The art of softly killing the ICC in Africa

Hailemariam’s provocative and inflammatory accusations suggest that he wants to vanquish the ICC in Africa and cast himself as Africa’s “Jack the Giant Slayer.” (His predecessor, dubbed one of the “new breed of African leaders,” also suffered from an incurable case of delusions of grandeur.) Hailemariam and his comrades, including Thabo Mbeki of South Africa, Jakaya Kikwete of Tanzania, Youweri Museveni of Uganda and others are trying hard to resurrect and parade in the African and international media colonial and imperialist boogeymen robed in ICC regalia. The Rwandan dictator Paul Kagame contemptuously characterized the ICC as a form of “imperialism” that “seeks to undermine African countries.” These African “leaders” have mounted a slick propaganda campaign to depict the ICC as a racist institution that has “contempt” for Africans. They seek to portray themselves as innocent lambs relentlessly hounded by the vicious ICC wolf.

The fact of the matter is that Hailemariam and the other anti-ICC crusaders are threatening mass withdrawal from the Rome Statute in a desperate last-ditch effort to rescue their brethren Kenyatta and Ruto from the ICC hook and simultaneously immunize themselves against any future legal accountability for crimes against international humanitarian law. They aim to perpetuate and preserve their culture of impunity and criminality by demonizing, scandalizing, discrediting and threatening the ICC. They seek to cloak and disseminate their self-serving propaganda in a race-tinged narrative of a righteous moral struggle of an ascendant Africa (an Africa in Renaissance) against the wicked witch hunting West which stealthily and nefariously uses the ICC to keep Africa in its place.

Preview of the ICC funeral orations to be given at the AU on October 13, 2013

We have a very good idea of the game plan African “leaders” will use when they gather for their anti-ICC orgy at the AU on October 13, 2013. Their talking points and strategies to emasculate and incapacitate the ICC have already been laid out by Ambassador/ Permanent Representative Macharia Kamau of the Permanent Mission of Kenya in a 13-page CONFIDENTIAL (secret) letter to Menan Kodjo, President of the Security Council for the Month of May 2013.

Kamau’s secret letter—poorly crafted and edited, incoherently argued, logically disjointed, and embarrassingly convoluted—is nothing less than a counter-indictment of the ICC and the Office of the Prosecutor (OTP) (a branch of the ICC that investigates and prosecutes genocide, crimes against humanity, war crimes and genocide currently headed by Gambian Fatou Bensouda). Kamau’s essential message to the U.N. Security Council (UNSC) in his secret letter is straightforward: The ICC and OTP have become a double-headed Frankenstein poised to devour Kenyatta and Ruto. The U.N. Security Council must urgently intervene and get Kenyatta and Ruto off the ICC hook by “immediately terminat[ing] [their] cases at the Hague without much further ado.” Kamau desperately pleads with the UNSC to create a situation where bygones will be bygones and the alleged crimes committed by Kenyatta and Ruto will be quietly consigned to the dustbin of history. In making such bizarre and ludicrously outlandish plea and demands, Kamau presents at least nine separate arguments.

1. Kenyatta and Ruto should be let off the ICC hook because prosecuting them violates Kenyan sovereignty.

Kamau claims the prosecution of Kenyatta and Ruto is “an affront to the domestic policy and internal affairs of our sovereign Republic of Kenya.” He argues Kenya’s sovereignty is “being undermined and manipulated using different actors from within and without the territory of Kenya. As in the past, civil society bodies are currently being used by dark forces to espouse their own policies using the Rome Statute as a conduit and the ICC as the manifestation of this interference.”

Sovereignty is the first refuge of scoundrel African dictators. The African “leaders” who are now swaggering to defend the sovereignty of Kenya were silent as a church mouse when France directly intervened in the fighting in the Ivory Coast following that country’s November 2010 election and reasserted full control over its former colony. The AU sat on its duff twiddling its thumbs and watching from the sidelines. When France intervened to “liberate” northern Mali from terrorist insurgents in January 2013, African leaders did not invoke the principle of sovereignty to keep French troops out. Once again the AU sat on its duff twiddling its thumbs and watching from the sidelines.

Sovereignty is neither a legal defense nor a political argument against accusations of crimes against humanity, war crimes and genocide. The sovereignty argument made by African leaders today to invalidate ICC jurisdiction is indistinguishable from the sovereign immunity assertions made long ago by monarchs and kings who believed that they were subject to no earthly authority, deriving the right to rule directly from the will of God. Only God can judge an unjust king. Only an African dictator can judge an unjust African dictator!

