Side Event: “Justice in Kenya after the International Criminal Court” (hosted by OSJI and the International Commission of Jurists – Kenya (ICJ-Kenya)

Overview by Rosalie Dieleman, Research Associate PILPG-NL

Speakers:

1. Nelly Warega, Chair Panelist, ICJ-Kenya

2. Fergal Gaynor, Victim’s representative in Kenyatta

3. Njonjo Mue, ICJ-Kenya

4. Jaqueline Mutere, Victim of Kenya’s PEV

 
Highlights:

• Jaqueline Mutere expressed her disappointment in ICC’s failure to prosecute Kenyan perpetrators of sexual violence, noting that, if the ICC is unable to prosecute, who would dare to do it in Kenya?

• Ferghal Gaynor criticized the Kenyan government for obstructing justice, and emphasized that the victims have been failed by both the justice processes in Kenya and before the ICC.

• Njonjo Mue noted that there was a clear pattern in domestic efforts to prosecute: whenever the ICC was increasing its efforts for making a case, domestic efforts rose, so as to implicate that the ICC was not acting in accordance with the complementarity principle.

• Nelly Warega called upon the government with the statement that, if the state is indeed willing to investigate and prosecute, it should be as simple as cooperating with civil society.

This event, centered around justice in Kenya after the collapse of the cases at the ICC, involved four speakers: Jaqueline Mutere, as a representative for the victims of the sexual violence after the 2007 elections, Ferghal Gaynor, who was the legal counsel in the Kenyatta case, Njonjo Mue as a representative of Kenyans for Peace with Truth and Justice, and Nelly Warega, who works at the Kenyan office for the International Commission of Jurists.

Jaqueline, a victim and survivor of the sexual violence, opened the debate by telling her story and that of many other women who have experienced the same. She explained that many women who had been raped, conceived and gave birth to children from the men who had raped them, and many had contracted diseases as a consequence of rape. These women often did not receive the help they needed, and their children were often neglected. Jaqueline visited many of these women and attempted to help them, by creating a platform to talk about it, and set up a group for these victims. Jaqueline explained that what is needed most by these women, is recognition within their country and of the president of what has happened to them. Victims of sexual violence often go overlooked in the Kenyan society. As some of the offenders were in positions of power or governmental service, such as the police, many of the women were not even able to report the crimes that had been committed to them. Jaqueline expressed her disappointment in the failure to prosecute by the ICC, noting that, if the ICC is unable to prosecute, who would dare to do it in Kenya?

Ferghal Gaynor described his work with victims in the Kenyatta trial and explained how hopeful many Kenyans were with regards to a prosecution at the ICC, even though they expected the government to interfere with the investigation and proceedings. According to Gaynor, the victims were also aware of bribery and intimidation of witnesses in the Ruto case. Ferghal Gaynor made strong statements concerning efforts of the Kenyan government to obstruct justice, and emphasized that the victims have been failed by both the justice processes in Kenya and before the ICC. Aside from criticizing the Kenyan government, he also pointed out issues on the side of the ICC, such as the fact that the ICC did not want to put investigators in danger and therefore investigated under a low risk-tolerance. In addition, the ICC did not have the access to archival material that it needed, whereas according to Gaynor, the defense did receive access to these documents.

Njonjo Mue elaborated on the domestic options for prosecution, including the establishment of a special tribunal and the establishment of a special international crimes division in Kenya. The problem however, according to Mue, is the lack of political will for the prosecution of these crimes. A witness protection agency was set up as well, which is in principle a good institution, yet lacks adequate funding from the government and is therefore ineffective. Mue also noted that there was a clear pattern in domestic efforts to prosecute: whenever the ICC was increasing its efforts for making a case, domestic efforts rose, so as to implicate that the ICC was not acting in accordance with the complementarity principle.

Nelly Warega elaborated on the strategic litigation cases that civil society – including the International Commission of Jurists – filed against the government for failing to investigate and failing to protect. In the closed court sessions, all 8 victim petitioners have now gotten the chance to testify, along with experts such as psychological workers and personnel from the hospitals at which the women were treated. Warega called upon the government with the statement that, if the state is indeed willing to investigate and prosecute, it should be as simple as cooperating with civil society. Mue elaborated on this with regards to the impact of these strategic litigation processes for the victims, noting 6 points of impact. The first being a declaration of the rights of the victims; secondly, an acknowledgement of the suffering of the victims and the society in general; thirdly. a possible investigation and declaration of the truth about these events; fourthly, reparations might be awarded to victims; additionally, this could be a start of addressing systemic structural failures, such as in the police force; and lastly, it would help send a message to avoid recurrence.

