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Invisible Children LRA disarmament bill

by alejandro on 08 Oct 2009 | Comments

Invisible Children’s campaign to disarm the LRA:

“We are knocking on doors and making calls to get Obama to make a statement on the war in northern Uganda. Add your name to the list and be one of the many rallying to hear from Obama.”

Follow this link to sign the petition:




by Amanda Hsiao on 03 Oct 2009 | Comments

On Thursday, the Great Lakes Policy Forum hosted a talk, “The ICC in Africa: Impartial Judge or Neo-Colonial Project?” featuring speakers Ruth Wedgwood, Director of the International Law and Organizations Program at Johns Hopkins University, Suliman Baldo, Africa Director of the International Center for Transitional Justice, and Charles Villa-Vicencio, Ph.D., former Executive Director of the Institute for Justice and Reconciliation. Discussion focused on why frustrations towards the ICC have emerged, what the appropriate role for the organization is, and whether its involvement as an outsider can truly provide the reconciliation needed at the local level.

According to its founding treaty, the ICC would only get involved in cases when states are unwilling or genuinely unable to carry out their own investigations and prosecutions. Wedgwood noted that the language, particularly the use of “genuinely,” was prone to subjectivity and led to unprecedented actions, such as the warrant issued for Sudanese president Omar al-Bashir.

The African Union has been a vocal opponent of the ICC’s move to issue an arrest warrant for al-Bashir,.Villa-Vicencio said he sees this reaction as part of a growing antagonism in Africa towards international institutions. In this particular case, the AU had requested from both the ICC and the United Nations Security Council for more time to act before the warrant was issued. Despite these overtures, the ICC went ahead with the warrant, which, according to Villa-Vicencio, undermined the AU’s efforts in Darfur and role in the region’s peace process. Baldo, who spoke at length about the growing frustrations in the Democratic Republic of Congo towards the ICC’s prosecutions in the Ituri region, said that the AU rejection of al-Bashir’ indictment was not a dismissal of the war crimes committed, but an assertion that the AU should be at the center of the region’s security and peace efforts.

Not all of the ICC’s efforts were criticized. The panel agreed that the ICC indictment of Joseph Kony and top commanders of the Lord’s Resistance Army was essential for bringing the rebel group to the negotiating table. Baldo added that the international pressure led Ugandan civil society leaders to create their own set of ideas for seeking reconciliation and accountability—ideas that were incorporated in the Juba Agreement.

Villa-Vicencio suggested that in order for the ICC to achieve both justice and peace, it must increase dialogue with the AU and redirect its focus to building local and regional structures that can do the work of reconciliation themselves. Without local engagement, the ICC risks disconnecting from the very population for whom it seeks justice. He said, “Is there justice when the ICC comes in and local people do not understand, see, or feel the justice?”

As the event’s title suggests, the ICC often evokes impassioned debates, and Thursday’s event was no exception. To read more about the Court, check out Enough’s special page.

originally posted @ Enough Project



What’s to stop the outsourcing of justice?

by Bec Hamilton on 30 Sep 2009 | Comments

Judge Daniel David Ntanda Nsereko just handed down the Appeals Chamber’s decision on the appeal lodged by Katanga against Trial Chamber II’s decision that the ICC had jurisdiction to hear his case. The bottom line is a verdict of no surprise - the appeal was dismissed; the ICC has jurisdiction over the Katanga case.

There were some statements of interest though, regarding the way Trial Chamber II assessed admissibility. The Appeals Chamber accepted the argument put forward by the Prosecution in its Response to the Defence’s Document in Support of Appeal, whereby the Prosecution argued that although Trial Chamber II reached the right result in finding the case was admissible, the way it got there left something to be desired. Basically, Trial Chamber II had looked at the fact that the DRC was not investigating the case and then determined that this absence of activity meant the DRC was “unwilling” (invoking a definition of “unwilling” that they made up themselves - a “second form of “unwillingness”, which is not expressly provided for in article 17 of the Statute”( para 77)) and that therefore the case was admissible. By contrast, the Prosecution argued that if there is no activity by the State on the case, then the question of ”unwilling” (or indeed “unable”) does not arise, given the plain language of Article 17 (1)(a) of the Rome Statute:

