WITHDRAWAL, SECURITY COUNCIL DEFERRAL OR COMPLEMENTARITY: WHICH WAY KENYA ON THE INTERNATIONAL CRIMINAL COURT PROCEEDINGS? Ochieng N.

David1 On 15th March 2011, the International Criminal Court (ICC) pre-trial chamber by a majority issued summons for the six persons suspected to bear the greatest responsibility for alleged crimes against humanity in the post election violence in Kenya in 2007 and 2008 (which claimed more than 1000 lives). The chamber had previously authorized the prosecutors investigations in March 2009, partly on the basis that Kenya failed to seriously investigate and prosecute the violence. The summons brought into stark relief the consequentialist debate over international criminal justice. Opponents of impunity celebrated the possibility that the international community might at last be willing to deal with the culture of impunity in Kenya. On the other hand, the summoned suspects and their supporters expressed fear that any steps to prosecute the suspects might set in motion steps that would take the country back to the brink of the precipice given the fear of recurrence of ethnic violence. This article examines the legal basis of the Kenyan governments response to the ICC investigations and intended prosecutions. The article is underpinned by the recognition that states accede to the Rome Statute aiming to make a promise to deter mass atrocity and so join the Rome Statute to ensure that this outcome will be obtained. The ICC was in effect envisaged as an institution that will allow the international community to fulfill both its duty to protect and the post-Nuremburg promise of ending genocide and crimes against humanity. The ICC thus has a legal and political imperative to make its promises of prosecution, credible, or risk irrelevance. As a result of the prosecutors request for summons against the six suspects, parliament passed a resolution on December 22, 2010 calling for Kenyas withdrawal from the Rome Statute. The other consequence of the request was that the government (or part of it) embarked on an initiative to use the African Union (AU) to lobby the United Nations Security Council to defer the proceedings under Article 16 of the Rome Statute. The rationale for the deferral request is to allow Kenya to deal with the alleged crimes. The last initiative is the announcement by the
1 LLB (Hons) The writer is a bar candidate at the Kenya School of Law.

countrys Attorney General, Justice and Foreign Affairs ministers that the government go before the court to challenge the courts jurisdiction on the basis of the principle of complementarity. The alternative of withdrawing is legally weak inasmuch as the state remains obliged to cooperate with respect with respect to ongoing proceedings as envisaged in article 127(2), although the state in question could still avail itself of its rights under the principle of complementarity. In any case the sovereignty argument the basis for this argument is also misguided, the proponents of the withdrawal argued in parliament that Kenya being a sovereign state could withdraw from the Rome Statute and thus will not be bound by any obligation to the ICC. A review of the modern conception of the doctrine of sovereignty does not avail to them this argument. French political thinker Jean Bodin offered the first systematic approach to the theory of sovereignty in his work, Lex Six Livres De La Republique in 1576. He defined sovereignty as States supreme authority over citizens and subjects. Half a century later in 1625, Hugo Grotious in his seminal work De Jure Belli ac Pacis Libris Tres, maintained that the laws governing relations among nations must first safeguard the sovereignty of states themselves holding that the rules preventing interference in another states jurisdiction would safeguard this sovereignty. Following the Thirty Years War, the 1648 Peace of Westphalia attempted to codify an international system based on the coexistence of a plurality of states exercising unimpeded sovereignty within their territories thus enshrining untrammeled state sovereignty and freedom from outside interference as the foundation of modern international law. Although some (including Kenyan parliamentarians) still insist that states are supreme, reality points to the fact that international law norms have developed rules whose aim is to modulate the behavior of states. This implies violation of or intrusion upon local authority. International penal process has significantly contributed to the overall concept of sovereignty. The significance of international penal process and its accompanying tenet of international justice reflects an evolution in the perception of sovereignty heralding a qualitative shift which necessitates an ethical vision in which human values supersede state rights. Thus though states remain the principle actors on the international scene, there is a limitation on their internal power authority manifest in the international penal institutions like the ICC and ad hoc criminal tribunals in the enforcement of international criminal and humanitarian law.