After the speaker’s round, the public was allowed to engage with questions, which turned the event into a heated debate between civil society members, victims and representatives of the Kenyan government. Dr. Korir Sing’Oei, who is a Legal Advisor at the Executive Office of the Deputy President in Kenya, aside from expressing his regret over what happened to Jaqueline, strongly expressed his worry and disapproval of the “vilification” of Kenya by civil society in these forums. He pointed at all the work Kenya has done for victims during the post-election period, as well as the fact that there is more to be done and the fact that gender based violence issues have not received the attention they should have. He stressed the fact that Kenya is willing and able to prosecute, and that various cases of violence have been prosecuted already under domestic law Florence Kajuju, member of the Kenyan parliament, expressed that she felt for Jaqueline and that there is much more to be done for victims. She did express however that she thought it wrong to “ignore what the government has done, and to condemn the government at the Assembly of States Parties”. She added that: “Kenya is doing its part”. The heated discussion continued for over an hour, which mostly consisted of the different parties throwing facts and figures on the table, which were subject to disputation and discussion, which lead to the event to conclude on a very bitter note.

Side Event: “National Jurisdictions in the front line of fighting impunity” (hosted by the EU Network for investigation and prosecution of genocide, crimes against humanity and war crimes)

Overview by Jill Baehring, Research Associate PILPG-NL

Highlights:

• Henrik Attorps, Senior Public Prosecutor of the International Public Prosecution Office in Sweden, suggested in terms of best practice a rather “educational approach” regarding trials under national jurisdiction, since the prosecutor needs to explain circumstantial issues to the judges and needs to put the offense in its proper context.

• Lars Büngener, Public Prosecutor, and Christian Ritscher, Federal Prosecutor, both from the War Crimes Unit at the Federal Public Prosecutor General in Germany, stressed that there was no statute of limitations for gross human rights violations such as war crimes, crimes against humanity and genocide. Thus, it may be necessary to initiate investigations decades after the crimes.

• Aurélia Devos, Head of the Specialized Unit for Crimes Against Humanity and War Crimes, Prosecution Office in Paris, France, identified the major challenges of her case as witness testimonies from Rwanda, including their transport and translations, as well as the immense public interest and the trial before a jury.

The side event was opened by moderator Matevz Pezdirc, Head of the Genocide Network Secretariat. He announced presentations by prosecutors from three European countries regarding cases of war crimes, genocide and crimes against humanity tried in these countries.

The first presentation was held by Henrik Attorps, Senior Public Prosecutor of the International Public Prosecution Office in Sweden. He had successfully tried the first case in Europe regarding the ongoing conflict in Syria. He pointed out that, besides the frustrations on the ongoing conflict, this was the first time that criminal proceedings were taken place while the conflict was still ongoing. He also emphasized the importance of social media in cases where access to the area is impossible, since valuable evidence can be obtained through them. His investigation has had to face many obstacles, such inaccessibility of the crime scene by the Swedish police and the initial difficulty to identify the victim. Besides these issues, it was possible to make a case since the suspect was easily identifiable through video evidence, and had the Swedish nationality. In terms of best practice, he suggested a rather “educational approach” regarding trials under national jurisdiction, since the prosecutor needs to explain circumstantial issues to the judges and needs to put the offense in its proper context.

Lars Büngener, Public Prosecutor, and Christian Ritscher, Federal Prosecutor, both from the War Crimes Unit at the Federal Public Prosecutor General in Germany, presented three current cases in Germany regarding war crimes and terrorism charges. They explained that their office has had a focus on African States such as the Democratic Republic of Congo or Rwanda, but that this focus has shifted to Iraq and Syria. The reason was that several Germans joined armed groups, which blurred the line between “traditional” terrorism and core international crimes, and that some refugees entering Germany are suspected war criminals. In Germany, the principle of universal jurisdiction is applicable regardless if there is a link to Germany. They furtherly stressed that there was no statute of limitations for gross human rights violations such as war crimes, crimes against humanity and genocide. Thus, it may be necessary to initiate investigations decades after the crimes.

Aurélia Devos, Head of the Specialized Unit for Crimes Against Humanity and War Crimes, Prosecution Office in Paris, France, presented the course of events as well as its challenges regarding the trial of a person from Rwanda suspected to have committed Genocide. The suspect had applied for refugee status and was then tried for the alleged crimes in Rwanda. She described the development of the case as difficult, since the suspect was first treated as an accomplice and then as a perpetrator. Additionally, the application of French law required Genocide to be committed in the course of a broader plan (policy element). Major challenges had been witness testimonies from Rwanda, including their transport and translations, as well as the immense public interest and the trial before a jury.

