WHO IS BEHIND AMERICANS OUT TO BLOCK ICC CASE ON KENYA?

By Ben Agina
THE STANDARD

Two prominent Americans have launched a bid to block International Criminal Court from handling Kenya’s post-election violence trials.

Their suit echoes an earlier objection by a Belgian non-governmental organisation with the same aim.

The two, a lawyer and a political science professor, filed a suit on Tuesday that has raised questions as to their interest in the matter.

The International Criminal Court at the Hague. Two Americans, Prof Max Hilaire, who chairs Department of Political Sciences at Morgan State University, and a San Fransisco lawyer William Cohn, filed a suit at the Hague over the Kenya case, even though their country is not signatory to the statute that created the ICC. [PHOTO: courtesy]

They are seeking suspension of prayers by ICC Chief Prosecutor Luis Moreno-Ocampo for the court to take up Kenya’s case for at least 30 more days, so that they can raise their arguments. Their argument is Kenya’s case was, in legal terms, "overstretched" or "exaggerated" and does not meet ICC’s threshold for crimes against humanity. They say bringing the issue before the trial chamber (the phase where it is now) was unnecessary.

"We want to know why the case should go to The Hague since Kenya is not a failed State and efforts have already been made by the President and the Prime Minister to set up a local tribunal," their suit document reads.

They also demand to know of "efforts to set up a local tribunal and actions of the President and the Prime Minister on the complementarity principle."

The Americans want the ICC pre-trial judges to determine if the Kenyan situation qualifies as a "crime against humanity" or a "matter of civil unrest".

Former US Assistant Secretary of State for African Affairs Jendayi Fraser in 2008 described the violence as falling short of genocide but rising to the level of crimes against humanity.

Earlier, the International Association of Democratic Lawyers (IADL) filed an objection to restrain the ICC from intervening in Kenya.

The Brussels-based NGO claims it has global membership but Kenyan activists claimed it is linked to powerful individuals in the Cabinet.

"It is instructive that this organisation has had no known basis or track record of commenting, acting or participating on any Kenyan issues," they said.

Though their country is not a signatory to the Rome Statute that created ICC, Prof Max Hilaire who chairs Department of Political Sciences at Morgan State University, teamed up a San Fransisco lawyer Prof William Cohn to file a suit at The Hague.

In the suit, among other seven legal issues they intend to raise, are questions on whether Kenya’s case qualifies to be taken up by ICC.

Though the two booklovers could on academic joyride or serious academic venture, locally where President Kibaki and Prime Minister Raila Odinga flatly declined to formally refer the Kenyan case to ICC, it will be speculation galore.

Pre-trial judges

Documents obtained by The Standard authored by the two show they want to be amicus curiae (friends of the court) before the Pre-trial chamber. If granted the status, they want the pre-trial judges, who were appointed to weigh the admissibility of the Kenyan case, to grant a stay on the decision on Moreno-Ocampo’s motion seeking their authority to commence investigation on Kenya’s high-profile suspects.

The arguments put up by the two professors are similar to those earlier advanced by PS Foreign Affairs Thuita Mwangi in a commentary critical of ICC’s handling of Kenya’s case.

The two Americans, however, have put up a disclaimer they are not affiliated to any organisation in Kenya or have taken any partisan position with regard to the Kenyan situation or any known suspect.

Three days before Moreno-Ocampo’s arrival in Nairobi, Mwangi dispatched an opinion article to newsrooms in which he criticised the prosecutor’s mission in Kenya.

Arguing it was too early for him to intervene, the PS questioned the legitimacy of the ICC’s jurisdiction over Kenya. He argued the ICC should not override Kenya’s justice system.

End impunity

Exuding confidence in the ability of the Judiciary to handle perpetrators of post-election mayhem, Mwangi petitioned Moreno-Ocampo to give Africa an opportunity to prove to the world she is ready, willing and able to end impunity.

In their submissions to pre-trial judges dated January 11, 2010, the Professors put out believe ICC intervention would ruin the political careers of key suspects said to be the Waki Envelope.

The professors want to know from the pre-trial judges the "long-term political and social aspects" relating to the prosecutions that have a bearing on the decision to commence investigation.

Professors Hilaire and Cohn would also want to know the cumulative effect of the efforts to set up a local tribunal and actions of the President Kibaki and Prime Minister on the complementarity principle and the interest of an investigations.

If granted the amicus curiae status, the professors would also want to know the extent of and progress in investigations and prosecutions of crimes against humanity in Kenya and the effect thereof on the complementarity principle under the ICC statute.

setting precedent

They are also questioning the timing of Prosecutor Ocampo’s application to the pre-trial chambers. In their justification to the court, the Americans said the orders sought by the prosecutor were precedent setting.

"This is the very first time in the history of ICC that the prosecutor seeks authorisation. It is important that the court clearly establishes the parameters for the exercise of jurisdiction in circumstance where a state with functional judicial system has not referred a situation to the court," said the professors.

They noted as the prosecutor’s Motion under article 15 of the rules is essentially ex-parte, (for or by one party) it may be useful for the chamber to listen to other views and submissions on the applicable legal principles.

This development comes exactly a week after Imenti Central MP Gitobu Imanyara and human rights activists spoke of their disappointment at attempts to delay the Pre-Trial Chamber’s decision on Kenya’s post-election violence case.

An international lawyer’s organisation filed an objection to the case with ICC. The activists have also raised the red flag over an alleged plot to intimidate potential witnesses of the post-poll chaos through death threats, particularly in the North Rift and in internal refugee camps.

Addressing the press on Friday, last week, Imanyara, along with rights activists Ndung’u Wainaina, Haron Ndubi and Ken Wafula, said that a Cabinet minister who feels he might be on the list of suspected perpetrators was behind the plot.

Go slowly

The minister, Mr Ndubi claimed, had been promising the witnesses land for resettlement, money, jobs, and scholarships among other inducements.

In their statement, the activists said that the minister was said to have held a meeting with officials of the internally displaced from all camps in the Rift Valley on November 25, last year. He allegedly urged them to influence other camp residents to "go slowly" in submitting their views ICC.