US, Britain… who will cast the first ‘ICC Stone’ at Kenya?

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BY NGUNJIRI WAMBUGU

Can an American be guilty of crimes against humanity? Is it possible that some American individual, or group, can be involved in the kind of offences that constitute a serious attack on human dignity, and/or a grave humiliation or degradation of human beings, as part of an ‘organised’ system? Can Americans be involved in torture; rape; political, racial or religious persecution, or other inhumane acts, as part of a widespread or systematic practice, as the International Criminal Court defines as crimes against humanity?

Does ‘Gitmo’ apply; the military prison located within Guantanamo Bay Naval Base, Cuba, established in 2002 by the American government to detain extraordinarily dangerous prisoners, interrogate them in an ‘optimal setting’, and to prosecute such prisoners for war crimes.

Most of the ‘captives’ in Gitmo are from Afghanistan, Iraq, Horn of Africa and Southeast Asia. (We understand there might even be some Kenyan prisoners there). So, does what goes on in ‘Gitmo’ fall under crimes against humanity? Is there a system that conducts forced displacement, torture, murder, etc? Does what America has done in Afghanistan, Iraq, etc, fall under the definition of crimes against humanity?

But, this argument is actually moot.

No American can be charged at the ICC, first because America has veto powers on the UN Security Council (UNSC) and would not allow it. However should a way be found around that veto, America also has the ‘American Service-members’ Protection Act (better known as the ‘Hague Invasion Act’), a law that allows the US to use “all means necessary and appropriate” to bring about the release of any US or allied personnel detained or imprisoned by or on the request of the International Criminal Court.

The US also has bilateral immunity agreements known as “Article 98 agreements” with several ICC-compliant countries stating that they cannot surrender any US citizen to the ICC. Basically, if an American was charged with a crime at The Hague, America has laws allowing it to literally go to war with the court. The ‘land of the free and the home of the brave’ will not allow any of its citizens to be hauled before the ICC.

However, in some duplicitous way, America has a problem when Kenya fights against its citizens being accused in the ICC. It argues that Kenya ratified the treaty; the same treaty they themselves are on record saying “has insufficient checks and balances on the authority of the ICC prosecutor and judges” and “creates a self-initiating prosecutor answerable to no state or institution other than the Court itself” and where “without such an external check on the prosecutor, there is insufficient protection against politicized prosecutions or other abuses.”

Can a Briton be guilty of crimes against humanity? They have been fighting civilians in Ireland for decades; they went to Iraq with America; their own courts found them culpable of gross crimes against Kenyan Mau Mau, even instructing the British government to compensate the survivors. However as ICC is structured, you cannot take Britain to court for crimes committed by ‘organized systems’, during colonialism.

Britain also holds veto powers on the UNSC; the one organ where the ICC derives its authority from. In fact, as their Foreign and Commonwealth Secretary Robin Cook famously said on live international television in 2003 (BBC) “… this is not a court set up to bring to book Prime Ministers of the United Kingdom, or Presidents of the United States’.

So the one thing we have learnt since the ICC came into Kenya is that the court really is not an ‘an international court of justice’. As President Uhuru Kenyatta stated at the AU summit, somehow we are expected to be accountable to a court where ‘America and Britain do not have to worry about accountability for international crimes’. And you wonder why some say the ICC is ‘race-hunting’!

This does not mean that I do not believe crimes were committed in Kenya in 2007; no one disputes this fact. But we can only learn from our past; we cannot live in it. As we gradually get pushed to the point where as Kenyans we must chose who to entrust the future of our country with, let me remind us that it was not the ICC that stopped us from destroying our nation in 2007; it was us, the Kenyan people, who stopped at the edge of the precipice, looked down, said ‘NO’, and drew back.

Shortly we must choose between the ICC; a judicial system that so far has only managed to turn Kenyans against each other, re-introduce a fear of the state that we thought we had finally put behind us, and complicate our domestic and foreign relations; Or, our ‘Kenyaness’; that capacity to sort out our own issues in our own ways, that do not necessarily fit ‘international justice’ but build Kenya, and move us forward as a nation. The best choice looks obvious, but some relatively smart Kenyans will still surprise us.

(Wambugu is the Executive Director, Change Associates Trust)

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  • Qwani

    Those “smart Kenyans” will come out shouting and demanding justice for the victims. It is not justice that they truly seek, neither is it the truth that they wish to see uncovered. Rather it is their hope and prayer that UhuRuto get jailed so that their life long political darling becomes president with minimum effort. The OTP are the ones fully responsible for the mess. They hand picked suspects. Created evidence. Paid witnesses and decided to make an “example” out of Kenya. Today things are looking so terrible for the ICC. The threat of Africa pulling out can make it irrelevant overnight. Reforms that the AU is asking for in the ICC will undoubtedly change the status quo and introduce judicial professionalism. The stakes right now are high, extremely high. What will be going through the minds of many think tanks in the west is that if Africa is able to withdraw from the ICC, which institution will they pull out from next??? This is the wrong time for the west to think about casting stones!!!