Richard Dicker, Director of the International Justice Program at Human Rights Watch, pointed out the important work of the government officials within their respective jurisdiction. He called their work a crucial component in the fight against impunity and the most serious crimes. He furtherly encouraged more intergovernmental cooperation, which he saw as a crucial addition to the work of individual investigate and prosecutorial efforts. He urged States Parties to take the example of the presentations.

Working Group on Amendments

Overview by Georgios Plevris, Research Associate PILPG-NL

Highlights:

• France and Germany’s proposal was to alter the Provisional Amendment as put forth by the ICC judges in order to address legitimacy concerns and strike a middle ground. To this, their proposal recommends the setting of one-judge court at the pre-trial chamber only.

• Other states marked their disagreement with the Frances and Germany’s joint proposal, supporting the provisional amendment by the ICC judges.

• Kenya asked from the Working Group and the ASP to request the judges to embargo the Provisional Amendment on Rule 165, or apply a moratorium in its use and application.

• The majority of the States Parties argued that the Provisional Amendments are in accordance with the Rome Statute, and in fact are an example of the Court responding to ASP requests for improvement in rules on judicial proceedings.

In its late session, after the 6th plenary of the 15th ASP, the Working Group on Amendments opened the debate on the Provisional Amendment to the Rule 165 of the Rules and Procedures and Evidence (RPE). The Rule 165 of RPE relates to the procedures for Article 70 offences against the administration of justice. In February 2016, in the context of the proceedings in Bemba et al., ICC judges provisionally amended the rule, in accordance with Article 51(3) of the Rome Statute. Under the proposed amendment, the number of judges needed at pre-trial and trial stage was reduced from three to one, and the number of judges needed at the appeal stage was reduced from five to three.

France and Germany restated their common proposal submitted before the Working Group, as a compromise between the concerns raised by Kenya and the arguments put forth by ICC judges. France and Germany’s proposal aims not at rejecting the Provisional Amendment as put forth by the ICC judges, but altering them to address legitimacy concerns and strike a middle ground. To this, their proposal recommends the setting of one-judge court at the pre-trial chamber only. Lastly, both countries recommended that the Working Group continue to discuss the matter, and that judges refrain from applying the rule till the ASP has made its decision

In particular, Kenya characterized this action by the judges as a procedural misstep, underlying that at the current moment Kenya is not ready to join any compromising position: “The hurdles that need to be jumped are too many and too high for Kenya at this moment” noted the Kenya Delegation. They proposed three main actions, including the Working Group on Amendments to remain seized of this matter, while consultations to commence at the earliest possible, preferably in New York. Additionally, Kenya asked from the Working Group and the ASP to request the judges to embargo the Provisional Amendment on Rule 165, or apply a moratorium in its use and application.

In contrast, Belgium, Australia, Netherlands, Switzerland, Argentina, Liechtenstein, UK and Chile all marked their disagreement with the Frances and Germany’s joint proposal, supporting the provisional amendment by the ICC judges. Australia found the joint Franco-German proposal to strip the substance of the Amendment aimed at increasing the efficiency of the Court. The majority of the States Parties argued that the Provisional Amendments are in accordance with the Rome Statute, and in fact are an example of the Court responding to ASP requests for improvement in rules on judicial proceedings. Liechtenstein reasoned that the interpretation of RPE is a matter of the Court and not of the ASP, while Chile underlined how the entire ICC judicial body stands behind these Amendments, which should be kept in mind during ASP discussions. Finally, the majority of States Parties called for the 15th Session of ASP to take a decision on the Amendments, but lacking such a decision, Rule 165 should apply.

Sixth Plenary Meeting of the ASP15 – Open Bureau Meeting: “Relationship between Africa and the ICC: Resuming dialogue to win the fight against Impunity”

Overview by Emma Bakkum, Rosalie Dieleman, Kim Ogonda, George Plevris, Research Associates PILPG-NL

Highlights:

• Almost all states expressed their gratitude for this opportunity of constructive and active dialogue and underlined their common values.

• Many states stressed – as in the previous sessions of the plenary debate – the fact that true open and constructive dialogue is necessary to resolve this issue.

• Burundi and many other states such as Venezuela, Tunisia and France, raised the issue of complementarity and reiterated that the ICC is a court of last resort.

• The role and relationship that the United Nations Security Council (UNSC) has with ICC was criticized in the statements of many State Parties.

