Saturday, March 15, 2014
On March 20, 2014, the edited book, The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (Cambridge University Press, 2014) will be launched at the University of Pittsburgh School of Law. The event was co-organized by the editor and the Pitt Law Associate-Dean for Research, Professor Haider Hamoudi, who will also serve as discussant. Free luch will be served. See the event announcement on the Pitt Law web page here.
The website of the Residual Special Court for Sierra Leone (RSCSL), which replaced the Special Court for Sierra Leone (SCSL) whose mandate ended in December 2013, is now available. It contains much useful information including the role of the residual mechanism, the list of its principal officials (such as the President, Prosecutor, Acting Registrar, and Defence Officer); a roster of judges who could be called to duty, as necessary; and the new court's governing documents (viz, the Statute; Rules of Procedure and Evidence; and the Residual Special Court Ratification Act (2012), which implemented the Agreement between the UN and the Sierra Leone Government to create the Residual Court into the country's national law). There are also pages covering, among others, legacy projects; news items; archives and links to resources. Follow this link.
Several observations seem worth making. First, regarding the principal officials, we have all the usual suspects: that is, persons who served in the same or similar capacities during the SCSL's existence. The persons are: Presidency (Judge Philip Waki of Kenya), Prosecutor (Brenda Hollis, United States), Acting Registrar (Binta Mansaray, from Sierra Leone) and Defense Officer (Claire Carlton-Hanciles, Sierra Leone). Three minor differences stand out.
To begin with, Justice Waki, who was brought in as an Alternate Judge of the SCSL Appeals Chamber during the Charles Taylor Case, is now not only a regular appeals chamber judge but also the President of the RSCSL. The recommendation to have an alternate judge for the important Taylor Trial originated from the Independent Expert Report on the SCSL by the (now late) Judge Antonio Cassese. That is what led also the appointment of Judge Malick Sow, from Senegal, as Alternate Judge to sit during the Taylor Trial phase which took place in The Hague. Of course, as we now know, Judge Sow later made some explosive allegations about the deliberations process in Trial Chamber II. See my JURIST posts on the matter if you are interested. See The Verdict(s) in The Charles Taylor Case and Why the Special Court for Sierra Leone Should Establish an Independent Commission to Address Alternate Judge Sow's Allegations in the Charles Taylor Case.
Secondly, the former SCSL Registrar is "Acting" Registrar for the RSCSL, presumably until her position or appointment can be regularized. The head of the Defence Office, who was previously called a "Principal Defender", is now relegated to the position of "Defence Officer". This apparently reflects a downgrading of the level of professional classification of the post, although hopefully not an indication of a lessening of the significance of the Defence rights. Or the institution's commitment to the maintenance of the due process rights for the outstanding fugitive (Major Johnny Paul Koroma), should he be alive and one day be arrested and brought to trial before the RSCSL.
Thirdly, regarding the 16 members of the Bench, or rather Judges on the Roster for the RSCSL, several elements are interesting to note. First, as with the SCSL, appointments were shared by the UN and the Government of Sierra Leone with the UN Secretary-General (UNSG). The RSCSL Statute provided for a rooster containing a minimum of 16 judges. The UNSG chose the majority of 10 judges and Sierra Leone appointed a minority comprising 6 judges. The Secretary-General essentially kept many of the same former international judges from the SCSL, with a few notable omissions and new additions. Interestingly, while as we might expect the UN’s judges hailed from a number of countries from about three continents, this is the first time that the national authorities have chosen an all Sierra Leonean line up of judges. Some Sierra Leoneans will no doubt argue that this move is a little too late. Still, patriotic Sierra Leoneans may be happy at what appears to be a significant shift wherein the government appears to be recognizing its own jurists are equally capable of serving the country through nominations to such judicial posts at the RSCSL.
One explanation for the policy shift might be the change in who controls the levers of power in Sierra Leone at the moment. Whereas the All People's Congress (APC) government is now at State House, led by President Ernest Bai Koroma, it was the Sierra Leone People's Party (SLPP) government then led by Ahmad Tejan Kabba that pushed for the creation of the SCSL but that at the same time seemed a bit meek in appointing its own nationals to positions reserved for them in the “hybrid” special tribunal. Remember, this was the same SLPP government that went to the UN and sought an amendment to the SCSL Statute to remove the requirement of “Sierra Leonean” when mentioning the government’s ability to appoint a deputy prosecutor! It later came out that the motivation behind this request was so Kabba's old friend, Desmond da Silva, from Sri Lanka/UK, could be appointed to the position.