    • maddy

      again, I ask, how many culprits have we prosecuted int he last 6 years in kenya? everyone will likely walk scott-free because its little people who died to keep wakubwa in power, that is their least appreciated sacrifice, you know that as well as I do, thats how it always has been. Bring the cases here and lets close them out real quick so we can move on per normal. The future will sort itself, hopefully the same way this one will.

      • Qwani

        You must be one of the “smart Kenyans”. Have you read the headline of this article??? You are way off topic.

  • xris.

    Forget about Afganisitan, Somali, Cuba,etc, the atrocities that the American soldiers commit on a DAILY BASIS on the Eastern shores of Japan, Korea,etc & allover where the have Military Naval Bases are unbelivable. Yet, despite all this, not a single one of them can be persecuted abroad!
    The only reason the are now thinking of siding with Kenya, is because their preferred Candidate, whom they had shamelessly endorsed, not only lost the elections , but along with that ,they lost their stronghold on our growing Economy & lucrative contracts to China! Do’nt forget the recently discovered Oil,Gas, water,etc. Because of these “incentives & possibilities”, the so called West is now doing away with their so called “Consequencies” so that they do’nt loose out completely to China!

    • Kwessi Pratt

      At least American courts do jail top shots. They try and commit to jail everybody accused of any crime. And moreso, criminals! Am yet to hear of any big shot jailed by Kenyan courts. And mineral discoveries in Kenya are mere peanuts to the west. But villagers are already raising their hubris! Guys are already working on new ways of alternative energy xris! Elections were a fraud. However, villagers were repeatedly shown shadows in form of an enemy. You know some of these guys were top fellows in Kibaki’s regime. What stopped them from running investigations against their perceived enemy? xris it can only mean they had nothing different from what was on the table! And a little reminder please: crimes that are NOT before the court dont become excuse for the ones already in court.

  • Charles Taylor

    Wambugu you are wasting time with winded convoluted arguments. Americans did not burn Kenyan women and children in Kiambaa. Americans did not lock up toddlers in Naivasha and burn them to ashes. There was not one American or British killing 1,300 Kenyans. Here is the reality all these arguments about the US not being a signatory to the ICC ignores. If Barack Obama was accused of killing 1,300 Americans he would be tried and if found guilty hanged right in the US. He wouldn’t be running around talking about personal challenges and asking Americans to pray for him. He would be a dead man. People who commit crimes should face trial and we don’t need people to invent excuses for them.

    • Guest

      Mr. Taylor, Wambugu is not wasting time. Did Uhuru & Ruto burn 1300 Kenyans (show us evidence not just a simple prayer that Uhuru and Ruto be found guilty irrespective of whether they committed the crimes or not but for political culpability). When Clinton the then President refused to pass the bill ratifying the Rome Statute to congress, this is what he had to say, “ICC is a political process and countries should wary ratifying the Rome Statute”. American soldiers have killed, mimed, displaced millions in the many wars they have been involved in. Atrocities were committed and are being committed in the globe including Syria but these will never reach ICC, why, because the ICC presidency takes cases that have the blessings of the Security Council which in turn are influenced by a majority of Western Nations. Why is it now, the Security Council says it is open to a deferral of the Kenyan case yet 2 years ago, they turned it down. Why is that now some Western Diplomats are saying Kenyatta case needs to be re-looked at again given that all his co-accused cases were dropped? simple ICC is a political court and Uhuru could not have said it better. ICC is a tool of former colonial powers in Africa to watch over their former colonies (sort of). No one doubts or denies 1300 people died as a result of PEV, but who are the real culprits not political sacrificial lambs?

      • Kwessi Pratt

        Equating Kenya with United States can only be laughable. After all, their judicial system cant be compared with that of Kenya. We also asked international community to come to our aid. We drew names that former prosecutor picked his guys from. Has such a situation occured in US? US has only been after terrorists. Those captured or killed in war situation had justice taken to them. Surely, if we got hold of guys who attacked Westgate Mall, no one would have complained of their mistreatment! Thats simply because they executed a murderous offence. Guys in US custody are either terrorists, or known criminal terror suspects intercepted after fingers were pointed at them by their friends in custody.

