By Charles Kanjama
Unlike the Rome Statute of the ICC, the 1997 Kyoto Protocol to the UN Framework Convention on Climate Change has 191 state parties, including all but four UN member states. The Kyoto Protocol was drawn to enforce limits to anthropogenic emissions of greenhouse gases deemed dangerous to the climate.
The controversial scientific premise of the Kyoto Protocol, and that’s not an oxymoron, is that man-made carbon emissions are a significant cause of global warming, and may endanger the planet by triggering catastrophic climate change. The Protocol noted that developed countries had the primary burden to control greenhouse gas emissions under the principle of “common but differentiated responsibility”.
The United States, perpetual abstainer from international treaties, refused to ratify the Protocol, but virtually all other states did. Many Western nations made legally binding commitments to limit or reduce their carbon emissions. However, Kyoto’s scientific premise came under sustained attack from sceptics.
Others questioned the logic of targeting carbon emission under a precautionary principle designed to reduce the threat of future climate change, but which was certain to cause significant harm to economic livelihood in the short term. Canada turned sceptic and pulled out of Kyoto, while developing countries like Russia and China declined to take up any legal commitments on their emission levels.
The American argument against Kyoto was simple: selective targets are not effective, and decisions that harm industry are not clever. For the US, Kyoto targets are like getting caught up in the futile cycle of Sisyphus, who in Greek mythology was condemned by Zeus to perpetually drag a big boulder uphill, only to have the rock roll downhill and have to start again.
America’s anti-Kyoto argument has largely become Kenya’s anti-ICC argument. Namely that the ICC system is selective, that it is certain to harm domestic unity, stability and sovereign action, and that it is founded on a questionable “scientific premise” of future international justice. A key misconception has been bandied about in the Kenya ICC debate. Kenya’s ICC case was not the product of reference by Kenya, but an autonomous choice of the ICC prosecutor, after request by chief mediator Kofi Annan. Neither Parliament, nor the Executive, nor the Judiciary, ever resolved to refer the case to the ICC.
The ICC prosecutor, a key mover of the Kenyan cases, has been repeatedly criticised for misconduct by ICC judges, in the Lubanga and Mathieu Chui cases that resulted in conviction and acquittal respectively, as well as in the ongoing Kenyan case.
Kenya’s case has been contested by ICC’s own judges, including Judge Kaul of the Pre-Trial Chamber who declared the threshold for ICC jurisdiction had not been met, and Judge Wyngaert of the initial Trial Court who dismissed the alleged mode of perpetration for two of the suspects and also criticised the prosecutor’s investigations.
And yet the cases continue full-steam ahead, showing that the prosecutor’s shoddy work has no effective corrective midstream, neither the judges nor the UN Security Council, despite the Rome Statute’s intent. The effect of various procedural decisions of the Pre-Trial Chamber and Trial Court are also of serious concern.
Other issues of concern include the selective application of international norms, the failure of ICC to establish and consistently apply standards of international justice to all states, the perception that the ICC process can be used for ulterior motives by domestic and foreign actors, and the manner in which obsession with the ICC option allows us to turn a blind eye to a majority of perpetrators, thus entrenching a philosophy that diminishes individual criminal responsibility.
Yet the biggest problem with the ICC has been the influence of a few Kenyan NGOs which have shown conflict of interest in the process. These NGOs first floated the idea of ICC and proposed the binary “Special Tribunal or ICC” ultimatum to Judge Waki, mobilised and facilitated witnesses for KNCHR and Waki Commission hearings then acted as intermediaries of the prosecutor in his investigations, and have since lobbied everyone on the ICC.
The court’s decision to conduct private trials is the straw that may break the camel’s back by bringing to mind the Kapenguria Trials and similar cases in history. Yet my verdict to the question whether ICC can surmount Sisyphus’ futile cycle and deliver international justice to Kenya may surprise you.
To quote the ICC, it is [Redacted]!