On December 15, 2010, International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo requested summonses to appear against six Kenyan citizens for crimes against humanity alleged to have been committed during the post-election violence in Kenya in 2007-08. The request is currently under consideration by a pre-trial chamber of the ICC; no summonses have been issued to date.
Although the prosecutor's application for summonses was widely welcomed by both local and international civil society, the Kenyan parliament passed a motion on December 22, 2010, urging the government to withdraw from the Rome Statute, the ICC's founding treaty. While this motion is not binding on the Kenyan government, it has been reported that a group of Kenyan parliamentarians are preparing to table a bill which, if enacted, would effectively require the Kenyan government to withdraw from the Rome Statute.
Media reports also indicate that some Kenyan government officials are engaging in a diplomatic campaign to enlist the support of other African governments at the upcoming African Union (AU) summit for a United Nations (UN) Security Council deferral of the Kenyan cases under article 16 of the Rome Statute. These efforts are reportedly linked to government plans to establish a domestic judicial mechanism to try suspects of the post-election violence. It has also been reported that an earlier objective of this campaign may have been to call for a motion to be tabled at the AU summit to prompt the withdrawal of African states from the Rome Statute. Although Kenya's Vice-President Kalonzo Musyoka has since been quoted in the Kenyan media as dismissing the withdrawal of other African states from the Rome Statute as an aim of the campaign, he has also been quoted as affirming that he was under instructions to unequivocally move any prosecutions of crimes arising from the 2007-8 post-election violence from the international arena to Kenya.
However, despite committing to the creation of a special tribunal for the post-election violence in December 2008, to date, the Kenyan government has taken no real action on national trials and the special tribunal has not been created. Credible national trials for those responsible for the post-election violence would be welcome. Indeed, to bring full accountability for the violence, national trials are necessary to complement the work of the ICC. But domestic trials should not be used to derail or defeat the ICC process.
It is in this regard therefore that we, the undersigned civil society organizations, urge the Kenyan government and parliament to reaffirm their support for the ICC and put a stop to any attempts to undermine the Rome Statute system and the ICC's Kenya investigation, including through withdrawal or seeking deferral. We also urge the Kenyan government-in particular the President and the Prime Minister-to clarify its position with regard to the Rome Statute more broadly, and its obligations to cooperate with the ICC in the cases currently before the court.
Kenya's withdrawal from the Rome Statute would mark a severe break with its commitment to the fight against impunity. In ratifying the Rome Statute in 2005, Kenya-along with the ICC's 113 other member countries-dedicated itself to the defense of victims' rights and to bringing to justice perpetrators of the most serious crimes. Withdrawal now would signal the intention to side with the perpetrators of Kenya's post-election violence rather than its victims.
The Kenyan government should note that withdrawal from the Rome Statute would not suspend ongoing ICC investigations or judicial proceedings that commenced prior to the date of withdrawal, and that, in any event, Kenya would remain required to cooperate with the ICC on obligations that arose while Kenya was a state party to the court.
As a court of last resort, the ICC places the primary obligation on national authorities to carry out prosecutions. Should Kenya decide to pursue national trials involving those individuals against whom ICC summonses may be issued, it could challenge the court's jurisdiction over these specific cases under article 19 of the Rome Statute. For a case to be found inadmissible, national proceedings must encompass both the person and the conduct that is the subject of the case before the ICC. This process does not require withdrawal from the Rome Statute.
Similarly, the Kenyan government must be reminded that conducting national trials is not a basis for a UN Security Council deferral of the ICC's investigation under article 16 of the Rome Statute. An article 16 deferral is intended only in exceptional cases to maintain or restore international peace and security. It is unlikely that ICC investigations in Kenya are detrimental to international peace and security. Moreover, it should be noted that impunity for past cycles of post-election violence in Kenya is widely believed to have contributed significantly to the 2007-08 violence and instability.
