According to The Nation, the new Deputy UN Ambassador had some unkind words about the ICC’s involvement in Kenya; is it the hatchings of a new wave of ‘shuttle’ diplomacy on behalf of the Defendants or simply a political appointee playing the tune of the piper paying her salary?
Tag Archives: ICC
Today the ICC acquitted Mathieu Ngudjolo Chui. He was on trial for allegedly committing war crimes in the DRC. This acquittal is important not only as another dubious first- the summary suggests that the judges were dissatisfied with the quality of the prosecution’s witness testimony- but because of how it may guide other trial chambers in the standard of review of evidence and modes of liability.
One member of the trial court, Judge Wyngaert, was particularly troubled by the elements of indirect co-perpetration and the application of the so-called control theory imported from German Legal doctrine. Her analysis of the engineworks of international criminal law theories of liability will probably interest lawyers more than non lawyers. But these same issues of modes of liability are being challenged by at least one defence team of the Kenyan Accused. So I’ll blog more on this once I’ve looked through the various judgements (so far the main judgement is french only).
Another important lesson from the Ngudjolo acquittal is just how problematic joint trials can become. The Prosecutor originally charged Ngudjolo and Germain Katanga separately. A decision was then taken to join the two cases for trial. Shortly before Ngudjolo’s acquittal, the Judges again separated the two cases. We’ll know the reasons fully once the Katanga case ends but it is food for thought in view of the way the Kenya cases have been joined for trial.
UPDATE 22 DECEMBER 2012: Another reason why Judge Wyngaert’s Opinion is vital is that she is one of the trial judges in the Kenya cases where, among other things, Uhuru Kenyatta and Francis Muthaura are charged as indirect co-perpetrators of crimes against humanity. Will her strong views on the nature of indirect co-perpetration affect how the parties (Prosecutor and Defence teams) approach the trial?
UPDATE 23 DECEMBER 2012: Ngudjolo’s acquittal may also cause ethnic turbulence in his home province of Ituri. This is because some of the fighting in the 2002-2003 Congo conflict took the form of ethnic war between Hema and Lendu within Ituri Province. Now a Lendu leader, Ngudjolo, has been acquitted whereas Thomas Lubanga who led a largely Hema militia was convicted. How will it play in the ‘silent war’ of histories where each ethnic group writes it’s own history of the conflict casting itself as an innocent victim responding to atrocious aggression by the enemy? How will it play in terms of perceptions of the court where aggrieved Hemas may feel themselves ‘victims’ of international justice that has convicted one of their sons, while acquitting a son of the perceived Lendu enemy?
The ethnic dimension is also present in the Kenya case and remains a thorny question that must be addressed throughout and after the trials. While PEV did not degenerate into all-out war at the level of the Ituri conflict, how would an acquittal in one case be met if it is accompanied by a conviction in the other? Will it feed the sense of victimhood amongst Kalenjin, Kikuyu or Meru? Or will it show that international justice is fair-handed and each accused had an equal chance before the court?
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.
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.
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)
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.
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.