 |
| President Uhuru and his Deputy Ruto |
PRESIDENT
Uhuru Kenyatta is not yet out of the woods on ICC despite the
impression created by the results of the just-concluded Assembly of
State Parties in The Hague.
Although Foreign Secretary Amina Abdalla has declared the outcome of the ASP as “a major victory for Kenya” the reality is that Kenya won and lost in equal measure.
While Kenya got video-link, trial in absence of accused and partial recognition of heads of state (Rule 134), it lost out on additional instances for introduction of prior recorded testimony by witnesses to the prosecution (Rule 68).
Kenya's loss on Article 68 could not however be immediately picked up as the official spin was that Kenya had managed to “force concessions” or “secure agreement” that the rule would not work retroactively.
The fact of the matter however is that such concession is not necessary as Article 51(4) of the Rome Statute expressly provides that amendments to the rules “shall not be applied retroactively to the detriment of the accused.”
And so
none of the amendments passed at ASP will work backwards. The rule could
however work against Uhuru's interests in the sense that his trial has
not started yet the rules have taken effect.
Reluctantly, Kenya conceded losing out on Rule 68 through Amina: “Our view is that this new rule is fraught with difficulties and is a dangerous move that will hurt the rule of law. But a majority of the assembly members were keen to have these changes passed, and so they were.”
The biggest casualty of the politically-inspired ASP appears to be the integrity of the court itself, its philosophical foundations and its key interest group- victims.
The court was formed to fight impunity especially among the mighty. However, it now appears that the court can easily bend to the whims of the mighty.
Amina did not waste the chance to rub
this off while addressing the ASP meeting on Thursday. She thanked
“colleagues from the African Union, and from other like-minded countries
that stood with Kenya when it needed to repulse an attack on our
sovereignty.”
She talked of how Kenya had gone at the ASP aiming to score on two things: disapprove Article 63 of Rome Statute on mandatory appearance at trial for an accused and Article 27 on irrelevance of official title.
“We are glad to announce that we have nailed both,” she said in a language that left it an open secret as to who suffered most. Civil society groups- themselves critical stakeholders largely seen to represent victims (as opposed to ASP which represent states and political leaders) believe the legacy of this particular ASP is scandalous.
In fact, there are those who believe that what happened at ASP is the beginning of an eventual death of the court. According to International Federation for Human Rights (FIDH) Vice President Paulina Vega, the ASP conceded to political pressure thereby endangering the integrity of the Rome Statute and disregarding victim interests.
“It is regrettable to witness how States Parties have favoured political compromise over the interests and rights of victims, that they claimed to support a few days before, during the ASP plenary special session dedicated to victims,” she said. The civil society groups were well represented at the ASP and severally clashed with the official Kenyan delegation.
Kenya Human Rights Commission's George Morara says that by succumbing to Kenya's diplomatic pressure, states parties are setting themselves on a collision course with the court, “especially where the adopted amendments to Rule 134 are expected to bring the court under the ambit of political considerations.” According to him, the ASP has thrown the rule of law out of the window and replaced it with the rule of politics.
William Pace, a convener of the Coalition for the ICC raises the question of the process leading to the adoption of amendment to Rule 134. Unlike the amendment to Rule 68 and 100, amendment to Rule 134 appeared to jump the agreed processes.
“There is a big question mark over the process that led to these new rules. They have been fast-tracked due to a concerted political campaign and very clearly have a potential impact on ongoing trials,” Pace said.
The President of the ASP Tiina Intelmann conceded that the Rule 134 amendment was brought quite late. “Amendments to Rule 68 and 100 were discussed throughout the year. Rule 134 was brought quite late but largely due to complicated set of circumstances which obtained and which we had to deal with,” she said on phone from Hague.
Intelmann did not discuss the implication of this blatant act of breaking away from agreed road-map for introducing amendments but she had an assurance: “Going into the future, we will ensure that the road-map is adhered to. I personally in my capacity as the president of the ASP will ensure that the road-map is followed and that there are adequate consultations.”