African governments, together with civil society, played an active role in establishing the court. We therefore call on our governments to stand firm in their support for the ICC, and reject steps which would undermine the court at the upcoming AU summit. Instead, African ICC states parties should build on important achievements to date and continue to advance justice for victims of human rights violations, including victims in Kenya. The AU's Constitutive Act, in article 4, calls for, among other things, the rejection of impunity. The ICC is an integral component of this effort.
January 25, 2011
Organizations Supporting this Statement:
- Access to Justice, Lagos, Nigeria
- Action Against Impunity for Human Rights (ACIDH), Lubumbashi, DRC
- Action of Christian Activists for Human Rights in Shabunda (ACADHOSHA), South Kivu, DRC
- Africa Legal Aid
- Africa Centre for Open Governance (AfriCOG), Kenya
- African Assembly for the Defense of Human Rights (RADDHO), Dakar, Senegal
- African Association for the Defence of Human Rights (ASADHO), DRC
- Amnesty International, Dakar, Senegal
- Benin Coalition for the International Criminal Court, Cotonou, Benin
- Burundi Coalition for the International Criminal Court, Bujumbura, Burundi
- Children Education Society (CHESO), Dar es Salaam, Tanzania
- The Center for Research on Environment, Democracy and Human Rights (CREDDHO), Goma, DRC
- Central African Republic Coalition for the International Criminal Court, Central African Republic
- Civil Resource Development and Documentation Centre (CIRDDOC), Enugu, Nigeria
- Civil Society Alternative Process of Sierra Leone (CSAP-SL), Sierra Leone
- Coalition of Eastern NGOs (CENGOS), Enugu, Nigeria
- Coalition for Justice and Accountability, Freetown, Sierra Leone
- Comorian Coalition for the International Criminal Court, Comoros
- Congolese Coalition for Transitional Justice (CCJT), DRC
- Congolese Initiative for Justice and Peace (ICJP), Bukavu, DRC
- East and Horn of Africa Human Rights Defenders Project (EHAHRDP), Kampala, Uganda
- Federation of Women Lawyers (FIDA), Nairobi, Kenya
- Global Call to Action Against Poverty (GCAP), Arab Region Secretariat
- Human Rights and Advocacy Network for Democracy (HAND), Khartoum, Sudan
- Human Rights Network-Uganda (HURINET), Kampala, Uganda
- Human Rights Watch, Johannesburg, South Africa
- Independent Medico-Legal Unit, Kenya
- International Center for Policy and Conflict (ICPC), Nairobi, Kenya
- International Center for Transitional Justice (Africa)
- International Crime in Africa Programme, Institute for Security Studies, Pretoria, South Africa
- Ivorian Coalition for the International Criminal Court, Abidjan, Ivory Coast
- Kenya Human Rights Commission (KHRC), Nairobi, Kenya
- Kenyans for Peace with Truth and Justice (KPTJ), Kenya
- The Kenya Section for the International Commission of Jurists, Nairobi, Kenya
- Kituo cha Sheria, Kenya
- The Law Society of Zimbabwe, Harare, Zimbabwe
- League for Peace and Human Rights in the DRC (LIPADHO), DRC
- Liberia Coalition for the International Criminal Court, Monrovia, Liberia
- Livelihood Improvement Programme (LIPRO), Uganda
- National Coalition on Affirmative Action, Enugu, Nigeria
- Nigerian Coalition for the International Criminal Court, Abuja, Nigeria
- Open Society Justice Initiative
- Réseau des Associations des droits de l'Homme du Sud Kivu (RADHOSKI), DRC
- Solidarity of Women for Peace and Integral Development (SOFEPADI), North Kivu and Orientale, DRC
- SOS Exclusion, Ivory Coast
- Southern Africa Litigation Centre, Johannesburg, South Africa
- Trade Union Confederation of Sierra Leone (TUC-SL), Sierra Leone
- Uganda Coalition for the International Criminal Court, Kampala, Uganda
- Victimes du Régime de Hissène Habré, Chad
- VISION Humanitaire Mondiale, DRC
- West African Bar Association, Lagos, Nigeria
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