Do the Attacks in Tana River County Constitute Crimes against Humanity?

A few months ago, a deputy police spokesperson caused controversy by suggesting that fear of the Hague was hampering the police in fighting criminal gangs- especially gangs engaged in ethnic violence.

In 2011, Hussein Ali, a former Commissioner of Police had been summoned to the ICC along with Uhuru Kenyatta and Francis Muthaura to answer charges of crimes against humanity. The Pre-Trial chamber refused to confirm the charges against Hussein Ali. But the police spokesperson appeared to suggest that the legacy of that affair was still affecting the police in their operations.

While the spokesperson’s comments were largely condemned, another aspect of the matter still remained undiscussed. Do the bouts of ethnic violence in Tana River County constitute crimes within the Rome Statute (incorporated into Kenyan law by Article 2 of the Constitution and the International Crimes Act 2009)?

There were in fact multiple attacks on several villages between August and December 2012 in Chamwanamuma, Kilelengwani, Kipao, Reketa and other areas. Counting up the Orma, Pokomo and Police casualties, the death count stands at over 150 people. Sadly, the count still grows with each revenge attack. The dead include the young, the elderly, men, women and children. In addition, scores of dwellings were destroyed; in at least one case it appears a village was almost razed to the ground. Livestock have been killed, rendering communities dependant on pastoralism destitute. The displaced, camping in various ranches across the county have not been fully counted but are thought to number over 2000.

The attackers often arrived in groups ranging from as few as fifty to as many as 400. According to one account (I cannot confirm its authenticity), the attackers in the December raid that left over 40 dead were wearing red and black uniforms and operating with a clear command structure. In all of the attacks, the survivors have alleged that guns were present. In at least one attack, a former GSU (paramilitary) officer has been implicated as one of the raiders. None of this is confirmed, but it does raise questions as to whether some of the raiders may have received quasi-military/paramilitary training from former security officers. Are they also part of a paramilitary style hierarchy of organisation? It’s not clear yet. There are also allegations that members of the Provincial Administration- mainly area chiefs- are implicated in aiding or planning the violence; or simply looking the other way. The Provincial Commissioner sacked a number of chief, accusing them of  ‘being reluctant to perform their duties‘.

Under the Rome Statute (Article 7), a crime against humanity is a widespread or systematic attack directed against a civilian population. The attack must be pursuant to a state or organisational policy. ‘Attack’ means multiple acts (e.g. of murder, rape or forced deportation). Provided that a group is largely civilian, the presence of some armed persons does not necessarily change the character of the group as a civilian population.

The underlying acts that constitute crimes against humanity can include murder, deportation/forcible transfer and persecution. These underlying acts must be committed as part of the widespread or systematic attack.

From the reports it seems that these were obvious attacks against a civilian populations living in villages with most of the dead being unarmed men, women or children. I would argue that the level of coordination of the attacks (and counter attacks); the weapons and equipment used suggest planning. If it is true that community leaders including administration officials knew in advance and were involved- by being willful blindness or actively aiding the attacks- this would again suggest a level of planning that points to a pattern of systematic attacks. Furthermore, going into an election, there is a clear motive for political leaders and local elders to ethnically cleanse the county and its various wards and constituencies to ensure the ‘right’ voters appear at the ballot box. I make no comment on the blame-game between ministers and MPs from the area: those shenanigans tend to obscure rather than clarify.

There may be questions raised as to whether there is an ‘organisational policy’ to commit the crimes. The evidence is contradictory: the security officers have said that these were not organised attacks; only violence provoked by political incitement. Meanwhile the Minister for Internal Security suggested in a speech last month that some local leaders had gone so far as to bring in a Witchdoctor (for the politically correct: Technical Assistant on Spiritual Self-Defence)  to oath the perpetrators and equip them with protective spells. But despite the eyewitness allegations of coordination of the attacks, there is still little to suggest a clear organisation with a hierarchy, leadership and policy to commit such crimes.

Away from the contextual elements of crimes against humanity, the killings by members of either of the rival ethnic groups may constitute underlying acts of murder as well as persecution (on the basis of ethnicity). The violence could also be seen as the crime of forcible transfer of population if viewed from the perspective of attempts to ethnically cleanse certain areas of the County.

Even if the contextual elements and the underlying crimes seem to be present in the Tana River situation, this does not mean the ICC automatically investigates. Kenya itself would have the first bite at investigating and prosecuting those bearing the greatest responsibility for the attacks.

The level of the attacks- less that two hundred dead in Tana River- may present another difficulty as one criterion of admissibility to the ICC is that the offences must be of sufficient gravity. In contrast to the Tana River killings, Post-Election violence killed well over a thousand people; the Prosecutor recently decided that the killings of thousands in Northern Nigeria could constitute crimes against humanity. However, gravity also includes the scale, nature, manner and impact of the crimes- not just the body count. In addition, two other ICC accused Ngudjolo Chui (recently acquitted) and Katanga were tried for an attack that killed a similar number of 200 Congolese (though their trial was in the context of war crimes as well as crimes against humanity). Furthermore, the gravity threshold could be met with respect to the crime of forcible transfer if it is shown that thousands were violently or unlawfully forced to leave the area.

If the situation meets the gravity threshold and Kenya has either failed to initiate national proceedings against persons bearing the greatest responsibility, or it is clear that Kenya is not conducting genuine proceedings, the ICC may be called to exercise jurisdiction by a Security Council or ICC member state referral, declaration of jurisdiction by a non-member state (not applicable here) or the Prosecutor’s request for authorisation to investigate. The SC is unlikely to refer such a situation (it’s only referred situations of ICC non-member states Libya and Sudan so far), other member states are also unlikely to refer Kenya to the court for political/diplomatic reasons and Kenya broke the last deal it made to self-refer alleged crimes against humanity. Therefore, the prosecutor would be the most likely avenue for any ICC investigation to begin.

In order for the Prosecutor to determine that there is enough evidence to seek the ICC’s authorisation for an investigation, she conducts a 4 phase filtering process:

  1. determining whether crimes within the courts jurisdiction may have been committed,
  2. determining whether the pre-conditions in Article 12 of the statute and the subject-matter jurisdiction of the court are satisfied;
  3. analysing whether gravity and complementarity (no national proceedings ongoing/no genuine national proceedings ongoing) requirements are met;
  4. determining if it is in the interests of justice  (i.e. in view of the gravity of the crime or the interests of the victims) to proceed with investigation.

Of course, before the Prosecutor even gets involved, someone will probably have to write a communication to her office…

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

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

AfricLaw

Advancing the rule and role of law in Africa

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