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International Criminal Court

Complementarity in International Criminal Justice with Reference to Kenya

Instructions: A critical analysis of the doctrine of complementarity in international criminal justice with reference to Kenya.

Solution.

Abstract

The cardinal offshoot of sovereignty is the exercise of criminal justice by states on their behalf without any external influence. The establishment of an international criminal court with unlimited jurisdiction to try the most grievous of offences was a threat to the sovereignty of states. To solve this dilemma of state sovereignty, a meeting point between national criminal jurisdiction and the criminal jurisdiction of the ICC had to be reached hence the provision of Article 1 of the Rome Statute, which makes the ICC complementary to the national jurisdiction of states. The post-election violence of 2007 in Kenya hit the country with all manner of crimes against humanity. Following these crimes, the ICC exercised its jurisdictional rights and started prosecuting perpetrators causing a lot of issues on jurisdiction, which in turn gave birth to complementarity discourse in the case of Kenya. This paper discusses the principle of complementarity under the Rome Statute of the ICC applying Article 17 of the Statute.

Introduction

The International Criminal Court (ICC) functions on the principle of complementarity. The Court was established under the Rome Statute, which supports and upholds the principle, ensuring that the ICC exercises its jurisdiction where the country/state party from where the accused is a national lacks the ability, credibility, or the will to prosecute the person(s).  According to Kleffner, the principle of complementarity, as stipulated in the Rome Statute, depicts that the ICC should be the last resort after the consideration and failure of all the possible solutions by the sovereign state[1]. The ICC should only come in when the country’s judicial system proves inefficient, unwilling, or incompetent in the prosecution of the accused. Following the creation and implementation of the ICC, there have been concerns of the Court threatening the sovereignty of members of the Rome Statute by limiting the countries domestic influence and control over criminal prosecutions. The integration of Article 17 of the Rome Statute which outlines the doctrine of complementarity addresses these concerns[2]. This research offers a critical analysis of the principle of complementarity in international criminal justice through the analysis of the relationship between Kenya and the ICC. It outlines the influence of the Court on sovereignty through a critical analysis of Article 1 and Article 17 of the Rome Statute.

Kenya and the ICC

The disputed elections of 2007 plunged Kenya into violence. The election was deeply controversial and the announcement of Mwai Kibaki as the winner sparked demonstrations and violence in various parts of the country that had many supporters of Raila Amollo Odinga. The result was political, social, economic, and humanitarian crisis involving of numerous cases of crimes against humanity. The post-election violence of 2007/08 caused over 1000 deaths and the displacement of approximately 500 000 Kenyans[3]. Further, the violence involved rampant cases of rape among other crimes against humanity[4]. After the end of the violence, the need for national reconciliation and integration was crucial. Justice for the victims of the violence was key in the process. The government of Kenya was supposed to promote national cohesion and integration by ensuring justice for the victims. The peace agreement between Raila and Kibaki outlined that the perpetrators of the crimes would face justice either in the country or at the ICC. However, Kenyan MPs blocked and frustrated moves to develop and use a local tribunal, therefore, pushed the case to the ICC. After investigation, the ICC prosecutor (Louis Moreno Ocampo) named six high-profile Kenyans as the major suspects/perpetrators of the violence in December 2010[5]. The Court commenced its trials which lasted to 2016 but ended with all the suspects either acquitted or found with no cases to answer. Throughout the process, the relationship between the government of Kenya and the ICC was greatly influenced by the doctrine of complementarity.  

The Doctrine of Complementarity in International Criminal Justice with Reference to Kenya

The Rome Statute of the International Criminal Court provides for the creation and implementation of the Court. Part 1 Article I of the Statute provides for the establishment of the Court and outlines its nature[6]. According to the Statute, the ICC is a permanent institution with the power to exercise its jurisdiction over perpetrators of serious crimes of international concern. Most importantly, Article 1 asserts that in dealing with the cases as recorded in the Rome Statute, the ICC should be complementary to the national criminal jurisdictions. Additionally, the jurisdiction and functioning of the Court is governed by the provisions of the Rome Statute, which all the member States must respect and uphold. While this is the case, the doctrine of complementarity, according to Article 17 of the Statute applies only under specific circumstances[7]. As such, where possible the State should investigate and prosecute persons suspected of committing or perpetrating the international crimes[8].  

