ICC officials defend court against African leaders’ remarks on trials

BY FELIX OLICK and ALLY JAMAH

KENYA: The International Criminal Court (ICC) has challenged President Uhuru Kenyatta and his deputy William Ruto to engage the court directly on the referral of their cases to Kenya.

The message came from ICC President Sang-Hyun Song and Chief Prosecutor Fatou Bensouda just days after a scathing attack by African Union (AU) leaders on the court and a resolution to push for a referral of the two Kenyan cases.

In two separate statements, the top ICC officials maintained that The Hague-based court cannot be influenced by political considerations and operates strictly within the Rome Statute legal framework.

“The ICC operates strictly within the mandate and legal framework created by the Rome Statute, the founding treaty of the court, and cannot take political factors into account,” Song maintained.

“Decisions are taken independently on the basis of the law and the available evidence and are not based on regional or ethnic considerations,” the president added.

But Bensouda who has been accused of conducting ‘shoddy’ investigations in Kenya appeared to be calmer saying her office is ready to engage in any legal debate regarding its ongoing cases on Kenya.

“In accordance with the Rome Statute, a State wishing to conduct national proceedings has to satisfy the judges that it is genuinely conducting proceedings against the same person/s for the same crimes,” Bensouda said on Thursday.

Unfortunately, Kenya’s bid to halt the ICC investigation through an admissibility challenge was thrown out in May 2011 after the judges ruled that there was no evidence of a national investigation into the 2007 post-election violence, in which more than 1,200 people were killed.

In its final declaration on ICC, the AU Monday said trying the two leaders in a foreign capital, risks destabilising the country and reverse reconciliation gains that have been made since the end of post-election violence.

As a result, they resolved to lobby the United Nations Security Council to spearhead the referral of the cases. But in a rejoinder, Song said that decisions at the ICC are taken independently on the basis of the law and are not influenced by the Security Council or any other external body.

Exceptional

In an apparent reference to claims that the ICC is a racist court targeting African leaders, Song said that the majority of the ongoing investigations within the continent were initiated following referrals or requests from the African States themselves.

Nearly all eight investigations — from Uganda to Democratic Republic of Congo and Mali — were referred to the court by the States themselves.

Separately ICC’s Outreach Co-ordinator for Kenya Maria Mabinty Kamara told The Standard that under “exceptional circumstances”, suspects can still challenge ICC to have the cases returned to Kenya, even after the trials have begun.  She explained that under normal circumstances, admissibility of a case or jurisdiction of the court may be challenged only once by any person or State.

Kamara, however, clarified that it is only the ICC judges who can decide on what would constitute “exceptional circumstances” to grant permission for a new challenge to the admissibility of the cases at ICC.

“The ICC will not proceed with a case if the national judicial system proves that it is prosecuting, willing and capable of conducting such genuine prosecution against the same people that have been accused before the ICC, and for the same alleged facts involving them.”