conditions of the exercise of a discretion that is not provided for in the Statute.

This is not the first time that this happens. ICC judges have invented powers for themselves out of thin air before, and then disagreed on how to exercise them. For example in relation to conditional release, which is not provided for in the Statute or in relation to abuse of process proceedings, again not provided for in the Statute. It is a little bit like Asimov and Philip K. Dick arguing about how to design an alien spaceship… it’s fun to listen to, but ultimately you cannot say that one is right or wrong because neither argument is grounded in reality…

At the end of the day, the criteria laid down by the Appeals Chamber for the exercise of discretion in excusing a person is no less or no more arbitrary than those adopted by the Trial Chamber and in this case, I don’t see how this is not the Appeals Chamber substituting, on the substance, its own opinion to that of the Trial Chamber.

2) What does it mean for Ruto and Kenyatta?

The obvious reading of the judgment would be that Ruto now has to attend his trial. This is not entirely true. The Appeals Chamber reversed the Trial Chamber decision on the basis that they erred in the exercise of their discretion. This means that the Trial Chamber could very well revisit the issue in light of today’s judgment and, applying the new criteria laid down and possibly concluding, while phrasing it differently, that Ruto needn’t participate at various stages of the proceedings. The result might be the same, it will just be more time consuming because rather than 1 decision, there will be dozens of them.

What about Kenyatta? His Trial Chamber issued a decision excusing him from his Trial last Friday, along the same lines as the Ruto decision. The Trial Chamber decision is an interesting academic exercise in treaty interpretation, but is even less legally technical in explaining the specific circumstances allowing an excusal that the Ruto decision. Which means that there is little doubt that the Appeals Chamber Judgment today would apply to it.

So what happens now? The logical thing to do would be that the Trial Chamber reconsider its decision in light of the Appeal Chamber’s Judgment. However, this is not procedurally possible as there is no provision on reconsideration in the Statute.

This means that the “long route” needs to be taken, with that the Prosecutor applying for leave to appeal the decision and, if granted, leading to the Appeals Judgment most certainly reversing the decision. This long process could have been avoided if the Trial Chamber had waited for the Appeals Chamber Judgment, as the Prosecutor had requested, but who cares about judicial economy?

If this goes to the Appeals Chamber, the appeal will probably be given suspensive effect, so Kenyatta will be required to attend his trial. It should be noted that the Trial Chamber does not have to grant leave to appeal, so if it really disagrees with the Appeals Chamber, it can just ignore its Judgment and move forward. This is unlikely to happen of course, but would be interesting to witness on such an important issue.

3) A broader comment on Kenya and the ICC

This judgment of course needs to be read in light with the general context surrounding Kenya and the ICC, and more particularly the attempt by the African Union to get the cases against Ruto and Kenyatta “frozen” by the UNSC, as I discussed here.

Interestingly, in a separate opinion in the Kenyatta decision last week, Judge Eboe-Osuji seemed to suggest that excusal from the trial was the best solution between no prosecution at all and full presence which would disrupt the exercise of his presidential functions by Kenyatta. If we buy this argument, then there is no longer any middle ground solution here and the only option left is a deferral of the case.

On this point, I take the opportunity of answering a question I got after my previous post on whether this situation would actually fall within Chapter VII (threat to peace). First of all, there is in fact no control of UNSC use of Chapter VII, so it doesn’t really matter what I think. If the UNSC thinks it’s a threat, then it’s a threat. Second of all, this is something we can argue about forever because I think that in the past, Chapter VII was arguably used in situations that did not justify it.

Finally, if one does want to debate it, I think that Kenya’s best ally in arguing for this is ICC Prosecutor Bensousa! Indeed, in her most remarkable press release after the Westgate incident, she suggested that this could be considered as an international crime and therefore of concern to the ICC and the international community as a whole. If the Prosecutor of the ICC thinks so, then why should the UNSC not consider the same event as being a threat/breach to the peace justifying a deferral of the cases allowing Ruto and Kenyatta to deal with the situation?

The ICC and Africa: In defense of the African Union

The past few weeks have provided a lot interesting developments on the question of the relationship between the ICC and Africa, understandly linked to the trials of Kenyatta and Ruto at the ICC. At the Extraordinary Session of the Assembly of the African Union earlier this month, a decision was issued calling for, among other things, 1) the adoption of a policy at the ICC for not prosecuting sitting head of states and 2) more particularly in the Kenyan situation, for the cases against Kenyatta and Ruto to be deferred in application of Article 16 of the Rome Statute. Just a couple of days ago, a letter was sent to the President of the Security Council asking it to act accordingly.

These developments have received a lot of criticism from a number of organisations that see this as a step back in the move forward to fight impunity. However, I think that some perspective needs to be reinjected in the discussion.