Be that as it may, it is notable that the Sierra Leonean government nominated Bench retains all the Sierra Leonean judges from the SCSL days: two from the Appeals Chamber (Justices Kamanda and King) and one from the Trial Chamber (Justice Thompson). Some might have thought, for example, that the new government would choose an entirely new slate. But, to President Koroma's credit, he probably realized that keeping the experienced judges made more sense. Interestingly, given Justice Thompson's controversial partially dissenting ruling in the CDF Trial, particularly outside Sierra Leone, some might have thought that the government will either pass him over or come under some type of pressure not to put him on the roster. This seems to imply that some Sierra Leoneans might not have had problems with Thompson's opinion in the CDF trial judgment, even if some of their members had committed terrible crimes. Either way, leaving Thompson off the roster would have arguably yielded little benefit given his experience as a trial court judge in the SCSL. It perhaps also suggests that no matter what the perception of folks in the Koroma government was, vis-a-vis the criminal responsibility of Fofana and Kondewa, the government appreciated the value of judicial independence which admonishes that a judge be freed from pressure or inducement or threat of any kind from any quarter and that there be no unwarranted interference in judicial decisions. Certainly, a judge should not be penalized in any way for making an unpopular decision during his time on the bench in regards to a concrete case. The question arises whether one could say the same about some members of the "international legal community" outside of Sierra Leone. As clearly some lawyers seem to forget the judicial independence principle, simply because they disagreed with Thompson's admittedly complicated reasoning in the CDF Trial Judgment.
Of the other three (remaining) judges, who had not served at the SCSL, two were drawn from the country’s Court of Appeal (i.e. Justices Solomon and Roberts) while one is from the High Court (Justice Charm). While all the Sierra Leoneans nominated appear eminently qualified to discharge any duties that they may be called upon to perform, it is striking that there is hardly any gender balance; of the total of six Sierra Leonean judges, five are men. Only one, Justice Solomon, is a woman. By contrast, the UN Secretary-General seems to have scored much higher on the gender balance card. Ban Ki-Moon appointed six male justices and four women. Sadly, unlike the very public and transparent process for election to the judgeship of the International Criminal Court, matters are generally opaque with regards to how selections are made for the bench, or in this case roster, of ad hoc international penal courts like the RSCSL.
On a slightly different note, although this is not intended to cast any aspersions on the eminent Kenyan Justice, Philip Waki, who was elected to be the RSCSL’s first President, some might have thought that, with this strong Sierra Leonean cohort of six judges (including three former SCSL experienced judges, two of which are from the Appeals Chamber), one of them – who would likely be based in the country and the seat of the court – might have logically and symbolically made a good candidate for assumption to the RSCSL Presidency. One is left to wonder whether a) neither of the Sierra Leoneans was interested in the job, which appears unlikely given the little I know of the personalities involved; and b) what happened such that they didn’t garner the necessary support, if indeed they would have liked their colleagues to elect them to the Presidency. On the other hand, any Sierra Leonean judge who would have had such designs would have needed broader support than just her/his compatriots. The mathematics make that inevitable, since the majority of the colleagues on the roster are international (although four alone are from Eastern and Southern Africa, interestingly, while the rest are from Europe and North America and Samoa). That, for the record, has not been an insurmountable difficulty in the past, as proved by the election of both King and Kamanda as president at different times of the SCSL’s history. In fact, as the SCSL wound up last year, King had the honor of serving as its last president.
The Legacy Projects page on this new RSCSL website touts about nine main “legacies”, apparent boilerplate carry over from the SCSL website. Here, unfortunately, despite the promising start and hifalutin summaries of impressive sounding projects, the activities and legacies mentioned generally appear to lack serious depth. In this regard, there is of course prominent and appropriate mention of the Peace Museum, which is no doubt important in honoring the victims of the war, preserving part of the country’s history, the archives of documents from the SCSL trials and so on. What is surprisingly not explained is why only a “full copy” of important SCSL documents is being kept at this nationally important historical site. Made me wonder: what ever happened to the original documents? Well, it turns out if you read the fine print contained in the Residual UN-SL Agreement at Article 7, the “original archives” are “co-located” with the RSCSL: meaning, rather bafflingly, that the originals get to be put out of the country thousands of miles away in The Hague where no Sierra Leonean who is not content with the “full copy” can have access to them. Except, of course, after going through the hassle of getting the near impossible to get Schengen Visa and travelling to the Netherlands.