Art 17(1) states: “The Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to genuinely carry out the investigation or prosecution”

Article 17(1)(a) involves a two-part analysis. First, is the State doing anything on this case? If it is not, as Trial Chamber II determined in this instance, then the question of the case being inadmissible does not even arise. This is the approach the Appeals Chamber just affirmed. The mistake of Trial Chamber II was to go beyond this step of the analysis and say that because the State was not acting on this case, it was admissible on the grounds that the inactivity showed unwillingness. The attempt to connect the factual finding of inactivity with the unwillingness prong of Article 17, is something that the Appeals Chamber has now confirmed is unnecessary.

This all sounds very commonsensical, but I have a lingering concern about one part of the original Trial Chamber II judgment that the Appeals Chamber has left intact. When I first wrote about this I had only heard the Oral Decision, but the Written Decision confirmed my concerns. In the context of trying to justify why their (unnecessary) attempt to have the DRC’s inactivity on this case fall under a rubric of a kind of “unwillingness” that the Judges defined to mean unwillingness that “aims to see the person brought to justice, but not before national courts” (para 77), did not clash directly with the obligation the Preamble of the Rome Statute says that States have to prosecute international crimes, Trial Chamber II wrote:

” . . . it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. However, if a State considers that it is more opportune for the Court to carry out an investigation or prosecution, the State will still be complying with its duties under the complementarity principle, if it surrenders the suspect to the Court in good time and cooperates fully with the Court in accordance with Part IX of the Statute.” (emphasis mine) (para 79)

More opportune?? To be perfectly honest, my reaction upon reading this was no more sophisticated than, WTF? The signal sent to states is that if doing justice is just too hard, if you just don’t feel like it today, if it would be “more opportune” for you to put the time and resources it takes to run an accountability process into say, building a new Presidental Palace - well hey, that’s fine by the ICC. We’re here for you to outsource your obligation to prosecute these international crimes to anytime you feel it is “opportune”

Now in Katanga’s Document in Support of Appeal his very able British barrister, David Hooper, seems to have read my mind. In para 71 he writes:

“In sum, when the duty on every State to exercise its jurisdiction over persons alleged to be responsible for international crimes is read in light of Articles 1 and 17 and viewed against the background of the intention of the drafters of the Rome Statute, it is clear that Court may only exercise its jurisdiction over a case if a State is unwilling or unable genuinely to bring a person to justice, not if it simply prefers the ICC to take over the case.” (emphasis mine)

With my policy hat on, I think Hooper is right. But this puts me in something of a bind.

As a textual matter I agree with the Prosecution (and now the Appeals Chamber) that the black letter of the Rome Statute supports the argument that an unwilling/unable analysis only becomes a factor in admissibility if there is some State activity on the investigation/prosecution front in relation to the case.  But if that is true, then what is to stop any State simply refusing to take action, outsourcing its obligation to prosecute international crimes to the ICC, and having the ICC accept jurisdiction without question - hardly the sort of arrangement that underlies the spirit of the principle of complementarity. Yet that is, as best as I can tell, the current state of the law.

There is a widely recognized “obligation to prosecute or extradite” and then there is the Preamble of the Rome Statute saying that there is an obligation to prosecute international crimes. But an “obligation” that is in the preambular language of a treaty, with no means to enforce it, is a pretty lightweight obligation in practice. It does indeed mean that a State can take no action towards investigating or prosecuting an international crime and suffer no consequence - the ICC just takes the case no questions asked. It is not the way the drafters of the Rome Statute envisaged the court would be used, but for now at least, we seem to be stuck with it.

