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Spanish Lawmakers Should Reject Proposal Aimed at deterring on Justice for the Most Serious Crimes

by alejandro on 12 Feb 2014 | Comments

(Madrid) – Lawmakers from Spain’s Popular Party are fast-tracking a bill that would limit Spanish courts’ ability to investigate and prosecute serious crimes under international law. The new proposal to reform the country’s universal jurisdiction laws would put Spain in breach of its international obligations and offer the prospect of impunity to many responsible for serious crimes.

The Popular Party seeks to justify the proposed changes by alleging that the country’s current universal jurisdiction laws are being overused or misused.If enacted, however, the proposed bill would close the doors of Spanish courts to the victims of grave human rights violations who are unlikely otherwise to be able to obtain justice, particularly within their own jurisdictions.

The principle of universal jurisdiction allows national courts to try cases of the most serious crimes regardless of where they were committed and the nationality of the perpetrator and/or the victim. These crimes include genocide, crimes against humanity, war crimes, torture and enforced disappearance. The consensus of the international community is very clear: these crimes shock the conscience of humanity and must be punished, and it is the duty of all states to investigate and prosecute those responsible for these crimes.

The proposed bill introduces an extensive and complex set of requirements that must be met before Spanish courts can assert jurisdiction over these crimes.

In particular the bill provides that, for cases involving allegations of genocide, crimes against humanity and war crimes to be investigated and prosecuted in Spain, the suspect must either be a Spanish national or a foreigner habitually resident in Spain or a foreigner who is in Spain, whose extradition has been denied by Spanish authorities. For torture and enforced disappearance, the proposed bill requires that the suspect be a Spanish national or, alternatively, that the victim be a Spanish national at the time when the crime was committed and that the suspect is present in Spain. Where these conditions are not met, the proposal allows Spanish courts to prosecute those crimes that are required by international treaties where the suspect is a foreigner on Spanish soil so long as Spain has received and denied an extradition request. 

If enacted, the bill would place Spain in breach of its international law obligations and would be a devastating blow to Spain’s commitment to ensuring accountability for the worst crimes

International Legal Background

The international community has determined that certain crimes, including war crimes, torture, enforced disappearance, are so egregious that all states have a duty either to investigate and prosecute or to extradite any person found on their soil who is suspected of these crimes. At least six key international treaties enshrine the principle of “prosecute or extradite” (aut dedere aut judicare).

For example, the Geneva Conventions state that “Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches [i.e. war crimes], and shall bring such persons, regardless of their nationality, before its own courts.” The Rome Statute also emphasizes the important role that states should play in ensuring accountability, providing that the International Criminal Court “shall be complementary to national criminal jurisdictions” and that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” Neither of these treaties, nor any of the other international treaties which concern the obligation to “prosecute or extradite,” supports limiting prosecutions for serious international crimes to alleged perpetrators of particular nationalities or to cases in which an extradition request has been lodged and denied.[1] The proposed bill does just this: it places restrictions on when prosecutions of certain crimes can take place.

In examining this obligation with respect to the Convention against Torture, the International Court of Justice explained in the 2012 case of Belgium v. Senegal, “prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State.”[2] The court further held that the state is required “to submit the case to its competent authorities for the purpose of prosecution, irrespective of the existence of a prior request for the extradition of the suspect.”[3] This means that once Spain becomes aware that a person suspected of these crimes is present on its territory, it must take steps to prosecute—unless it chooses to extradite the suspect to another state or surrender that person to an international criminal court.

The draft bill applies not only to future investigations but also to current investigations, meaning that all current cases on the basis of universal jurisdiction will be closed until it can be proven that they comply with the new requirements. This is at odds with Spain’s duty to carry out effective investigations and prosecutions for these crimes. Furthermore, it may go beyond the legislative authority of Parliament by summarily closing all the investigations. It could also interfere with the independence of the judicial system. Any decision to close a case should be taken by the courts on a case-by-case basis.

The legal restrictions contained in the bill put Spain at risk. First, they violate their international law obligations and flout the International Court of Justice decision on the duty to “prosecute or extradite.” Consequently, the bill would expose Spain to being brought before the International Court of Justice, the U.N. Committee against Torture, and the U.N. Committee on Enforced Disappearances. Second—and at a more basic level—the bill would damage Spain’s international reputation and make it an outlier in European Union Member States’ common fight against impunity for international crimes.

