Friday, 10 May 2013

ICC rejects call for Kenya charges to be dropped

I wonder what the outcome of the ICC case will be.

Another witness against Ruto steps down. No surprises there, most witnesses will not have the guts to testify now. How can Kenya ask the UN to halt charges against Kenyatta.

Well it looks like the ICC has rejected the call for the charges to be dropped.

Quotes from the article below

Kenya is waiting to hear from the UN Security Council on its request to end criminal charges facing President Uhuru Kenyatta and his deputy William Ruto. The ICC has rebuked Kenya’s attempt as unfounded and incorrect.
Kenya is awaiting a response from the United Nations Security Council, after it sent an official request for charges of crimes against humanity facing the country's newly elected leaders to be dropped. The letter, dated May 2, 2013 and stamped 'confidential', is the first such official request for the cases to be abandoned.
"What this delegation is asking for is not deferral; what this delegation is asking for is for the immediate termination of the case at The Hague." Kenya's ambassador to the UN, Macharia Kamau, wrote in a letter to the Council.  "The implications of Kenyatta's trial for the viability and continuity of the state should be self evident," the letter said.
Kamau argued that a lot had changed since the ICC confirmed the charges in 2010, and that Kenya now had the "capacity to offer a homegrown solution." He also reiterated Kenya's commitment to "continue cooperating with the court."
Unstoppable case
However diplomats from the Security Council who discussed the request said even the world's most powerful body could not stop the proceedings. "The letter from the Kenyans is slightly bizarre because they are actually asking the Security Council to do something that it has no authority to do," a senior council diplomat told Reuters news agency.
The Security Council is only able to defer International Criminal Court proceedings for one year under article 16 of the Rome Statute, which established the Hague-based court a decade ago. "No formal response has been made yet, but the Kenyans will be told their request is going nowhere," one diplomat said on condition of anonymity.
The UN Security Council would need to adopt a resolution to have the Kenyan case deferred.
International legal experts view the letter which criticizes the court's legal process, as "neither impartial nor independent", but as a political appeal to drum up support among allies rather than a practical step towards dropping the ICC charges. "I think they are hoping to get enough pressure on the ICC to drop the case," Leslie Lefkow, deputy director for Human Rights Watch's Africa Division, told DW in an interview. "They argue that because the two leaders were elected, this is evidence for the case to be dropped. But if you follow that logic, then what you are saying is that anyone who is elected should be immune from prosecution."
Rwanda, currently a temporary member of the 15-nation Security Council, raised the Kenyan case in a meeting with ICC prosecutor Fatozu Bensouda on Friday (10.5.2013). Eugene Gasana, Rwanda's ambassador to the UN, said Kenya's letter contained "a compelling case against the methods of work of the office of the (ICC) prosecutor on the Kenya cases."
ICC 'not politicized'
 Bensouda hit back at suggestions that her office was politicized. "The ICC has always and will always continue to respect the sovereign equality of all states, Bensouda said. She warned that she will not "shy away from investigating individuals for any alleged crimes irrespective of their status." Bensouda, who admitted she had not officially seen the letter, gave a strong reaction to the Rwandan envoy's comments saying they were "unfounded and incorrect."
"It is a backdoor attempt to politicize the judicial processes of the court," Bensouda said.

 ICC prosecutor Fatou Bensouda has been criticized for mishandling the case
ICC judges have so far rejected suggestions to move the court to another country. Human Rights Watch's Leslie Lefkow believes that Kenya's case is different because up until now "both men have voluntarily presented themselves for proceedings." However she says Kenya's letter gives cause for alarm. "It needs to be met by a strong and united response from the international community."
Uhuru Kenyatta, 51, who was recently sworn in as Kenya's fourth president, his deputy William Ruto, 46, and another six suspects were initially charged by former ICC prosecutor Luis Moreno Ocampo with orchestrating tribal violence after the 2007 election. Kenyatta and Ruto both deny the charges. Should the charges against Kenyatta stand, he will become the first-ever president to have to travel to The Hague for a trial that could last at least two years.
Some 1,200 people were killed during the post-lection violence of 2007-08. The clashes shattered Kenya's image as a beacon of regional stability and plunged the East African nation into its worst wave of violence since independence in 1963.

 Update Related articles: Kenya attorney general disowns bid to drop Kenyatta trial

UN won't end ICC cases and this is why by Makau Mutua

Quotes below

Ever heard of a “Hail Mary” pass? It’s a desperation heave made by a quarterback in American football. It’s made at the end of a game – when defeat stares you in the face – and there’s virtually no chance of victory.

That’s what Kenya has done in asking the UN to terminate The Hague cases against President Uhuru Kenyatta and Deputy President William Ruto.

