Does the ICC case against Kenya's leaders undermine international peace and security?

13 November 2013

On 5 November 2013, the United Nations Security Council (UNSC) began handling the request to defer the International Criminal Court’s (ICC) cases in the Kenyan situation. The request, which was submitted on 1 November for consideration by non-permanent members Rwanda, Togo and Morocco under instruction from the African Union (AU), relates specifically to the cases against Kenya’s President Uhuru Kenyatta and his Deputy, William Ruto.

Kenyatta and Ruto (together with Kenyan journalist Joshua Sang) face charges related to the violence that erupted after Kenya’s December 2007 elections, in which over 1 100 people died. Ruto and Sang’s trial began in September 2013, while Kenyatta’s trial is due to start on 5 February 2014 after a third postponement.

In October this year, the AU held an extraordinary summit at which the relationship between the ICC and Africa was discussed. Central to the discussions was the fact that all cases currently before the ICC are from African countries, including the indictment of two sitting heads of state. In its 12 October 2013 decision, the AU called for the Kenyan cases to be deferred and asked that the UNSC provide feedback on the deferral request by 12 November 2013, the date on which Kenyatta’s trial was scheduled to start.

Given that Kenyatta’s trial has been provisionally moved to February 2014, it remains to be seen whether the AU will still expect the UNSC to make a decision on deferral immediately. As things stand, the UNSC agenda for November does not include a session to discuss the deferral request. However, this is not to say such discussions will not be held, as the programme of work can be updated at any time.

Even if heard, despite support from Russia and China, the likelihood of the deferral being granted is slim, given that the United States, United Kingdom and France, who all hold the power to veto resolutions, insist that the ICC’s postponement of Kenyatta’s trial to February next year was sufficient. The views of the five permanent members of the UNSC notwithstanding, it is essential to assess the merits of the deferral request itself.

Article 16 of the ICC’s Rome Statute, in terms of which deferral requests can be made, statesthat ‘No investigation or prosecution may be commenced or proceeded with … for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the court to that effect ….’ Chapter VII of the UN Charter empowers the UNSC to take measures to ‘maintain or restore international peace and security’ if it has determined ‘the existence of any threat to the peace, breach of peace or act of aggression’.

First, it is clear that Article 16 is intended for use in exceptional circumstances. Indeed, the UNSC has not, to date, deferred any ICC investigation or prosecution. The question now is whether continuing the court processes would undermine international peace and security. The AU’s request stresses that Kenya’s leaders need to focus on the ongoing fight against terrorism, especially following the attack on Westgate mall in September. They contend that having the president and deputy president of the country on trial jeopardises this.
This is not a widely supported view. Notably, Kenyan human rights organisations, in a letter to the president of the UNSC, stated that conflating the two issues would undermine accountability. The organisations emphasised that deferral on this basis would actually further embed impunity, which lends itself to susceptibility to terrorism.It cannot be denied that terrorism is a serious threat in Kenya and the Horn of Africa region. However, the UNSC has to decide whether this suffices as a basis upon which to allege that continuing the trials will compromise international peace and security. Indeed, counter-terrorism and international criminal justice are bedfellows in that they both seek to address serious crimes that have an adverse effect on global peace and security, and where the two intersect a balance must be struck. One should not be preferred over the other.

Second, the AU claims that by virtue of their positions as president and deputy president of Kenya, the two accused should not, for the duration of their terms, be prosecuted. The AU argues that doing so would undermine Kenyatta and Ruto’s official duties. If the deferral were granted on this basis, it would contradict Article 27 of the Rome Statute (which denies immunity for heads of state and other senior government officials). Significantly, it would mean the deferral would have to be renewed every 12 months for the duration of the Kenyan presidential term of five years. Presupposing that Kenyatta runs for a second term and wins, the deferral would have to be extended for a further five years.

