Newly-appointed envoy leads bid to bring Hague cases back home

From left: ICC Chief Prosecutor Fatou Bensouda, Deputy President William Ruto and President Uhuru Kenyatta. Photos | AFP and FILE |   NATION MEDIA GROUP

By KEVIN J KELLEY in New York AND DAVE OPIYO in Nairobi
Posted  Friday, April 12  2013 

IN SUMMARY

• Envoy tells UN assembly punitive ICC trials could derail peace and reconciliation talks, adding that local courts ready to handle charges

Kenya has challenged the International Criminal Court’s role in prosecuting cases involving the country’s citizens and sharply criticised the ICC’s actual handling of those cases.

The attack on the court’s performance came in remarks to the United Nations General Assembly by Kenyan deputy UN ambassador Koki Muli Grignon.

While not explicitly mentioning the cases of President Uhuru Kenyatta and Deputy President William Ruto in the course of her 12-minute speech, Ms Grignon made clear that Kenya now believes those cases should be returned to the jurisdiction of the nation’s judicial institutions.

The ICC should be regarded, she declared, as “the court of last resort.”

Ms Grignon suggested repeatedly that Kenyan institutions were capable of delivering justice impartially.

Continued intervention by the ICC would jeopardise peace, stability and efforts at communal reconciliation in Kenya, she warned.

“Punitive vengeance in the name of justice cannot be a means to reconciliation; it instead festers quietly until … it explodes,” Ms Grignon declared.

She further questioned the legitimacy of the ICC’s involvement in Kenya.

Ms Grignon told the General Assembly that the ICC should have no role “where member states did not refer the cases to the ICC in the first place, as was the case in Kenya.”

It will be recalled, she said, that “the names of Kenyan suspects were submitted to the ICC by chief mediator, Kofi Annan.”

In instances where an ICC treaty signatory did not seek the court’s involvement, states “should be allowed an opportunity to return such cases for trial under their national judicial and legal systems” when they are demonstrated to be “credible, independent, free and fair,” Ms Grignon said.

“Kenya strongly objects to the politicisation of the ICC and particularly the office of the prosecutor,” she told the General Assembly.

She accused the court of “selective applications” of its jurisdiction and criticised “selective referrals” to the court on the part of the UN Security Council.

She also implicitly charged ICC officials with acting inappropriately in their handling of the Kenyan cases.

Cooperation

Defendants’ “presumption of innocence must be respected,” the ambassador said. “The international criminal justice system must never be compromised to the extent that it allows the conduct of trials or prosecution of suspects in extrajudicial forums such as the media and YouTube.”

Kenya concluded its comments to the General Assembly session on the links between international justice systems and national reconciliation by pledging to continue cooperating with the ICC.

“We are alive to the fact that Kenya is not on trial at the ICC,” Ms Grignon said.Remaining “fully cognisant of its obligations” under international treaties, Kenya intends to fulfil its responsibilities regarding the ICC, she said. The envoy noted that Kenya has adhered to that standard “even at times when doing so has been unfavourable politically.”

The Kenyans charged at the court have all said they are ready to cooperate with the court.

Ms Grignon spoke as the ICC’s registry said it was not opposed to the use of video link during the trial of President Kenyatta, Mr Ruto and former radio presenter Joshua Sang’.

Registrar Silvana Arabia, however, said the video link set up should only be seen as an ‘ad hoc’ solution rather than a ‘structural one.’

But she warned that there was a higher risk of delays in court proceedings using the video link than when the accused was actually present in the court room.

Ms Arabia said it would cost at least Sh5.5 million to purchase the video link equipment and another two months for the equipment to be in full use.

“This minimum period would allow time for procurement of additional equipment and shipping, modifications and installations in Court Room 1 and preparation of the location in Nairobi,” said Ms Arabia.

She said a suitable premise with access to a direct connection to Kenyan internet services would need to be arranged.

“A secure location would be required so that the ICC equipment can be left at all times without the need for a re-occurring set up and activation on trial days,” she said.

“It would be beneficial if the location identified could be secure at all instances, so that the trial proceedings could take place in a calm atmosphere.”

Since the video link itself was secured by encryption, there would, however, be no possibility of facilitating and guaranteeing secure privileged telephone communication between the parties present in the court room and the remote location.

“Therefore, any communication would be taking place via the local mobile network as was done previously during the status conference,” she said.

Ms Arabia stressed the importance of having a reliable and constant supply of power saying any break in the circuit would cause the video link to break and delay proceedings.

She said that in case the Trial Chamber decided that a witness had to appear by way of a video link whilst another accused is also appearing via the same channel, a mandatory upgrade of Court Room One was required to enable support of two simultaneous links
.