Tag: Kosovo

Quitting ICC? : no We cannot afford this!

Both our Senate and Parliament voted to withdraw Kenya from the Rome Statutes that established the International Criminal Court. Inevitably this has brought the subject of the ICC to the public stage in Kenya. This should be very healthy for our democracy. How I wish it would force a national discourse that has been lacking – one that embraces the topics of law, impunity and justice. Furthermore, such a discussion would force both government and citizens to reassess the costs and benefits of establishing international norms and the effects of opposing or complying with them.Kenya Parliament

We seem to be skeptics and rebels against everything we believe in, yet we embrace them whenever it is expeditious. The famous poet and essayist GK Chesterton, portrayed the flagging position of our present leaders on important issues like this when he said:

“But the new rebel is a skeptic, and will not entirely trust anything. He has no loyalty; therefore he can never be really a revolutionist[… ]In short, the modern revolutionist, being an infinite skeptic, is always engaged in undermining his own mines. In his book on politics he attacks men for trampling on morality; in his book on ethics he attacks morality for trampling on men. Therefore the modern man in revolt has become practically useless for all purposes of revolt. By rebelling against everything he has lost his right to rebel against anything.” ― G.K. Chesterton, Orthodoxy

Moving the motion in Parliament, Hon. Aden Duale. the majority leader in the House, said ; “The sovereignty of Kenya with a working judiciary and a vibrant democracy is under threat.” Then he added, ‘The constitution of Kenya promulgated in 2010 is supreme to any other law whether local or foreign.”

We should note that under the Rome Statute, domestic courts wield the primary authority, and only when they are unwilling or unable to prosecute crimes against humanity does the ICC have jurisdiction. One would hope that since the reformation of our judicial system it would have responded with alacrity to violations of humanitarian law committed during the post election violence, thereby eliminating the need for the ICC to prosecute, even though the statute ascribes ICC jurisdiction to only the most egregious and systematic crimes against civilians. We should have seen more indictments of offenders of PEV in our courts by now.

Charles Kanjama, an Advocate of the High Court of Kenya, arguing in support for the withdrawal from ICC said, “Kenya should not spend an hour longer than necessary as party to the Rome Statute. But the ICC suspects should continue co-operating in full, as long as ICC respects Kenya’s sovereignty in procedural rulings on the manner of trial. During trial, if ICC is not flexible enough to allow the Jubilee leaders concurrently to discharge their electoral mandate, a sovereign Kenya will have no other option save default. Kenyans already made their choice on March 4th. It’s now ICC’s turn to make its choice.”

Does it matter that we are signatories to the Rome statutes?

Being part of the Rome statutes stamps our belonging to the community of nations. This strengthens rather than undermines our sovereignty. Our withdrawal from the ICC may serve to isolate us more.
It is important that we become aware of a recent development in this field in the form of the UN’s “Responsibility to Protect” document. In December 2001, a UN Commission drafted a report titled ‘The Responsibility to Protect’ which developed “the idea that sovereign states have a responsibility to protect their own citizens from avoidable catastrophe – from mass murder and rape, from starvation – but that when they are unwilling or unable to do so, that responsibility must be borne by the broader community of states.”

The report therefore, promoted the notion of “sovereignty as responsibility” and invoked inter alia the principles of Just War Theory to buttress it.

I must hasten to add that the report itself does not have the status of law, nor does it recommend amending the UN Charter with a provision for humanitarian intervention.
Kiambaa Church
It is for this very reason that the events of 2007-8 brought international intervention to Kenya. This shielded us from further humanitarian catastrophe and worked to bring Justice to the victims of PEV. Globalisation and rising interdependence solidifies the need and legitimacy of an international rule of law, the enforcement of which must be multilateral and cooperative.

The Kenyan case should be seen as a form of international intervention on behalf of human rights through the ICC just like military interventions elsewhere. For a claim on sovereignty we need an equal measure o especially a commitment to upholding human rights.

The end of the Cold War inaugurated changes in the international system that was marked by an increased prevalence of humanitarian interventions in reordering of global governance. The NATO campaign in Kosovo in 1999 is often described as the paradigmatic example of these humanitarian interventions: it is revered as history’s first instance of a truly altruistic war.

Nevertheless, the rationale offered for the war making, and the means employed therein, have been subjected to a plethora of criticisms, which are at the forefront of recent debates on global governance.

James Rosenau, an American political scientist and international affairs scholar, defined global governance as “intentional activities designed to regularise the arrangement which sustains world affairs.” Egregious humanitarian abuses do not sustain world affairs and it is within this context that humanitarian interventions are perceived as a form of global governance because they attempt to rectify such aberrations in the international order.

These interventions, along with the recent focus on the Universal Declaration of Human Rights and the Genocide Convention, have prompted some legal scholars to argue that humanitarian interventions are so commonplace in world politics that they are in fact a type of customary international law.