Germain Katanga
Germain Katanga


The Appeals Chamber upholds the decision on the admissibility of the case against Germain Katanga

by alejandro on 28 Sep 2009 | Comments

From the International Criminal Court:

On 25 September, 2009, the Appeals Chamber of the International Criminal Court (ICC) dismissed the appeal of Germain Katanga against Trial Chamber II’s decision of 12 June which declared his case admissible before the ICC.
In February 2009, Mr Katanga filed a motion with Trial Chamber II challenging the admissibility of the case before the ICC. He submitted, amongst other things, that the Democratic Republic of the Congo (DRC) was able to prosecute him and that, accordingly, he should not be prosecuted before the ICC. He further submitted that the Prosecutor, when applying for a warrant of arrest, should have disclosed to the Pre-Trial Chamber certain documents indicating that Mr Katanga was under investigation in the DRC, which, he claimed, made the case inadmissible before the Court. On 12 June, the Trial Chamber rejected the challenge. The Defence appealed this decision.
Today, Judge Daniel David Ntanda Nsereko, acting as Presiding Judge, gave a summary of the Appeals Chamber’s judgment in open court. He explained each of the five grounds for appeal and the Chamber’s respective determinations:
-      The Defence submitted that Trial Chamber II erred in considering that the challenge to admissibility was filed out of time and that it should have been filed prior to the “commencement of the trial”. The Appeals Chamber noted that the appellant himself acknowledged that he did not suffer any prejudice from the Trial Chamber’s allegedly erroneous interpretation of the Rome Statute, because the Trial Chamber decided to consider the merits of his admissibility challenge. Since there was no prejudice, the Appeals Chamber did not deem it necessary to consider the merits of this first ground of appeal.

-      The Defence submitted that Trial Chamber II erred in considering that Pre-Trial Chamber I had determined the admissibility of the case on proper grounds, since the Prosecutor failed to disclose relevant documents concerning the attacks on Bogoro for which a warrant of arrest against Germain Katanga was requested. The Appeals Chamber considered that, were it to assess the merits of this second ground for appeal, it would, in effect, be assessing the correctness of the Pre-Trial Chamber’s decision on the warrant of arrest, and not of the decision of the Trial Chamber, which was the subject of the appeal.

-      The third and fourth grounds of appeal related to compliance with the principle of complementarity, under which priority is given to national systems. The ICC complements national criminal justice systems rather than replacing them. The Appeals Chamber found that the complementarity principle, as enshrined in the Statute, strikes a balance between safeguarding the primacy of domestic proceedings vis-à-vis the ICC, on the one hand, and, on the other, the goal of the Rome Statute to “put an end to impunity”. If States are unwilling or unable to investigate and, where necessary, prosecute, the ICC must be able to intervene. The Appeals Chamber also noted that, at the time of the admissibility proceedings in the present case, there were no proceedings against Mr Katanga in the DRC, whether for the crimes with which he is charged before this Court, or for other alleged crimes. On the contrary, the DRC has made it clear that it wished for him to be prosecuted before the ICC.

-      Under the fifth ground of appeal, the Defence for Mr Katanga disputed the fact that a State can decide whether or not it is willing to prosecute international crimes “without the need to justify or explain its unwillingness”. In the opinion of the Defence, that would lead to the accused being deprived of the right to effectively challenge the admissibility of the case based on a State being unable or unwilling to prosecute. However, the Appeals Chamber considered that this argument is misconceived, and held that whether or not a case is admissible is determined by the Court, which assesses the relevant facts against the criteria of article 17 of the Statute.

For these reasons, the Appeals Chamber upheld Trial Chamber II’s decision of 12 June, 2009 and dismissed the appeal.
Germain Katanga was transferred to the ICC on 17 October 2007. The charges against him were confirmed by Pre-Trial Chamber I on 26 September 2008. He and Mathieu Ngudjolo Chui allegedly jointly committed, through other persons, crimes against humanity (murder; sexual slavery and rape) and war crimes (using children under the age of 15 to participate actively in hostilities; intentionally directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities; wilful killing; destruction of property; sexual slavery and rape). The trial in the case of The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui is scheduled to commence on 24 November 2009.

Case Information Sheet The Prosecutor v. Germain Katanga and Mathieu Ngudjolo

Germain Katanga
Germain Katanga


Urge Philippines to join the Rome Statute

by Brigitte Suhr on 24 Sep 2009 | Comments

From the Coalition for the International Criminal Court

This month’s target country for our ongoing Universal Ratification Campaign is the Philippines. The Universal Ratification Campaign is a worldwide effort to promote universal acceptance of the International Criminal Court. Actions are needed to urge governments to ratify or accede to the Rome Statute; adopt effective implementing legislation and ratify the ICC Agreement on Privileges and Immunities.