African “leaders” want to use the shield of sovereignty to avoid accountability and perpetuate their culture of impunity and human rights abuses. St. Augustine said, “In the absence of justice, what is sovereignty but organized robbery?” Or organized extortion by threat of mass withdrawal from the Rome Statute? The bogus sovereignty argument must be rejected.

2. Kenyatta and Ruto are entitled to immunity from prosecution because they were found “innocent” in the March 2013 election.

Kamau argues the election of Kenyatta and Ruto “sends a clear and unequivocal message that the two persons are not only innocent but deserving of responsibilities in the highest office of the land.” Their ICC prosecution should be “terminated” because the “very humanity” against whom Kenyatta and Ruto allegedly “committed crimes against humanity stood firm behind [them] and proclaimed them innocent” when Kenyans “spoke with a loud, clear, concise voice [and] overwhelmingly elected [them] as President and Deputy President.” Given the “86% voter turnout and looking at the votes garnered by Mr. Uhuru Kenyatta and Mr. William Ruto [it is obvious] that the Kenyan populace is ready for them to be their political masters.” Beyond their electoral popularity, Kenyatta and Ruto “have not only been the greatest agents of cohesion but have been at the forefront and are the glue that binds the country… [and] their absence from the country may undermine the prevailing peace and any resultant insecurity my (sic) spill over the neighboring countries.” Kamau further suggests that the Rome Statute should not apply to Kenyatta and Ruto because they currently occupy the offices of “head [and deputy] of state and Commander-in-Chief of the defense forces of the Republic of Kenya.”

It seems Kamau confuses the voting booth with the court dock. Kenyatta and Ruto do not need an election to prove their innocence. They are presumed innocent until proven guilty. They have to prove nothing. What is at issue is whether the OTP can prove they are guilty of crimes against humanity beyond a reasonable doubt. That issue can be determined only in a pitted adversarial contest of facts in a court of law and not in an election campaign or the voting booth.

Kamau’s innocence-by-election argument is a classic red herring which aims to deliberately divert attention from the crimes against humanity the defendants allegedly committed to their recent electoral success and political ascendancy. The fact that Kenyatta and Ruto were recently elected by a “landslide” has nothing to do with the allegation that they committed crimes against humanity when they served as government ministers in 2007-08. The real issue is not whether Kenyatta and Ruto are innocent by electoral popularity but whether they committed crimes against innocent Kenyans in the aftermath of the 2007 election.

The fact that Kenyatta and Ruto are heads of state is of no legal consequence. Article 27 of the Rome Statute provides for a single standard of justice to all suspects appearing before the ICC: “The Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute…”

3. The evidence against Kenyatta and Ruto is “false and manufactured.”

Kamau claims the OTP brought trumped up charges against Kenyata and Ruto on its own (without referral by the Security Council or the Government of Kenya) and without sufficient cause or proper investigation. The ICC charges are groundless and based on “testimonies made by coached witnesses. The original claims [by victims] might have been false and manufactured.” The evidence relied upon by the OTP against Kenyatta and Ruto are “irreparably weak and flawed” and likely “tainted and procured through inducement and or corrupt measures.”

Whether evidence has been tainted, manufactured or obtained through corrupt measures is a question of evidence law and procedure to be determined by the ICC judges upon a proper showing. Kamau’s outrageous claim is manifestly intended to undermine confidence in the professionalism and ethical integrity of the OTP. But if there is a scintilla of evidence that the OTP is fabricating and presenting false evidence to the Court, Kamau’s government should promptly file a motion under Rule 103(1) of the ICC Rules of Procedure and Evidence and demand the severest sanctions against the OTP. Such cheap shots and smear tactics against the OTP should be condemned and rejected.

4. The OTP is unfair and has engaged in a pattern and practice of abuse of prosecutorial powers resulting in a denial of due process to Kenyatta and Ruto.

Kamau charges that the OTP “is neither impartial nor independent. There is no demonstrable intent from the [OTP’s] conduct to show that the main purpose of the proceedings [prosecution of Kenyatta and Ruto] is to bring justice.” Kamau claims the OTP is so arbitrary and capricious that its investigative and prosecutorial conduct “is not consistent with the old and established tenets of legal adage, practice, use, customs (sic) ethics professional courtesy and decency.” Kamau points out that the OTP’s “prosecutorial methods and tactics” have been “castigated and deplored by ICC judges who have found them wanting, violating of the rights of the accused, unprofessional and at times verging on incompetence. Despite these turn of events the OTP has continued to doggedly insist that there is a case where there is none.” Moreover, the OTP has sought to deny a fair trial to Kenyatta and Ruto by “repeatedly and constantly” making “unfortunate and misguided extrajudicial statements” in “blatant disregard of the provisions of the Statute” and in “a manner aimed at seeking and winning sympathy from known and unknown quarters at the expense of due process.” The OTP has recklessly besmirched the reputations of Kenyatta and Ruto and kept the “people of Kenya on a leash and in a distracting sense of alertness.”

