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Category: Diaspora News

Written by By Teddy Njoroge Kamau, PhD, KEN Senior Editor and International Bureau Chief

As the case against six Kenyan citizens, commonly known in Kenya as the ‘Ocampo Six’, goes to litigation at The Hague, the issue of the role of International Criminal Court (ICC) continues to be controversial.

While many Kenyans are now aware of The Hague, thanks to the 2008 post-election violence, not many know what the ICC is all about.

The ICC, formed and governed by the ‘Rome Statute’, is the first permanent, treaty-based, international criminal court established with the mandate: “….to help end impunity for the most serious crimes of concern to the international community.” It was founded to act as a deterrent against those within nations who would be contemplating actions against other people or peoples—actions that are defined as “serious crimes by the international community.” The question is, “Who is the international community”? By definition, the international community is all of humanity. But since we cannot define humanity within this general terminology, humanity must therefore mean the legally established representative body for the world’s nations, which by definition is the United Nations. Historically, all matters involving the international community are governed by the United Nations. Therefore the definition of the ICC mandate has to be understood within the definition of crimes against humanity, which are basically crimes that members of the United Nations deem as ‘crimes’. The ICC is recognized by the United Nations, however, the argument for the establishment of the ICC, even if noble from its onset, has to also take into account that the ICC as an independent international organization claims not to be a part of the United Nations. It receives its monetary assistance from member states and also receives voluntary contributions from governments, international organizations, individuals, corporations and other entities. It is this other aspect of the ICC that scares some nations away from ratifying their membership, thus remaining free from its mandate. Many organizations have agendas behind their contributions and therefore can influence this court for purposes that are not always so noble.

The nations that voted against the establishment of the ICC include but are not limited to: Iraq, Israel, Libya, the People's Republic of China, Qatar, the United States, and Yemen. Each country has had its own suspicions. The United States for example has approached the ICC with interest, while avoiding full-fledged membership. The issue at hand for the United States is whether the treaty that established the ICC would be compatible with the US Constitution. President Clinton, though seeing the need for the United States to cooperate with the ICC did not send his signed intentions to Congress and advised the Bush Administration against doing the same. The Obama Administration, being more open to the idea of international rule of law, has begun aggressive engagement with the ICC without ratifying its membership and sent a delegation to the Review Conference in Kampala, Uganda, from May 31 to June 11, 2010.

It was at that ICC Review Conference that another aspect of international crimes against humanity, the crime of aggression, allowed the ICC to exercise jurisdiction over that crime for the first time. It also adopted an expansion of the list of war crimes. The recent Kampala Review’s adopted extension of self-authorized actions allowed the ICC to crucify Kenya and the Ocampo Six. ‘Aggression’ is a very important word. Its definition has to be understood within the Kenyan context to see how the ICC’s investigative prosecutor, Ocampo, found grounds to make accusations against these six Kenyans. In Kenya, ‘aggression’ is the grounds upon which Ocampo has accused the six Kenyans who have been summoned to appear before the ICC at The Hague. Ocampo was not in Kenya during the post-election violence. Therefore his case is based upon evidence presented to him during his investigations. This evidence was mainly presented to him by the Kenya Human Rights Commission—the National Cohesion and Integration Commission and other civil societies and groups. He did not seek much information from the Police Commission. Thus, the suspicion is that the evidence he received was from groups who have political interests in Kenya, groups funded by radical wealthy Western donors who are fighting against certain tribal groups and their historical eminence in Kenya.

It is this source that has brought much of the controversy about charges levied against the Ocampo Six and the government. The State has not been accused of crimes against its citizens. Individuals were selected, not based upon a state investigation, or an ICC investigation, but from independent groups with no mandate from the state or ICC. Therefore, Kenya as a Sovereign State was not consulted. This is to say that the Kenyan Government, as a member State with authority within its signature and ratification, was ignored. The ICC entered into Kenya with a supremacy over the State. In so doing, the ICC declared Kenya and its constitutionally-established jurisprudence null and void. Ocampo by his action declared the ICC as having jurisdiction above and beyond the citizens of the Republic of Kenya and that this is greater than that of the State of which they are citizens.