When Spain ratified international treaties, it affirmed its legal commitment to be bound to deny safe haven to perpetrators of the world’s most serious crimes and to fulfill its obligation to investigate and prosecute suspects of these crimes. We urge Spain to uphold these commitments and ensure that any reforms to its universal jurisdiction laws are consistent with international law.

The signatory organizations will continue to support the cause of justice for all victims of crimes under international law. Spain must respect the legality of its international obligations and be sensitive to the needs of victims.  In the world’s struggle to end mass atrocities, Spain was once at the vanguard.  We must not let it fall behind.

FIDH, International Federation for Human Rights

CCR, Center for Constitutional Rights

AI, Amnesty International

RIS, Rights International Spain

HRW, Human Rights Watch

CCIJ, Canadian Centre for International Justice


CJA, Center for Justice & Accountability

APDHE, Asociación Pro Derechos Humanos de España

Trial, Track Impunity Always

ECCHR, European Center for Constitutional and Human Rights

IDHC, Institut de Drets Humans de Catalunya

FIBGAR, Fundación Internacional Baltasar Garzón

Observatori DESC

Lawyers Against the War

AEDIDH, Asociación Española por el Derecho Internacional de los Derechos Humanos

Lawyers Without Borders Canada



International court to look into Central African Republic crime allegations: prosecutor

by Rueters on 12 Feb 2014 | Comments

(Reuters) - The International Criminal Court will open a preliminary examination into crimes allegedly committed during the conflict in the Central African Republic, the court’s prosecutor said in a statement on Friday.

“The plight of civilians in CAR since September 2012 has gone from bad to worse,” said prosecutor Fatou Bensouda in a statement, adding that some victims of crimes, which included alleged killings and acts of rape and sexual slavery, appeared to have been singled out on religious grounds.

The court has had a separate investigation under way in the country since 2007. The preliminary examination announced on Friday could proceed to a second investigation if prosecutors find evidence strong enough to justify it.

(Reporting by Thomas Escritt; Editing by Alison Williams)



Court to decide whether to suspend Kenyatta trial over ‘obstructionism’

by Thomas Escritt on 12 Feb 2014 | Comments

THE HAGUE (Reuters) – The International Criminal Court is to decide whether to suspend its trial of Kenyan President Uhuru Kenyatta because of a lack of cooperation by Kenyan authorities.

Judges said they would hold a hearing in the coming weeks on a possible reprimand for Kenya after prosecutors told the court on Wednesday that “pure obstructionism” was wrecking any chance of pursuing Kenyatta on charges that he orchestrated post-election violence six years ago.

The case is a test of the authority and credibility of the Western-backed court, which has seen several cases collapse, secured just one conviction in 11 years, and prompted bitter complaints from Africa that it is being singled out as a soft target.

The case against Kenyatta has been undermined by the withdrawal of a string of witnesses who prosecutors say have been intimidated or blackmailed, as well as other failures to secure documentary evidence.

In a January 31 court filing, prosecutors said a “climate of fear” had weakened their case and that judges should rule that Kenya was in breach of its obligation to help investigators.

They told the court they needed access to Kenyatta’s financial records, among other things, to see whether he had indirectly paid large sums of money to the perpetrators of the violence, in which 1,200 people died and thousands were driven from their homes.

Kenyatta, who is head of both state and government, denies the charge of crimes against humanity. His lawyers say the prosecution is now merely trying to blame Kenya for its own failure to build a case.

Prosecution lawyer Ben Gumpert said it was nearly two years since the records had been requested, and the prospect of building a strong case was shrinking.

“The stones that remain to be turned are getting less and less promising … more like pebbles,” he said. “We characterise the position of the government of Kenya as one of pure obstructionism.”

Prosecutors also say authorities have obstructed their attempts to interview police officers.


A lawyer for Kenyatta said that, since the records had been requested by prosecutors rather than the court, Kenya had been right to withhold them.

While Western powers led the push to establish the court and are keen to support it, they are also anxious to maintain relations with Kenya, seen as a key ally in the battle against militant Islamism in neighbouring Somalia.

The case grew more controversial throughout Africa after Kenyatta, the son of his country’s founder, won last year’s presidential election on a joint ticket with William Ruto, his deputy, who is on trial on similar but separate charges.