Allegations of prosecutorial misconduct are commonly made by criminal defendants, their legal counsels and supporters. Defense lawyers not infrequently raise prosecutorial misconduct as a procedural defense to argue that the defendant should not be held criminally liable for his actions because the prosecution acted in an egregiously inappropriate or unfair manner. Often allegations of prosecutorial misconduct involve withholding or fabrication of evidence, selective prosecution by race, knowingly allowing the presentation of false testimony and other flagrant abuses of prosecutorial methods, tactics and discretion.

If Kamau’s government has credible evidence of prosecutorial misconduct which has in the past or is currently likely to deprive Kenyatta and Ruto a fair trial, it should present it to the Court forthwith and also make it public. Neither the interests of justice nor the lofty purposes of the Rome Statue can be advanced by a wayward and abusive prosecutor who rides roughshod over the rights of defendants facing trial before the ICC. The fact of the matter is that Kamau and other African “leaders” hope to convince the world of egregious misconduct by the OTP by repeating over and over unfounded allegations and falsehoods. Kamau should put to judicial and public scrutiny his evidence of prosecutorial misconduct by the OTP.

5. The ICC and the OTP have unchecked power and are accountable to no one.

Kamau complains the “ICC lacks robust checks on its authority; and the judges themselves settle any dispute over the court’s ‘judicial functions’… The ICC’s ability both to interpret the law and effectively to force member states to adopt its view gives the ICC unprecedented power… For the first time, a permanent international institution is entitled to determine the legal obligations of states and their individual citizens and to criminally punish those individual citizens. When the ICC determines what international law requires in any of its areas of competence, this is arguably the final word… ICC judges are not otherwise subject to the supervision or control of the state parties…”

Kamau disapproves “the [power of the ICC] prosecutor [to] initiate an investigation on his own authority, and the [fact that the] ICC judges determine whether the investigation may proceed.” Kamau claims “the prosecutor has cherry picked individuals to prosecute, arbitrarily and most invidiously, from a long list whose veracity was never independently checked or verified…” Kamau questions why an “individual” (the ICC Prosecutor) should be able to bring a case without Kenyatta and Ruto having “recourse to a higher authority” to challenge their indictment.

Listening to African dictators and their minions talking about “unchecked powers” is like watching the tear drops of a crocodile. It is only in the 2010 Kenya Constitution that modest restraints were set to counter the unchecked powers of top Kenyan government officials. A bill of rights was included in the new Constitution along with minimal checks and balances on presidential power including impeachment for malfeasance in office. It should be underscored that the new Kenya Constitution was the direct result of the negotiated political settlement following the 2007 election which gave rise to the criminal allegations for which Kenyatta and Ruto are facing trial before the ICC.

In claiming the ICC and OTP have “unchecked power,” Kamau cleverly seeks to portray the two institutions as some trigger-happy lawmen gunslingers who “cherry pick” (“race hunt”) their African targets, shoot first and ask questions later. The fact of the matter is that the ICC and OTP can only investigate, prosecute and adjudicate crimes committed after the Rome Treaty went into force in 2002. It is a fact that over the past decade many of the gross abuses of human rights and bloodiest conflicts resulting in crimes against humanity, war crimes and genocide occurred in Africa. It is also a fact that the OTP is mandated to pursue only the most egregious crimes against civilians. Article 1 of the Rome Statute provides, “The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole.” It cannot be denied that the vast majority of such crimes were committed in African countries since 2002.

6. By prosecuting Kenyatta and Ruto, the ICC has usurped the powers of the U.N. Security Council.

Kamau declares the “Rome Treaty removes the existing system of checks and balances [created under] the U.N. charter and [performed] by the Security Council” and “places enormous unchecked power in the hands of the ICC prosecutor and judges. ” He argues, “the UNSC needs to take bold and decisive steps to ensure that justice is done within the confines of the Rome Statute and the spirit of openness, fairness and with respect the (sic) sovereign will of an independent Nation.”

