International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Winter 2014 Issue



Challenges for the International Criminal Court

Judge Rosemary BarkettBy: Ambassador Hans Corell, Former Under-Secretary-General for Legal Affairs and Legal Counsel, United Nations and former Swedish judge

The International Criminal Court (ICC) has now been in operation for more than ten years. The question is: what about its record? As a former judge and later government chief legal adviser, as a war crimes rapporteur in the former Yugoslavia in 1992-1993, as the UN Legal Counsel from 1994 to 2004 involved in the establishment of all existing international criminal tribunals except the one in Lebanon, and as the Secretary-General's representative at the Rome Conference in 1998, I must confess that I have followed the development with great concern.

A comparison between the record of the ICC and the records of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) is, sad to say, not favourable to the ICC. In all fairness, it must be recognized that the responsibility for the shortcomings of the ICC does not rest with the Court only. The ICC is dependent on cooperation from states, in particular states where investigations are conducted. The lack of full and effective cooperation on the part of all such states is certainly a major problem. One would also have expected a more effective and determined support from the UN Security Council in cases where the Council has asked the prosecutor of the ICC to address situations. Another factor is the way in which the Assembly of States Parties (ASP) fulfils its duties under the Rome Statute.

This brief presentation will focus on the manner in which the ICC has dealt with the cases relating to Kenya and the consequences to be drawn from this. I have been following these cases with particular attention because of my role as the Legal Adviser for almost six years to Kofi Annan and the other members of the Panel of Eminent African Personalities, established by the African Union. From 2008 to 2013 this Panel was engaged in what became known as the Kenya National Dialogue and Reconciliation. The references to these cases are intended to serve as an illustration to the questions of principle discussed in this article.

The background to the Kenyan cases before the ICC is that a national commission had proposed that a special national court should be established to try those suspected of having orchestrated the so-called Post-Election Violence in Kenya in late 2007 and early 2008. When a proposal to this effect had been defeated twice in the National Assembly, representatives of the government of Kenya sought the assistance from the ICC Prosecutor. This led the Prosecutor to seek in December 2010 proprio motu indictment of six persons for crimes against humanity.

On 23 January 2012, a Pre-Trial Chamber of the ICC confirmed the charges against four of these persons, William Samoei Ruto, Joshua Arap Sang, Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, and committed them all to trial. On 18 March 2013, the charges against Francis Kirimi Muthaura were, however, withdrawn. This means that out of the original six persons indicted, three remain on trial for crimes against humanity. The trial in the case against William Samoei Ruto and Joshua Arap  Sang started on 10 September 2013. The trial in the case against Uhuru Muigai Kenyatta was scheduled to start on 5 February 2014 but it has now been postponed.

In discussing these cases, let me first categorically emphasize that the presumption of innocence is a given. Under no circumstances can anyone be considered guilty of crimes before he or she is found guilty by a competent court of law. However, the question that presents itself here is how a court should deal with persons who are suspected of very grave crimes. One of the first things that I learnt as a young court clerk more than 50 years ago is that if someone is indicted as suspected for very grave crimes, by definition this person should be arrested and put in detention on remand.Otherwise, he or she may try to evade the trial and also engage in interfering with the evidence. 

In my view, the Kenyan cases before the ICC went wrong from the very beginning, and there is now a serious risk that they might become unmanageable at the trial stage. Needless to say, since I am not familiar with all the details of the cases it is difficult to know exactly where the fault lies. But it is obvious that serious mistakes have been committed. The responsibility might rest with the Prosecutor who may have taken the cases to the Court before he had made sufficiently thorough investigations. The responsibility might also rest with the judges who obviously have not understood what a court must do if it confirms charges against persons for very serious crimes under international law and commits them to trial.

A possible scenario is that the Prosecutor approached the Court before he had solid cases and that the judges (judge Hans Peter Kaull dissenting) did not realize that they should have sent the cases back to the Prosecutor asking him to make a more reliable investigation before reverting to the Court, cf articles 54(1)(a) and 61(7)(c) of the Rome Statute..