Kenya says the court risks destabilising east Africa if it presses on with the charges.

If the judges rule that Kenya is not meeting its obligations, they could adjourn the trial, effectively putting the case on ice, until Nairobi turns over further material.

The trial has already been postponed four times, most recently last month, when another prosecution witness withdrew.

This only increased prosecutors’ reliance on the Kenyan authorities for information.

They cite as an example a request to see telephone records from the last days of 2007, when they contend the clashes were planned. These were not provided, however, until Kenyatta’s defence expressed an interest in them.

Defence lawyer Stephen Kay, who wants the case dismissed, called the prosecution request “an attempt to stop the case without admitting who has failed here”.

“It is a blame-shifting exercise onto the government of Kenya,” he said.

Kenyatta used his position as leader of East Africa’s economic powerhouse to rally African Union allies in a diplomatic push to have the U.N. Security Council defer the case against him.

Although that was unsuccessful, the ICC’s 122 member states did agree to change court rules to make it easier for heads of state facing charges to give evidence by video link.

(Editing by Kevin Liffey)



Uhuru Kenyatta trial postponed by international criminal court

by Associated Press on 12 Feb 2014 | Comments

The international criminal court has postponed the trial of Kenya’s president on charges he orchestrated violence after his country’s 2007 elections.

The court said it would instead hold a hearing on 5 February – the day Uhuru Kenyatta’s trial was due to have started – into a request by prosecutors for a three-month adjournment in the case and a request by the president to have the case thrown out altogether.

The delay is the latest setback in the case against Kenyatta, who insists he is innocent of all charges against him.

Prosecutors asked for a delay in the case in December after one witness pulled out and another admitted giving false evidence.

At the time, ICC prosecutor Fatou Bensouda said she needed time to reconsider her case.

“Having carefully considered my evidence and the impact of the two withdrawals, I have come to the conclusion that currently the case against Mr Kenyatta does not satisfy the high evidentiary standards required at trial,” she said.

In a decision issued on Thursday, judges revealed that Kenyatta’s defence team had filed a confidential request on 13 January for the court to “terminate the proceedings ... on the grounds of insufficiency of evidence”.

No further details of the defence request were available. Judges ordered Kenyatta’s lawyers to file a public version by next Tuesday.

Last year Kenyatta’s defence team asked for the case to be thrown out.

Kenyatta denies charges of crimes against humanity, including murder, rape, forcible population transfer and persecution, for his alleged role organising violence after 2007 elections that left more than 1,000 people dead.

Kenya’s deputy president, William Ruto, is on trial at the ICC on similar charges. He has pleaded innocent.

Uhuru Kenyatta at the international criminal court in April. His team have asked for the case against him to be thrown out. Photograph: Bas Czerwinski/AFP/Getty Images
Uhuru Kenyatta at the international criminal court in April. His team have asked for the case against him to be thrown out. Photograph: Bas Czerwinski/AFP/Getty Images


Central African Republic: International Criminal Court starts war crimes investigation

by LIZZIE DEARDEN on 12 Feb 2014 | Comments

The International Criminal Court has started an investigation into possible war crimes and crimes against humanity in the Central African Republic.

The announcement came on Friday as thousands of Muslims fled Bangui, the capital, in a convoy of 500 vehicles guarded by soldiers from neighbouring Chad.

One man who fell from a truck was reportedly killed and his body mutilated, highlighting the savagery faced by those who stayed behind.

Fatou Bensouda, the prosecutor for the ICC, said the situation for civilians in the country has “gone from bad to worse” since September 2012, and she has recently received reports of “extreme brutality by various groups”.

Christian and Muslim militias have been clashing in the country, which is already the subject of a previous investigation by Ms Bensouda’s office stemming from the period before 2004.

Fighting in the country has worsened and taken on an increasingly sectarian nature since March 2013, when a peace deal and power sharing agreement between Muslim rebels from the north and the previous government broke down.


In December, the United Nations High Commissioner for Refugees said that more than 600 people have been killed and a million displaced, with the country in danger of spinning into genocide. Since that report the situation has quickly worsened.

Recent weeks have seen escalating violence in the capital, prompting a huge exodus of refugees into neighbouring countries.