Kamau urges the U.N. Security Council to terminate Kenyatta’s and Ruto’s prosecution because the ICC “proceedings as relates to Kenya are not in the interests of peace and security in Kenya and/or the region and it is high time that the UNSC take cognizance of this matter afresh in light of the fundamental changes and present circumstances prevailing in Kenya.” He reminds the “U.N. Security Council not see themselves as disinterested observers of the ICC legal process, but rather recognize the potential and dire folly of the OTP as regards Kenya and the danger that it poses to international peace and security in Eastern Africa… It is time for the UNSC to pronounce itself in light of the interests of peace and security in Kenya, the region and recognize the sovereign inalienable right of the Kenyan people and exercise of the democratic space of the people.” At the end of his secret letter, Kamau in boldfaced text boldly demands, “What this delegation is asking for is not deferral. What this delegation is asking for is the immediate termination of the case the Hague without much further ado.”

Demanding the intervention of the UNSC to stop Kenyatta’s and Ruto’s prosecution before the ICC is either willful ignorance or sheer lunacy. It is certainly laughable. The ICC is not some kangaroo court whose judges can be politically manipulated, threatened or bought to deliver a particular outcome. The ICC is an independent judicial body. The UNSC has no legal authority to intervene in a case before the ICC except as provided under Article 16 of the Rome Statute which provides for “deferral of investigation or prosecution for a period of 12 months” subject to renewal. Ironically, it is the very lack of an independent judiciary that has given African leaders total immunity and impunity from accountability for their gross violations of the human rights of their people.

7. The Rome Statute violates the U.N. Charter and its prosecution of Kenyatta and Ruto is illegal (ultra vires).

Kamau challenges the essential legality of the Rome Statute. He suggest that the ICC by wrongfully arrogating to itself so much power “directly challenges the authority and prerogative of the U.N. Security Council, which the U.N. charter gives primary responsibility for the maintenance of international peace and security.” The fact that the “Rome Statute empowers of the ICC to investigate, prosecute, and punish individuals for the crime of ‘aggression’” is a manifest usurpation of the U.N Charter and the U.N.S.C’s role in maintaining international peace.

The fact of the matter is that the Rome Statute has been ratified by 122 countries to date. Among these States, 34 are African, 18 Asia-Pacific, 18 Eastern European, 27 Latin American and Caribbean and 25 Western European and other States. It is absurd to claim that a treaty signed by 122 countries is in flagrant violation of the U.N Charter. The UNSC has never doubted the legality of the Rome Statute and would never tolerate a presumptuous encroachment on its powers or breach of the supremacy of the U.N. Charter.

8. Kenya is ready, willing and able to prosecute violators of crimes under the Rome Statute in its own courts.

Kamau argues “a lot has changed in [Kenya in] the last two 2.5 years” and “Kenya has the capacity to offer a homegrown solution.” The “drafting and adoption of a progressive constitution, and implementation of a wide range of institutions commissions and legislation to domesticate the constitution safe guard (sic) human rights… is nothing short of exceptional.”

The Rome Statute operates on the principle of complementarity (national authorities have the first opportunity to prosecute suspects under the Statute) and respect for national sovereignty. Articles 1 and 17 of the Statute expressly give preference to national criminal jurisdictions over the ICC. The ICC is allowed to investigate and prosecute suspects only if national criminal jurisdictions have failed or are unable to prosecute them. The Kenyan government took no action to conduct a criminal investigation of the identified alleged perpetrators of crimes against humanity in Kenya following the 2007 election. In 2010, the OTP announced that six individuals including Kenyatta and Ruto would be summoned to appear before the ICC for their alleged role in the post-election violence. Kenyatta and Ruto cooperated with the proceedings and attended preliminary hearings in The Hague. In April 2011 and Pre-Trial Chamber confirmed the charges for which they are now standing trial.

There is no question that Kenya or any other signatory African country can exercise its right to prosecute suspects accused of crimes under the Rome Statute. However, it is absurd to demand the UNSC to change horses midstream and remand the case to Kenyan authorities for re-investigation and re-prosecution. The effort to pervert the course of justice in the ICC should be rejected.