However, since the charges were confirmed and the suspects were committed to trial, by not arresting them, the ICC did not use the same yardstick as has been used by the ICC and other international courts in cases where high level personalities have been charged. And, as just said, there is a risk that such accused will try to evade trial and start interfering with the evidence. Should what is happening now be seen in this perspective?



An additional complication is that in spite of the fact that the charges confirmed related to the 2007-2008 post-election violence the suspects were allowed to return home where two of them engaged in the 2013 presidential election campaign. The contestants in the 2007 election now joined hands and the result is well known: in March 2013, Uhuru Kenyatta was elected president of Kenya and William Ruto became vice president.

As I said in an address in 2012, available here, you do not even have to go to Chapter 6 of the Kenyan Constitution to realize that persons indicted for crimes against humanity cannot run for such offices – already common sense gives the answer. And yet, Kenya allowed this to happen.

I am afraid that, due to the manner in which the ICC has dealt with these cases, both Kenya and the ICC are in an impossible situation. I reiterate: the presumption of innocence is a given. But persons suspected of grave international crimes simply must be dealt with in a professional manner.

Because of the way in which the ICC has handled these two cases various attempts have been made, including by the African Union, to stop the trials with reference to the positions that two of the accused presently hold in Kenya. This has led to the very unfortunate result that the ASP at its meeting in November  2013 added new provisions to the Rules of Procedure and Evidence that might conflict with the very clear provision in article 63 (1) of the Rome Statute that the accused shall be present during the trial.

The first of these new provisions (rule 134bis) would allow an accused to be present through the use of video technology during part or parts of his or her trial. The second provision (rule 134ter) concerns excusal from presence at trial, and the third provision (rule 134quater) concerns excusal from presence at trial due to extraordinary public duties. The question is whether these rules are in conformity with the Rome Statute. If they are not, the ICC has no other choice but to invalidate them.

The thinking behind the last provision also seems to miss a very important point. One of the basic features in the system of international criminal justice is that it is likely that the evidence might lead the Prosecutor to persons in very high positions at the national level, including the head of state or government. If the evidence leads in this direction, it is precisely persons at this level who should be brought to justice before the ICC.

As I have developed in an address concerning international prosecution of heads of state for genocide, war crimes and crimes against humanity, available here, the possibility of bringing officials at the level of head of state or government to justice at the international level is a necessary ingredient in a rules-based international society; it is at this level that the principal standards applied in conflicts where international crimes may be committed are set, and it is at this level that the overriding orders are given.

If the officials who bear the greatest responsibility for international crimes committed in a particular situation are not brought to justice, this constitutes a clear risk not only for a continuation of the conflict at hand, but also for breeding new conflicts in the future.

The obvious question that the ICC must consider is whether it is at all possible to try persons at this level if they remain at large.

In my view the ICC is in a very serious situation, and it is important that the different actors under the Rome Statute understand their roles and their responsibilities. What the ASP must realize is that the persons who serve in different capacities in the ICC must have extensive courtroom experience whether as judges, prosecutors of defence counsel. As I have developed in more detail in the foreword to a book on international prosecutors, available here, my recommendation for achieving an effective, efficient and professional ICC in the future is that the ASP should:

  • Elect competent judges with genuine courtroom experience to the ICC; 
  • Abolish candidate list B in the Rome Statute (which entails that diplomats and law professors with no courtroom experience whatsoever can be elected as judges);  and  
  • Agree among themselves not to elect judges who will pass 70 years (common national retirement age) during their nine-year tenure in the court.

With respect to the last point: what impression does it give if among the judges of the ICC there are individuals who are no longer considered suitable to serve on the bench in their national courts? In this context, it was reassuring to see that the Advisory Committee on Nominations of Judges has included “Date of birth” in the suggested arrangement for the CV of candidates (see ICC-ASP/12/47, Annex III, paragraph 2). A true judge would realize that to present oneself as a candidate for judge in an international court without disclosing one’s date of birth is, to put it simply, unethical.

Finally, I also addressed the need to abolish vote trading and similar unworthy features in the process of electing judges, closing on the note that my remarks in that contribution in no way should be understood as criticism of the present judges of the ICC but as addressing systemic questions which are the sole responsibility of the ASP.


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