She believes that the ASP did not make compromises which would weaken the institution and its integrity: “We did what we had to do in appreciation of the new situations which have arisen and which have to be taken into account as the court grows.”
She said she hopes the amendments will not negatively affect victims who stand at the heart of the statute. She said the ASP intended to infuse an air of flexibility in the operation of the statute in appreciation of lessons learned.
Another school of thought adopted by all civil society groups who attended the ASP and partially agreed to by Intelmann is the actual implication of the amendment's passed on Uhuru when Article 63 and Article 51 of the statute are considered.
Article 63 says the accused shall be present during their trial. Article 51(5) says that in the event of conflict between the statute and Rules of Procedure and Evidence, the statute shall prevail.”
Already, ICC First Vice President Sanji Mmasenono Monageng who chairs the Committee on Lessons Learned has indicated that the judges of the court will ignore the rule on account of its conflict with the statute. She actually suggested that the amendment contradicts the Rome Statute.
The same view was shared by Njonjo Mue who faced off the Kenyan delegations at The Hague: “Our view on the changes to Rule 134 is that they offend the principle of equality and personal attendance at trial as espoused in Articles 27 and 63 of the Rome Statute. The new rule attempts to amend the Rome Statute through the back door and we expect it to be challenged in court in due course.”
Elizabeth Evenson, a senior international justice counsel at Human Rights Watch says the amendment's notwithstanding, judges have a final say:
"This amendment keeps the decision on attending trial in the hands of the ICC's judges so it remains to be seen whether the change will make any practical difference whatsoever."
Intelmann appeared to agree that its not yet over until its over: “The rule as agreed by consensus has created the necessary flexibility as was desired by the state parties. However, it is up to the judges to consider how to apply them. Parties will have to make applications and its up to the judges to interpret them."
She however remained resolute that the amendment does not contradict the Rome Statute. Vega says the rule will put the judges in a difficult position, where they might not be able to apply it because of its inconsistency with the Rome Statute.
Pace says CICC members take consolation in the fact that it is the ICC judges who have a final say on what happened at the ASP. But Kenya has already tossed to the amendment saying it renders “obsolete” last week's ruling requiring Uhuru to personally attend all his trial sessions unless allowed. Kenya insists on this despite the well-known fact that the amendment will not work retroactively.
For some reason, Kenya is not celebrating amendment to Rule 100. The amendment was least controversial and least talked about by Kenya yet it has simplified the process of shifting the trials to Kenya.
The amendment actually feeds into what Kenya has been pressing for all along in that it aims at enabling accused to conduct their public and private life with minimum disruption by bringing trials closer to them.
Previously, trials could be carried out away from the Hague but the process involved to achieve this was complex, “illogical and unfair”, to use the words of the committee which drafted it. It is not surprising therefore that all previous attempts to relocate the trial venues including one by Ruto failed.
Without going into the intricacies of the amendment, the rule has now been amended to simplify this process. Actually, if the amendment applied at the time of Ruto's application, he would definitely have gotten his way to have his trial held in Kenya.
Going into the future and if either Uhuru or Ruto applies to have their trial shifted to Nairobi, they would find the road easier than before. They could easily have their way.
The other biggest loss for Kenya- now insulated in official spin- is the attempt to amend various sections of the Rome Statute which backfired. Unlike the amendment to the rules, amendment to the statute would have been the real deal for Kenya, the real victory.
This is despite the fact that they would take long to effect as process of ratification can be quite slow. In proposing the amendments, Kenya circumvented the process articulated in Article 121(1) of tabling the proposal to the Secretary General of the UN who would then promptly circulate it to all state parties. It is then that after three months, the ASP would consider the proposal.
Kenya used a different approach. It wrote to the chair of ASP's working group on amendments on November 7 proposing amendment to Article 63, 27, 70 and 122. It required the ASP to “take up these proposals according to Article 121(2) of the Rome Statute.
