Monthly Archives: November 2012

Recent Court Documents from the ICC Kenya Cases 30 November 2012 (Part 2)

  1. The Trial Chamber (by a majority, Judge Eboe-Osuji dissenting) has asked the prosecution in both the Ruto/Sang and Kenyatta/Muthaura cases to clarify its characterisation of the facts in the Document Containing Charges. The question revolves around which are relevant facts that underpin the charges and which are just background facts. The Defence is concerned that facts that were rejected by the Pre-Trial Chamber should not be reintroduced as relevant facts for purposes of the trial.
  2. The Arrest of Dennis Itumbe was not pursuant to a request by the Court or the Prosecutor. This is according to a decision of the court. It may be recalled that Mr. Itumbe was allegedly arrested in the context of accusations that individuals were involved in interfering with ICC witnesses. He complained to the ICC that he was illegally arrested by Kenya police and that this was done at the request of the Court/Prosecutor. As a result he demanded compensation for the arrest. This finding that the Court/Prosecutor was not involved in this arrest highlights the perils of state cooperation with the court. Unless it can be shown that the Court/Prosecutor was engaged in concerted cooperation with the National Authorities such that the conduct can be ‘attributed’ to the court, it will be difficult to take action for violations of law/human rights by state agents who believe that in their actions, they are assisting the court.

Recent Court Documents from the ICC Kenya Cases 30 November 2012 (Part 1)

Wilfred Nderitu has been appointed to be common representative of the victims in the Ruto/Sang case. He is a practicing advocate in Kenya (there’s even a brief Wikipedia entry in his honour) and an impressive resume with stints as lead prosecutor, co-counsel, duty counsel and amicus curiae in both the International Criminal Tribunal for Rwanda and the International Criminal Court. He is also former head of ICJ-Kenya.

Fergal Gaynor has been appointed to be common representative of the victims in the Kenyatta/Muthaura case. He has significant experience in International Criminal Practice, having worked at the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the UN International Independent Investigation Commission (investigating the killing of former Lebanese Prime Minister Rafik Hariri).

One of the key criteria for selection of a common representative was that he or she would maintain a permanent presence in Kenya. Given this fact, the Trial Chamber has expressed its expectation that representation of victims at court will be conducted by members of the Office of Public Counsel for Victims. The common legal representative will be expected to be in the ‘field’ in Kenya for most of their time.

Simone Gbagbo- A Questionable Pioneer

An unwelcome milestone for women- the Former First Lady becomes the First Woman under an ICC arrest warrant.

Actually, the arrest warrant was issued back in February under seal. Perhaps the delay in handing her over to the court may have pushed the ICC to unseal it. Still not clear if Cote d’Ivoire will immediately hand her over- she is facing corruption related charges in her home state.

Still not clear if any supporters of Alassane Ouattara, the current Cote d’Ivoire President and the man who succeeded Gbagbo after a violent post-election conflict, will make it to the ICC. As the pre-trial chamber indicated in the authorisation decision, it was important for the Prosecution to investigate both sides of the conflict equally.

It’s all too easy to draw parallels between the Cote d’Ivoire and Kenya post-election crises, but for me the most striking thing is how deep the wounds remain in Cote d’Ivoire. So I would closely watch both the Cote d’Ivoire and Kenya cases in order to compare how the trials either help or hinder reconciliation. To understand how international tribunal decisions can feed destructive ethnic nationalism one can consider the cheering and crying that accompanies each major ICTY decision (such as the recent Gotovina Acquittal) and partisan responses in the former Yugoslavia to a previous ICJ Decision that avoided finding that Serbia committed Genocide in Bosnia.

Recent Court Documents from the ICC Kenya Cases 20 November 2012

The Ruto/Sang Defence Teams have filed a joint request to the court to order the prosecution to indicate if it intends to continue relying on certain witnesses at trial. These witnesses’ statements were given in evidence during confirmation proceedings, but under pseudonyms and with redactions.