The doctrine and practice of humanitarian intervention presents a seemingly insurmountable dilemma in global governance: this dilemma is characterized by the tension between the primacy of state sovereignty and the protection of fundamental human rights. Some have cited the illegality of humanitarian interventions according to international law. Many states have on several occasions applied the concept as a form of global governance by intervening in the affairs of other sovereign states.
Hon. William Ruto
Hon. Kindiki Kithure, the majority leader in the senate, during the motion to withdraw Kenya from the ICC tore into the court saying, “The ICC has been turned into a vehicle to pursue international politics in a very rudimentary and capricious manner.” He further said that the ICC has been undermined by “a rogue prosecutor who is not supervised by anyone and is accountable to no one”. He may be borrowing a leaf from reasons unfortunately advanced by countries who have refused to ratify the statutes.

The US refusal to officially ratify the ICC is a huge drawback to the international community’s war on human rights violation. The US seems to be in bed with Russia and China when it comes to international law: by joining them in not ratifying the treaty, it is telling the world that it shares the priorities of these governments.

The US has been vehement that their citizens will be tried under the US laws for any human right abuses. Although US ratification would do little to motivate Russia and China to make the same move, it would send a clear message to the world that the US is ready to accept accountability for its actions and separate its record of human rights from those of Russia and China. The move would further ostracise Russia and China, both of whom face intense criticism today for their reluctance to reprimand the Syrian government.

Kenya’s quitting the ICC would not dampen the spirit of international Community’s protection of human rights. The victims of injustice would continue to cry for elusive justice. We will certainly reap political pressure of isolation that can prove such a strong diplomatic tool: it is crucial to publicly and globally separate the nations that are committed to prosecuting crimes against humanity and those that are not.

What will be our justification for failure to accede to the only established system of international due process and to recognise the international rule of law?

Rev Canon Francis Omondi
Anglican Church of Kenya
All Saints Cathedral Diocese

Addis Ababa revolt: African states withdraw from ICC

The ICC revolt by African leaders in Addis Ababa last week may not have been about the Kenya case currently being heard in The Hague. Perhaps it is more to do with the way the international community wants to use the institution for humanitarian purposes. ICC has not been a respecter of ‘persons’. AU Summit

One of the key motions they discussed, was “Withdrawal from the international criminal court (ICC).” This resolution, wants the African Union (AU) to unequivocally declare whether or not it will work with the ICC. The draft resolution, moved by Uganda and South Sudan, requires the AU Commission to expand the jurisdiction of the African Court of Human and Peoples Rights and the African Union Commission on the International Law. In effect this would mean Africans would deal with transnational crimes and crimes against humanity here in Africa without involvement from outside Africa.

Previously, the AU had “expressed its strong conviction that the search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace and reiterated AU’s concern with the misuse of indictments against African leaders.”

The International Criminal Court (ICC or ICCt) is an institution acting as a permanent tribunal to prosecute people for war crimes, crimes against humanity and genocide. It has the authority to adjudicate on claims brought to it. So it works on a referral system just like a normal court, but for claims from all over the world. It has the power to prosecute for the crime of aggression (defined as a state using armed forces against another state, whether by invasion, blockade of ports and coasts, or even if one state’s armed forces were allowed into another state for a specified period and they surpassed that period).

The Rome Statute of the ICC is its founding treaty. It is the documented body of principles according to which the ICC operates. It describes its jurisdiction, structure and functions. According to the Statute, the ICC has the power of complementarity, meaning it can investigate and prosecute in states whose national court systems have failed.

Why would they want to withdraw from the ICC? Guessing is not difficult. Think of this. In January 1933 Adolf Hitler became German Chancellor. He withdrew Germany from the League of Nations in order to rearm. The rest is history. The League of Nations was at the time fixated on reaching an international disarmament agreement. The US President Woodrow Wilson hoped the League would ensure that the First World War truly was “the war to end all wars”, but efforts to limit army sizes prompted the departure of Japan in March 1933 and then Germany a few months later.

Could it be that our leaders are trying to avoid scrutiny of crimes against humanity which have occurred under their watch? How could they fail to understand that they may still come under the ICC’s authority? Its powers are designed to be effective under these three circumstances:
1. When a criminal is a member of a state party or any state that has otherwise acceded to the court’s jurisdiction.
2. When the crime was committed on a state party’s territory or that of a state that has accepted its jurisdiction.
3. When the court receives a referral from the UN Security Council.
Sudan is not a signatory to Rome statutes. Yet five of its nationals including their president, are inductees, reported by the United Nations Security Council. Ivory Coast has not ratified the Rome Treaty the basis of the court, yet Lauren Gbagbo their former president and his wife are standing trial on charges of crimes against humanity. Kenya involved the ICC immediately after the post election violence of 2007/8. Affirmed this latter in the saying lets not be vague, go Hague. Both Uganda and Congo referred some of their citizens to The Hague, indicating that these countries volunteered to work with the ICC.

Our leaders must be aware that the end of the Cold War inaugurated a period where the international system is marked by an increased prevalence of humanitarian interventions. In April 1999, Vaclav Havel, President of the Czech Republic, delivered a famous address to the Senate and the House of Commons of the Parliament of Canada in which he claimed, “Human rights rank above the rights of states,” and “human liberties constitute a higher value than state sovereignty.”