This maybe a bit late now (although not quite since there is a handy legal provision in the RSCSL Statute that says the parties can change their mind on location anytime). But, from a Sierra Leonean perspective, doing the reverse and locating the originals in Freetown and a copy in The Hague might have been better. In fact, it probably would have made more sense. I am not privy to how the decision was made, but I simply don’t get the decision that the country whose history the documents capture in the trial process is somehow disqualified from keeping that history. I mean, don’t get me wrong, I love the Dutch and always cherish every opportunity to travel to Den Haag and the self-styled “Legal Capital of the World”. But why The Hague specifically, instead of say, the UN in New York? I guess a good argument would be that it’s closer. On top of that, there is a link to the SCSL in a direct way: the city hosted the Taylor Trial, first in the ICC facilities on Maan Weg and later on in the Hague suburb of Leidschendam, in the STL building. Yet, especially considering the scathing critique of hosting the key trial in Europe, why not somewhere closer by to Sierra Leone in West Africa? Or, say if there are security concerns, at the UN headquarters on the continent in Nairobi? At least, though still problematic for various reasons, the documents would at least be in the same African continent instead of across the oceans in the heart of Europe.
I haven’t done any digging into this. And I was not privy to the private negotiations between the UN and the Sierra Leone government about where to locate the archives. That said, I cannot seem to come up with what might be the plausible official explanation for this decision. I guess, much like was argued in the Taylor case, one could say that there are concerns about the security of the documents and the ability to safely handle them given the technologies that might be required. Under either scenario, I would think that plausible alternatives would have been found in Freetown to keep the documents secure and to create the climate controlled rooms to hold documentary archives. For instance, the Sierra Leone Museum facilities in the heart of Freetown near the Cotton Tree could have been upgraded to address either concern. The Peace Museum, itself sponsored by the SCSL and holding the copy of the documents, would of course be an even more logical choice.
To be honest, the logic of this whole original versus copy of the archives fiasco simply beats me. I have to admit that I don’t have satisfactory answers yet, but going to the new RSCSL website brought the issue starkly home. And, worse, to sugar coat the outlandishness of this decision, we are told that “digitized” copies are available online. Really? All that says to me is that whoever is making the decision was operating under a fundamental misunderstanding of conditions in post-conflict Sierra Leone. It is hard enough to obtain barely functional internet at a respectable hotel in Freetown, much less outside the major urban center of Freetown. Worse, how many Sierra Leoneans, the majority of whom are illiterate and still reside in rural communities, will know what "digitized" means. On top of that, how many would have access to a computer, let alone one with the necessary internet access and broadband that might be required to download and read bulky (PDF) documents? And, worse as I end this post, I wonder why on earth would any Sierra Leonean government acquiesce to such an approach to its own country’s history archive and sign off on such an arrangement with the UN?
