Tag Archives: Crimes Against Humanity

Is Kenyatta Kenya’s Kurt Waldheim?

At first glance this seems a little harsh. Waldheim was involved in one of the darkest moments in human history, accused of ordering massacres of non-combatants in the Balkans during the Second World War and even the deportation of Greek Jews to death camps. After the war, he was twice the Secretary General of the UN and was subsequently Austrian President. The crimes that Kenyatta stands accused of- though atrocious in themselves- probably do not fall into the same bracket of gravity. But as James Verini at Foreign Policy perceptively points out, the similarities in how the two leaders parlayed their infamy into electoral victories are too many to ignore. Here are just some of the surprising points of comparison:

  1. When Kurt Waldheim ran for the Presidency, his opponents within Austria as well as Canada and UK pressed hard in opposing his candidacy as a suspected international criminal. Though he was not indicted in any court, they mistakenly trusted to Austria’s ‘national conscience’ and underestimated Waldheim’s political skills. Instead of alienating Waldheim from the ordinary voter, his dark past pushed them together: Waldheim’s woes were seen more as an attempt by his political opponents (the Socialists) to get rid of a strong candidate than as serious charges to be met in court.
  2. Waldheim’s campaign team openly used the accusations of international crimes as campaign material, even alleging that there was a ‘foreign conspiracy’ emanating from New York to prevent him winning the Presidency. As Verini puts it: “Someone, maybe from Waldheim’s campaign, maybe just a fed-up citizen, posted flyers announcing “We Austrians Will Vote For Whom We Want!””
  3. It reminds me of the graffiti sprayed on Nairobi walls shortly after Kenyatta was summonsed: it featured a stencilled portrait of Uhuru and the tagline ‘tuko pamoja’ (we are with you).

  4. Even some of those persecuted by the Nazis (Jewish Austrians, resistance fighters etc.) appear to have voted for Waldheim because they “were tired of the hypocrisy of the campaign against him.” They also voted for him because they were tired of the past being constantly dredged up and just wanted Austria to move on.
  5. This has echoes of the PR about reconciliation and forgiveness that accompanied the Uhuruto merger.

  6. Waldheim, like Kenyatta won the Presidency handily.
  7. Waldheim’s woes won him sympathy from states and regions aggrieved by an international system seen to be dominated by the Western nations. The Soviet Union and Arab League states both extended warm welcomes to him. Even US ally Israel, where one might have expected the former Nazi to be a pariah, invited him to the country shortly before his death.
  8. Museveni’s speech at Kenyatta’s inauguration as well as AU efforts on behalf of the Hague suspects also follow a similar pattern.

There are, I think some notable differences as well (apart from the different eras in which the alleged crimes were committed).

  1. Unlike Austria in the 70s and 80s, Kenya is not dealing with a situation in which a large part of an entire generation was in one way or another implicated in atrocities (either enthusiastically voting for Nazi war criminals, serving Nazi institutions, joining the SS or simply being sympathetic towards their Anti-Semitism).
  2. Waldheim was neither indicted nor summonsed to any international tribunal, though he had been investigated by a UN war crimes tribunal. An international team of historians who reviewed his war-time service found no evidence that he was involved in the Balkan crimes; however, the historians found Waldheim’s claim that he knew nothing of the crimes ‘implausible’. Kenyatta, on the other hand, had crimes against humanity charges confirmed by a panel of 3 international judges and is about to go on trial (unless he absconds) before another panel of international judges.
  3. Waldheim had been useful for the US in its foreign policy objectives, especially during his time in the UN. But by the time he became Austrian President, the policy field had shifted, making it easier for the US to disown their one time ally. Kenya, under Kenyatta, remains important- though not irreplaceable- in the USA’s African policy. The US is less likely to take the most severe sanctions against Kenyatta unless they are really pushed to the wall.

This in itself is enough to make one stop and think about drawing too many conclusions from the comparison with a dead Austrian Nazi. But on a humorous note, Kenyatta’s supporters should take heed of how the then US president Ronald Reagan reportedly addressed the thorny Waldheim Presidency:

  1. Reagan sent Waldheim a note of congratulations.
  2. Reagan then ordered that Waldheim be added to a list of those banned from entering the US.

Ultimately, Kenya will outlast an embarrassing Presidency, as Austria outlasted Waldheim. But it still shows that history, memory, truth, justice and reconciliation are thorny blossoms that must be picked with care or blood shall surely flow. These blossoms cannot, however, be ignored. It seems that during this election many Kenyans mis-liked being told by the West how to pick their own bloody flowers. At some point though, we as a country will have to grasp these issues; better it be us than our children holding thorns.


Recent Court Documents in the 2 ICC Kenya Cases 10 February 2013

The Trial Chamber is preparing for a status conference in the run up to the start of the Kenyatta/Muthaura trial. It asked the participants (Defence and Prosecutor) to make submissions on matters such as the conditions of the summons to appear and any modalities for the defendants’ stay at the seat of the court. The status conference will be held on 14 February 2013 (next Thursday). The Accused, including Presidential Candidate Uhuru Kenyatta will be required there, either in person or via video-link.

The Prosecutor replied to the court, making short submissions. The main concern is that the accused may have/will violate the conditions of the Summons to Appear by interfering with prosecution witnesses. The submissions summarise previous alleged attempts to buy out witnesses or asking them to provide false testimony. The prosecutor also wants a public statement from the accused that they will attend trial. While aimed at all the accused, clearly the request for a public statement touches Kenyatta more; despite his promises to respect the court, his possible election as President offers the temptation to ‘Bashir’ the ICC.

