During his trial for the July 5, 1969 assassination of Cabinet Minister Tom Mboya, Nahashon Issac Njenga Njoroge asked why authorities were only interested in him and not the ‘Big Man’ behind the assassination plot. This is the primary focus of the International Criminal Court: the Big Man, or the Big Men. And this is why all ICC cases are, in Kenyan parlance, political, even though legal arguments are what win or lose the cases.
When you are charged before the International Criminal Court, it does not mean you directly killed or persecuted or stole from the individuals you are alleged to have harmed. The charges mean that beyond these acts, you had power over other individuals to direct them to kill, or persecute, or loot, or to do all those crimes on a massive scale and in a systematic manner. The charges mean you are believed to be capable of financing and organising them to commit those acts. The terms used at the court for these human rights violations are crimes against humanity, war crimes and genocide.
By the time you are charged before the ICC, humanity is saying what has happened is so serious that there is nowhere else you can be tried for your alleged crimes. The ICC is the court of last resort for its 121 members. It is the last stop in the international criminal justice system. When a country cannot, for whatever reason, try its citizens for egregious violations of humanity it can resort to the ICC. When the world’s governments refuse to turn a blind eye to atrocities being committed somewhere on earth, they can petition the United Nations Security Council to refer such a case to the ICC.
But the ICC was not set up to replace national criminal justice systems. Built into the law that gave life to the ICC is a provision that the court has to be satisfied cases brought before it cannot or will not be handled by the appropriate national criminal justice system.
The above are the three key principles that guide the work of the International Criminal Court. It only deals with serious crimes. It is a court of last resort. It is built to work with national criminal justice systems and not in isolation.
This is not to say the ICC is faultless. It is only 10 years old, having come into being on 1st July, 2002. A baby in terms of world history. It is the world’s first permanent war crimes court and was set up almost six decades after the world’s first war crimes tribunal was established. This was the Nuremburg Tribunal limited to trying crimes committed within a certain time (that is the Second World War) and certain place (Germany). And since Nuremburg, there have been many others such as the International Criminal Tribunal for Rwanda or the Special Court for Sierra Leone. All of them, however, have been ad-hoc.
The ICC may borrow from these other institutions but its permanent nature also requires it to develop its own way of working because its scope is global and it can try any crimes that have occurred since 2002. Plus, the ICC is focused on a relatively new field of law - crimes against humanity, genocide and war crimes. Therefore, case by case, the ICC is building a body of law to guide its future work as well as enrich national criminal justice systems.
The court, however, has only concluded one trial in its 10-year existence. There are 13 cases in various stages before the court. Its international nature implies it is a meritocracy, especially in a country like Kenya where international is, at times, another word for quality. The ICC, again, is more complicated than that. It does not necessarily draw the best of the world’s best legal minds, investigators and other professionals. Like all international organisations, it carries a lot of prestige but that does not mean it employs the best minds. Its judges are selected to represent the different regions of the world and that selection is driven by the governments of the day. Then there is the practice in international organisations to chose by consensus individuals to be appointed to high office so as to avoid any major diplomatic fall-out that can affect the work of a particular organisation or the international system as a whole. In such circumstances the best human rights lawyer is not necessarily chosen to become a judge or prosecutor or investigator. It is the lawyer who is most agreeable to most governments who gets the job. The two - the best lawyer and the most agreeable lawyer - are never synonymous.
To date the most recognisable face of the ICC is its first prosecutor, Argentinean lawyer Luis Moreno Ocampo. Best known for his tough public declarations, Moreno Ocampo left the Office of the Prosecutor in June this year with a mixed record. The ICC’s chief prosecutor only serves a one-time term of eight years. Moreno Ocampo took on tough cases, targeting powerful high profile individuals such as Sudan’s President Omar al-Bashir. This demonstration of moral courage was diminished by allegations made by past insiders of the Office of the Prosecutor and outsiders about how Moreno Ocampo has handled different cases and how he has conducted himself.
One perception the ICC has had to battle with is that its prosecutor may file frivolous charges against innocent individuals and argue weak cases before the court. This is the basis of the United States’ refusal to date to become a member of the court, despite the long history America has of advocating universal respect for human rights. So far, though, no frivolous case has gone to trial at the ICC. This is because it has a pre-trial process where judges weigh whether, first, the court should get involved at all, and then whether the prosecutor has shown that there are tangible reasons for the case to proceed to trial.
The first trial to be concluded at the ICC - the case against Congolese rebel leader Thomas Lubanga - was initially halted at the pre-trial stage because the judges felt the prosecutor had not investigated the case thoroughly. The prosecutor was forced to further investigate the case and was eventually able to convince the judges that Lubanga needed to stand trial. A case against a Rwandese rebel leader, Callixte Mbarushimana, was thrown out in December last year because the judges at the pre-trial stage felt there was no reason to hold the man, irrespective of the suspicions of the prosecution.
Closer to home, pre-trial judges refused to confirm all the charges against the six prominent Kenyans the prosecutor had wanted the court to order to face trial. The judges found that the prosecution failed to show there were substantial grounds to try two individuals - former Cabinet Minister Henry Kiprono Kosgey and former Police Commissioner Mohammed Hussein Ali. They went further and narrowed down the charges against the remaining four individuals who will face trial. These are Deputy Prime Minister Uhuru Muigai Kenyatta; former Cabinet Minister William Samoei Ruto; former Head of Public Service Francis Kirimi Muthaura; and star presenter of KASS FM Joshua arap Sang.
The Kenya cases are unique because the prosecution for the first time exercised its powers to initiate its own cases. This is the norm in most established national criminal justice systems, but not at the ICC. All cases before the Kenyan ones have been referred to the ICC either by governments or the United Nations Security Council. But such referrals do not mean the prosecutor should automatically initiate a case. And when the prosecutor does prepare a case, the judges’ permission is still needed to proceed each step of the way.
The same step of seeking the judges’ go-ahead applies when the prosecutor takes the initiate to develop a case. This is a check on the prosecutor’s powers. The prosecutor may choose to investigate violations anywhere in the world but still has to convince the court that there are grounds to involve the ICC even before starting such an investigation. And the prosecutor is required to conduct independent investigations; the prosecutor cannot present the evidence of other organisations or authorities as the prosecution’s own evidence.
The Kenya cases are also unique in that they were taken up by the ICC only after all avenues to try the cases using Kenya’s national criminal justice system failed. The Commission of Inquiry into the Post-election Violence recommended in October 2008 that the government set up a tribunal made up of Kenyan and foreign personnel and constitutionally shielded from political interference to handle the trials of the suspected perpetrators of the violence that nearly tore apart the country after the controversial December 2007 presidential poll. The commission also recommended that if the government failed to legislate such a tribunal within six months then the cases should be handled by the ICC. To guard against any undue delays in sticking to these timelines, the commission gave the mediator of the Kenyan crisis, former United Nations chief Kofi Annan, a sealed envelope containing the names of the individuals the commission believed to be the masterminds of the violence. Annan was delegated to give that envelope to the tribunal, if it was formed. Failing that, Annan was to give the envelope to the ICC prosecutor.
This is how we now have four prominent Kenyans facing trial at the ICC.
Tom Maliti writes for the ICC Kenya Monitor, an online blog monitoring the Kenya cases before the International Criminal Court. www.icckenya.org