By Alemayehu G Mariam
Note to the reader: In my commentary last week, I defended the International Criminal Court (ICC) against accusations of “race hunting”, selective and arbitrary prosecution and abuse of power by certain African leaders . This week I continue my defense, in a rather lengthy commentary, by exposing and scrupulously refuting the bogus arguments articulated by these leaders and their minions to evade accountability for crimes committed in violation of international humanitarian law.
I defend the ICC not because it is a perfect judicial institution or system but because it is an imperfect one that can be perfected over time with the support and cooperation of the community of nations. I also defend the ICC because cunning race-baiters have used their poison-tipped spear of “race hunting” accusations to disarm, impale and render it defenseless. It is conventional wisdom that a
well-timed unsubstantiated accusation of racism has the power to devastatingly incapacitate a targeted individual or institution and wickedly debase the truth. That is the plot of the political theater to be staged at the African Union on October 13, 2013.
For me, the ICC is a powerful symbol of the rule of international humanitarian law. The ICC has been functional for barely a decade. Its achievements are modest but it has vast potential to become a court of last resort for those who are accustomed to abusing human rights with impunity. For African dictators, the ICC has become a formidable symbol of accountability. Just as the sign of the cross is said to put blood thirsty vampires to flight, the ICC’s insignia represented by the scales of justice strikes fear and trepidation in the hearts of vampiric African dictators. African dictators may thumb their noses at their people and sneer at the rule of law; but they tremble standing in the ICC’s long shadow of justice! This is my memorandum to African history.
On October 13, 2013, a cabal of African “leaders” will assemble in an echo chamber called the African Union (AU) and gleefully pronounce the death of the International Criminal Court (ICC) in Africa by mass withdrawal of African states from the Rome Statute. Presiding over the funeral services will be Hailemariam Desalegn, the titular prime minister of Ethiopia and rotating chairman of the African Union for 2013. He will call the assembly to order by declaring, “We have gathered here today not to praise the International Criminal Court but to bury it…”
The haste to bury the ICC in Africa is occasioned by the fact that Kenyan President Uhuru Kenyatta is set to go to trial in The Hague on November 7, 2013 on charges that he allegedly committed crimes against humanity in the aftermath of the 2007 Kenya election. His deputy president William Ruto is going into the second month of his trial at The Hague on similar charges. The AU is threatening to use the “nuclear option” against the ICC by staging a mass withdrawal of African countries from the Rome Statute unless the ICC somehow divests itself of jurisdiction in the Kenyatta/Ruto case.
For some months now, Hailemariam has been on the warpath against the ICC. In May, he launched his public crusade against the ICC with verbal pyrotechnics that mimicked the buffoonery of the senile Zimbabwean dictator Robert Mugabe. Hailemariam made the bizarre and nonsensical accusation that the ICC is “race hunting” in Africa because “99%” of those it targeted for prosecution are Africans. He declared the ICC “system is flawed” and that the ICC, in its feckless African witch hunt (race hunt), “has degenerated into a political instrument targeting Africa” and “adversely affecting” Kenya.
Speaking during the 68th Session of the United Nations General Assembly last week, Hailemariam had the temerity to demand the ICC drop its prosecution of Kenyatta and Ruto and turn over the case to Kenyan authorities to “investigate and prosecute under a reformed judiciary” established in Kenya’s new Constitution. Hailemariam plaintively argued that the ICC's insistence on trying Kenyatta and Ruto in The Hague is undermining the “ability of the Kenyan leaders in discharging their constitutional responsibilities". He contended that dropping the charges “is very critical to support the peace building and national reconciliation processes in the country.” Last week, the ICC Appeals Chambers rejected applications by Nigeria and Ethiopia to be enjoined (drop) in the Kenyan cases.
It is ironic that Hailemariam should be the mouthpiece of faux moral outrage and denunciation against the ICC. Although 34 African countries have signed the Rome Statute (which created and authorized the ICC to investigate and prosecute crimes against humanity, war crimes and genocide) to date, Ethiopia has steadfastly rejected the Treaty since it was opened for signature in 1998. Did Hailemariam’s predecessor refuse to sign the Rome Treaty because he knew the ICC was going to end up “race hunting” in his backyard? Perhaps he had cause to be concerned that the ICC may come knocking on his front door someday if he signed it? Were the 34 African countries that signed the Treaty clueless about the possible “degeneration” of the ICC into an African witch (race) hunting institution?