9. The ICC prosecution of Kenyatta and Ruto is pointless.

Kamau claims it is pointless to prosecute a “supreme head of state and his deputy by a prosecutor of the very institution to which the state is a party” in “an off shore trail (sic) that has no popular resonance and that serves no national or international purpose.” If it is pointless to prosecute heads of state for gross abuses of human rights, it becomes equally pointless to prosecute rebel and militia leaders who commit similar abuses. The pursuit of justice is never pointless, particularly to the powerless, helpless, defenseless and voiceless innocent victims of injustice. It was H.I.M. Haile Selassie, the first chairman of the organization of African Unity (AU’s predecessor) who made that point crystal clear over one-half century ago: “Throughout history, it has been the inaction of those who could have acted, the indifference of those who should have known better, the silence of the voice of justice when it mattered most, that has made it possible for evil to triumph.” To silence justice in the International Criminal Court because the defendants are heads of state is to make “possible for evil to triumph.”

African dictators’ quest for a double standard of justice

On October 13, African “leaders” will meet to deliver an ultimatum to the ICC: Let Kenyatta and Ruto go or we will go! They will beat their drums and circle the wagons and shriek the African sky will fall unless the ICC immediately terminates Kenyatta’s and Ruto’s prosecution. They will huff and puff and threaten to blow the International Criminal Court house down by mass exodus from the Rome Treaty.

After the dust settles, what African dictators really want is a double standard of justice. They want the ICC to allow them to be prosecuted and adjudicated by their own hand-picked prosecutors and judges at the time of their own choosing. In exchange, they will gladly and promptly hand over any rebels, militants or warlords in their countries who are suspected or accused of violating the crimes prohibited by the Rome Statute.

I imagine the African “leaders” will try to play “good cop, bad cop” at the AU meeting on October 13. As some damn and pillory the ICC, others will propose the ICC play less of an investigative and prosecutorial role and transform itself into some form of a truth and reconciliation commission that will bring African victims of human rights abuses with their abusers in the interest of domestic tranquility and regional stability. But if the ICC insists on aggressively pursuing its suspects in Africa, it should also be prepared to accept full responsibility for any domestic and regional instability and conflict that might result from its actions.

The ICC is by no means the perfect international judicial institution for the prosecution of egregious crimes against humanity. Over the past decade, it had its share of growing pains. The success of its investigations have often depended in large part on the goodwill and cooperation of the same political leaders who are now trying to exorcise it from Africa. Its investigative efforts are often frustrated and its inquiries officially stonewalled by those in power in many African countries.

Neither the ICC nor the OTP are beyond legitimate criticism. Out of frustration and moral indignation, I have faulted the OTP for not initiating an investigation into the massacres of hundreds of unarmed demonstrators following the 2005 election in Ethiopia or in countries of the Middle East. I understand that the OTP does not have the power to investigate crimes in non-signatory countries such as Ethiopia. I also believe the current ICC process is prohibitively expensive. Charles Taylor’s prosecution alone cost USD$250 million!

I am unconvinced by those who argue that the ICC prevents a graceful exit from power for dictators who see the ICC as an unavoidable trap. The fact of the matter is that African dictators in their relentless pursuit of power and wealth are not in the least bit concerned about a graceful exit. They will continue to unleash their military and security forces on their civilian populations and commit heinous crimes to cling to power. There must be some meaningful way of holding them accountable; and for all its imperfections, the ICC for now is the only “game in town.”

In fairness, there are African countries who have accepted the ICC and even directly solicited its assistance in bringing to justice those who have committed egregious human rights abuses in their countries. Mali recently requested the ICC to initiate an investigation of suspects in connection with crimes committed by insurgent terrorists in northern Mali. In 2011, President Alassane Ouattara of Cote d’Ivoire emphatically urged the OTP to bring the “people who bear the greatest responsibility for the most serious crimes [committed following the 2010 election] before the International Criminal Court.” When convenient, similar referrals to the OTP have been made by the powers that be in Uganda, Democratic Republic of Congo and the Central African Republic.

The death of rule of law in Africa

Articles 4(m) and 4(o) of the Constitutive Act of the African Union impose upon African countries the affirmative duty of upholding “human rights, the rule of law and good governance” and “reject[ing] impunity for crimes.” AU’s threatened mass withdrawal from the Rome Statute on October 13 is in itself a flagrant violation of this core principle of the Act. Ironically, the AU will bury the Rome Statute along with its own core principle on October 13.

There is a simple and unavoidable moral choice—rather a moral imperative to be reckoned with—to be made in the face of the threatened mass exodus of African countries from the Rome Statute: Stand up to those who sneer at the rule of law or stand with those who at least make an effort to uphold it. Standing up for the International Criminal Court is standing up against African war criminals, criminals against humanity and perpetrators of genocide!

The time to defend the ICC is NOW!