Although Kenya initially wanted the amendment's settled at the ASP, its language changed and the spin became that Kenya had secured an agreement that they would be deliberated at the next ASP. Such an agreement was not necessary as this is what is supposed to happen anyway.
“We have given notice of a special ASP to discuss the amendment of Article 27 on the immunities of Heads of State and Government. We expect such a meeting to be convened after the 90-day notice period expires, in the first quarter of next year,” Amina said on Thursday.
Other winners at the ASP are the African Union and the UN Security Council. The AU relentlessly backed Kenya's cause and managed to obtain huge political relevance in the process. It has emerged out a stronger body which can stand up to its members plight.
The AU also forced a session where its concerns with regards to immunity of sitting heads of states was discussed. The session served as a forum to vent out their anger at the ongoing prosecution of Uhuru and Ruto.
The UNSC which came out under intense pressure for downplaying AU/Kenya's request for deferral is another victor in this. The position of the majority of the council members- including three permanent members, was that the right forum to address Kenya/AU concerns was the ASP.
AU however pushed for a vote in which the eight abstained to the chagrin of Kenya. So angry was Kenya that it denounced UK's belated bid to sponsor the video-link amendment. So intimidated by Kenya's wrath (accompanied with ruthless but underhand diplomatic war) the UK had to sing along at the ASP.
When the amendments were passed on Thursday, council members did not waste the chance to redeem their image in the eyes of Africa and Kenya.
“Earlier this month, when the issue came before the council, I encouraged Kenya and the AU to work within the framework of the ASP to enable the proceedings to be conducted in a manner that would not make the Kenyan defendants choose between mounting a vigorous legal defense and continuing to do their jobs.
“Today, because of the remarkable efforts of the ASP members, including the Kenyan delegation, supported by many AU member states including South Africa and Botswana, the Assembly of States Parties has done just that,” US Permanent Representative to the UN Samantha Power said on Thursday.
The council members now feel vindicated that the solution lay at the ASP. This is despite the fact that Rome Statute remains intact and only the judges will determine whether to allow the flexibility introduced by the ASP or not.
Kenya has since announced that it is bracing itself for another ASP meeting in three month's time where the amendment to the Rome Statute will be discussed. Like said earlier, that will be the real deal. If Kenya wins on that one, that will be a real victory- against victims.
Although Foreign Secretary Amina Abdalla has declared the outcome of the ASP as “a major victory for Kenya” the reality is that Kenya won and lost in equal measure.
While Kenya got video-link, trial in absence of accused and partial recognition of heads of state (Rule 134), it lost out on additional instances for introduction of prior recorded testimony by witnesses to the prosecution (Rule 68).
Kenya's loss on Article 68 could not however be immediately picked up as the official spin was that Kenya had managed to “force concessions” or “secure agreement” that the rule would not work retroactively.
The fact of the matter however is that such concession is not necessary as Article 51(4) of the Rome Statute expressly provides that amendments to the rules “shall not be applied retroactively to the detriment of the accused.”
 |
| ICC Vice President Sanji Mmasenono |
Reluctantly, Kenya conceded losing out on Rule 68 through Amina: “Our view is that this new rule is fraught with difficulties and is a dangerous move that will hurt the rule of law. But a majority of the assembly members were keen to have these changes passed, and so they were.”
The biggest casualty of the politically-inspired ASP appears to be the integrity of the court itself, its philosophical foundations and its key interest group- victims.
The court was formed to fight impunity especially among the mighty. However, it now appears that the court can easily bend to the whims of the mighty.
 |
| Attorney General Githu Muigai |
She talked of how Kenya had gone at the ASP aiming to score on two things: disapprove Article 63 of Rome Statute on mandatory appearance at trial for an accused and Article 27 on irrelevance of official title.
“We are glad to announce that we have nailed both,” she said in a language that left it an open secret as to who suffered most. Civil society groups- themselves critical stakeholders largely seen to represent victims (as opposed to ASP which represent states and political leaders) believe the legacy of this particular ASP is scandalous.