The Trial Chamber has granted Kituo cha Sheria amicus curiae status in both the Ruto/Sang and Kenyatta/Muthaura cases. The organisation will now submit observations based on the court’s Victims Decision which set out the procedure for victims’ participation at trial. Already the Office of Public Counsel for the Victims and the Registry had filed their proposals on this matter. In the course of the Kenya cases, various individuals and groups have attempted to enter proceedings as amici curiae . Most attempts failed. But in this decision, the Chamber felt that Kituo could give real assistance to the OPCV, Victims Participation and Reparations Section, Registry and Common Legal Representative as to the implementation of the Victims Decision. In particular, the Chamber noted Kituo’s various programmes on community participation at the Truth, Justice and Reconciliation Commission as well as its outreach to PEV Victims gave it specialised knowledge and experience on the implementation of a system of victims representation and participation.


The Prosecution has applied to delay disclosure to the Kenyatta/Muthaura defence teams of the identities of six provisional witnesses until 30 days prior to the trial. According to the application, four of the witnesses are Mungiki insiders who can testify to a link between the accused, Mungiki, and the crimes alleged. The prosecutor claims that there are security concerns, making a dry comment on “the limited pool of senior Mungiki members who are still alive and willing to testify” (Former Special Rapporteur Phillip Alston’s report on Extra-judicial killings and the videotaped testimony of Police Constable Bernard Kiriinya vividly describe why the ‘pool’ is so limited)

11th Assembly of the ICC State Parties

The ICC is holding a meeting of the State Parties. This is the body that deals with legislative matters as well as oversight of the court. Most importantly, the state parties fund the court, give political muscle to enforce its rulings, and help in myriad functions such as witness protection and they want to see bang for their buck.


Unfortunately, I find blogging about meetings a bit dull. Fortunately some wonderful people are already doing it so I don’t have to. Please check out IntLawGrrls which includes a useful summary of proceedings during the Assembly.


One thing I remember from previous reports about these State Parties Assemblies is there is usually moaning, particularly amongst the big funders (Germany, Canada etc.) about the cost of running the court. Reading the comments they make about the ICC’s financial estimates is actually a bit amusing as they fret about the costs of running the court, asking everyone to ‘be more efficient’. One can understand their thrifty attitude towards a budget that they have to pay for. But given the increasing workload of the court, continually asking it to cut costs is a little like Scrooge castigating his frostbitten clerk for wasting coal on Christmas Eve.

A Shot at the Deputy

I couldn’t resist the Bob Marley word play.

The news is that Fatou Bensouda the Prosecutor of the ICC now has a deputy after five rounds– count ’em- five rounds of voting. Its hard to imagine how Kenyans would gripe if our elections were also pentathletic.

The new Deputy is James Stewart and, at least from this mini-biography, it seems he comes with a wealth of experience in international criminal law, particularly in East Africa with the International Criminal Tribunal for Rwanda. His appointment fits the current pattern of the Prosecutor and the Deputy Prosecutor being appointed from different regions. Last time it was South America (Ocampo) and Africa (Bensouda). This time it is Africa (Bensouda) and the North America (Stewart is Canadian).

Side-bar: I always get confused and call Fatou Bensouda the Chief Prosecutor. Actually she is the Prosecutor. The next senior official is the Deputy prosecutor. Every other prosecuting lawyer in her office is then an assistant prosecutor.

Brief Analysis of Piracy Appeal Judgement- The Long Oar of the Law

A few weeks ago, the Court of Appeal delivered its long awaited ruling in Attorney General v Hashi and Others. In its judgement (although not explict, it seems that Judge Maraga’s judgement is the Majority Judgement with the others appending concurring opinions), the court unanimously overturned the High Court’s decision to free several Non-Kenyan defendants charged with Piracy. The High Court had held that Kenyan courts- specifically magistrates’ courts- had no jurisdiction to try acts of piracy supposedly committed outside the territorial limits defined in the Penal Code.

Without going into each of the points the Court of Appeal made, I wish to point out several issues that stick out for me in the Appeal judgement. The first is that the court was careful to analyse the applicable international law, including customary international law. As I have argued in this paper, since the promulgation of the 2010 Constitution, not enough analysis of the precise application of customary international law and jus cogens norms has happened in the Kenyan case law, even when these are directly at issue. This approach bore fruit as the judgement clearly defined the various elements of the customary crime of piracy. The judgement also demonstrated that the legislature in 1969 presumably understood international law and amended the penal code in conformity with the customary international law on piracy in jure gentium in order to give Kenyan courts jurisdiction for acts on the high seas.