Greater support for the International Criminal Court in the Asian region is needed in order to increase the region’s commitment to the fight against impunity. We ask you to visit our ratification campaign page where you can send a letter to the President of the Philippines, H.E. Mrs. Gloria Macapagal-Arroyo. This CICC ratification campaign page on the Philippines is accessible at:

Other Related Actions to Support the Campaign

There are a number of other ways to support the ratification campaign in the Philippines:

1. Modify a copy of the letter available on the CICC ratification campaign pages noted above and send it to the Embassy of the Philippines in your country.

2. Join the ICC-Asia listserv, which sends periodic updates about the International Criminal Court as it relates to the Asia/Pacific region, by e-mailing the Coalition Secretariat’s Asia/Pacific and Latin America/Caribbean Outreach Liaison (JavaScript must be enabled to view this email address) or send a message to (JavaScript must be enabled to view this email address).

3. Contact (JavaScript must be enabled to view this email address) at the CICC for a model press release that you can use to raise awareness about the Universal Ratification Campaign in your country.

4. Contact (JavaScript must be enabled to view this email address) at the Coalition’s Secretariat office in New York as well as (JavaScript must be enabled to view this email address), Asia Coordinator to inform us of any actions you take, or to discuss initiatives. You can also raise awareness of this campaign by sending this email to other organizations in your country.

Please do not hesitate to contact the CICC if you have further questions or need more information.



The Worst Anti-ICC Editorial Ever

by Kevin Jon Heller on 23 Sep 2009 | Comments

As part of the backlash against the Goldstone Commission’s recommendation that the Security Council refer the situation in Gaza to the ICC if Israel and Hamas do not conduct credible investigations of their crimes, the far-right Jerusalem Post published an editorial today entitled “Strange Justice: The ICC, Europe, and the World.”  The editorial was ostensibly written by a Researcher at Hebrew University of Jerusalem, but one wonders what, exactly, the author actually researches — the editorial contains more basic factual errors than any editorial I have ever read.  Normally, I would just laugh the editorial off and turn to more pressing writing matters.  But I think it’s important to make clear just how little the Jerusalem Post seems to care about the quality of its editorial pages — after all, the newspaper is likely the primary source of information about the ICC for many conservative Israelis.

Let slip the fisking!

The recent revelation that the gas-station-attendant-turned-Liberian-warlord Charles Taylor has converted to Judaism once again reminds us that he is in the International Criminal Court (ICC) prison in The Hague.

First sentence, first obvious error: Taylor is in the UN Detention Centre in The Hague, which is not run by the ICC.  (Although the ICC does have prisoners there.)  Moreover, Taylor is being tried not by the ICC, but by the Special Court for Sierra Leone.  (Lest the reader think my interpretation of the statement is uncharitable, keep reading.  The author has no idea that the international tribunals are separate institutions.)

With the publication of the Goldstone report accusing Israel of “war crimes” there is a chance that Israelis might one day share his fate. Yet at the same time, other European courts are releasing terrorists and elderly Nazis due to “ill health.”

This begs the question: Why are UN prisoners of the ICC not given the same rights as Nazis and terrorists?

ICC prisoners are not prisoners of the UN.  The ICC and the UN are separate.  Moreover, the Rome Statute not only authorizes the Court to reduce a sentence, it requires the Court to review a sentence after the prisoner has served 2/3 of his sentence or 25 years of a life sentence. (Article 110).

(As an aside, one wonders whether the author would be quite so eager to see a convicted Hamas terrorist released because he was elderly or in ill health.)

Are Europeans who committed war crimes during World War II seemingly beyond the jurisdiction of the ICC? The court excels at prosecuting Eastern Europeans (primarily Serbs) and Africans.

The author gets one right: no, the ICC does not have jurisdiction over crimes committed by Europeans (or anyone else) during WW II. It does, however, have jurisdiction over crimes committed by Europeans after 1 July 2002.

The ICC, established by the UN in 1993, has four ongoing investigations, all in Africa (Sudan, Congo, Uganda and Central African Republic). Of 14 individuals currently indicted, two have died and four are in custody. The others are “fugitives.” However, over the past decade and a half, the ICC has also prosecuted war crimes in the former Yugoslavia and Rwanda through special tribunals.