The art of softly killing the ICC in Africa
Hailemariam’s provocative and inflammatory accusations suggest that he wants to vanquish the ICC in Africa and cast himself as Africa’s “Jack the Giant Slayer”. (His predecessor, dubbed one of the “new breed of African leaders”, also suffered from an incurable case of delusions of grandeur.) Hailemariam and his comrades, including Thabo Mbeki of South Africa, Jakaya Kikwete of Tanzania, Youweri Museveni of Uganda and others are trying hard to resurrect and parade in the African and international media colonial and imperialist boogeymen robed in ICC regalia. The Rwandan dictator Paul Kagame contemptuously characterized the ICC as a form of “imperialism” that “seeks to undermine African countries”. These African “leaders” have mounted a slick propaganda campaign to depict the ICC as a racist institution that has “contempt” for Africans. They seek to portray themselves as innocent lambs relentlessly hounded by the vicious ICC wolf.
The fact of the matter is that Hailemariam and the other anti-ICC crusaders are threatening mass withdrawal from the Rome Statute in a desperate last-ditch effort to rescue their brethren Kenyatta and Ruto from the ICC hook and simultaneously immunize themselves against any future legal accountability for crimes against international humanitarian law. They aim to perpetuate and preserve their culture of impunity and criminality by demonizing, scandalizing, discrediting and threatening the ICC. They seek to cloak and disseminate their self-serving propaganda in a race-tinged narrative of a righteous moral struggle of an ascendant Africa (an Africa in Renaissance) against the wicked witch hunting West which stealthily and nefariously uses the ICC to keep Africa in its place.
Preview of the ICC funeral orations to be given at the AU on October 13, 2013
We have a very good idea of the game plan African “leaders” will use when they gather for their anti-ICC orgy at the AU on October 13, 2013. Their talking points and strategies to emasculate and incapacitate the ICC have already been laid out by Ambassador/ Permanent Representative Macharia Kamau of the Permanent Mission of Kenya in a 13-page CONFIDENTIAL (secret) letter to Menan Kodjo , President of the Security Council for the Month of May 2013.
Kamau’s secret letter -- poorly crafted and edited, incoherently argued, logically disjointed, and embarrassingly convoluted -- is nothing less than a counter-indictment of the ICC and the Office of the Prosecutor (OTP) (a branch of the ICC that investigates and prosecutes genocide, crimes against humanity, war crimes and genocide currently headed by Gambian Fatou Bensouda). Kamau’s essential message to the U.N. Security Council (UNSC) in his secret letter is straightforward: The ICC and OTP have become a double-headed Frankenstein poised to devour Kenyatta and Ruto. The U.N. Security Council must urgently intervene and get Kenyatta and Ruto off the ICC hook by “immediately terminat[ing] [their] cases at the Hague without much further ado”. Kamau desperately pleads with the UNSC to create a situation where bygones will be bygones and the alleged crimes committed by Kenyatta and Ruto will be quietly consigned to the dustbin of history. In making such bizarre and ludicrously outlandish plea and demands, Kamau presents at least nine separate arguments.
1. Kenyatta and Ruto should be let off the ICC hook because prosecuting them violates Kenyan sovereignty.
Kamau claims the prosecution of Kenyatta and Ruto is “an affront to the domestic policy and internal affairs of our sovereign Republic of Kenya.” He argues Kenya’s sovereignty is “being undermined and manipulated using different actors from within and without the territory of Kenya. As in the past, civil society bodies are currently being used by dark forces to espouse their own policies using the Rome Statute as a conduit and the ICC as the manifestation of this interference.”
Sovereignty is the first refuge of scoundrel African dictators. The African “leaders” who are now swaggering to defend the sovereignty of Kenya were silent as a church mouse when France directly intervened in the fighting in the Ivory Coast following that country’s November 2010 election and reasserted full control over its former colony. The AU sat on its duff twiddling its thumbs and watching from the sidelines. When France intervened to “liberate” northern Mali from terrorist insurgents in January 2013, African leaders did not invoke the principle of sovereignty to keep French troops out. Once again the AU sat on its duff twiddling its thumbs and watching from the sidelines.
Sovereignty is neither a legal defense nor a political argument against accusations of crimes against humanity, war crimes and genocide. The sovereignty argument made by African leaders today to invalidate ICC jurisdiction is indistinguishable from the sovereign immunity assertions made long ago by monarchs and kings who believed that they were subject to no earthly authority, deriving the right to rule directly from the will of God. Only God can judge an unjust king. Only an African dictator can judge an unjust African dictator!
African “leaders” want to use the shield of sovereignty to avoid accountability and perpetuate their culture of impunity and human rights abuses. St. Augustine said, “In the absence of justice, what is sovereignty but organized robbery?” Or organized extortion by threat of mass withdrawal from the Rome Statute? The bogus sovereignty argument must be rejected.
2. Kenyatta and Ruto are entitled to immunity from prosecution because they were found “innocent” in the March 2013 election.