Unfortunately, once again there is vagueness- particularly in Koome JA’s concurring opinion- about which international law applies under which Article of the Constitution. When, for example, Judge Koome writes “by dint of Article 2 (5) of the Constitution, UNCLOS is part of our laws…” does she mean that the convention is made up entirely of general rules of international law? Or that the convention is accepted as customary international law? Or that the convention is jus cogens?  Indeed why refer to Article 2(5) at all? Since UNCLOS is treaty/conventional international law and has been ratified by Kenya, would it not be more appropriate to cite Article 2(6) which specifically addresses such conventional law?

Muddling up the different sources of international law may not have an effect in this particular case, but it will when a norm such as “crime against humanity” is defined differently under ‘general rules of international law’ than in treaty/convention law. Under international law, such a situation is permissible and elaborate rules of priority have been developed to resolve any conflicts arising from the coexistence of similar general rules and treaty rules. But blithely applying Article 2(5) and 2(6) as if the two provisions are the same will cause mistakes in applying these conflict-of-norms rules.

Another striking issue for me is that some of the reasoning for allowing extra-territorial jurisdiction for Kenyan courts seems to rest on a public policy argument based on the damage Piracy is doing to the economy (see Judge Onyango-Otieno’s Opinion) and world peace and stability (Koome and Maraga JJA’s opinions). While this may partly reflect the historical origins of universal jurisdiction against Pirates as ‘enemies of mankind’ who present a threat to each and every nation, it is important to distinguish between the inter-temporality of law and the relativity of law.

By inter-temporality, I mean the fact that the law (both international and domestic) is generally applied as it existed when the offence was committed or the cause of action arose. This approach respects the principle of legality (specifically the non-retrospective application of laws). Furthermore, the court may rightly look into the purpose behind the historical development of the relevant legal rule. Thus, for example, it was entirely correct for Koome and Maraga JJA to delve into the status of the offence of piracy jure gentium at the time the accused were charged in court and the historical evolution of the definition of piracy.

By relativity, I mean the temptation that presses upon judges to ‘recognise’ an emerging rule of law or inventively evolve a rule of law in order to meet a contemporary challenge or policy problem facing the state. To give an example, if we attach importance to the public policy arguments of the judges set out above, this would imply that if piracy off the Somali coast were not presently threatening the Kenyan economy and international peace and security, then Justice Ibrahim’s views about the limited jurisdiction of Kenyan courts would have stood. To put it another way, what would the finding have been if the persons in question were Brazilians arrested in the high seas off South America? Given that South American piracy is not viewed as being at the same economic or security threat level as piracy off the Somali coast, the judgement suggests that the court might have been more reluctant to recognise universal jurisdiction in the Brazilian pirates case.

I think the court should have stuck to its solid findings as to the existence of universal jurisdiction and not linked it (at least not so overtly) to the fact that piracy was currently a threat to the economy and to peace and security; making the link as strongly as the judges did gives the impression that if the threat of piracy off the East African coast disappears, then extra-territorial jurisdiction- specifically universal jurisdiction- may do so as well.

All in all, the judgement is commendable, I feel that it will boost the arsenal against impunity by giving warning to alleged international criminals that the courts of Kenya are prepared (in line with the permissive Lotus principle and a century of international law regarding universal jurisdiction) to recognise and exercise jurisdiction far from Kenyan territory and against persons who are not Kenyan nationals. Certain Sudanese citizens may wish to read it carefully before attempting a return visit to Kenya.

In case of any doubt, I give Judge Maraga the last word:

“For the piracy offences committed after the 27th August 2010 when the current Constitution was promulgated, Article 2(5) and (6) which have respectively incorporated the general rules of international law and the treaties Kenya has and continues to ratify into Kenyan law, Kenyan courts, have added constitutional authority to prosecute piracy and other international crimes.” (para.40)

Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

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