Ms Bensouda said the incidents she is investigating ”include hundreds of killings, acts of rape and sexual slavery, destruction of property, pillaging, torture, forced displacement and recruitment and use of children in hostilities”.

She added that “in many incidents, victims appear to have been deliberately targeted on religious grounds”.

Additional reporting by AP and Reuters

A French soldier looks on as the body of a lynched Muslim man is burned by a crowd, in Bangui. Herve Serefio/AP
A French soldier looks on as the body of a lynched Muslim man is burned by a crowd, in Bangui. Herve Serefio/AP


Prosecutors in ICC court say Congo warlord Bosco Ntaganda led ethnicity-inspired war crimes

by alejandro on 12 Feb 2014 | Comments

Congolese militia leader and fugitive Bosco Ntaganda was confronted on Monday at the Hague, Netherlands by prosecutors over his alleged war crimes which is not limited to beheading civilians, raping women and recruiting children as fresh soldiers to his cause, said the Guardian. The International Criminal Court was told that Ntaganda gave orders to his soldiers to conduct the violent acts in the name of upholding his Hema ethnicity as more superior than ethnic Lendus in the northeastern part of Democratic Republic of the Congo over ten years ago.

At the hearing, chief prosecutor Fatou Bensouda said of Ntaganda, “He played a key role in planning assaults against the civilian population in order to gain territory. He persecuted civilians on ethnic grounds, through deliberate attacks, forced displacement, murder, rape, sexual enslavement and pillaging. (He had) failed to prevent or punish crimes by troops under his effective command or control.”

In 2006, the Guardian said Ntaganda was accused of murder and keeping women captives as his sex slaves. The allegations reportedly earned him comparisons with a more famous warlord, Ugandan Joseph Kony. The UK newspaper said that Ntaganda disrespect the ICC and the UN peacekeepers during his stint as a general in the Congolese army in 2009.

The lawyer representing victims of the alleged war crimes, Dmytro Surprun, added, “Victims were killed by bullets, by arrows, by nail-studded sticks. Most of them were mutilated, some were decapitated and their head borne as a trophy.”

The warlord known as “the Terminator” denied all 18 charges lodged against him, said the Guardian, but is not required by the cour to submit a formal plea. Reuters also said that Ntaganda had retained his stance since his first appearance at the ICC in March last year.

Geraldine Mattioli-Zeltner of Human Rights Watch commended the ICC’s efforts to prosecute a known criminal when it was made known that Ntaganda will be tried. She said, “Ntaganda’s appearance at the ICC after years as a fugitive offers victims of horrific crimes a real hope of seeing justice. Ntaganda’s detention in The Hague shows that no one is above the law.”

This photo shows Congolese warlord Bosco Ntaganda during his first ICC appearance.(Photo : Reuters/Peter Dejong/Pool)
This photo shows Congolese warlord Bosco Ntaganda during his first ICC appearance.(Photo : Reuters/Peter Dejong/Pool)


Kenya: Hague Court Ruling Body Challenges African Union Over Kenya

by Mariana on 30 May 2013 | Comments

By Tiina Intelmann*

The relationship between the International Criminal Court (ICC) and the United Nations Security Council has generated much discussion, criticism and controversy.

The Security Council has played a crucial role in international criminal justice. It was the Council that established several ad hoc criminal tribunals, like the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, after large-scale crimes occurred.

Unlike these tribunals, the work of the permanent International Criminal Court is based on the Rome Statute, an international treaty that was adopted in 1998. To date, 122 states have become parties to the statute, accepting the jurisdiction of the ICC as the court of last resort to investigate crimes against humanity, war crimes and genocide.

The Rome Statute also reserves a role for the United Nations Security Council. The council can refer situations in which one or more such crimes appears to have been committed in any State, regardless of whether it has ratified the statute of the court, under Chapter VII of the Charter of the United Nations.

This avenue was considered necessary to end impunity and to provide the council with the ability to use the ICC instead of having to set up new ad hoc tribunals in situations where international crimes were taking place outside the Rome Statute system and no domestic investigation of these crimes was taking place.

The council has twice made use of its powers to refer situations in non-Party states to the ICC: in Sudan (Darfur) in 2005, and in Libya in 2011.