Thus, according to ICC, all Kenyan citizens are not free but subjects of the international community and its laws. It is this possibility that makes the United States very nervous in ratifying the treaty with the ICC. America believes that it is a sovereign nation and its jurisprudence is supreme as the only entity having jurisdiction over its citizens. Therefore, U S Citizens abroad cannot be arrested and tried for crimes, or aggression, or human rights violations by the ICC. U.S. citizens cannot be summoned by the ICC. This is what the United States is trying to say in its “observation” of the functions of the ICC that Presidents Clinton, George W. Bush and Obama have cautiously examined. It is for this reason that the United States announced two pledges at Kampala, and was the only non-State Party to make a pledge. The United States formally committed to building the legal capacity of certain countries to prosecute atrocity crimes themselves. In this way, nations would have to be a in a state of non-function for their citizens to be sent to the ICC. Kenya, however, is not a non-functioning State.

It is on this ground that Kenya as a Sovereign nation and member of the United Nations and unfortunately as a ratified member of the ICC is appealing to the other member States to be allowed (within the Kampala Review conference) to establish its own system of dealing with these crimes.

This is the argument that Thuita Mwangi, PS. Foreign Affairs, who stepped aside to allow for the investigation of the Tokyo Kenya Embassy Sale, has argued on Kenya’s behalf from the beginning. As the senior-most diplomat for the Republic of Kenya, Mr. Mwangi argued against Kenya ratifying the ICC Treaty because, like the U.S. Presidents, he recognized the danger of subjecting the nation’s sovereignty and the sovereignty of its citizenry to a treaty whose members may have ill motives against a sitting government. Writing on this issue, he affiliates Kenya with South Africa’s stand on issues in the Sudan:

“… However, on the key question of the role of the ICC, there is a major divergence between the Mbeki and Annan approaches. In its conclusion on issue of justice and impunity, the Mbeki report completely excludes the possibility of resort to the International Criminal Court. In fact, it neither considers the ICC, even remotely, as an alternative nor substitute to [the] existing internal criminal justice system in Sudan. The International Criminal Court is a court of last resort, which complements the national judicial systems. It is also a court of limited capacity.”

It was the understanding of Kenya’s Government when joining the ICC that the ICC would not interfere with the Sovereignty of nations. In the case of the Ocampo Six, the government believes that the ICC has interfered with its Sovereignty.

It is this position by Kenya’s Government that has the ICC worried. When Ocampo first went to Kenya, he was received by the government with great honor and provided all the government mechanisms to do his limited investigation. However, when he arrived in Kenya, he did not fulfill his obligation to do an independent investigation. He relied on the reports of commissions and the civil society. This was not acceptable to the government. It is for this reason that when the president of ICC visited Kenya later, he was not accorded any state honor. Rather he was treated with no diplomatic cover or mandate. He therefore had to settle for a room in a Kenyan hotel without provision of a national security escort, which forced him to cut short his stay.

This crush between Kenya as a sovereign nation and ICC as a non-state international treaty representative is the nervousness causing the behind-the-scenes issue that is being watched by members of the ICC. If Kenya manages to withdraw itself from the ICC, then many other nations will follow. The ICC cannot be a sovereign State, rather it has to be subject to the ratified philosophy of its member States. The ICC is not a political establishment. However given that its members are political, it is very hard to see how it can render justice without bias.

The Ocampo Six are testing ground both for the powers of the ICC against the Sovereignty of its member States and the ability of citizens to depend upon their own governments for protection and justice. That is also why the Kenyan Government wanted to pay for the legal fees of the Ocampo Six.

As it stands now, only a united Parliament can establish Kenya’s Sovereignty and only Kenya can guarantee its own integrity by being recognized as having a legitimate judicial system.

For people to see this case as a war between Raila Odinga and the Kalenjin and Kikuyu community and the 2012 election is to engage in a shallow discourse. This is not to say that the Ocampo Six are not aware of the political orientation of the Commission and the civil societies which who gave evidence to Ocampo. Because they have always leaned towards Raila and his party!

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By Teddy Njoroge Kamau, PhD, KEN Senior Editor and International Bureau Chief