• The perception of the ICC’s perceived bias towards the African continent was mentioned by several states.

The sixth ASP plenary meeting was an Open Bureau Meeting, discussing the relationship between Africa and the ICC against the backdrop of recent decisions to withdraw from the Rome Statute by Burundi, Gambia and South-Africa. The African Union, several member states, and some NGO’s concluded statements. Almost all states expressed their gratitude for this opportunity of constructive and active dialogue and underlined their common values (and commitment to the ICC in many cases). The NGO Kenyans for Peace with Truth and Justice started the meeting with mentioning three challenges facing the court that were reflected in many other statements as well: the role of the UNSC, the problems with head of state immunity relating to articles 27 and 98 of the Rome Statute, and the perceived bias and perception towards Africa.

South African critique
South Africa – stressing that it is one of the founding members of the Rome Statute – once again emphasized the problems it has encountered with regards to head of state immunity, relating to articles 27 and 98 of the Rome Statute. The emphasis in this statement was on the fact that the Court had not attempted to reach out and start a dialogue about this issue, according to South Africa the Court had put nothing to the table with regards to this commitment to dialogue. The statement did however end on a very constructive note. It was stressed that there is no reason for South Africa to celebrate its withdrawal from the Court, and that there is still a 12-month notice period in which it will be open to engagement in order to find solutions to this problem. Many other states stressed – as in the previous sessions of the plenary debate – the fact that true open and constructive dialogue is necessary to resolve this issue. Nigeria argued that the problems of the court can be resolved at a round table, and gave an example of Nigeria’s own experience where the Court and the Chief Prosecutor adequately reacted to misgivings that Nigeria had towards the ICC. New Zealand stated that it is open to all constructive dialogue, including convening a high-legal dialogue. The Canadian delegation added that they have come to this Assembly of State Parties to listen, where the UK expressed that they are ready to do “anything in their power” to solve the concerns of the African States. France gave several examples of how to strengthen dialogues, through the ASP, but also by organizing ad hoc sessions in response to the withdrawals. In addition, it called upon the ICC to make use of its existing channels and focus groups, and allow as many states as possible to participate in these discussions.

Complementarity 
Burundi mainly came forward in this discussion with critique with regards to how the ICC has applied the complementarity principle to Burundi. Burundi first stressed that their relationship with the ICC has always been a consistent one, and that it is very hard to speak at to the ASP after hearing how deplorable states find their decision to withdraw. They argued that the ICC has not given a lot of regard to the complementarity principle, and that the Court has made it difficult for Burundi to exercise its own rights with regard to investigation and prosecution. Burundi argued that the lack of a policy on the application of the complementarity principle, as well as the discriminatory nature in which the complementarity principle is applied, must be addressed. In addition to Burundi, many other states raised the issue of complementarity, such as Venezuela, Tunisia and France, who iterated that the ICC is a court of last resort. Botswana, additionally expressed that a focus on complementarity also requires a focus on strengthening national courts.

UN Security Council
The role and relationship that the United Nations Security Council (UNSC) has with ICC was heavily addressed in the statements of many State Parties. In particular, attention was paid to universality of the Rome Statute and the incompatibility of this principle when it comes to permanent members of Security Council, of which only 2 are party to the Rome Statute. This does not only create a self-evident problem for principles of justice and universality, but as Botswana and Australia noted, creates issues with regard to the referral power the Security Council has. How can the Security Council maintain powers of referral and deferral when three out of its five permanent members, and most powerful nations in the world, do not recognize and are not parties to the Court itself? Furthermore, the relationship of the UNSC and ICC has often created negative perceptions, of the latter being a political tool in the hands of the veto powers. Greece in its comments about the UNSC underlined the importance of the Court to avoid politicization. NGOs that addressed the plenary pointed out to the need for reform when it comes to the UNSC link to the ICC, while the President of the ASP 15th Session, in a passionate speech, took notice of the need for reflection and possible reform of the UNSC bond with the ICC, through amendments to the Rome Statute. The ASP should be the only proper mechanism to that end.

Perceived Bias
The perception of the ICC’s perceived bias towards the African continent was mentioned by several states. Italy for example, acknowledges the problem of African states who perceive the ICC as biased and selective. Italy is convinced that dialogue with countries that harbor negative perceptions must be actively pursued in an open, inclusive and transparent manner – as happened during this meeting – because it is important to truly understand the concerns. Italy moreover expressed that ”we have twelve months to re-launch and renew this dialogue”, which may reverse the States’ decisions to withdraw. Slovenia and Argentina both argued that one of the problems that the ICC faces is the negative perceptions about it, especially in public opinion and global media. Both states urge that a greater effort is made to create a better understanding of the court and its system. Brazil concluded that the misperception of bias and selectivity of the court is directly connected to a lack of universality.