Wednesday, January 15, 2014
THE SIERRA LEONE SPECIAL COURT AND ITS LEGACY: The Impact for Africa and International Criminal Law edited by Charles Chernor Jalloh, Assistant Professor of International and Criminal Law, University of Pittsburgh School of Law, USA
Professor Charles Jalloh has just published Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Law with Cambridge University Press. The edited book, which contains 36 chapters from leading international criminal law scholars and practitioners, is the first comprehensive evaluation of its kind. The volume received several favorable advance reviews from prominent scholars and practitioners in the field. William Schabas, Professor of International Law at Middlesex University London and a globally noted authority, wrote in the Foreword that “This book immediately becomes the authoritative reference on the Special Court for Sierra Leone. There simply is nothing else remotely comparable on the subject. It is and is likely to remain very much the last word on the subject of this fascinating and unprecedented institution”. Fatou Bensouda, Chief Prosecutor of the International Criminal Court, stated that “This outstanding volume is an enormous contribution to the international criminal law and transitional justice literature”. Diane Marie Amann, Emily and Ernest Woodruff Chair in International Law, University of Georgia, described it as a “remarkable volume” and “a vade mecum for all who work for global justice”. Mark Drumbl, Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington and Lee University, observed that “This volume towers above everything – and anything – that has been written about the Special Court for Sierra Leone to date.” Finally, Hassan Jallow, Chief Prosecutor of the United Nations Mechanism for International Criminal Tribunals and the International Criminal Tribunal for Rwanda and former Judge of the Appeals Chamber of the Special Court for Sierra Leone, opined that “Professor Charles Jalloh and the many other esteemed contributors to this collection have immensely enriched the global conversation about the legacy of international criminal tribunals. It is a path-breaking work that sets a new benchmark for future assessments of the contributions of these courts to the advancement of the principle of individual criminal responsibility at the international level and the architecture of modern international criminal law.” Read the Foreword, Introduction, Table of Contents, and Biographies of the editor and contributing authors at the Cambridge University Press website.
Interested readers may order the book from Amazon here, where it is available in HARD COVER as well as KINDLE editions, for a discounted price. Please see here.
Monday, December 2, 2013
Thursday, October 10, 2013
In what will most likely be its last substantive judgment, before closing its doors, the Appeals Chamber of the Special Court for Sierra Leone has unanimously upheld the conviction of former Liberian President Charles Taylor.
Because Trial Chamber II had convicted Taylor on 26 April 2012, on 11 counts of war crimes, crimes against humanity and other serious violations of international humanitarian law, this means that Taylor has been adjudged guilty for aiding and abetting as well as planning crimes against civilians in Sierra Leone by a total of eight tribunal judges (see the Appeals Chamber Judgment here; the Court’s official Press Release; and the Press Release from the Office of the Prosecutor; and the Prosecution and Defense Press Conferences: Audio and Audio, and Video and Video. Transcript of the final appeals judgment, summarizing the key findings, is also available).
The Appeals Chamber also upheld the lower court's sentence of Taylor to a term of 50 years imprisonment. The appeals judges saw no need to reduce the sentence, rejecting defense arguments that Taylor merited less jail time, especially considering his age. The President of the Court is expected to soon designate a country where the former Liberian president will be held for the remainder of his remaining natural life. Options being considered include the United Kingdom and Rwanda, both of which have enforcement of sentence agreements with the SCSL. It is likely that the prisoner will have views on the question, and all things being equal considering his cultural, family and other ties in Africa, might be a preference for Rwanda (where all the other eight SCSL convicts were transferred in October 2009 to serve their sentences, at Mpanga Prison, just outside Kigali).
Even more interestingly, I think that Taylor's lawyers could make a thoughtful legal argument about where he should serve out his sentence. All they need to do is look at Article 22 (enforcement of sentences) of the Statute of the SCSL, which specifically states the default rule that "[i]mprisonment shall be served in Sierra Leone". Assuming arguendo that Taylor would rather be closer to home, next door to Liberia where the bulk of his family lives, they could argue that compliance with the letter of the tribunal's law mandates that he is imprisoned in Sierra Leone.
On the other hand, there is an escape clause in Article 22 that says "if circumstances so require, imprisonment may also be served" either in countries such as UK and Rwanda with which the SCSL has concluded agreements or those that have enforcement agreements with the ICTY and ICTR (and indicated a willingness to accept Taylor). The conditions of imprisonment would have to be thought out though, as those will be governed by the state of enforcement (subject to the SCSL's supervision), including with respect to pardons and commutations of sentences in the interests of justice (see Article 23 of the SCSL Statute).
The Appeals Chamber Judgment, which is refreshing in its length compared to the unusually lengthy trial judgment, made a number of noteworthy findings that will be of interest to legal commentators. It will certainly attract some scholarly commentary over the next few weeks, in particular, because the Appeals Chamber staked out the SCSL's jurisprudential position on divisive international criminal law questions centered on the actus reus and mens rea elements of aiding and abetting liability. That position diverged from recent findings of the ICTY Appeals Chamber in cases such as Perisic.