Note to author: the ICTY and ICTR are not part of the ICC.  The ICTY was established in 1993 by the Security Council; the ICC was established in 1998 by treaty.

Consider the case of Slobodan Milosevic, the highest-profile case. Although he was transferred to the court’s custody in 2001, the prosecution took two years to present its case. Milosevic died in his cell in 2006, in the midst of a seemingly endless trial. Consider that the Nuremburg trials, which investigated millions of deaths, took just one year to complete. The right to a speedy trial is a hallmark of most justice systems, but not the UN’s.

The author almost makes a valid point: accused at international tribunals do spend too much time in pre-trial detention, despite the fact that — contrary to the author’s assertion — all international tribunals guarantee the right to a speedy trial. (See, e.g., Article 67 of the Rome Statute.)  The right to a speedy trial also refers to the length of pre-trial detention, not the length of trial.  (Although the length of trials is certainly a problem.)

Another associated problem with the ICC is its method of justice, which includes its lack of jurisdiction, its convoluted bureaucracy, its lack of an appeal process and its lack of a trial by jury.

As for the ICC not using juries, true enough.  But neither do many of the civilian criminal-justice systems to which the author unfavorably compares the ICC system.  As for the “lack of an appeal process,” the author is dead wrong: all convicted defendants at the ICC have the right to appeal both their conviction and their sentence. (Article 81.)  Note also that the Nazis convicted by the IMT — a trial with which the author (rightly) appears quite taken — had no appellate rights whatsoever.

It has 16 permanent judges and 12 temporary ad litem judges. Seven of the permanent judges are from European countries, one is from the US and one is from Australia. Of the 12 temporary judges, eight are from European countries. Thus the court is primarily European run.

Sorry, that’s the ICTY again.  The ICC currently has 17 judges, five of whom are African (including the First VP), three of whom are Latino, and two of whom are Asian (including the President).  So much for the Court being “primarily being European run”!  (Especially as three of the European judges are from Finland, Latvia, and Bulgaria, not exactly traditional colonial powers.)

Yet those it judges are not from Europe; they are usually kidnapped from their home countries, without the ability to appeal their extradition, and shipped to Europe to sit in a European prison where they have no access to legal protections that other Europeans enjoy.

Yep, no rights at all — except for all of the rights in the ICCPR (like Europeans), such as the right not to be subjected to arbitrary arrest and detention (Article 55), as well as the right to challenge the Court’s jurisdiction and the admissibility of the case (Article 19).

From where does the UN derive its power to detain people? When UN workers commit crimes in foreign countries, they are sent home for prosecution. But those same workers can place locals in UN custody without the local having a right to appeal!

Again, the ICC and the UN are separate.  The ICC gets its power to detain people from the Rome Statute, a treaty ratified by 110 states, and — in the case of referrals — from the Security Council’s authority under Chapter VII.

Until the ICC grants the same rights to Charles Taylor that it does to Nazis and other Europeans, it cannot be considered a legitimate court, and should be spurned by the world.

See?  I told you that the author doesn’t understand that the ICC and SCSL are different!

If the ICC actually resembled the Kafkaesque nightmare imagined by the author, I would agree that it should be spurned by the world.  Fortunately, it doesn’t.  The only thing that should be spurned, therefore, are know-nothing editorials like this one.  The Jerusalem Post should be ashamed of itself for publishing it.

originally posted @ Opinio Juris



Would Moreno-Ocampo Actually Investigate Only an Israeli Officer?

by Kevin Jon Heller on 22 Sep 2009 | Comments

According to Newsweek, the answer may well be yes:

As chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo has so far steered clear of controversial cases. In doing so, he hoped to allay U.S. fears that the ICC would become a politicized tool for settling scores. Which is why it’s so surprising that Moreno-Ocampo is now considering an investigation into whether Reserve Lt. Col. David Benjamin, an officer in the Israeli military, authorized war crimes during the Gaza campaign earlier this year. Israel did not sign the treaty that created the ICC and thus is outside Moreno-Ocampo’s jurisdiction, but thanks to a bit of legal sleight of hand, the prosecutor told NEWSWEEK he believes he has all the authority he needs to launch an inquiry: Benjamin holds dual citizenship in both Israel and South Africa, and the latter has signed the ICC’s charter, bringing Benjamin into the court’s orbit.

