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Cases are closed, but ICC censure of Kenya salutary

Saturday September 24 2016

Better late than never.

That was largely the reaction to last week’s decision by Trial Chamber V of the International Criminal Court. Which found non-compliance by the government of Kenya.

And referred this finding to the Assembly of State Parties. For the ASP to incentivise co-operation by the GoK for the purposes of any ongoing or future investigations and proceedings.

Why is the finding and referral to the ASP so important? Especially given that both cases are now closed?

Because, contrary to the GoK’s assertions that the Prosecutor’s request for co-operation was intended to cover her so-called failure to “properly” investigate and “speculative,” the Trial Chamber confirmed that it was this very lack of co-operation that compromised the Prosecutor’s ability to investigate. And thus prevented the ICC from exercising its functions and powers under the Rome Statute.

Specifically, the Trial Chamber noted the GoK’s long delay in responding to the Prosecutor’s first request of April 2012. Its failure to pursue alternative routes to obtain the materials requested despite those routes being suggested to it. And its failure to compel production of said materials.

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The Trial Chamber was right to do so. Because the GoK’s failure to co-operate is not just about the Kenyan cases and what may or may not happen to them now or in the future. It is also about the ICC’s ability to function in any other situation country. The ICC will continue to be ineffective if state parties blithely disregard their obligations under the Rome Statute.

Non-co-operation is, in fact, just another manifestation of what Justice Gustave Kam, president of the just closed Extraordinary African Chambers in Senegal, called the “quasi-total impunity” in Africa for serious crimes.

The Extraordinary African Chambers, set up by an agreement between the African Union and the government of Senegal to try former Chadian president Hissene Habre, just bucked that trend.

Habre’s successful prosecution was not just a victory for the many survivors of his brutality.

It was a little glimmer of hope for the many other survivors of brutality committed by many other African so-called leaders. It was a victory for the struggle against impunity.

It was a reminder that not everybody gets away with everything all the time.

The Trial Chamber’s decision is another such reminder. The GoK has been put on the spot. For failing the institution that it helped create. For failing the survivors associated with the two Kenyan cases. For protecting power rather than seeking to check and constrain it. For, in effect, choosing power over the people.

The fallout from the Kenyan cases has been serious. The GoK’s behaviour has pushed the world away from the belief that we can and should have one standing court to address the most egregious abuses of power. We have gone full circle.

From the International Criminal Tribunal on Rwanda and the Special Court on Sierra Leone to the ICC and back again. To an International Criminal Tribunal for the Central African Republic. To the notion of a hybrid court for South Sudan.

L. Muthoni Wanyeki is Amnesty International’s regional director for East Africa, the Horn and the Great Lakes

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