This, as noted by Fergal Gaynor, the legal representative of victims in the case against Kenyatta, would further unduly delay any justice for the victims – assuming that Kenyatta is indeed found guilty. Similar sentiments have been voiced by civil society, including the Kenyan Human Rights Commission and the International Center for Policy and Conflict. Importantly, this argument of the AU contradicts Article 2(6) and Article 143(4) of the Kenyan constitution. Article 143(4) specifically prohibits the president’s immunity from criminal prosecution for ‘crime[s] for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity’. The deputy president enjoys no immunity from prosecution under the Kenyan constitution.

Third, the AU contends that the criminal justice reforms undertaken in Kenya sufficiently allow for national prosecutions of those responsible for the post-election violence. While, on the face of it, this is in line with the ICC’s role as a court of last resort and is thus commendable, it is not a basis for deferral. Indeed, this was the primary basis of Kenya’s own deferral request made directly to the ICC in 2011, which the Court rejected. Supposing the criminal justice reforms were considered in making the decision, the argument ignores the fact that despite these reforms, there have been few prosecutions and convictions for serious crimes committed during the post-election violence. More importantly, if the ICC is to reconsider its jurisdiction in this situation, the Kenyans who stand accused by the Court are unlikely to be prosecuted domestically.

Further, in early September, Kenya’s parliament passed motions aimed at withdrawing Kenya from the Rome Statute and repealing the country’s International Crimes Act, which, among other things, provides a basis for the prosecution of ICC crimes in Kenya. This move would mean that not only are the president and his deputy free from prosecution for international crimes, but so are all Kenyans. This goes against the spirit and purpose of international criminal justice and is a blatant denial of recourse to justice for the victims of international crimes.
These are the key matters that the UNSC must grapple with in deciding whether or not to defer the ICC cases against Kenyatta and Ruto. At the end of the day, this will be put to a vote. A resolution on deferral can only be passed if at least nine countries are in favour and none of the five permanent members use their veto. That is unlikely, but not impossible.

Ottilia Anna Maunganidze, Researcher, Transnational Threats and International Crime Division, ISS Pretoria

Rwanda`s New Genocide Cases a Milestone for Domestic Prosecutions of International Crimes

On 6 April 1994, Rwandese president Juvenal Habyarimana and Burundian president Cyprien Ntaryamira were killed in a plane crash. The two were travelling from Tanzania to Rwanda following a heads of state summit in Dar es Salaam. After the crash widespread violence erupted in Rwanda resulting in the deaths of approximately 800 000 people over the next 100 days. Although it has been alleged that the plane was shot down, to date the perpetrators have not been identified. The targets of the Rwandan genocide were predominantly from the Tutsi ethnic group, although moderate individuals from the Hutu ethnic group who were believed to be sympathetic to the then opposition Rwandese Patriotic Front (RPF) were also among the victims.

Eighteen years after the genocide, the quest for justice for the crimes committed in 1994 continues. An international criminal tribunal was set up by the United Nations Security Council (UNSC) to prosecute those who bore the greatest responsibility for the Rwandan genocide. To date, the International Criminal Tribunal for Rwanda (ICTR) has dealt with over 80 cases, securing convictions in 59 of these. The ICTR has achieved important results as far as accountability for the genocide is concerned. However, the tribunal has been criticized for taking too long, being costly to run and prosecuting a small amount of people in comparison to domestic justice processes in Rwanda. Furthermore, the ICTR has been criticized for focusing its prosecutions on Hutus.

In addition to those prosecuted by the ICTR, the Rwandan local and traditional gacaca courts have prosecuted hundreds of thousands of individuals. The combined efforts of the ICTR, the local courts and the gacaca have resulted in a unique and comprehensive approach to ensuring justice for the crimes committed during the 1994 genocide. However, despite overwhelming success, justice has largely remained one-sided and slow. In a 2011 report on the gacaca, international human rights organisation Human Rights Watch criticized the gacaca system and accused the Rwandan government of political interference in the trials. In addition, many senior officials believed to be behind the genocide remain at large and in exile in other countries. These individuals, if extradited to Rwanda, can only face trial before the High Court and not the gacaca.Since 1995, the Rwandan government has sent over 40 extradition requests to various countries.