Friday, September 13, 2013
By Charles C. Jalloh
On September 6, 2013, a majority of Kenya’s National Assembly voted in favor of a motion, introduced by the Leader of the Majority Party, Aden Duale, urging the government to “urgently undertake measures to immediately withdraw” the influential East African nation from the Rome Statute which established the International Criminal Court (ICC). The motion claimed that there has been a “fundamental change in the circumstances relating to the governance” of the country given that President Uhuru Kenyatta and Vice-President William Ruto, both of whom are under indictment by the ICC for alleged involvement with crimes against humanity, were “lawfully elected” under the Constitution of Kenya on March 4, 2013.
The motion, which also resolved to soon table a law that would repeal the country’s International Crimes Act, 2008 which domesticated the Rome Statute, raises several important issues at the intersection of law and politics. In this op ed, I argue that there are compelling legal reasons why the Kenyan Government should not heed what the opposition party has described as an “ill considered” recommendation urging the executive branch to make Kenya the first and only country to withdraw from the ICC.
I will argue that the reputational and other costs of withdrawing from the ICC regime for Kenya are far outweighed by the largely symbolic political benefits that might be gained from any such withdrawal. This is all the more so because such a move will have no legal effect on the ongoing cases against the three Kenyans indicted by the Court. In a subsequent article, I will consider wider implications focusing on the negative impact of such a decision for the 34 African States Parties to the ICC treaty given the African Union’s admirable anti-impunity stance against perpetrators of mass atrocities on the continent.
1. The Context: The ICC Got Involved because of Kenya’s Failure to Exercise Its First Right to Prosecute Under the Rome Statute
The Kenyan politicians who voted in favor of the withdrawal motion last week seem to have a short memory. But the victims of the crimes and Kenyan and wider African civil society probably do not. For, as is surely known, at least among international lawyers, the ICC regime is predicated on the principle that its States Parties have the first right to prosecute the international crimes that take place within their jurisdictions. It is only when they fail to do so, whether because they prove inactive, unwilling and or unable genuinely to investigate or prosecute, that the Court’s jurisdiction will be triggered (Articles 12, 13 and 17, Rome Statute).
Before turning to my main argument, I should recall that the ICC is today involved in efforts to prosecute those allegedly responsible for fomenting the post-election violence in Kenya, from December 2007 to February 2008, because Kenyan authorities initially failed to pursue those responsible. Yet, according to the Commission of Inquiry into the Post Election Violence (“CIPEV”) which was thereafter tasked with investigating the crimes, over 1,100 Kenyans had been slaughtered in about two months. Thousands more were injured, while over half a million others were displaced. Many of the attacks targeted innocent victims based on their ethnicity, presumed political affiliation, or both.
The CIPEV concluded that there was historically a chronic lack of domestic capacity, but even more importantly political will, to prosecute powerful people when they instigated such election-related offenses. It therefore recommended the establishment of a Special Tribunal for Kenya (STK), staffed by a mix of nationals and internationals, to prosecute those most responsible for the offenses. But the government sponsored draft bill to establish the STK was defeated in parliament on January 29, 2009. A Kenyan delegation subsequently met with the ICC Prosecutor on July 9, 2009 and agreed to investigate the crimes through a special tribunal or another suitable judicial mechanism, or failing that, to refer the situation to the Court. Regrettably, it appears that the same powerful persons, among whom were those later indicted by the ICC after the Pre-Trial Chamber authorized the Prosecutor to investigate the situation on March 31, 2010, succeeded in sabotaging progress on a hybrid or domestic prosecutions option. A valiant private members bill, aimed at resuscitating the STK idea, also failed to garner meaningful support on August 29, 2009.
Fortunately, besides Kenya’s July 2009 agreement with the ICC Prosecutor, the CIPEV anticipated a Plan B in its final recommendations. It therefore had entrusted a sealed envelope containing names of alleged leaders behind the post-election violence to former UN Secretary-General Kofi Annan, the chair of the African Union’s Panel of Eminent African Personalities, who had helped the rival political camps reach a peaceful political settlement. The ultimate failure of the previous government to pass the law to create the STK was the trigger for Annan to transmit the list and evidence to the ICC Prosecutor who thereafter sought judicial permission to investigate the situation.