Kamau argues the election of Kenyatta and Ruto “sends a clear and unequivocal message that the two persons are not only innocent but deserving of responsibilities in the highest office of the land.” Their ICC prosecution should be “terminated” because the “very humanity” against whom Kenyatta and Ruto allegedly “committed crimes against humanity stood firm behind [them] and proclaimed them innocent” when Kenyans “spoke with a loud, clear, concise voice [and] overwhelmingly elected [them] as President and Deputy President.” Given the “86% voter turnout and looking at the votes garnered by Mr. Uhuru Kenyatta and Mr. William Ruto [it is obvious] that the Kenyan populace is ready for them to be their political masters.” Beyond their electoral popularity, Kenyatta and Ruto “have not only been the greatest agents of cohesion but have been at the forefront and are the glue that binds the country… [and] their absence from the country may undermine the prevailing peace and any resultant insecurity my (sic) spill over the neighboring countries”. Kamau further suggests that the Rome Statute should not apply to Kenyatta and Ruto because they currently occupy the offices of “head [and deputy] of state and Commander-in-Chief of the defense forces of the Republic of Kenya.”
It seems Kamau confuses the voting booth with the court dock. Kenyatta and Ruto do not need an election to prove their innocence. They are presumed innocent until proven guilty. They have to prove nothing. What is at issue is whether the OTP can prove they are guilty of crimes against humanity beyond a reasonable doubt. That issue can be determined only in a pitted adversarial contest of facts in a court of law and not in an election campaign or the voting booth.
Kamau’s innocence-by-election argument is a classic red herring which aims to deliberately divert attention from the crimes against humanity the defendants allegedly committed to their recent electoral success and political ascendancy. The fact that Kenyatta and Ruto were recently elected by a “landslide” has nothing to do with the allegation that they committed crimes against humanity when they served as government ministers in 2007-08. The real issue is not whether Kenyatta and Ruto are innocent by electoral popularity but whether they committed crimes against innocent Kenyans in the aftermath of the 2007 election.
The fact that Kenyatta and Ruto are heads of state is of no legal consequence. Article 27 of the Rome Statute provides for a single standard of justice to all suspects appearing before the ICC: “The Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute…”
3. The evidence against Kenyatta and Ruto is “false and manufactured”.
Kamau claims the OTP brought trumped up charges against Kenyata and Ruto on its own (without referral by the Security Council or the Government of Kenya) and without sufficient cause or proper investigation. The ICC charges are groundless and based on “testimonies made by coached witnesses. The original claims [by victims] might have been false and manufactured.” The evidence relied upon by the OTP against Kenyatta and Ruto are “irreparably weak and flawed” and likely “tainted and procured through inducement and or corrupt measures”.
Whether evidence has been tainted, manufactured or obtained through corrupt measures is a question of evidence law and procedure to be determined by the ICC judges upon a proper showing. Kamau’s outrageous claim is manifestly intended to undermine confidence in the professionalism and ethical integrity of the OTP. But if there is a scintilla of evidence that the OTP is fabricating and presenting false evidence to the Court, Kamau’s government should promptly file a motion under Rule 103(1) of the ICC Rules of Procedure and Evidence and demand the severest sanctions against the OTP. Such cheap shots and smear tactics against the OTP should be condemned and rejected.
4. The OTP is unfair and has engaged in a pattern and practice of abuse of prosecutorial powers resulting in a denial of due process to Kenyatta and Ruto.
Kamau charges that the OTP “is neither impartial nor independent. There is no demonstrable intent from the [OTP’s] conduct to show that the main purpose of the proceedings [prosecution of Kenyatta and Ruto] is to bring justice.” Kamau claims the OTP is so arbitrary and capricious that its investigative and prosecutorial conduct “is not consistent with the old and established tenets of legal adage, practice, use, customs (sic) ethics professional courtesy and decency.” Kamau points out that the OTP’s “prosecutorial methods and tactics” have been “castigated and deplored by ICC judges who have found them wanting, violating of the rights of the accused, unprofessional and at times verging on incompetence. Despite these turn of events the OTP has continued to doggedly insist that there is a case where there is none.” Moreover, the OTP has sought to deny a fair trial to Kenyatta and Ruto by “repeatedly and constantly” making “unfortunate and misguided extrajudicial statements” in “blatant disregard of the provisions of the Statute” and in “a manner aimed at seeking and winning sympathy from known and unknown quarters at the expense of due process”. The OTP has recklessly besmirched the reputations of Kenyatta and Ruto and kept the “people of Kenya on a leash and in a distracting sense of alertness”.
Allegations of prosecutorial misconduct are commonly made by criminal defendants, their legal counsels and supporters. Defense lawyers not infrequently raise prosecutorial misconduct as a procedural defense to argue that the defendant should not be held criminally liable for his actions because the prosecution acted in an egregiously inappropriate or unfair manner. Often allegations of prosecutorial misconduct involve withholding or fabrication of evidence, selective prosecution by race, knowingly allowing the presentation of false testimony and other flagrant abuses of prosecutorial methods, tactics and discretion.
