By: 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?