Though the Prosecutor eventually requested charges against six Kenyans, after his preliminary investigations, only four were approved. Summonses were issued on March 11m 2011 for Kenyatta as well as Ruto. Charges were confirmed on January 23, 2012. One case, that involving Francis Muthaura, was withdrawn at the prosecution’s request on March 11, 2013. Besides Kenyatta and Ruto, only one other Kenyan, Joshua Sang, is currently answering charges before the ICC. His case, along with Vice-President Ruto’s, just opened in The Hague this week while that of President Kenyatta is scheduled to begin on November 12, 2013.
Meanwhile, Kenya’s attempt to invoke the complementarity principle and claw back the ICC cases was denied on August 31, 2012. The Court ruled that there had been no active investigations of the same persons for substantially the same conduct to render them inadmissible.
2. Legal Reasons Why Kenya Should Exercise Restraint Not to Withdraw
A. Kenya’s Obligations to Cooperate in the Current Cases Would be Unaffected by Any Withdrawal
First, it is true that under Article 127(1), a State Party may, by notifying the UN Secretary-General, who is the depository of treaties, “withdraw” from the Rome Statute. So, although I hope that this does not happen, Kenya has the sovereign right to withdraw because of the consensual nature of international law. However, the withdrawal would take effect no earlier than one year after the date of receipt of the notification (if the departing state does not choose a later date). More fundamentally, for our purposes, withdrawal cannot be to undermine the ICC’s ongoing investigations and prosecutions. Thus, a withdrawing state is not “discharged, by reason of its withdrawal, from the obligations arising from” the statute during the time it was a party to the treaty (Article 127(2), Rome Statute).
Second, even if the ICC Prosecutor were to decide to commence additional cases before the date that the one-year withdrawal becomes effective, those proceedings would also entail a continued duty for Kenya to cooperate with Court.
Fortunately, the drafters of the Rome Statute also anticipated what the Court could do if a withdrawing state fails to abide by its legal undertakings. Thus, where it “fails to comply with a request to cooperate by the Court” contrary to the statute, “thereby preventing the Court from exercising its functions and powers”, the Court, either of its own motion or at the Prosecution’s request, “may make a finding to that effect and refer the matter to the Assembly of States Parties” (ASP) - the guardian angel of the ICC (Article 87(7), Rome Statute).
Plainly, international law skeptics might counter that a finding of non-cooperation and reporting a matter to the ASP is hardly robust sanction. But the reasons why states obey international law, a horizontal legal system wherein reciprocity and good reputation play a strong role in inducing compliance, generally differ from the sheriff at the door logic some associate with individual compliance with laws in vertical domestic legal systems. In any case, the full ICC membership is represented in the ASP, along with other powerful and presumably interested observers such as the United States, which now refreshingly plays a more constructive support role for the ICC under President Barack Obama (who incidentally happens to have some Kenyan roots).
B. General International Law Does Not Help Kenya’s Change of Circumstances Argument
The Rome Statute does not demand that a country explain its motivations for withdrawal. However, the withdrawal resolution attempted to offer a justification for the proposed termination. It asserted that there has been “fundamental changes of circumstances relating to the governance of the Republic” since the March 2013 elections. And although it is unclear whether the motion’s drafters invoked “fundamental changes of circumstances” deliberately, or inadvertently, such language in the motion does not resonate with the Rome Statute but certainly does with international treaty law.
The background rules from the Vienna Convention on the Law of Treaties (VCLT), which entered into force on 27 January 1980, covers such situations. Kenya was one of the original signatories to the VCLT, on 23 May 1969, but much like the United States, it has not ratified it. Nevertheless, most aspects of the treaty on treaties are now widely considered customary international law. Furthermore, and in any event, the general rules of international law in the VCLT all appear to form part of Kenyan law pursuant to section 2(5) of the 2010 Constitution.
Under the VCLT, every state has the duty to act properly in the performance of its treaty obligations. Thus, it is axiomatic that, under the pacta sunt servanda rule, “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith” (Art. 27, VCLT). This classical rule applies per force to Kenya in relation to the Rome Statute. An important corollary is that a state may not invoke the provisions of its internal law as justification for its failure to perform a treaty, as the National Assembly seems to suggest through its motion.