The two referrals were both applauded and criticized. Through these referrals the Security Council, the most important international body tasked with the maintenance of international peace and security, expressed confidence in the newly established ICC. Moreover, the decision to refer the situation in Libya was made by consensus, with the approval of powerful states outside the Rome Statute system such as the United States, Russia and China. At the same time, accusations of politicization of the Court emerged: why does the council choose to refer certain situations outside the Rome Statute system and not others?

Time has shown that the way the council refers situations to the court does not fully empower the court to deal with these extremely complex issues: the legal obligation to cooperate with the court, including the execution of arrest warrants, applies only to states parties to the Rome Statute and the country referred. The council does not extend the obligation to cooperate to all states, as has been the case with ad hoc tribunals.

Time has also shown that the legal and diplomatic means at the disposal of the court and the states parties are not enough in cases where the referred country refuses to cooperate. This constitutes a serious weakness of the system, produces a delay in delivering justice and ultimately a feeling of abandonment, desperation and continued injustice in affected communities.

The Rome Statute also takes into account the difficulties of post-conflict situations, the linkages between peace negotiations, post-conflict rehabilitation and the delivery of justice.

This is why the Security Council, within its overall responsibility for peace and security in the world, has been given a right to defer investigations for a period of 12 months if the circumstances on the ground so require.

On several occasions states have argued that deferral under Article 16 of the Rome Statute of an ICC investigation was necessary; the council, however, has so far never used this power of deferral.

Recently the discussion of the relationship between the Security Council and the ICC has gained momentum as issues of rule of law and justice in general have gained prominence in the council, becoming part of the mainstream of council discussions. The fact that the council has increasingly been able to refer to the court’s work and contribution to the fight against impunity and to international peace and security in its resolutions and presidential and press statements is indeed welcome.

Besides the few direct linkages between the Security Council and the ICC as explained above, the authors of the Rome Statute and the states parties to the statute have always been proud of the independence of the ICC, including its purely judicial nature and the independence of its prosecutor. It is no secret that recent attempts to reform the Security Council have failed and that many states consider the Security Council unrepresentative of the world’s opinions, but rather a reflection of post-World War II realities.

For many, the possibility of council referrals of situations to the ICC opens a door to the politicization of the court. It has been of great pride for the Rome Statute system that states parties collectively elect the prosecutor, the deputy prosecutor and the judges of the court, and thus can give the power to deliver justice to those whom they trust the most.

On May 2, 2013, Kenya, a long-standing party to the Rome Statute, sent a note verbale to the President of the Security Council requesting the termination of the proceedings before the ICC. The issue at hand: the recently inaugurated President Uhuru Kenyatta and Deputy President William Samoei Ruto are alleged to have committed crimes against humanity following the disputed December 27, 2007 elections and have been indicted by the court.

The note asked for termination of the ICC proceedings rather than a deferral as contemplated under Article 16 of the Rome Statute, which Kenya previously requested in 2011. (At that time Kenya argued that an Article 16 deferral would give them time to establish alternative domestic adjudicative mechanisms.)

The note also contains harsh criticism of the current prosecutor, Ms. Fatou Bensouda, who was elected by consensus by the Assembly of States Parties in 2011 and had obtained prior endorsement of the African Union, of which Kenya is a member.

It is telling that the Assembly of States Parties has never received any complaints about the performance of the prosecutor. Kenya’s appeal to the Security Council is currently also being discussed by the African Union. I hope that the African leaders who have been instrumental in setting up the independent court will continue to stand by its independence.

Any attempt to interfere with the activities of the court apart from an Article 16 temporary deferral of an investigation, permitted by the Rome Statute, would be detrimental to the very idea behind the inception of the International Criminal Court - to have an independent court at the service of states parties to the statute.

Source: All Africa

* Ambassador Tiina Intelmann is the President of the Assembly of States Parties to the International Criminal Court, the oversight body which governs the court and comprises representatives of all countries which have ratified the court.

Photo: UN
Photo: UN


The United States and the ICC: Support From Outside of the Rome Statute System Matters

by Mariana on 30 May 2013 | Comments

by Tiina Intelmann*

On April 3, 2013, U.S. Secretary of State John Kerry published an article in this newspaper, explaining how the U.S. War Crimes Rewards Program had been expanded to offering up to $5 million for information that leads to the arrest, transfer or conviction of the top three leaders of the Lord’s Resistance Army (LRA)—Joseph Kony, Okot Odhiambo, and Dominic Ongwen, as well as the military commander of the Democratic Forces for the Liberation of Rwanda (FDLR), Sylvestre Mudacumura.

