Misconceptions about ICC and danger of overblown expectations

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Godfrey Musila

Last week, I concluded in the Kenyan case, formal investigations into post-electoral crimes could only begin if either the Kenyan principals or International Criminal Court Prosecutor Luis Moreno-Ocampo invoke their relevant powers.

Here, I address some of the key misconceptions around the work of the ICC that if unaddressed, may leave many — including victims — sorely disappointed in the end.

Three misconceptions can be cited: 1) That Moreno-Ocampo could have suspects arrested when he comes to Kenya or that the ICC will take 90 years to prosecute anyone;

2) That the ICC is somehow the solution to our difficult impunity problems and victims will get justice;

3) That Kenya’s national problem is essentially one of criminal impunity and that solving it should be our sole preoccupation.

The first misconception reveals our not-so-unfounded desperation that someone should do something quickly to rid us of our suspected criminals and troublemakers. We may rightly pray the ‘bad guys’ be speedily removed from our midst, lest we cede to them some elbowroom to conjure up some way to escape justice.

However, we must temper our expectations with reality. The reality is that before anyone pleads before a judge in The Hague, an elaborate process — provided for in the Rome Statute and its Rules of Procedure — will have to be exhausted. It will not take 90 years, as some have publicly suggested and hope, but it will take some time.

There will almost certainly be no arrests this year. Later next year or early 2011 would be a better bet. We must internalise this reality for it will help us map our justice options.

The following stages are prescribed for the process: preliminary analysis; referral of the situation to the ICC either by the principals or Moreno-Ocampo using his powers to start investigations; authorisation of investigations by the judges if the prosecutor uses his powers; investigation; issuance of an indictment against specific individuals; issuance of arrest warrant; arresting suspects by national authorities (in Kenya or abroad); confirmation of charges by judges and commencement of trial proper.

Kenya is only at stage one. Preliminary analysis does not mean that formal investigations have started: it allows Moreno-Ocampo to conclude definitively that ICC crimes have been committed and that he will not be wasting the Court’s scarce resources and time by formally launching unfounded investigations.

Moreno-Ocampo has concluded there are reasonable grounds to proceed — that crimes against humanity may have been committed. We may be headed towards stage two.

Generally, an accused or a suspect has a right to appeal decisions at most of the stages, but there remain numerous possibilities of expediting the process, which could be explored by the prosecutor.

I must not be understood to mean that suspects will escape justice. I will not be vague.

The wheels of justice may be slow, but they will arrive. Suspects could still speedily be prosecuted in Kenya.

And there are means within the Rome Statute to ensure suspects experience a good measure of discomfort and inconvenience, until they have their day in court.