The case itself may be hard to substantiate; Benjamin told NEWSWEEK he was out of the country during most of the Gaza operation and had no role in its planning. Still, the dual-citizenship issue could set a dangerous precedent for Israel and the United States, which also rejects ICC jurisdiction. If the court can investigate an Israeli with South African citizenship, why not an American with Mexican citizenship? “The implications for the U.S. are potentially very troubling,” says Michael Newton, an international-law professor at Vanderbilt University. But even more so for the fledgling court, which is still struggling to establish legitimacy.

I don’t see what is so troubling about the idea of prosecuting someone who has dual citizenship in a non-ICC state and an ICC state.  Given that nationality is one of the Court’s primary jurisdictional bases (along with territory), no “sleight of hand” would be involved in the the ICC investigating an American with Mexican citizenship.  (Law aside, it’s revealing that Newsweek’s hypothetical defendant is described as an “American with Mexican citizenship,” instead of as a “Mexican with American citizenship.”  Only an American journalist could so unselfconsciously presume that American citizenship is at the core of all dual citizens’ identities.)

That said, investigating Lt. Col. Benjamin would be a terrible idea.  It is bad enough that Moreno-Ocampo did not immediately reject the Palestinian Authority’s attempt to accept the jurisdiction of the Court on an ad hoc basis, which directly contradicts the plain language of Article 12(3) of the Rome Statute: “a State which is not a Party to this Statute is required under paragraph 2… may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question” (emphasis added).  That route to jurisdiction would at least result in the OTP investigating the situation in Gaza as a whole, including war crimes and crimes against humanity committed by Hamas.  Article 14 makes very clear that a State cannot refer a specific case for investigation: “[a] State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.”

Article 15, by contrast, contains no such limitation: “[t]he Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.”  In theory, then, Article 15 would allow Moreno-Ocampo to investigate only the crimes allegedly committed by Lt. Col. Benjamin, ignoring the numerous other crimes committed in Gaza by Israel and Hamas.  That is a horrific prospect, one that would confirm the fears of the ICC’s worst critics, who regularly claim — without any actual evidence, at least until now — that the Court is on a vendetta to delegitimize Israel.  The OTP should not be investigating Gaza at all, barring an unlikely referral by the Security Council.  And if such a referral is ever made, the OTP must investigate both Israel and Hamas.  (Like Article 14, Article 13 requires the Security Council to refer situations, not specific cases, to the Court.)

Finally, it is important to recognize that Moreno-Ocampo would not be able to investigate Lt. Col. Benjamin without the approval of the Pre-Trial Chamber.  Regarding investigations proprio motu, Article 15 provides that “f the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation.”  That is a critical limitation on the Prosecutor’s power, because Article 17 allows the PTC to deem a case inadmissible if it concludes that “[t]he case is not of sufficient gravity to justify further action by the Court.”  It is difficult to see how crimes allegedly committed by a Reserve Lt. Colonel who was “out of the country during most of the Gaza operation and had no role in its planning” could be grave enough — relative to all of the other serious crimes committed in Gaza — to warrant ICC prosecution.

I sincerely hope that Newsweek is mischaracterizing Moreno-Ocampo’s statement — and I invite ICC insiders who read this blog to comment on this post or email me privately if that is the case.  Because if Moreno-Ocampo even suggested that investigating Lt. Col. Benjamin would be an appropriate use of his proprio motu authority, the end of his tenure as Prosecutor cannot come soon enough.

originally posted @ Opinio Juris

Luis Moreno-Ocampo
Luis Moreno-Ocampo


Tribunal: Kenya to beg Ocampo for more time

by MACHARIA MWANG on 22 Sep 2009 | Comments

The government on Monday admitted that it would not keep the promise it made to the International Criminal Court to set up a local tribunal by September 30.

Instead, it will write to the ICC asking for more time to pass the law which will set up the tribunal.