Concrete proposals
Lastly, a few concrete proposals were put forward. Australia argued for this by saying that ”we should make use of the existing infrastructure to put forward concrete proposals”. Kenya, in line with this, expressed some concrete concerns it has, including subcontracted investigations and partisan intermediaries, which undermine the impartiality of the prosecutor and thus the court. In addition to possible ways of strengthening dialogue, France also suggested the option of creating an office of the ICC within the African Union.

Fifth Plenary Meeting of the ASP15

Overview by Jill Baehring, Research Associate PILPG-NL

Highlights:

• Chief Prosecutor Fatou Bensouda said that the cited recommendations on how the cooperation may be enhanced is as relevant today as it has been when it was published, and that her office is willing to share best practices and expertise. She stated that she hopes increased cooperation can close “the impunity gap”.

• Kalifa Gassama from the United Nations Integrated Peace Building Office in the Central African Republic (BINUCA) gave an example of successful cooperation with the office of the United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein regarding human rights violations in the Central African Republic.

• The delegation of the United Kingdom said in their statement that they are intending to fully cooperate with the ICC regarding the preliminary investigations on their nationals in Iraq.

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The 5th Plenary Session was dedicated to the issue of cooperation, with a focus on regional and national initiatives to improve cooperation with the Court. The Chief Prosecutor of the ICC, Fatou Bensouda, stated that cooperation is rooted in both the Court and national courts. She warned that cooperation was crucial to the work of the ICC, stating that the system will underperform and not deliver on the promise to prosecute the most serious crimes. Additionally, she said that the oft cited recommendations on how the cooperation may be enhanced is as relevant today as it has been when it was published, and that her office is willing to share best practices and expertise, for instance the Court’s policy papers, which can provide guidelines for national authorities. She stated that she hopes increased cooperation can close “the impunity gap”.

Subsequently, Sadiq Al-Sur, Prosecutor-General in Libya, was given the word. He said that the extended experience of the Court was highly important for the investigations regarding Gaddafi in Libya, which has contributed to deal with serious crimes. He insisted that crimes are always closely linked to what is happening in other states, which requires judicial cooperation. He gave the example of several European countries supporting his investigations in Libya with peer reviews to local prosecutors, and emphasized that such cooperation is crucial to fight impunity.

After this, Michèle Coninsx, Director of Eurojust, emphasized the necessity to be efficient in the fight against ICC crimes and the need for judicial cooperation in an effective and speedy way. To see the connections between crimes, criminal groups and networks, it would be necessary to step up cooperation with third states. She gave the example of the network of the European Union Cooperation, which she called the “high speed train” to justice.

Herman Von Hebel, Registrar of the ICC, afterwards highlighted the role of the Plenary, which he called an excellent forum to highlight areas that need enhanced cooperation. Financial investigations and witness protection were named as other areas in which the court can benefit from different regional national and international initiatives.

Catherine Bomberger, Director-General of the International Commission for Missing Persons (ICMP), insisted that the problem of missing persons did not respect borders. For this reason, the issue of the missing was a global challenge which demands an international coordinated response. Cooperation could also consolidate peace trough transitional justice. She also emphasized ICMP’s close cooperation with Libya regarding disappeared persons under Gaddafi.

Kalifa Gassama from the United Nations Integrated Peace Building Office in the Central African Republic (BINUCA) highlighted the importance of the cooperation with related entities such as the office of the United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein. His office is helping the government to understand the context of human rights and is providing them with support such as reports and briefings for the minister of justice on ongoing human rights violation in the country.

Antoine Bernard, CEO of the International Federation for Human Rights, was given the word and highlighted in his statement the importance of the ICC as a strong incentive or partner for the search for justice. He pointed out that positive complementarity was no longer an abstract concept. He mentioned the increasing danger for first responders and human rights violations documenters, which he called a “worrying dimension”.

Several States Parties expressed their gratitude towards the speakers and appreciated the recent development regarding cooperation. The delegation of the United Kingdom said in their statement that they are intending to fully cooperate with the ICC regarding the preliminary investigations on their nationals in Iraq. Liechtenstein highlighted the importance of extending cooperation to financial investigations. Amnesty International and Human Rights Watch both criticized the issue of non-cooperation of States Parties with the ICC and the inconsistent practice of the Court in this regard.