All four individuals are subject to arrest warrants by the ICC for war crimes and crimes against humanity. As Secretary of State Kerry highlighted, “Impunity is the enemy of peace. Accountability is essential to preventing atrocities from taking place in the future.”

This article was published a few days after the United States, together with another non-State Party, Rwanda, faced issues directly linked to the International Criminal Court in Kigali. On March 18, 2013, Bosco Ntaganda, who is subject to two ICC arrest warrants and accused of committing war crimes and crimes against humanity in the Democratic Republic of the Congo (DRC), presented himself at the American Embassy in Kigali and stated that he wanted to surrender to the ICC. A few days after, Ntaganda was transferred to The Hague.

These are just a few examples of how much the ICC depends on the assistance and support not only from States’ Parties to the Rome Statute, but also from non-States Parties and the broader international community for the sake of justice and accountability for atrocity crimes.

The way the Court has been operating since its establishment in 2002 has clearly shown the strengths and weaknesses of the Rome Statute as put in place in 1998. It is a court of last resort ready to step in if everything else fails, and over the past ten years it has gained wide recognition for its work. At the same time the Rome Statute system is lacking enforcement mechanisms in cases of a refusal to cooperate.

The Court certainly depends on continued assistance and support, at all levels and from different international actors. But not only that: States also should assist each other in strengthening domestic capacity to ensure that investigations and prosecutions of serious crimes of international concern can take place at the national level. As the Preamble of the Rome Statute reads, it is the “duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.

As it stands now, in 2013, concerted efforts are still needed to ensure that domestic capacity to investigate and prosecute international crimes becomes a practical reality.

Published on The Huffington Post

* Ambassador Tiina Intelmann is the President of the Assembly of States Parties to the International Criminal Court. Follow her on Twitter @Tintelmann


The Bedrock of the Rome Statute System

by Mariana on 06 May 2013 | Comments

By Ambassador Tiina Intelmann*

Very soon the International Criminal Court will celebrate its 11th anniversary. By now the Court has fully established itself and is increasingly busy. It is actively seized of eight situations and is also undertaking a number of preliminary examinations. It is a good time to take another look at the Rome Statute system and to focus on some aspects of it that need special focus.

One of them is complementarity, and how states are equipped to exercise their primary jurisdiction over atrocity crimes.

According to the Preamble of the Rome Statute, the primary responsibility for investigating and prosecuting the most serious crimes falls under national jurisdictions. The International Criminal Court (ICC), as a court of last resort, acts only if the State with the primary jurisdiction over the crimes proves to be unable or unwilling genuinely to carry out the investigation or prosecution. This is known as the complementarity principle.

Complementarity is an issue to which the Assembly of States Parties (ASP) has given special attention. At the 2010 Review Conference of the Rome Statute held in Uganda, the ICC States Parties recognized the need for States to assist each other in strengthening domestic capacity to ensure that investigations and prosecutions of serious crimes of international concern can take place at the national level. Since that time, we have been looking for avenues to work closer with the international development community, with individual countries and with civil society actors to assist states that ask for assistance in creating domestic capacity. We have also held several technical discussions between international justice practitioners and development actors.

Over years, four countries have approached the court with requests to start investigations of their situations due to the fact that all domestic avenues have failed or are non-existent. These countries are Central African Republic, Uganda, Democratic Republic of the Congo and most recently, Mali. While the Court stands ready (and was indeed created to address situations like the ones mentioned above), we need to make a collective push to have legal and judicial means in place in States Parties allowing investigation and prosecution of Rome Statute crimes. The failure of domestic systems, and thus activation of the ICC, has to be an absolute exception.

We have to make an extra effort to create a situation where all States Parties and even states outside the Rome Statute system have the domestic capacity to deal with the most heinous crimes under international law.

The international community places great importance on the rule of law and is committed to ensuring accountability for international crimes. The commitment to capacity building was affirmed in the declaration adopted by the High-level Meeting of the United Nations General Assembly on the Rule of Law at the National and International Levels which took place on 24 September 2012 in New York.