This is the third time the government is failing to honour deadlines in bringing to justice those who masterminded the violence that erupted after the 2007 presidential election.

‘We have failed’

“Let us face the facts as they are; we cannot beat the deadline set by the ICC during our July 3 meeting. We have failed,” admitted Justice, National Cohesion and Constitutional Affairs minister Mutula Kilonzo.

At that meeting, the government committed to setting up the tribunal and provide information on witness protection and progress in investigations.

“On the other two, we have already achieved. But we have failed to convince the country to accept a credible judicial mechanism for trying the post-election violence perpetrators,” Mr Kilonzo said.

Parliament went on recess without discussing the Imanyara Bill, which proposes the establishment of such a tribunal. The Cabinet rejected a similar proposal by Mr Kilonzo.

Mr Kilonzo said although the Bill had received the Speaker’s consent, it was still not tabled. “Therefore, we haven’t fulfilled our obligation,” he said, adding that he would either write or call ICC prosecutor Luis Moreno-Ocampo to brief him on the new development.

“We will tell him sorry,” he said.

The minister did not seem too sure how he was going to get in touch with Mr Moreno-Ocampo, saying he had not decided whether to write or call him.

Closed chapter

He also seemed to have given up on a local tribunal, at one time saying he considered it a “closed chapter” and that the sooner Mr Moreno-Ocampo comes to Kenya, the better for the country.

Kenya has ratified and domesticated the Rome Statutes and the ICC prosecutor was free to come into the country. The Internal Security ministry had the power to extend such as invitation, said Mr Kilonzo.

A request for an extension of time is unlikely to be received warmly at The Hague.

In a statement on the ICC website, Mr Moreno-Ocampo said he wanted to make Kenya an example to the world on how to deal with impunity.

President Kibaki and Prime Minister Raila Odinga were to sign a pact for the formation of the tribunal by December 17, last year. After that, MPs were to have until January 30, 2009, to amend the Constitution and entrench the tribunal, which was to be up and running by March 1, 2009.

Kenya asked for more time until end of July, and later until September 3.

“The failure lies on the shoulders of the whole country and I cannot carry the baby alone,” Mr Kilonzo said.

He was speaking at a Naivasha hotel during an induction for members of the Truth, Justice and Reconciliation Commission (TJRC).

He told the team that the TJRC Act gave them the independence to do their work without interference.


“Universally, TJRCs are known to be very expensive. It is, therefore, expected that you will design a process and structures that are responsive of these facts,” the minister said.

The truth team is not an instrument of prosecution or witch-hunting, nor can it be a whitewash as the sceptics would want to suggest, he said.

Kenya has ratified and domesticated the Rome Statutes and the ICC prosecutor was free to come into the country. The Internal Security ministry had the power to extend such as invitation, said Mr Kilonzo.

A request for an extension of time is unlikely to be received warmly at The Hague.

In a statement on the ICC website, Mr Moreno-Ocampo said he wanted to make Kenya an example to the world on how to deal with impunity.

President Kibaki and Prime Minister Raila Odinga were to sign a pact for the formation of the tribunal by December 17, last year. After that, MPs were to have until January 30, 2009, to amend the Constitution and entrench the tribunal, which was to be up and running by March 1, 2009.

Kenya asked for more time until end of July, and later until September 3.

“The failure lies on the shoulders of the whole country and I cannot carry the baby alone,” Mr Kilonzo said.

He was speaking at a Naivasha hotel during an induction for members of the Truth, Justice and Reconciliation Commission (TJRC).

He told the team that the TJRC Act gave them the independence to do their work without interference.


“Universally, TJRCs are known to be very expensive. It is, therefore, expected that you will design a process and structures that are responsive of these facts,” the minister said.

The truth team is not an instrument of prosecution or witch-hunting, nor can it be a whitewash as the sceptics would want to suggest, he said.

“It cannot target particular communities or individual personalities, otherwise its purpose would be defeated,” he said.