The admissibility of the case in the International Criminal Court is determined in accordance with Article 17 of the Rome Statute[9]. The State maintains jurisdiction over the case unless it shows unwillingness or an inability of carrying out efficient investigations and conducting just and fair prosecution. In the case of the Kenyan judicial system, the Kenyan MPs argued that they did not have confidence in the system. The system was viewed as flawed, corrupt, and incapable of genuinely carrying out investigations and prosecuting the perpetrators of the post-election violence. Under these concerns, the Kenyan MPs pushed for handing the cases to the ICC[10]. Additionally, another issue that influences the principle of complementarity and admissibility of a case in the ICC is if the State decides not to prosecute the persons concerned due to unwillingness/inability of the country to prosecute or where Article 20 of the Statute does not permit a trial[11].

The agreement between the opposition leaders and Kibaki’s government touched on the need for the formation of a local tribunal that would ensure just and fair trials. The development of such a tribunal would prevent the ICC from investigating or prosecuting the perpetrators of the crimes. This would be based on the respect of Kenya as a sovereign state with the ability to handle domestic criminal issues even if of significant gravity. The ability to develop a local tribunal capable of investigating the crimes and bringing the responsible leaders to account would have denied the ICC jurisdiction on the matter. However, the representatives of the people (MPs) declined to implement the agreement and argued that the local tribunal would be ineffective in handling cases of such gravity. Reference was made on past instances where the judiciary had proven itself ineffective in handling matters that concerned high profile persons in the country. For instance, according to some MPs, no known report from any commission touching on the issue of corruption among the high-profile leaders had ever been implemented. Moreover, the Kenyan criminal justice system has never hitherto investigated and prosecuted any high-profile Kenyan despite the rampant corruption and misuse of public resources among the same people[12].

As a sovereign country, Kenya showed unwillingness of tackling the post-violence cases which involved critical crimes against humanity. For instance, the Kenyan parliament argued that the domestic judicial system is flawed and corrupt and thus would be highly susceptible to manipulation by the perpetrators of the crimes, most of whom were government officials. According to Transparency International, Kenya is among the most corrupt countries in sub-Saharan Africa[13]. Allowing the criminal justice system in the country to tackle the case would have led to inefficient investigations and flawed prosecutions. Most probably, none of those who were directly involved in the cases would have been tried. The argument focused on ensuring that the ICC handled the cases other than the local tribunal which was agreed upon in the peace agreement. By showing the inability to conduct genuinely thorough investigations, the country, a member of the Rome Statute left room for the application of Article 17 of the Statute. This gave ICC the jurisdiction to investigate and prosecute the perpetrators of the crimes.

The inability of the sovereign state of Kenya was argued from the perspective of judicial justice system inefficiencies. According to the Chief Justice, Dr Willy Mutunga, the Kenyan judiciary experiences immense work log dating years back. The system was working towards the reduction of the workload to ease and minimize the time taken to try and prosecute in the country. The system is overworked and cases off corruption within it makes the situation even worse. These issues pushed the Kenyan parliament to push the post-election violence cases to the ICC[14]. As such, the ICC practised its jurisdiction in accordance with Article 1 and 17 of the Rome Statute. Kenya had shown the inability to effectively prosecute perpetrators of violence and ensure justice for the victims. Moreover, that hitherto the country has not implemented the Truth Justice and Reconciliation Commission developed after the violence shows its unwillingness to prosecute the offenders.

Despite the post-election violence in Kenya causing numerous crimes against humanity including rape and death among others, the Kenyan criminal justice system made less effort in ensuring justice for the victims. Since the election in December 2007 and the violence thereafter, the judiciary had not prosecuted any high profile individuals in connection to the issue up to when the ICC prosecutor released the names of key suspects in 2010. Most of the rape cases, murders, and displacement in various regions across the country were promoted by either neighbours or known individuals[15]. If the judicial system was efficient and equipped enough to handle the cases, it would have investigated and prosecuted many perpetrators. However, the system showed inability to undertake the various duties and roles effectively. Therefore, in the case of Kenya, the ICC had jurisdiction, and was, at it happened, supposed to investigate and prosecute the perpetrators. As an equipped International Court, Kenyan MPs felt that it would deliver and ensure justice and fairness for the victims, as compared to the local judiciary.