  • Two preliminary points

Before commenting on this, two preliminary points. First of all, there is no doubt that, as a matter of law, the ICC can prosecute sitting heads of state in light of Article 27 of the Statute. This might be a contested issue for non-state parties such as Sudan, but is unquestionable for a state party who has accepted this when joining the Court. So the African Union suggestion for not prosecuting sitting heads of state would be a purely prosecutorial policy issue, not a legal issue.

Second of all, I’m not a big fan of the unsurprising anti-colonial rhetoric that follows discussions on the issue. Last May, the Ethiopian Prime Minister said that “the process has degenerated into some kind of race hunting”. More recently, the address from Kenyatta at the AU Summit was full of this kind of rhetoric. I’m personally not entirely convinced that this criticism is true. I wrote a couple of posts on the issue a few years back (here and here) which stress this point.

More importantly, I think this is not a very useful approach because it clouds the fact that the problems with the ICC, while revealing themselves in relation to Africa today, are actually more structural. Making this an African problem is in my view short-sighted. Indeed, the tension between peace and justice, the critical discussion of the poor prosecutorial record in building cases, the poor exercise of prosecutorial discretion or the legal ambiguities of the Rome Statute itself are of concern to everyone, not just Africa.

So after this long introduction, a short defense of the African Union position on the two points mentioned above: immunity for sitting heads of states and deferral of the Kenya cases.

  • Granting ICC immunity to sitting heads of State?

On the first point, I don’t see the argument as being so scandalous on principle. Any first year international law student will (or at least should) learn within a few weeks that the personal immunity of sitting heads of state (i.e, the immunity from arrest and prosecution for any act, whether official or private, committed while still in office) is absolute in foreign courts, even for international crimes, in order to allow them to properly exercise their functions in the international arena. There have been some developments on the functional immunity of state officials (i.e, immunity that covers certain acts even when having left office), but no such developments in relation to personal immunity.

Of course, this applies only to inter-state relations and protects the person from domestic prosecutions. International tribunals are arguably different, as the ICJ pointed out in the Arrest Warrant Case. Moreover, Kenya signed and ratified the Rome Statute, in full cognizance of Article 27. Nonetheless, I do think it is useful to recall that the position of the AU is the standard position of international law on this issue, and that international tribunals are the exception. This might make human rights activists cringe, but that is the reality of the law.

And it should be pointed out that this is exactly the logic behind the Pre-Trial Chamber’s recent excusal of Kenyatta from his trial, where the judges affirmed that:

Whenever a national trauma is inflicted upon a country, the eyes of the nation invariably turn to one person—the executive head of state or govemment—with questions and for answers and demands for solutions and hopes of future safety. It is so with natural disasters or massive accidents or intentional acts of terror. But there is much more that the executive head of state or govemment must do in good faith, often unsung and out of sight, to prevent national traumas. And, beyond the management and prevention of emergencies, he or she does so much more. Indeed, the functions of the executive head of state of the average nation will be too numerous to list here. In the outlines, the picture is usefully framed in the following words of Vattel, writing in his Law of Nations: ‘a faithful administrator, to watch for the nation, and take care to preserve it, and render it more perfect; to better its state, and to secure it, as far as possible, against everything that threatens its safety or its happiness.’ Hence, the sovereign functions of an executive head of state or govemment are significantly different from those of any other citizen—even of those who run the most important commercial enterprises within the state.

  • Deferring the cases of Ruto and Kenyatta

On the second point, that of the possible use of Article 16, I don’t see what is so shocking either. This article provides that:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

It was a strongly contested provision during the negotiations and was perceived as an unacceptable intrusion of politics in the legal process. Ultimately, it was a compromise between those who wanted no Security Council involment at all, and those who argued that investigations should be approved by the Security Council before being able to proceed further (as Article 23 of the 1994 Draft Statute for the ICC actually proposed for situations already being dealt with by the UNSC).

However, we are not in Rome anymore and Article 16 does exists. Those saying that it should never be used because it would lead to impunity seem to be missing this simple point: apparently, for some people, it is sometimes preferable to delay prosecutions in order to favour other interests. You cannot just claim that it cannot be used and that’s it. For example, Richard Dicker from Human Rights Watch has claimed that: “This request comes from out of bounds; the Kenyan president seems determined to forestall his day in court”. This is not useful. Of course Kenyatta wants to “forestall his day in court”, that is the whole point of Article 16! The real question is when will it ever be considered to not be “out of bounds” ?

Given this fact, and following this logic, I don’t see what would be so wrong to use the article now. Isn’t that exactly what it was designed for, whether the human rights activists like it or not? Indeed, delaying the prosecution of a sitting head of state for a limited period of time, in a difficult political and social climate, who has been elected by the population despite his indictment at the ICC does not seem entirely unreasonable to me.

There is of course no easy answer to this tension between, to put it simply, Peace vs. Justice (or even any answer at all). But this is an important normative and philosophical debate on perceptions and approaches to (criminal) justice in the international sphere. This debate deserves more subtle debators than the human rights radicals on the one side and the anti-colonial preachers on the other.