The Star (Nairobi)

19 November 2012

Kenya: Why Kenya Has to Cooperate With ICC

opinion

African states party to the Rome Statute of the International Criminal Court (ICC) still struggle in endless debates on cooperation with the ICC and its obligations.

Some state parties are now looking at the ratification as impairment rather than as a means to salvage human dignity and confront impunity in their countries.

Kenyans charged with planning and organising the 2007-08 post-election violence continue to hide behind the government, which in turn has been lukewarm in its cooperation with the Court.

This despite binding obligations under the Rome Statute which demands cooperation with the ICC in bringing perpetrators to book.

This cooperation includes availing information requested by the prosecutor to be analysed and used at trial. After all, the cases are not against the Republic of Kenya but against four individuals suspected of being the masterminds behind the post-election violence.

National compliance with international treaties, including those dealing with accountability for mass atrocity crimes, is guided and supported by a corpus of treaties including the Vienna Conventions on the Law of Treaties which binds states to international law.

Also providing direction are the Rome Statute, the Geneva Conventions that are often referred to as the the 'Laws of War', the United Nations Charter and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

The Rome Statute is the treaty behind the establishment of the ICC. The primary reason for the establishment of the ICC was to create a jurisdiction and ensure that grievous crimes of international concern do not go unpunished.

The court has jurisdiction on crimes under article 5 of the Statute. These are the crime of genocide, crimes against humanity, war crimes and the crime of aggression.

The only occasion, however, that the ICC will take over jurisdiction of a case from a country is when the state party is unwilling or unable to carry out investigations and prosecutions.

Articles 86 and 87 of the Rome Statute assert the binding effect and obligations on state parties for it to function effectively as it cannot stand alone.

A state becoming party to the Statute must from the very beginning permit the Court to exercise its jurisdiction and power in its territory, with regard to the crimes it is empowered to investigate and prosecute.

The 1969 Vienna Convention provides for the binding process between state parties and treaties. Thus, Article 14 asserts states can be bound by a treaty through ratification, acceptance or approval.

However, the Convention under Article 18 restrains states from acts that would defeat the object and purpose of a treaty.

Refusing to avail information to the ICC which is pivotal to investigations, places Kenya in contravention of the cooperation aspects of the Rome Statute.

The refusal therefore contravenes international law, which is recognised as part of Kenyan law under the new constitution.

The Convention against Torture, under Article 9, elucidates that state parties shall cooperate with one another on matters of assistance in connection with criminal proceedings brought in respect of any of the offences referred to in Article 4 of this convention, including the supply of all evidence at their disposal necessary for the proceedings.

State parties shall carry out their obligations under paragraph I of this article in conformity with any treaties on mutual judicial assistance that may exist between them.

State practice and legal obligation is the field which states compete to ensure that their law and its practice are consistent with international law obligations.

In Kenya's current situation, cooperating with the ICC prosecutor Fatou Bensouda on executing her request has met resistance from the government.

Her requests are catered for under the International Crimes Act of Kenya, Part III Article 20.1(a) (x) and Article 35 of Constitution Kenya 2010, which provides that an individual has a right of access to information held by the state; and information held by another person and required for the exercise or protection of any right or fundamental freedom, including the pursuit of justice for victims of the post-election violence.

The state therefore has a duty both under domestic and international law to avail the information requested. Bensouda's requests to the government were for the production of financial statements on the four suspects, their medical reports and recordings from the Communication Commission of Kenya.

This request is catered for under article 87 and 93(1) k and I of the Rome Statute. The chief prosecutor has issued a warning that failure to comply and cooperate with the request of the court will result in Kenya facing sanctions.

It is without bias that the ICC has given Kenya enough time to execute its simple request. The request is supposed to be executed by the Attorney General under section 108 (2) of Kenya's International Crimes Act, for the benefit of the court.

The state law office has indicated that it is uncertain when the documents may be availed to the prosecutor, because before the information is availed to the ICC, it ought to go through government ministries to look into any legal hindrances or objectives that may cause the government to deny the request.

In truth, there are no legal hindrances as the supreme law under the constitution dealing with treaty compliance and freedom of information, as well as the provisions of Kenya's international crimes act dealing with cooperation are as clear as day.

The Rome Statute has irrefutably laid down the rules on compliance with the court without undue delay. With the four alleged perpetrators out of luck and time, it is up to the Kenya government to take a big step forward or face heavy sanctions from the international community.

The writer serves on the international advisory board of the London Transitional Justice Network. The views expressed here are his own.

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