But, even more clearly problematic for Kenya’s situation, the VCLT is unequivocal that a fundamental change of circumstances cannot be invoked as grounds for terminating or withdrawing from a treaty. This is so if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty, or, of any other international obligation owed to any other party to the treaty (Art. 62, VCLT). The former rule apparently applies here. The purported change of circumstance arising from the general elections, and any withdrawal it leads to, would entail a breach of the obligation for the good faith exercise of the duty to investigate and prosecute possible crimes under the Rome Statute. It is the failure to comply with that obligation that in turn triggered the ICC’s jurisdiction and indictments. The country must now necessarily facilitate the work of the Court as required by Part 9 of the treaty.
It follows that Kenya cannot, under international treaty law, rely on a fundamental change of circumstances to terminate or suspend the obligations contained in the Rome Statute; obligations to cooperate that are explicitly anticipated by the lex specialis rules of the ICC regime as being of a continuing nature (even after a State Party decides to withdraw).
3. Concluding Remarks
As the Kenyan Government mulls over last week’s parliamentary recommendation, it should keep two things in mind. Firstly, the ICC is working for the people of Kenya, not against the people of Kenya. By that I mean the hundreds of victims of the post-election violence whose families deserve to get a measure of justice. This includes the 371 Kenyans who currently have formal victim standing and thus a voice in the ICC proceedings, rights that they would not enjoy in domestic trials. Admittedly, the Court also needs Kenya, as it seeks to prove itself to the world as a fair and capable court of law that can dispense even handed justice for atrocity victims. So the relationship is a mutually beneficial one, a win-win, as I have argued more fully elsewhere (see here and here) in terms of the Court’s relations with African States.
Secondly, the Kenyan leadership should remember that the ICC has, in recognition of this unprecedented situation resulting from the March 2013 elections, acted both pragmatically and flexibly. As part of this, it has continued the liberty of the accused and granted the defendant requests for important accommodations for the trial phase. These would enable the president and his deputy to balance their official functions with their right to appear, consistent with the presumption of innocence, before the Court to defend their good name. Consequently, it may be against the interests of those personally accused to at once be before the ICC protesting their innocence and pledging unconditional cooperation with the judicial process, only to subsequently endorse measures that would undermine the tribunal’s adjudicative function. As demonstrated here, irrespective of whether Kenya withdraws from the ICC, its obligations to support the crucial justice process started under the Rome Statute will subsist. The cases will continue, so at best, Kenya would only score political points from any retreat from the battle against impunity at this stage.
Finally, stepping back to frame a bigger picture for ordinary Kenyans, I note that Messrs. Kenyatta and Ruto enjoy fundamental fair trial rights under Article 67 of the Rome Statute, as do all other accused persons before the ICC. All these rights must be scrupulously upheld, and so far, they have been. Foremost, among these, they are presumed innocent until proved guilty before the Court in accordance with the applicable law. Therefore, everyone should know that it is not up to the Accused President Kenyatta, Vice-President Ruto or Mr. Sang to prove their innocence. Rather, it is Gambian Chief Prosecutor Fatou Bensouda’s job to prove their guilt, if she can proffer convincing evidence to that effect. The burden on her is high, as the law rightly demands that a majority of three experienced judges of Trial Chamber V, presided over by Judge Chile Eboe-Osuji (Nigeria), independently evaluate that evidence to establish their guilt beyond a reasonable doubt for indirectly co-perpetrating crimes against humanity. It is only if such a finding is reached that penalties, and the provisions of the 2010 Constitution that permit the impeachment of leaders, would become an issue.
By the same token, as the defendants have insisted throughout this post-election violence saga that they are innocent, they must also be very confident that they would be able to raise a reasonable doubt about the Prosecutor’s allegations. That, in turn, would necessarily lead to their acquittals. All to say, Kenyans should insist that their government exercise restraint and let the ICC justice process take its natural course.
Charles C. Jalloh is currently a Visiting Associate Professor at the FIU College of Law and an Assistant Professor the University of Pittsburgh, School of Law. A columnist for JURIST on issues of international criminal law, he has worked in the Rwanda and Sierra Leone Tribunals and has been a visiting professional at the International Criminal Court. He has published widely on issues of international criminal justice in Africa. His most recent work is an edited book, The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Law, from Cambridge University Press (2013).