The Security Council deferral approach is also bad in law. The power of the Security Council over ongoing proceedings before the ICC is that the council can adopt a resolution under Chapter VII of the UN Charter requesting the court not to commence an investigation or prosecution, or to defer any proceedings already in progress. The Kenyan request is fundamentally flawed as it not only misinterprets both the Rome Statute and the UN Charter through its expanded construction of the Security Councils Chapter VII authority, more fundamentally, it conflates the principle of complementarity and the realpolitik exception in article 16 that allows international peace and security to temporarily suspend the pursuit of justice. Not only does this weaken the former in principle, more practically it means that any respite Kenya receives from the Security Council will be temporary-article 16 requires the annual renewal of any deferralwhereas the proper exercise of complementarity would offer a permanent opportunity for Kenya to pursue domestic mechanisms (on condition that the government is willing to and able to prosecute the offenders domestically). A deferral under article 16 of the Rome Statute can be used only if the UN Security Council determines that there is a threat to international peace and security. Not even the most pessimistic assessment of the ICCs involvement in Kenya would characterize it as such. This argument has at its core an expansive reading of the notion of threats to international peace and security. However, the proponents of the deferral can find solace in that there seems to be precedent for an expanded reading of the scope of Chapter VII of the United Nations Charter. This view is informed by the language used by the Council in SC Res 1315(2000) on the Special Court for Sierra Leone that in the particular circumstanceswould contribute.to the maintenance and restoration of peace. At any rate, the African Unions support for the deferral seems to be founded on the misguided notion that the ICC has been focusing only on situations in Africa. (It should be noted that none of the African cases apart from the Kenyan case was initiated at the prosecutors own motion, in fact it is arguable that the Kenyan case was as was undertaken under the auspices of the AU through the intervention of the Panel of Eminent persons and the Waki Commission). It must be recalled that the African Union was behind a similar request for deferral regarding the Al-Bashir case. In any case the Al-Bashir case request could be argued to have been justified given the international concern for the war in Darfur and the need to guarantee a peaceful referendum in

South Sudan that needed the co-operation of Sudan. The outright refusal by the Security Council to accept such a request is instructive and suggests a similar fate for Kenyas request. Indeed pursuing Security Council resolution under article 16 is fools errand: the temporary suspension of the threat of prosecution (and of the need to resort to domestic prosecutions to avoid it) is certain to expire when the political configurations in the Security Council changes, as we saw with SC Res. 1422. (On July 12, 2002 upon the entry into force of the Rome Statute, the Security Council passed resolution 1422 at the insistence of the United States granting immunity from prosecution UN peace keeping personnel from countries that were not party to the ICC; however, the Security Council refused to renew the exemption again in 2004 after pictures emerged of U.S. troops abusing Iraqi prisoners in Abu Ghraib, and the U.S. Withdrew its demand.) The deferral request conflates two distinct aspects of the ICC: the power given at Rome to the Security Council to halt proceedings for one year in order to maintain peace and security, and the principle of complementarity which ensures that the ICC is a court of last resort that intervenes only when national jurisdictions are unwilling or unable to do so. These two processes have differing ends and means, but Kenyas request seeks to use the means of article 16 to further the end of complementarity. While it is possible that the two may align they do not in Kenyas case. The ICCs jurisdiction is subject to the regime of complementarity described in article 17 of the Rome Statute, under which the ICC must find a case inadmissible if it is being prosecuted by competent national authorities. (the alternative of complementarity jurisdiction is primacy jurisdiction) Because a state can avoid prosecution of its nationals by initiating a credible investigation or prosecution, the only states likely to have their nations prosecuted are those that either (1) want prosecution to go forward (say because of domestic regime change) and wish the international community to bear the costs of prosecution; or (2) have too little state capacity to initiate a credible prosecution or investigation. Kenya forms a potential third category: a recalcitrant state that wishes to avoid prosecution. More than being a presumption in favour of local prosecutions, the principle of complementarity is at the heart of the ICC system. Aside from easing the concerns of states over threats to their sovereignty, the principle serves nobler ends, such as the utility of local prosecutions, and