The situation in Kenya provides the opportunity to investigate the emerging standards of complementarity that the Office of the Prosecutor and the judges utilize[16]. It is of particular interest because Kenya is the first country in which investigation was sought through the exercise of the Prosecutor’s proprio motu powers, unlike earlier situations of state self-referral. Under Article 15 of the Rome Statute, the Prosecutor can initiate investigations proprio motu into crimes under the jurisdiction of the Court, rather than wait for state or UN Security Council referral[17]. Where states have themselves sought the court’s intervention, and either declared themselves unwilling or unable to pursue specific cases, the determination that they were indeed unwilling was made potentially much easier[18]. However, where a state declares itself capable of pursuing domestic prosecutions, but takes relatively few steps to pursue cases, and pursues none against alleged high-level perpetrators while engaging in delaying tactics, complementarity must be closely assessed.

The Rome Statute does not specifically indicate a timeframe in which to take action, but rather refers, in Article 17 (2) (b), to an unjustified delay in proceedings which is inconsistent with the intent of bringing the person concerned to justice[19]. Additionally, it does not provide any detailed guidance for assessing unwillingness or inability to pursue cases or for judging where sham proceedings occur, or stalling tactics are being utilized, but rather refers, in Article 17(2) (a, c) to proceedings undertaken with the purpose of shielding a person from prosecution, or where proceedings are being conducted in a manner inconsistent with the intent of bringing a person to justice[20].

In Kenya, the delays and ultimate failure to establish a hybrid tribunal occurred under the watchful eye of the Office of the Prosecutor, with warnings issued and deadlines set by it. As noted above, the Kenyan government repeatedly delayed action, which in turn postponed the ICC prosecutor’s request for a formal investigation. This would suggest that complementarity is not just assessed at the moment that an inquiry is contemplated, but rather that the prosecutor will allow time for states to put prosecutions into place, instead of taking an immediate decision about inability or unwillingness of a state to prosecute[21]. It also suggests, however, that the leeway given to domestic systems is not infinite: the political manoeuvring lasted nearly a year before Moreno-Ocampo officially requested an investigation. The rather implausible promise of internal reforms and trials at an unspecified future date was not sufficient to prevent the eventual request for the inquiry.

Complementarity Discourse and the Issue of Sovereignty

Over the years, concerns have developed regarding the influence of the doctrine of complementarity in international criminal justice and specifically, complementarity in regards to the ICC. The ICC has been viewed as a political court by most countries, which threatens the sovereignty of developing and underdeveloped countries by controlling and influencing their political environments[22]. The case of Kenya led to the development on the complementarity principle concerning the issue. The election of President Uhuru Kenyatta and Deputy President William Samoei Ruto in 2013 influenced the development of the discourse and impact of the Court. Various first-world countries and political leaders around the globe were pushing Kenyans through threats to disregard the due in the election. The threat that choices have consequences by Jonnie Carson (US Assistant Secretary of State) was seen as an intimidation of Kenyans through the threat of sanctions. This action threatened the sovereignty of the country, where the citizens have the right to elect the leaders of their choice without intimidation and threats from the international community[23].

Further, according to the African Union, the Court was designed to control the African states, as many developed countries that pushed for its establishment were not a part of the Rome Statute. Countries such as the US, termed as the world’s leading democracy, which pushed for Kenya to cooperate with the ICC was not bound by the Statute. Additionally, the Court seems to impact greatly on less developed countries, which often have inefficient judicial systems. The complementarity principle influences certain countries and seems unlikely to affect others. For example, developed countries such as France and Australia among others have established judicial systems capable of genuinely investigating and prosecuting perpetrators of international crimes[24]. This makes the cases inadmissible in the ICC under the complementarity principle[25]. Therefore, it is only possible that the Court will continue investigating and prosecuting persons from developing and underdeveloped economies. This raises an imminent concern about the sovereignty of countries such as Kenya among others in the face of the international law.

Kenya started efforts of pulling out of the Rome Statute and the ICC from the onset of the ICC cases. The efforts however intensified when Uhuru Kenyatta and William Ruto attained power. The Jubilee government of Kenya mobilized the African Union into supporting its quest to pull out of the Statute[26]. The countries threatened to leave ICC before the termination of the cases where all Kenyan suspects were either found to have no cases to answer or were acquitted. The African leaders argue that the ICC is a political court that targets African states and their leaders and thus focus on ensuring that the Statute meets their demands, top in the list to not charge African leaders in power. Charging those in power is, like targeting African states, viewed as a threat to the sovereignty of the countries. The leaders question whether the Court can under any circumstances charge, try, and prosecute leaders of developed countries.  