But, in a very strange twist, Mr Ruto denied being party to the request to end the cases. Make no mistake.

The truth is that the UN legally can’t – and won’t – terminate the cases. I know this – hell will freeze over before the UN makes such a bone-headed play. I have five reasons why Kenya’s plea will fail.

First, Kenya’s request will fail because it’s made by Mr Kenyatta. Kenya’s UN mission in New York represents the Head of State.

Kenyatta’s mouthpiece

The Kenya mission is an extension of Mr Kenyatta. Every action – or word – from the mission is Mr Kenyatta’s. The mission is nothing but Mr Kenyatta’s mouthpiece.

The Kenyan envoys to the mission – Mr Macharia Kamau and Ms Koki Muli Grignon – are Mr Kenyatta’s factotums. An indictee like Mr Kenyatta can’t sit in judgment of himself. The equivalent would be throwing open the doors to Kenya’s police holding centres and letting all suspects go scot-free.

The rule of law would go out the window. The inmates would be fully in charge of the asylum.

Second, Kenya’s argument is deeply convoluted and disingenuous. That’s because Mr Kenyatta has maintained that he will cooperate with the International Criminal Court. But now he wants to pit “democracy” against “justice”.

The petition argues – incredibly – that Kenya would go down in flames if he was forced to go on trial after winning the March election.

Entire region

There’s more. The request opines that violence in Kenya would destabilise the entire region. This is what’s called “taking a hostage”.

It’s a false dilemma – you let a suspected criminal go free, or risk hell from his supporters. That’s a blatant articulation of the “republic of fear” in the offing.

The message is clear – leave us alone, or we’ll set the place on fire. I don’t see the UN succumbing to such naked blackmail. If so, the UN might as well close shop and its members return home.

But this was my argument all along. Mr Kenyatta was determined to win the election to save himself from the ICC.

He’s discovered that ICC Prosecutor Fatou Bensouda won’t let go. She’s drafted additional charges against him. Like all good prosecutors, she’s great at her job.

More unsettling for Mr Kenyatta is that the ICC judges have rejected his key arguments. He’s lost virtually every major objection he’s raised in court.
That’s because the evidence against him – which the judges have seen – is very solid. The judges don’t believe his claims the evidence was fabricated.
Third, the Rome Statute doesn’t give the UN Security Council the power to “terminate” a trial. The Security Council can only “defer” a trial for 12 months, but not terminate it. Such “deferrals” can be renewed.
But it is the ICC itself – not the UN – that can end a trial. That’s why Kenya’s request is really a plea that asks powerful states to “lean” on the ICC to end the cases.
But there’s nothing powerful states can do “to make” the ICC drop a case. Attorney-General Githu Muigai has run out of tricks, and has now advised Mr Kenyatta to resort to the political “tactics of fear”.
Fourth, the UN knows that it will destroy the ICC or turn it into a laughing stock if it defers the Kenya cases. Why would a suspect, or state, ever respect the court if it let an indictee off simply because they won an election? Mark my words – the ICC would itself collapse if the UN were to grant Mr Kenyatta’s wishes.
Security fears
No amount of pleading – or threats based on fake regional security fears – will move the UN to cut the legs from under the ICC. This is what my crystal ball tells me – and you can take it to the bank. To do otherwise would abandon victims to the whims of brutes. The idea of international justice would die. Fifth, the UN is aware that Kenya has been trying to scuttle the ICC cases from the very beginning.
Under former President Mwai Kibaki, Kenya tried every trick – including VP Kalonzo Musyoka’s “shuttle diplomacy” – to kill the cases.
The Kenya Government acted – and still does – as though it was on trial as a country. Now Mr Kenyatta has made it clear that Kenya’s stability and future – and the region’s – depends on whether he can evade the ICC.
Kenya’s petition says in effect that Mr Kenyatta is Kenya, and Kenya is Mr Kenyatta. This is total hubris, and I bet the UN will make Mr Kenyatta carry his own cross. No single man should equate himself to a country.
I knew that Mr Kenyatta would defy the ICC if they ascended to power. I was right. I believe that he won’t cooperate with the ICC if his request to the UN is denied – as it surely will.
Then this will be the big question – will Mr Kenyatta be shunned across the globe, and Kenya isolated?
Mr Kenyatta’s camp was ecstatic when British PM David Cameron invited him to London. But they were apparently infuriated that PM Cameron wouldn’t give him a photo op. Such snubs can only increase if he shuns the ICC.
Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC. Twitter @makaumutua.

Update two Related article:State faulted over fresh bid to halt ICC criminal cases by Felix Olick

No comments: