ICC trials: persecution or prosecution?

The ICC is a creature of the Rome Statute of July 17, 1998, whose mandate is to try the four core international crimes of genocide, crimes against humanity, war crimes and the crime of aggression. Those crimes are not subject to any statute of limitations. To date three of the five permanent members of the Security Council; China, Russia and the USA have not ratified that Statute, why?

None of these senior members of the United Nations is overtly engaged in genocide. But due to their omnipresence here on Planet Earth, there are many opportunities for their agents to commit crimes against humanity in alien territory.

Again, because of their propensity to engage in war in some part or other of this Planet, their nationals are likely to commit war crimes. And for reasons of their extensive interests abroad, which perpetually require vigilant and often overzealous protection, they are likely to commit crimes of aggression, if ever they are likely to agree on its definition.

Little wonder, then, that when their legal minds went into overdrive, they chose to err on the side of omission rather than commission. The US and Russia signed the Statute but refused to ratify it. They are unlikely to do so before the return of Christ! China, India, Indonesia, Saudi Arabia and North Korea refused to be dragged into it.

The second precaution that they took is perhaps less understood. The ICC appears to be applying civil-law traditions as its source of law. It is different from the common law tradition that Kenya and all former colonies and protectorates of Britain acquired, adopted or developed as their legal guides.

The ‘innocent until proven guilty or pleads guilty’ cannon is sacred to those systems. It is an adversarial system where the judges are not only expected to be impartial but where they have to conduct themselves so as to manifestly appear to be impartial. They are arbiters with no interest in the outcome of the contest except to ensure that due process is observed.

In the civil-law system that is not necessarily the case. The judges tend to assume the role of the principal interrogator of witnesses and the defendant in order to ascertain the truth. Once they have done that and reached a conclusion that the case be tried, it is generally expected that the accused will almost certainly bear the burden of proof of his innocence. That is why the ICC has what they call the Pre-Trial Chamber to oversee the investigative phase. In the view of common law practitioners, that throws out the rule that the burden of proof lies with the prosecution throughout the trial - with few well-defined exceptions that lead to a ‘trial within a trial’.

A cardinal rule of evidence in common law is to bar hearsay evidence. There is no such rule in many inquisitorial systems (including Belgium, France and Germany) and admissibility depends on the judge. The rationale is that in civil-law systems, codes and statutes are designed to cover all eventualities leaving the judges with the more limited role of applying the law to the particular case in hand. Past judgments are treated as loose guides.

Although common-law systems make extensive use of statutes, judicial cases are regarded as the most important source of law, which gives judges an active role in developing rules. To avoid inconsistency, courts abide by precedent set by higher courts that have determined similar issues.

Then there is the issue of juries which in the civil-law jurisdiction are limited to very serious cases. Are the four international crimes not serious enough?

Another important difference is that in common-law jurisdictions, the victims or their representatives are not party to the proceedings. The prosecutor acts on behalf of the state and does not represent the victim. In inquisitorial systems, the victim has the status of a party to the proceedings and may even be represented by his own lawyer. So, as we have seen in the Uhuru Kenyatta case, the judges, the prosecutor and the victims counsel are, or appear to be, on the one side and the accused on the other. This is manifestly unfair to the accused. In the view of common law practitioners, the interests of the prosecution, the judges and the victims converge and engulf the accused and thereby choke justice.

In our system, the victim can appoint a lawyer to 'watch brief’, but to make the victim a party to the proceedings is to place undue weight on the prosecution side. It is worse when the judges are working with the prosecution as in the continental system. State parties should be made responsible to look after the interests of proven victims in order to separate criminal trials from civil ones.

Am I feeling any better after the exercise? I wonder.  That is why it feels more like persecution rather than prosecution. And that is why I said earlier the US, China, Russia, India and others will not ratify the statute. Not with Isis on the horizon.