Its job is to heal the wounds of the victims and reconcile the nation, he said and called on the international community to help. The induction was attended by TJRC chairperson Bethuel Kiplagat, his deputy Betty Murungi and other commissioners.

originally posted @ The Nation

Louis Moreno-Ocampo, speaks at a news conference at the UN. PHOTO/ FILE
Louis Moreno-Ocampo, speaks at a news conference at the UN. PHOTO/ FILE


Kenya: ICC proposes a three-tier Approach

by Dave Fish Eagle on 21 Sep 2009 | Comments

The International Criminal Court Chief Prosecutor Moreno O’campo has proposed a three pronged approach to deal with the perpetrators of the post election violence that rocked Kenya after the announcement of the presidential election results on 30th December 2007.

Speaking at a meeting with Kenya’s Lands Minister James Orengo at the IC C headquarters in The Hague, Netherlands, O’campo routed for the creation of special courts to try those who committed the atrocities, as the ICC will deal only with those who bore the greatest responsibility of the violence.

He also added that the Truth Justice and Reconciliation Commission be used as an avenue to deliver justice through creating an enabling environment for confessions. He said through TJRC, many will seek forgiveness. The TJRC has been the preference of the political class, who are suspected to have been behind the violence.

In July, the Kenyan cabinet resolved to back the TJRC, contrary to agreements between the Kenyan delegation and O’campo that the Kenyan parliament sets up a special tribunal by the end of September 2009.

Orengo is at The Hague on the invitation of the Dutch Government for a human rights conference. Both Orengo and the ICC prosecutor addressed the conference, with the Kenyan lands minister presenting a paper on fighting impunity and peace building. He was part of the mediation team that came up with proposals of the formation of the Commission of Inquiry into the Post Election Violence, which proposed that the Kenyan parliament sets up a special tribunal to try those behind the mayhem, or the ICC takes over.

Currently, Kenyans and the international community await for the outcome of the Special Tribunal Bill that is being fronted by MP Gitobu Imanyara. The bill is currently at the publication stage. Two attempts by the government to set up the special tribunal have hit a brick wall, after the country’s parliament rejected the move.

originally posted @ Zimbabwe Metro

Kenyan Parliament
Kenyan Parliament


ICC welcomes the Republic of Chile as a new State Party

by alejandro on 18 Sep 2009 | Comments

Today, the International Criminal Court held a ceremony to welcome the Republic of Chile as the newest State Party to the Rome Statute. The Statute entered into force for Chile on 1 September 2009, bringing the total number of States Parties to the Rome Statute to 109.

In a symbolic act held at the seat of the Court, the President of the Court, Judge Sang–Hyun Song, congratulated the Ambassador of Chile, H.E. Mr Juan Antonio Martabit whilst presenting him with a special edition of the Rome Statute. President Song welcomed the new State Party member: “Even as Chile sifts through its past, by joining the Rome Statute, it has made clear its commitment to a particular vision of a common human future. It is a future of accountability – a future of justice for war crimes, crimes against humanity and genocide”, said President Song.
In response to the President and while thanking him for his gift, Ambassador Martabit said, “I would like to emphasise that, although this achievement is the result of the efforts of many sectors of our society, it is most of all due to the personal interest of our President, Ms Michelle Bachelet, who considered the ratification of the Rome Statute a primary goal of her government.”

The ceremony was held in the presence of the Vice-President of the Assembly of States Parties and Ambassador of Mexico, H.E. Mr Jorge Lomónaco. The Vice-President of the ICC, Judge Fatoumata Dembele Diarra, the Prosecutor, Mr Luis Moreno Ocampo, the Registrar, Ms Silvana Arbia, and the judges of the Court also attended the ceremony.

Ambassador Lomónaco paid tribute to the Republic of Chile, remarking on the significant accomplishment of such a ratification in light of the history of Latin American countries in the twentieth century: “I
wish to express my genuine hope that other countries that have yet to join the Rome Statute family will be inspired by Chile’s example and reinforce our common struggle to end impunity”.

Whilst this is the first time that the ICC has organised a ceremony for such an event, it is envisaged that future ceremonies will also be held on the occasion of new States joining the ICC.

Speech of the President of the ICC, Judge Sang-Hyun Song

Speech of the Vice-President of the Assembly of States Parties, the Ambassador of Mexico, H.E. Mr Jorge Lomónaco

Speech of the Ambassador of Chile, H.E. Mr Juan Antonio Martabit

Video footage of the ceremony



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