The NATO campaign in Kosovo in 1999 is often described as the paradigmatic example of these humanitarian interventions: it is revered as history’s first instance of a truly altruistic war. Even so the rationale offered for the military intervention and the means employed therein have been subjected to a plethora of criticisms. They are at the forefront of recent debates on global governance.

The doctrine and practice of humanitarian intervention presents a seemingly insurmountable dilemma in global governance: this dilemma is characterized by the tension between the primacy of state sovereignty and the protection of fundamental human rights.

Sovereignty no longer means that internal actions are beyond scrutiny. A state that oppresses and violates the autonomy and integrity of its citizens and subjects can no longer claim that sovereignty shields it from such scrutiny and “outside interference.”

Ursula Cherono is a 41-year-old Kenyan woman who is banking on the ICC for justice. On January 27, 2008, she was at home in Rift Valley Province when she learnt that a group of young men from another tribe were planning a retaliatory attack on her community. With her neighbours, Cherono decided to flee the area. Unfortunately, they bumped into their attackers and she was struck with a club on the back.

“Some 10 attackers remained behind and they raped me repeatedly, until I was unconscious,” she sobs. “I suffered an injured spinal cord, my leg was broken and my uterus was later removed as a result of the rape.” (Article, “international justice is Africa on trial” Nation Newspaper April 4, 2012).

While victims of violent crime such as Cherono and human rights advocates appreciate the role of the ICC in international justice, some African leaders have been unimpressed by the court’s activities. They accuse it of placing undue emphasis on Africa.

Indeed, the European Court on Human Rights has frequently sided with individuals who press a human rights claim against their home state. And although Western protestations against Russian military action against Chechnya proved to be ineffectual, these protests and inspections at least affirmed the principle that no state actions that so clearly violates human rights is beyond international attention, even when these actions are represented as internal matters.

Of course, the chasm between international “attention” and effective action of prevention or enforcement is huge. The photographic images of a devastated Grozny haunts our collective conscience. Too many such images — from Srebenica, to Sarajevo, to Rwanda or East Timor — have crowded the landscape of sovereignty and international inaction.

Not even Dr. Pangloss could look at such pictures with satisfaction. As Judith Shklar has written in her remarkable essay, The Liberalism of Fear:“We say ‘never again,’ but somewhere someone is being tortured right now, and acute fear has again become the most common form of social control. To this the horror of modern warfare must be added as a reminder.”

We are compelled to continue pressing for the notion that recognition of and respect for human rights must come before the principles of state sovereignty and non-interference. An egregious violation of human rights is no less so because it occurs within the borders of a particular state.

The deepening legitimacy of the ideas of human rights provides the context for Kofi Annan’s assertion, as quoted in Jim Hoagland, “Murder in the Name of Sovereignty” (Washington Post, October 28, 1999, p. A33). The former UN Secretary continues: “Today, what is internal doesn’t remain internal for very long. We have to examine our willingness to act in some areas of conflict while limiting ourselves to humanitarian palliatives in other crises that ought to shame us into action.
Kofi Annan former secretary general un

“We have to find rational guidelines or an understanding of the spectrum on which the choices of intervention exist. We need a new consensus. The founders of the United Nations in 1945 came out of a World War determined to stop conflicts between states. The time has come for our generation to look at its responsibilities toward civilians who in today’s wars are deliberately targeted.”

The African states are angry that the UN Security Council ignored the AU request to refer the ICC trials against Sudanese President al-Bashir and the Kenyan leaders to them. This action seeks to affirm Africa’s sovereignty arguing that the ICC is threatening the independence of African states.

It is perhaps remarkable that an international diplomat of Kofi Anan’s stature was able to promote an agenda that our leaders would find troubling, if not offensive. He surely understood this, while at the same time, he took more seriously the article that opens the Universal Declaration on Human Rights: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

The Declaration may now be more a statement of lofty aspiration than a list of enforceable rights in a world of conflict within and between sovereign states. But it defines our task to translate the norms of human dignity and rights into practices and institutions that can make these norms realities.

Adam Roberts, responding to the challenge of legality of such action, suggests that the UN Charter “leaves some scope for humanitarian interventions, “but this is largely through indirect and subtle channels, which ought to be made more explicit. Therefore, since the doctrine of humanitarian intervention has no overt legal grounding in the UN Charter, it is necessary to examine the actual norms and practices of states in order to understand the evolving nature of the doctrine within the context of global governance.

The philosopher Immanuel Kant, at least, was confident that we human beings could do it: “The human race,” he wrote in 1793, “has made considerable moral progress, and short term hindrances prove nothing to the contrary.”

Our institutions at the AU are too weak to respond humanitarian challenges in Africa today. Without power to restrain aggression from outside the African states and within them, there cannot be human rights. For now International institutions such as the UN or ICC remain the only hope for citizens. The world is committed to this and will not relent. This withdrawal effort is a zero sum.

Rev. Canon Francis Omondi
Anglican Church of Kenya,
All saints cathedral diocese .
(These are the authors own opinion not the church’s .)

Powered by WordPress & Theme by Anders Norén