Monday, December 20, 2010

Kenyan MP Motion to Withdraw from the Rome Statute of the International Criminal Court

According to reports by Kenyan media (see here), a showdown looms on Tuesday, December 21, 2010 when a motion is expected to be tabled before the Kenyan Parliament by Chepalungu Member of Parliament Isaac Ruto. I am not sure whether Isaac Ruto is a relative of William Ruto, one of the six individuals named in the ICC Prosecutor's application for summonses last week.

I haven't seen the draft motion. But it will reportedly call on the Government of Kenya to withdraw the country from the Rome Statute of the International Criminal Court. This motion was first presented end of last week but was reportedly blocked by the House Business Committee. Apparently, it did not conform to procedure. Anyway, the motion seems designed to "save" the six named individuals from ICC prosecutions.

Whether the motion passes or not, such a move betrays a fundamental misunderstanding of the Rome Statute. Article 127 addresses withdrawals. It states as follows:

1.         A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.
2.         A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

It is clear that, under Article 127, a withdrawal now will not put Kenya in a position to a) shirk any financial obligations which it may have accrued to the ICC; b) shall not affect any cooperation with the Court in relation to ongoing investigations and proceedings in relation to post-election violence which started before the withdrawal; and finally, c) shall not prejudice the continued consideration of any matter which was already being considered by the ICC before the date on which the withdrawal became effective. By fiat of Article 127(2), in addition to the six recently named suspects, the Prosecutor could even later request summonses and arrest warrants of additional persons deemed most responsible for post-election violence.

In other words, a state such as Kenya - in respect of which a proprio motu investigation is ongoing - is unable to withdraw for the purpose of terminating the proceedings. While it may withdraw from the treaty, as all states parties are free to do because of the foundational rule that treaty obligations are predicated on consent, Kenya has to act in good faith (pacta sunt servanda) and cannot defeat or subvert the current ICC processes solely by withdrawing consent. This makes sense. Otherwise, this will make the Court a dog with a lot of bark, but in practice, very little bite. Why? Many countries will simply withdraw from the treaty when they get wind of potentially uncomfortable summonses or indictments of officials supported by the powers that be. This will effectively undercut any prosecutions for the heinous international crimes currently within the Court's jurisdiction (i.e. genocide, crimes against humanity, war crimes).

That said, to the extent that this type of action translates into an actual unwillingness by Kenyan authorities to cooperate with the ICC, the Court could be in a lot of trouble. In simple terms, without state cooperation, the Court's work, like that of other international tribunals, will become impossible.

If you want an example of what happens when a state position clashes with those of a tribunal, take a look at Prosecutor v. Jean Bosco-Barayagwiza and the remarkable volte face performed by the Appeals Chamber of the Rwanda Tribunal. In its November 3, 1999 decision, the ICTR appeals judges dismissed, with prejudice, the Prosecutor's indictment against the suspect and ordered his immediate release due to prosecutorial abuse of process.

The ICTR Prosecutor immediately filed an extremely urgent request for reconsideration based on "new facts", but also emphasized the reality that her ability to continue with prosecutions and investigations depended on Rwandan authorities. Kigali made clear that unless Barayagwiza was tried by the Tribunal, Rwanda will no longer cooperate with the ICTR. During oral hearings on February 22, 2000, the then Prosecutor Carla Del Ponte (Italy) eloquently exposed the ultimate weakness of these tribunals. She said:

"Let me just say a few words with respect to the government of Rwanda. The government of Rwanda reacted very seriously in a tough manner to the decision of 3 November 1999. It was a politically motivated decision, which is understandable. It can only be understood if one is cognisant with the situation, if one is aware of what happened in Rwanda in 1994. I also notice that, well, it was the Prosecutor that had no visa to travel to Rwanda. It was the Prosecutor who was unable to go to her office in Kigali. It was the Prosecutor who could not be received by the Rwandan authorities. In November, after your decision, there was no co-operation, no collaboration with the office of the Prosecutor. In other words, justice, as dispensed by this Tribunal was paralysed. It was the trial of Baglishima which had to be adjourned because the Rwandan government did not allow 16 witnesses to appear before this Court. In other words, they were not allowed to leave the territory of Rwanda. Fortunately, things have improved currently, and we again enjoy the support of the government. Why? Because we were able to show our good will, our willingness to continue with our work based on the mandate entrusted to us. However, your Honours, due account has to be taken of that fact. Whether we want it or not, we must come to terms with the fact that our ability to continue with our prosecution and investigations depend on the government of Rwanda. That is the reality that we face. What is the reality? Either Barayagwiza can be tried by this Tribunal, in the alternative; or the only other solution that you have is for Barayagwiza to be handed over to the state of Rwanda to his natural judge, judex naturalis. Otherwise I am afraid, as we say in Italian, possiamo chiudere la baracca. In other words we can as well put the key to that door, close the door and then open that of the prison. And in that case the Rwandan government will not be involved in any manner".

In its March 2000 decision, while disclaiming the importance of Rwanda's threat and even condemning it, the ICTR Appeals Chamber changed its course and ordered Barayagwiza's trial. Of course, this was all done with reasoned legal analysis based on the new information provided by the Prosecutor. But, reading in between the lines, we all know that the ultimate outcome was in many ways inevitable.

In the end, what is most interesting is that, as far as default state cooperation regimes go, the ICTR has a relatively stronger system compared to the ICC. The former's requests for cooperation is backed up by the United Nations Security Council's power to adopt decisions that are binding on all states under Chapter VII of the UN Charter. Whereas in the case of the latter, except in cases of Council referrals, such ability to compel states does not exist.

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