The Star (Nairobi)

28 January 2014

Kenya: Former Envoy Asks EU Not to Bargain On ICC

FORMER German envoy to Kenya Margit Hellwig-Boette, who was rejected by Tanzania, has advised the European Union not to compromise on ICC principles despite grievances by the African Union.

Hellwig-Boette, now a visiting fellow at Stiftung Wissenschaft und Politik (SWP), a German institute for international and security affairs, says all parties to the Rome Statute owe it to victims of violence to defend the integrity of the court.

In her research paper just published titled "Political Bickering over the International Criminal Court: The Case of Kenya", she roots for dialogue to bridge the divergent understanding of the court by AU and EU.

At SWP, Hellwig-Boette is attached at the research division dealing with Middle East and Africa. SWP is reputed to be Europe's largest think tank providing analysis on foreign policy for Germany's Parliament, federal government and other actors.

"The West should offer an honest dialogue along the line indicated by the Assembly of States Parties - rejecting impunity for African heads of state but discussing different attitudes to justice, for example in the relationship between peace and prosecution in post-conflict reconstruction," Hellwig-Boette says.

She says the point of divergence between AU and EU is the strong impression, more in the African elite than in EU ones, that heads of states are untouchable. Also, the relative importance of peace and justice as guiding principles for stabilising society during or after conflict.

"Whereas criminals in Europe are brought to justice by a centralised justice system before a society makes a new start after violent conflict or civil war, African nations place greater importance on restorative justice, redress, compensation and reconciliation, even if this leaves crimes judicially unpunished," Hellwig-Boette says.

She says although the recent ASP session "relaxed the situation", supporters and critics of the court should use the window before opening of President Uhuru Kenyatta's trial and the next EU-Africa summit in April to dialogue.

Hellwig-Boette however says that the "Rome Statute and its universality should be defended" and that "Europe should leave no doubt that it takes human rights and their universality seriously."

She proposes that African governments should reveal how they intend to ensure victims will receive protection equal to those of the ruling elites.

"The principles of international criminal justice and the independence of the ICC must not be compromised: all parties to the Rome Statute owe that to the victims of violence and armed conflict, not least in Kenya," Hellwig-Boette says.

She cautions that the argument that all persons currently accused at the ICC come from Africa "should not simply be dismissed out of hand." Hellwig-Boette says the argument is legitimised by "glaring" failure by the UN Security Council to refer situations like Syria to the ICC.

In the paper, she says the AU exploited the Security Council divisions last November to improve the chances of obtaining favourable concession at the ASP. She said AU pushed through with its deferral motion knowing it did not stand a chance.

Hellwig-Boette says: "The ICC retains its authority in all respects. The Kenyan government sells this arrangement as victory over the ICC, but the Rome Statute is not affected. "

She says Africa is not united on its approach to ICC. "In its growing criticism of supposed Western paternalism, the African Union appears outwardly united but is in fact internally divided on the question of how to deal with the ICC," Hellwig-Boette says.

She concludes her paper by saying Germany stands in a better chance to lead the dialogue owing to its history. Hellwig-Boette says ICC is founded on principles of Nuremberg Tribunals and enjoys a good reputation in Africa as "an honest broker that is not pursuing the interests of a former colonial power."

"Germany should use its influence to foster dialogue with African states and their civil societies on international criminal justice and rule of law and resolve the EU-AU bloc confrontation. Pursuing an autonomous role on this issue can also sharpen its Africa profile within the European Union," she says.

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