recognises the very real limitations of an ICC with potentially universal jurisdiction. Therefore, should Kenya genuinely wish to conduct local trials, there are a number of reasons for allowing it to do so. First, it would relieve pressure on an already overburdened ICC. Second, should Kenya be allowed to do so, it would have positive effects for the ICC beyond diluting the mounting tension in the country. It would demonstrate to detractors in Africa that the ICC is designed to function only when national legal systems are unwilling or unable to prosecute international crimes. Third, complementarity has never been put to any real work, even though it is designed as an integral part of the Rome System. If the principle is to become effective, it must be taken to a test drive. Kenya presents an opportunity to do so. Fourth, there is a danger in refusing Kenya the opportunity to exercise its jurisdiction over the crimes under the principle of complementarity. Kenya has one of the best developed judiciaries in Africa. It is also one of the few African states to have domesticated the Rome Statute, and the resulting legislation is impressive and progressive. In fact, until recently, Kenya was a model ICC state. If Kenya does not meet the threshold of complementarity, the implication is that neither would the overwhelming majority of African states, making the principle a dead letter in Africa. This would be a sad reflection on domestic legal systems in Africa, and would embolden those who wish to present the ICC as an imperialistic mechanism on a civilizing mission. The late Thomas Franck (T. Franck, The Power of Legitimacy among Nations (1990))postulated that the legitimacy of international norms and institutions rested in large part upon certain important factors, notably whether the norm or institutional process was validated through commonly accepted means, whether it was clearly understood by those upon whom it operated, whether it cohered with other norms and institutions, and whether it was well-grounded in secondary rules of international law concerning law formation. Thus given that the ICC depends heavily on perception of its authority to galvanize the support of states and non-state actors, and without which support, the ability of the ICC to investigate suspects, to take into custody indictees, and to issue authoritative decisions will be severely inhibited if not crippled. Thus Franck posited that the greater the legitimacy enjoyed by a rule or institution, the greater the degree of compliance that the rule or institution would command. Where an international rule or institution lacked legitimacy, its compliance pull would be very weak.

Procedurally speaking, Kenyas dilatory response to the atrocities means it has already missed chances to halt proceedings on the basis of complementarity. The limit on complementarity challenges is set out in article 19(4): The challenge shall take place prior to or at the commencement of the trial, or exceptionally later if it is based on double jeopardy considerations i.e. article 17(1) (c). However, complementarity is in substance a continuing assessment. To consider it formalistically-as a static determination reified in time- would allow the ICC to turn a blind eye to positive legal developments and undermine the principles worth. Presuming there is genuine political will in the country to pursue a local mechanism, the countrys envisaged domestic prosecutions might be accommodated by the prosecutor exercising his discretion under article 53(4) of the Rome Statute to halt his investigation on his own accord based on new facts and information. There is no direction on the statute on what new facts and information might form the basis for such a decision, but the initiation of local proceedings could qualify. What is more, there is no limitation on when such a decision can be taken. Based on the increased push for the country to be allowed to deal with the matter itself, the prosecutor might use this article to conditionally suspend his investigation on the understanding that Kenya pursues its own investigations and prosecutions. The prosecutor could then monitor the proceedings in Kenya and if, he is not satisfied with them, either resumes his investigations or (if necessary) approach the pretrial chamber for a renewed mandate to do so. But there are reasons for the prosecutor to be cynical about Kenyas newfound enthusiasm for domestic trials, this is given the absence of a guarantee that the ICC will secure the countrys cooperation in any ICC-related investigation in the future. The framers of the Rome Statute foresaw any attempt at political maneuvering that many suspect the Kenyan government to be engaged in. They guarded against it by insisting that the complementarity principle may not be abused by a state merely wishing to shield its own from justice. If that was the true domestic motive for invoking complementarity, then the framers made it clear that the ICC would close the impunity gap and be accorded jurisdiction. If Kenyas complementarity request is approved, that success would place a heavy burden on the country-to show the world that its courts and prosecutors are genuinely willing and able to

prosecute domestically. Kenya should thus be careful what it wishes for. And if Kenyas posturing is a political ploy to protect its powerful, then the ICC will remain in the picture. Article 17 of the Statute outlines processes for judicial review of national court decisions. Under the theory of complementary jurisdiction, the ICC can exercise jurisdiction if a state shows an unwillingness or inability to genuinely prosecute crimes. The ICC will be able to assume jurisdiction over a person who has already been subjected to court proceedings in a domestic court if the ICC determines that the proceedings were undertaken for the purpose of shielding the person concerned from criminal responsibility, or were otherwise not conducted independently and impartially. This determination lies solely with the ICC itself. Thus any quest or hope of evading justice through a local process is misguided and wishful thinking.