In fact, there are those who believe that what happened at ASP is the beginning of an eventual death of the court. According to International Federation for Human Rights (FIDH) Vice President Paulina Vega, the ASP conceded to political pressure thereby endangering the integrity of the Rome Statute and disregarding victim interests.
“It is regrettable to witness how States Parties have favoured political compromise over the interests and rights of victims, that they claimed to support a few days before, during the ASP plenary special session dedicated to victims,” she said. The civil society groups were well represented at the ASP and severally clashed with the official Kenyan delegation.
Kenya Human Rights Commission's George Morara says that by succumbing to Kenya's diplomatic pressure, states parties are setting themselves on a collision course with the court, “especially where the adopted amendments to Rule 134 are expected to bring the court under the ambit of political considerations.” According to him, the ASP has thrown the rule of law out of the window and replaced it with the rule of politics.
William Pace, a convener of the Coalition for the ICC raises the question of the process leading to the adoption of amendment to Rule 134. Unlike the amendment to Rule 68 and 100, amendment to Rule 134 appeared to jump the agreed processes.
“There is a big question mark over the process that led to these new rules. They have been fast-tracked due to a concerted political campaign and very clearly have a potential impact on ongoing trials,” Pace said.
The President of the ASP Tiina Intelmann conceded that the Rule 134 amendment was brought quite late. “Amendments to Rule 68 and 100 were discussed throughout the year. Rule 134 was brought quite late but largely due to complicated set of circumstances which obtained and which we had to deal with,” she said on phone from Hague.
Intelmann did not discuss the implication of this blatant act of breaking away from agreed road-map for introducing amendments but she had an assurance: “Going into the future, we will ensure that the road-map is adhered to. I personally in my capacity as the president of the ASP will ensure that the road-map is followed and that there are adequate consultations.”
She believes that the ASP did not make compromises which would weaken the institution and its integrity: “We did what we had to do in appreciation of the new situations which have arisen and which have to be taken into account as the court grows.”
She said she hopes the amendments will not negatively affect victims who stand at the heart of the statute. She said the ASP intended to infuse an air of flexibility in the operation of the statute in appreciation of lessons learned.
Another school of thought adopted by all civil society groups who attended the ASP and partially agreed to by Intelmann is the actual implication of the amendment's passed on Uhuru when Article 63 and Article 51 of the statute are considered.
Article 63 says the accused shall be present during their trial. Article 51(5) says that in the event of conflict between the statute and Rules of Procedure and Evidence, the statute shall prevail.”
Already, ICC First Vice President Sanji Mmasenono Monageng who chairs the Committee on Lessons Learned has indicated that the judges of the court will ignore the rule on account of its conflict with the statute. She actually suggested that the amendment contradicts the Rome Statute.
The same view was shared by Njonjo Mue who faced off the Kenyan delegations at The Hague: “Our view on the changes to Rule 134 is that they offend the principle of equality and personal attendance at trial as espoused in Articles 27 and 63 of the Rome Statute. The new rule attempts to amend the Rome Statute through the back door and we expect it to be challenged in court in due course.”
Elizabeth Evenson, a senior international justice counsel at Human Rights Watch says the amendment's notwithstanding, judges have a final say:
"This amendment keeps the decision on attending trial in the hands of the ICC's judges so it remains to be seen whether the change will make any practical difference whatsoever."
Intelmann appeared to agree that its not yet over until its over: “The rule as agreed by consensus has created the necessary flexibility as was desired by the state parties. However, it is up to the judges to consider how to apply them. Parties will have to make applications and its up to the judges to interpret them."
She however remained resolute that the amendment does not contradict the Rome Statute. Vega says the rule will put the judges in a difficult position, where they might not be able to apply it because of its inconsistency with the Rome Statute.
Pace says CICC members take consolation in the fact that it is the ICC judges who have a final say on what happened at the ASP. But Kenya has already tossed to the amendment saying it renders “obsolete” last week's ruling requiring Uhuru to personally attend all his trial sessions unless allowed. Kenya insists on this despite the well-known fact that the amendment will not work retroactively.