The Kenya Human Rights Commission (KHRC) filed a request to appear as amicus curiae. In the request, they ask that witness identities not be disclosed sooner than is necessary. This is to protect witnesses from threats and intimidation. While the filing is not a model of clarity, it seems that KHRC seeks to support delayed disclosure applications made by the OTP. KHRC especially highlights witnesses who were PEV victims.

Unsurprisingly, given that the Court is already concerned about witnesses and has been permitting the OTP to delay disclosure of identities, the amicus curiae request was turned down. The Trial Chamber emphasised that it is aware of the issue of witness threats and the matter is already being handled by appropriate organs (VPRS and OTP). Therefore the KHRC proposed brief would not add anything new or helpful to the determination of the issues.

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…

Statesmanship- A Role Model for Kenyatta and Ruto

By now, it’s been widely reported that William Ruto and Uhuru Kenyatta are teaming up in the coming election. It was telescoped long ago and dubbed the coalition of the accused. Strangely, the fact that two individuals awaiting trial for crimes against humanity can run and coordinate an election campaign is being held up by their supporters as a vindication of Kenyans’ sovereign freedom of choice.

But it doesn’t have to be this way. Yes, the two are innocent until proven guilty. Unless and until this presumption is overturned in a court of law, they retain all their civic rights and responsibilities (as consistent with the law). These rights include the right to run for office- unless a court of law determines that Chapter Six of the constitution bars them. But in all other respects these two politicians have as much right as the rest of the field of candidates to be in the game. Quite clearly, it is also in their private and personal interest to be successful candidates in next year’s elections.

It is the failure to distinguish between the public interest 40 million and the personal interests of 2 that taints their election campaign. Perhaps they should look to the example set by Ramush Haradinaj.

The name may not be familiar to many but he is a former Prime Minister of Kosovo who was recently acquitted by the International Criminal Tribunal for the Former Yugoslavia with respect to war crimes allegedly committed during the war between the Kosovo Liberation Army and the Serbian Security forces. In fact he was only Prime Minister for several months before he was indicted.

What did Haradinaj do when he received the indictment? Five days after the indictment was handed down, he voluntarily resigned from his post and spent over seven years clearing his name. He even underwent a re-trial. This is despite knowing that his popularity among Kosovar Albanians (the majority population in Kosovo) was such that he could conceivably have refused to resign and clung on to the Premiership. Yet it was clear, and he would have known, that clinging to the position of Prime Minister while on trial for such serious crimes would have killed any hope of reconciliation with Kosovar Serbs and would have kept the old resentments of the war alive in the public imagination every time he performed any public function as Prime Minister. It wasn’t a question of the presumption of innocence, but an exercise of sound judgement that is the hallmark of any genuine leader (or candidate for leadership).

Haradinaj has his flaws as a leader, but it is only when one sees that self-sacrifice in his resignation that one understands the selfishness of the TNA-URP ticket. By the way, with his innocence newly affirmed, Ramush Haradinaj intends to jump back into politics.

The Presidency, like the Premiership, is one of those rare jobs where the learning curve is steep yet there is very little ‘pre-job’ training available for aspirants. Which is why, in continuing to run their coalition campaign, both Kenyatta and Ruto make a good case for why they should not be anywhere near power. It’s a little late in the day to teach them good judgement, and a five year term ain’t near long enough to even make a start.

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.

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 2 ICC Kenya Cases 12 November 2012

  1. Decisions on Supplementary Protocol Concerning Handling of Confidential Information concerning Victims (Ruto/Sang and Kenyatta/Muthaura)- this decision explains to the parties (Prosecution and Defence in the Ruto/Sang case) the process of contacting victims while respecting their confidentiality. The common legal representative of the victims is the key channel for any contact.
  2. Decision on Updated Report on the Joint Instruction of Experts– Trial Chamber V directs the parties (Ruto/Sang) to continue seeking agreement on the use of joint expert reports at the trial. Use of joint experts helps prevent expensive and time-consuming ‘duels’ of experts between the prosecution and defence at trial. The parties in this case are currently negotiating joint experts on Post Traumatic Stress Disorder (PTSD), Social and Political Background of the case and Satellite Imagery.
  3. Request to present the views and concerns of the victims on their legal representation at the trial phase– while I won’t comment on the actual application by Representative Sureta Chana (Ruto/Sang case), I note that it comes hot on the heels of Morris Anyah’s decision to seek to withdraw his services as a common legal representative (or to make himself unavailable for nomination as such) in the Kenyatta/Muthaura case. There seems to be a pressing controversy within the court (between the Judges, Office of Public Counsel for the Victims, Registry and the Common Representatives) about the extent of the role of common victims representatives. Has there been adequate consultation and thought given to the views of the victims themselves? Lets see how the trial chamber addresses the issue.
  4. Decision on defence request to change the place of the proceedings– The defence in the Kenyatta/Muthaura case wanted proceedings moved to either Arusha, Tz or to Kenya itself to minimise disruption to defendants and witnesses, promote judicial economy and generally minimise costs. This brief decision by the trial chamber simply tells them that they should file such an application for change of venue with the Presidency rather than the court. The rule governing this procedure is interesting, because it is not just the Kenya case trial chamber involved in the decision to move proceedings. First, the state itself must agree to host the ICC trial, then the judges in plenary must then vote by two-thirds to move the proceedings. This apparently means all the ICC judges, not just trial chamber V judges, will decide this matter if the defence pursues the change of venue.
  • An interesting side-note on PTSD: some organisations in the US have been campaigning to have it re-named ‘Post-combat stress injury’ to remove the stigma that soldiers (especially war veterans) attach to the term ‘disorder’. It is hoped that this will encourage more soldiers to seek treatment. At trial, it might be interesting to see how PTSD suffered by civilians in non-military conflicts may differ (if at all) to PTSD or Combat Stress Injuries suffered by soldiers and armed combatants.

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

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