*Ambassador Tiina Intelmann is the president of the Assembly of States Parties of the International Criminal Court (ICC).

Photo: SkyeNoor
Photo: SkyeNoor


ICC accused become president and deputy president: More questions than answers

by Mariana on 08 Apr 2013 | Comments

By Mariana Pena*

The Statute of the International Criminal Court (ICC or Court) applies to all persons equally without any distinction based on official capacity. When it comes to serious violations such as genocide, crimes against humanity and war crimes, no-one is exempted from prosecution. Sadly, history has shown that heads of state and other members of government have been involved in the commission of very serious crimes. Prosecution of those holding an official capacity has not been without trouble.

The first attempt to prosecute a former head of state for international crimes concerned the former Chilean president Augusto Pinochet, who was accused of crimes committed in Chile during the dictatorship in the 1970’s and 1980’s. In 1998, Pinochet was arrested in the United Kingdom following an order for extradition made by a Spanish judge. That order had been issued in proceedings instituted under extra-territorial jurisdiction principles. It was the first time in history that the former president of a country was arrested for crimes committed during this tenure. However, the extradition request was not executed as Pinochet was sent back to Chile after claiming illness. Several attempts were made to prosecute him once back in Chile. He died, however in 2006 before the conclusion of any those proceedings, and a final judgment on his liability could not be reached.

Former presidents have also been called to respond for international crimes before international tribunals. Slodoban Milosevic, President of Serbia, was indicted by the International Tribunal for the Former Yugoslavia (ICTY) in 1999. He was the first-ever president to be charged by an international tribunal. He was arrested and handed over to the ICTY in 2001 (when he was no longer president), but died in 2006 before his trial had been completed and a verdict had been given. Charles Taylor, President of Liberia, was charged by the Special Court for Sierra Leone (Special Court) in 2003 for his alleged involvement in the 1991-2002 Sierra Leonean war. His trial was completed in 2011. He has been found guilty of war crimes and crimes against humanity. The case is currently before the Appeals Chamber of that Special Court.

At the ICC, the world’s permanent international criminal court, Jean-Pierre Bemba, former vice-president of the DRC is currently undergoing trial for crimes committed in neighboring Central African Republic. His trial will soon come to an end and a judgment could be expected several months thereafter. In addition, Omar Al-Bashir, President of Sudan, was the first-ever acting president to be charged with international crimes by the ICC. Al-Bashir has been sought since 2009 for his role regarding the commission of serious crimes Sudan’s Darfur region. He remains a fugitive and has repeatedly defied the Court. He has made official visit to the territory of African countries, including ICC States Parties like Kenya and Chad, who have failed to arrest him. Al-Bashir was re-elected in 2010 in a contested election involving fraud allegations, becoming the first head of state to be re-elected while facing charges at the ICC.

More recently, the ICC issued an arrest warrant for Laurent Gbagbo, former president of Côte d’Ivoire, who is suspected of having committed crimes during the post-election violence in Côte d’Ivoire between December 2010 and April 2011. He has been arrested and handed over to the Court. A confirmation of charges hearing was held in February 2013 and judges will decide in the coming months whether he must stand trial.

Although some of those mentioned above were indicted while they were still in office, those who have stood trial or otherwise faced proceedings have done so after stepping down. Indictment, particularly when a warrant for arrest is also issued, have often helped increase pressure, prompting resignation of those holding an official capacity, and contributing to galvanizing efforts for arrest and surrender.

The Kenya situation presents a somehow different, very unusual and unique situation.  Uhuru Kenyatta and William Ruto are both charged with crimes against humanity committed during the 2007/2008 post-election violence in Kenya. Their trials are set to start in May and July 2013 respectively. During the March 4, 2013 elections, they were elected president and deputy president respectively. Following petitions which contested the elections process, the Kenya’s Supreme Court concluded end of March that the elections had been conducted in a fair manner. That paved the way for Kenyatta and Ruto’s swearing-in on April 9, 2013.