For some reason, Kenya is not celebrating amendment to Rule 100. The amendment was least controversial and least talked about by Kenya yet it has simplified the process of shifting the trials to Kenya.
The amendment actually feeds into what Kenya has been pressing for all along in that it aims at enabling accused to conduct their public and private life with minimum disruption by bringing trials closer to them.
Previously, trials could be carried out away from the Hague but the process involved to achieve this was complex, “illogical and unfair”, to use the words of the committee which drafted it. It is not surprising therefore that all previous attempts to relocate the trial venues including one by Ruto failed.
Without going into the intricacies of the amendment, the rule has now been amended to simplify this process. Actually, if the amendment applied at the time of Ruto's application, he would definitely have gotten his way to have his trial held in Kenya.
Going into the future and if either Uhuru or Ruto applies to have their trial shifted to Nairobi, they would find the road easier than before. They could easily have their way.
The other biggest loss for Kenya- now insulated in official spin- is the attempt to amend various sections of the Rome Statute which backfired. Unlike the amendment to the rules, amendment to the statute would have been the real deal for Kenya, the real victory.
This is despite the fact that they would take long to effect as process of ratification can be quite slow. In proposing the amendments, Kenya circumvented the process articulated in Article 121(1) of tabling the proposal to the Secretary General of the UN who would then promptly circulate it to all state parties. It is then that after three months, the ASP would consider the proposal.
Kenya used a different approach. It wrote to the chair of ASP's working group on amendments on November 7 proposing amendment to Article 63, 27, 70 and 122. It required the ASP to “take up these proposals according to Article 121(2) of the Rome Statute.
Although Kenya initially wanted the amendment's settled at the ASP, its language changed and the spin became that Kenya had secured an agreement that they would be deliberated at the next ASP. Such an agreement was not necessary as this is what is supposed to happen anyway.
“We have given notice of a special ASP to discuss the amendment of Article 27 on the immunities of Heads of State and Government. We expect such a meeting to be convened after the 90-day notice period expires, in the first quarter of next year,” Amina said on Thursday.
Other winners at the ASP are the African Union and the UN Security Council. The AU relentlessly backed Kenya's cause and managed to obtain huge political relevance in the process. It has emerged out a stronger body which can stand up to its members plight.
The AU also forced a session where its concerns with regards to immunity of sitting heads of states was discussed. The session served as a forum to vent out their anger at the ongoing prosecution of Uhuru and Ruto.
The UNSC which came out under intense pressure for downplaying AU/Kenya's request for deferral is another victor in this. The position of the majority of the council members- including three permanent members, was that the right forum to address Kenya/AU concerns was the ASP.
AU however pushed for a vote in which the eight abstained to the chagrin of Kenya. So angry was Kenya that it denounced UK's belated bid to sponsor the video-link amendment. So intimidated by Kenya's wrath (accompanied with ruthless but underhand diplomatic war) the UK had to sing along at the ASP.
When the amendments were passed on Thursday, council members did not waste the chance to redeem their image in the eyes of Africa and Kenya.
“Earlier this month, when the issue came before the council, I encouraged Kenya and the AU to work within the framework of the ASP to enable the proceedings to be conducted in a manner that would not make the Kenyan defendants choose between mounting a vigorous legal defense and continuing to do their jobs.
“Today, because of the remarkable efforts of the ASP members, including the Kenyan delegation, supported by many AU member states including South Africa and Botswana, the Assembly of States Parties has done just that,” US Permanent Representative to the UN Samantha Power said on Thursday.
The council members now feel vindicated that the solution lay at the ASP. This is despite the fact that Rome Statute remains intact and only the judges will determine whether to allow the flexibility introduced by the ASP or not.
Kenya has since announced that it is bracing itself for another ASP meeting in three month's time where the amendment to the Rome Statute will be discussed. Like said earlier, that will be the real deal. If Kenya wins on that one, that will be a real victory- against victims.
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