By Lillian Aluanga
This week marks a first in Kenya’s history as six individuals suspected to bear the greatest responsibility for the 2007 post-election chaos appear before the International Criminal Court.
In what is procedurally different from other ad hoc international tribunals, the six will appear for a confirmation hearing at the court, for verification of their identities, and to ensure they have been informed of the crimes they are alleged to have committed.
The six are Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura, former Police Commissioner Hussein Ali, suspended Higher Education minister William Ruto, Former Industrialisation minister Henry Kosgei and radio presenter Joshua Sang. All have agreed to honour their date with the ICC on April 7 and 8.
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Besides the ICC, there are other international tribunals set up to address atrocities committed in the former Yugoslavia, Rwanda and Sierra Leone.
Although all these courts were born out of international concern to seek justice and punish alleged perpetrators of crimes against humanity, the International Criminal Tribunal for former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and the Special Court For Sierra Leone, should not be confused with the ICC.
Says International Commission of Jurists (ICJ) Executive Director George Kegoro, "Yugoslavia had significant internal problems in the 1990s, which led to establishment of the ICTY. Rwanda’s genocide and the civil war in Sierra Leone led to formation of the ICTR, and the Special Court for Sierra Leone," he says.
But it was the concern that there was need to set up a more permanent court to try similar crimes around the world that led to establishment of the International Criminal Court.
Before establishment of the court to try suspects from former Yugoslavia, the closest the world had come in trying perpetrators of human crimes was in the Nuremberg (Germany) and Tokyo trials in 1945 and 1946.
It would take another 50 years for the ICTY to be set up, making it the first international court for criminal justice.
"The International Community had, in a short time, been forced to respond to the problems in Europe and Africa and it was felt that there was need to establish a permanent court that would respond globally to problems of a similar kind," says Kegoro.
Although basic legal procedures remain the same for the courts, the ICC, established through the 1998 Rome Statute, differs from the other courts in several aspects.
Besides granting suspects a confirmation hearing, individuals before the ICC remain free for the duration of a trial. This may, however, change should they fail to meet conditions set by the court.
"The confirmation hearing is not a one-day affair, and may last three months or longer. There is no such provision in the ad hoc tribunals," says Kenyatta University law lecturer Godfrey Musila.
Says Dr Musila, who is also the Director of the African Centre for International Legal and Policy Research,
"The ad hoc tribunals are different in that once the prosecutor presents his case to the judges the trial starts immediately. The ICC prosecutor on the other hand must first present his evidence to the judges who then decide whether to issue summonses or not," he says.
Unlike the ad hoc tribunals where trials start immediately, Musila says it may take anywhere between five and nine months before an actual trial date is set for any of the six suspects.
While warrants of arrest are issued immediately for those wanted to appear before the ICTY, ICTR and Special Court for Sierra Leone, the ICC also has the option of issuing summonses.
"Summonses are issued when the suspects agree to voluntarily appear before the court and should not be taken lightly because there is always the option of arrest warrants if certain conditions are flouted," says Musila.
The conditions include that one presents themselves at the court whenever required, does not interfere with the ICC process or witnesses and refrains from committing similar crimes to those alluded to in the charges. "This is one reason why the six suspects must be careful about what they say, lest something they say is construed as incitement," he says.
Another difference between the ICC and ad hoc tribunals is in the permanency of the former, which was established by the Rome Statute. The mandate for ICTY, ICTR and the Special Court for Sierra Leone relates to specific events in the Balkans, 1994 Rwandan Genocide and Sierra Leone’s civil war in the 1990’s.
"The ad hoc tribunals were created through Resolutions of the UN Security Council except Sierra Leone’s Special court which was established jointly between the government and the Council.
The manner in which the courts were established means that the ICC falls under supervision of the Assembly of State Parties and not the Security Council, as is the case with the ICTY and ICTR. There may, however, be exceptions where the UN Security Council refers a case to the ICC as happened with the Sudan case.
While the ICC is entirely dependant on States’ co-operation in gathering evidence and effecting arrests, the ad hoc courts are backed by reinforcement powers of the Security Council. This has been interpreted as one of the weakness in ICC’s framework because it is only the Assembly of States and not the UN Security Council, which can address the failure of a country to co-operate.
Of the three tribunals, the ICTY is based at The Hague while the ICTR operates from Arusha, Tanzania. Although the Special Court for Sierra Leone is based in Freetown, its biggest catch-former president Charles Taylor’s trial was moved to The Hague because of security concerns. Another difference relates to victims who though allowed to appear as witnesses, have the additional option of seeking reparation for wrongs committed.