Bibliography

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[1] Kleffner, Jann K. Complementarity in the Rome Statute and national criminal jurisdictions. Oxford: Oxford University Press, 2008.

[2] United Nations. Rome Statute of the International Criminal Court. 1998. http://legal.un.org/icc/statute/99_corr/cstatute.htm (accessed May 12, 2016).

[3] BBC. Kenya election violence: ICC names suspects. 2010. http://www.bbc.com/news/world-africa-11996652 (accessed May 12, 2016).

[4] Gettleman, Jeffrey. Disputed Vote Plunges Kenya Into Bloodshed. 2007. http://www.nytimes.com/2007/12/31/world/africa/31kenya.html?_r=0 (accessed May 12, 2016).

[5] BBC. Kenya election violence: ICC names suspects. 2010. http://www.bbc.com/news/world-africa-11996652 (accessed May 12, 2016).

[6] United Nations. Rome Statute of the International Criminal Court. 1998. http://legal.un.org/icc/statute/99_corr/cstatute.htm (accessed May 12, 2016).

[7] Cryer, Robert. An introduction to international criminal law and procedure. Cambridge [UK]: Cambridge University Press, 2010.

[8] United Nations. Rome Statute of the International Criminal Court. 1998. http://legal.un.org/icc/statute/99_corr/cstatute.htm (accessed May 12, 2016).

[9] Ibid.

[10] BBC. Kenya election violence: ICC names suspects. 2010. http://www.bbc.com/news/world-africa-11996652 (accessed May 12, 2016).

[11] Kleffner, Jann K. Complementarity in the Rome Statute and national criminal jurisdictions. Oxford: Oxford University Press, 2008.

[12] Materu, Sosteness Francis. The post-election violence in Kenya : domestic and international legal responses. The Hague, The Netherlands: Asser Press, 2015.

[13] Transparency International. Global Corruption Report. New York: Routledge, 2015.

[14] BBC. Kenya election violence: ICC names suspects. 2010. http://www.bbc.com/news/world-africa-11996652 (accessed May 12, 2016).

[15] BBC. Kenya election violence: ICC names suspects. 2010. http://www.bbc.com/news/world-africa-11996652 (accessed May 12, 2016).

[16] De Wet, E, The Chapter V11 Powers of the United Nations Security Council (Hart Publishing oxford 2004).

[17] Cronin-Furman, Kate. “Managing expectations: international criminal trials and the prospects for deterrence of mass atrocity.” International Journal of Transitional Justice 7, no. 3 (2013): 434-454.

[18] An Introduction to International Criminal Law and Procedure, (Cambridge: Cambridge University Press, 2010) chapters 3 and 4.

[19] Cronin-Furman, Kate. “Managing expectations: international criminal trials and the prospects for deterrence of mass atrocity.” International Journal of Transitional Justice 7, no. 3 (2013): 434-454.

[20] Haile, D, Accountability for crimes of the past and the challenges of criminal prosecution. The case of Ethiopia (Leuven University Press, Leuven 2000).

[21] Cronin-Furman, Kate. “Managing expectations: international criminal trials and the prospects for deterrence of mass atrocity.” International Journal of Transitional Justice 7, no. 3 (2013): 434-454.

[22] The Standard. State to consult African Union on push to withdraw from ICC. April 2016. http://www.standardmedia.co.ke/article/2000197412/state-to-consult-african-union-on-push-to-withdraw-from-icc (accessed May 12, 2016).

[23] Lee, Roy S. The International Criminal Court : issues, negotiations, results. The Hague: Kluwer Law International, 1999.+

[24] Kleffner, Jann K. Complementarity in the Rome Statute and national criminal jurisdictions. Oxford: Oxford University Press, 2008.

[25] United Nations. Rome Statute of the International Criminal Court. 1998. http://legal.un.org/icc/statute/99_corr/cstatute.htm (accessed May 12, 2016).

[26] Daily Nation. African Union backs Uhuru’s call to withdraw from the Rome Statute. January 2016. http://www.nation.co.ke/news/politics/AU-adopts-proposal-withdraw-from-ICC/-/1064/3056414/-/4h5783z/-/index.html (accessed May 12, 2016).