These requests for the extradition of individuals to Rwanda to stand trial have largely been unsuccessful. However, recent events suggest that those who remain at large could face trial in Rwanda at last.

On 24 January 2012, Canada deported alleged genocide suspect Leon Mugesera back to Rwanda. Mugesera appeared before the Rwandan High Court on 2 February 2012 where he was charged for his involvement in the 1994 genocide. Mugesera, a member of the MRND – the former ruling party in Rwanda – is accused of inciting and planning the genocide. The charges against Mugesera are based on a speech he gave at an MRND party meeting in 1992, in which he called upon people from the majority Hutu ethnic group to exterminate the minority Tutsis who he likened to cockroaches.

Mugesera’s case is the second high profile case that will be dealt with by Rwandan domestic courts. His deportation came just days after the ICTR handed over referral and prosecution materials in the case of Jean Bosco Uwinkindi to the Rwandan courts. Uwinkindi is charged with the crimes of genocide, conspiracy to commit genocide and extermination as a crime against humanity for his involvement in atrocities in Kigal Rural Prefecture.

Uwinkindi’s transfer is the first handover of a case by the ICTR to the national courts of Rwanda. The Prosecutor of the ICTR, Hassan Bubacar Jallow, regards the transfer of the Uwinkindi case as a watershed moment for both the ICTR and Rwanda. Indeed, the transfer of the Uwinkindi case to Rwanda is an important step in acknowledging the ability of the Rwandan criminal justice system to deal with serious crimes.

In addition to the cases of Mugesera and Uwinkindi, in 2011 the US returned to Rwanda two genocide fugitives, Jean-Marie Vianney Mudahinyuka and Marie-Claire Mukeshimana. More recently, the European Court of Human Rights (ECHR) also approved the extradition of another genocide suspect, Sylvere Ahorugeze, who is currently resident in Sweden. The decision of the ECHR, although subject to review, is important for international criminal justice as it has a broad impact, particularly in Europe where it is believed hundreds of Rwandan genocide suspects reside.

The decision of ECHR is the first of a regional human rights court on the extradition of a genocide suspect to Rwanda. As such the judgment sets a precedent for Rwanda to seek extradition of other suspects resident abroad. This decision follows refusals by courts in Belgium, Denmark, Finland, France, Germany, Switzerland, the Netherlands and the United Kingdom to allow the extradition of genocide suspects to Rwanda. Most of these decisions were based on the fact that the courts were not satisfied that the Rwandan judiciary could guarantee a fair trial to extradited genocide suspects.

It is no surprise therefore that the Prosecutor General of Rwanda, Martin Ngoga, has applauded these recent decisions as evidence that the international community believes in the Rwandan criminal justice system. He credits the Rwandan government’s legal reforms for these positive developments. Notably, in 2007 Rwanda abolished the death penalty. Furthermore, since 2008 Rwanda has engaged in capacity building projects aimed at enhancing the performance of the judiciary and ensuring fairness and efficacy of the courts. In addition new courthouses and detention facilities were constructed.

However, despite these recent decisions and the efforts of the Rwandan government to reform the criminal justice system, concerns remain. One of the major concerns relates to whether the Rwandan courts have the requisite capacity to deal with the potential influx of high profile cases. In addition, until recently most courts – the ICTR and those in Europe – did not believe that the Rwandan courts would be able to provide free and fair trials for genocide suspects. Perceptions are changing, albeit slowly. The satisfactory performance of the Rwandan courts will be particularly important for Rwanda’s continued efforts to ensure accountability given that both the ICTR and the gacaca courts will end trials in mid-2012. As a result, the latest genocide trials in Rwanda will be watched closely as they will be the litmus test for any future extraditions or transfers to Rwanda.

ISS Today article written by Ottilia Anna Maunganidze, Researcher, Transnational Threats and International Crime Division, ISS Pretoria

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