It is worth recalling that Kenyatta and Ruto stood on different sides during the 2007 elections. While Kenyatta had then supported Mwai Kibaki’s Party for National Union (PNU), Ruto had instead backed Raila Odinga’s Orange Democratic Movement (ODM). Kenyatta and Ruto have been called to respond before the ICC for allegedly mobilizing men within their ethnic groups to attack perceive supporters of the opposing party. Despite having been indicted by the ICC, Kenyatta and Ruto continued to play a prominent role in Kenya politics over the past five years. Both were seen as likely presidential candidates in 2011-2012. In a political move to win votes and beat another strong candidate, Raila Odinga, Kenyatta and Ruto came together in a coalition (the Jubilee Coalition).

It is the first time in history that the people of a country democratically elect to the highest state office two individuals who are accused of very serious acts and who are due to stand trial before an international criminal court. While acknowledging that Kenyatta and Ruto are today innocent and will remain so until proven guilty, the election of individuals against whom so serious accusations have been made nonetheless begs the inevitable question: why would the people of Kenya do that?

Traditionally, serious accusations have resulted in the isolation of political leaders. In Kenya, that has led to their election as president and deputy president. This seems at odds not only with the moral question whether those who are suspected of crimes against humanity should run a country, but also with practical matters including their capacity to do so while standing trial in The Hague. That did not seem important for those who opted to make Kenyatta and Ruto the next president and deputy president of Kenya.
An immediate and easy explanation to why Kenyatta and Ruto won the presidential election is that Kenyans vote along tribal lines, and that they did so during the March 4, 2013 elections. The message that we receive is that tribal belonging is so strong that it can override criminal accusations. It is fair to note as well that the ICC was used by Kenyatta and Ruto in their campaign to portray themselves as victims of attempts of domination and neo-colonisation by the West, an argument that resonates well with Kenyans. Kenyatta himself stated in the run-up to the elections that the elections would be “a referendum on the ICC.”

The Court, for its part, has rightly emphasized that the elections constitute a political process which is distinct from the purely judicial proceedings before the ICC. Yet, can the Court now ignore that 50.07% of the Kenya people disregarded criminal charges? What message does that send to the ICC? The Kenyan people had been very supportive of the Court when it started its investigation. A plain reading of the elections results would suggest that Kenyans may not be as supportive of the Court any longer. However, it would be unfair to jump to such a conclusion without making a more in-depth analysis, given that these are undoubtedly complex processes. Indeed, many factors, including turn-out, tribal belonging, alternative candidates, and the various parties’ and coalition’s campaigns, undoubtedly played a role in the final electoral outcome. Nevertheless, one cannot ignore the message expressed by the Kenyan people. Their choice gives us reasons to believe that Kenyans have a strange relationship with justice, possibly because in their experience justice and corruption often overlap. The election results also confirm the certainly overriding power of politics over justice in Kenya.

A range of questions inevitably arise regarding any possible impact of the election results on the trials and/or of the trials on Kenyatta’s and Ruto’s capacity to rule the country. As for the latter point, a decision as to whether the accused can participate in the trials via video-link is due to be taken soon. In principle, presence in person is required. Who is going to run the country if both the president and his deputy are in The Hague? The reality of two accused becoming president and deputy president of a country has been largely ignored in the proceedings. Will the judges now weigh that in when making their decision on presence at trial? Should they? Or should they only base their decision on a bare interpretation of the rules?

As far as the question whether the election of Kenyatta and Ruto will impact the trials, the ICC has stated that there is no reason for the proceedings to be affected. The ICC’s decision not to take a position on Kenyan politics and to maintain its neutrality and independence appears fair. Yet, holding that there is absolutely no influence, at the very least on a practical level, appears unrealistic. There is also the question as to whether the Office of the Prosecutor had prepared to prosecute the president and deputy president of Kenya. The investigation has been characterized by multiple allegations of insufficient cooperation, serious security threats, witness tampering and witnesses’ reluctance to testify. It would not be surprising if obstacles increased after the accused are sworn in president and deputy president of the country.

In sum, Kenya politics and the unfolding of the Kenya cases before the ICC raise a broad range of questions regarding the choices of the Kenyan people, and the future of the country and its leaders. Those questions go to the core of Kenyans’ notion of justice and the ICC’s capacity to try the president and deputy president of a country. As Kenyatta and Ruto are sworn president and deputy president, and as the ICC cases progress toward trial, some of those questions may be answered and many more are likely to arise.


* Mariana Pena is an independent expert on international justice. This article is based exclusively on open sources.

Photo: Reuters
Photo: Reuters


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