        You need to realize that these jubilee folks are accused of associating with guys who burned people in a church. They are also suspected to have “stopped Kikuyus from being finished.” And while they are not known to have picked pangas to kill, they are accused of engineering that murderous situation. The least they can do is exonerate themselves. However, taking the country along with them is against the constitution of which they swore to defend.

        These personal challenges, mischieviously turned to our collective challenges, are already negatively affecting business climate in the country. Which means more harder times are already in the offing. Kenyans in their wildest imaginations, NEVER elected leaders to cause problems for them. But rather to solve our genuine collective problems.

        We are actually being conned big time by guys purporting president and his deputy cant be out of the country at the same time. It can NOT be true! All constitutions around the world have no that “arresting” element in them. Leaders around the world regulary cut their respective trips abroad to attend to emergencies. But they dont stay home simply to “hold things together” as we are being told. Kenya is not at war! And thus, our top two are NOT prisoners in this country. These are new tricks to try subvert justice and nothing else!

        • Guest

          LOL. I like the way to shout from the top of the roof. Were those innocent Iraq nationals or Vietnamese villagers terrorists? prove to me (or us) that Uhuru & Ruto killed and displaced and don’t confuse a prayer or wish with evidence. Don’t write long paragraphs, simple lines will do.

          • Kwessi Pratt

            Do you know whats a war situation? And do you think war situation can be compared with tribal attacks? Why would you attempt to limit others? If you clearly address above questions, may be I WILL end up being your fanatical supporter ‘Guest’!!!!

          • Guest

            Where is the attempt to limit? this fellow (guest) is clearly addressing issues. You are the one jumping around insinuating things like hiring of goons. Prove it!! this is a criminal case based on hard core facts not circumstantial or wishful evidence. If goons were hired, money trail must be proved, recruitment camps etc. On Tuesday the prosecution witness during cross examination said she identified some youths in a lorry to be Kalenjins because they were “tall & slim”. Katwa Kigen in his cross examination the witness if Sang fits to be a Kalenjin given her description of a Kalenjin. The witness did not answer.

          • Kwessi Pratt

            Hold on fellow .. hold! These matters are in court. And if am wrong, court will at the end of trial say as much. Running trails wont serve any purpose at all. In any case, are you asking me to pass judgement on people before a court of law? There is serious problem with you guys! Suspects were accused of certain matters and I only repeated them. Whats the pain for? Just wait and if Lord doesnt take you before conlusion of cases, you can always attempt run us down once your village boy is found innocent.

      • wandia

        Subhaanallah, All the truth & answers we all seek are outlined within the Quran. Why not READ the Quran to establish the grass roots of all the problems human beings are facing today?

        Islam is alive,consistent complete ought to be applied oon earth. Everywhere will be filled with Islamic ways of Living that when we all establish equality the true just system decree for all mankind & all that exists.

        Stop fool your self that any else delivery or can stand for true just by who?. Stop the killings. stop the man-made rules of laws an apply a just way of living for all there is more than enough to feed all.

      • maddy

        thank you for pointing out there are 1300 victims in this very sad chapter of our istory, So, how many of the so called “real culprits” have we taken initiative to prosecute in kenya so far since 2007 PEV?

    • Kwessi Pratt

      He is trying to carry favor with the ruling elite. You know begging, especially one with wisdom above the ordinary begger, comes in different shades!

  • cbertmann

    Some Africans expect justice from the West because they dont understand their history( slavery, colonialism and apartheid). HAs Bush been charged with war crimes over Iraq? How comes a homeless American cannot be brought to ICC but we let our president be paraded there? Africans have some self respect.

  • Kwessi Pratt

    Kenyans are awfully inciting themselves against ICC because of self-serving reasons, or worse, tribal reasons. We must be carefull when penning some of these opinions for we might end up doing more harm than good. Whatever the case, we must remember we are the ones who invited outsiders to mend our failures. Had we not started butchering each other, ICC wont have checked in at all. And had we not formed Waki commission with express authority to pass on our failures to our savior/mediator, we wont be finding ourselves in the current situation. We MUST be all awake to these realities that brought the current situation. Using escapist reasoning that portrays us as holier than thou is totally mischievious and hugely misses the point.

    Mr. Wambugu, you should be asking us whether Americans can mercilessly kill each to a point of begging for international help. You dont just take narrow view that cant balance the scale! Kenya, a country very close to a failed state, can NOT be compared with developed countries with even far superior judicial systems. And moreso, United States of America! Kenya has been crippled by impunity and thats why we willingly turned to ICC for justice. Suspects were quite sure they couldnt get it because of that impunity. But as soon as they took charge of that circle of impunity, getting “prefered justice” became automatic. In other words, that suits you is the best regardless of problems that it might pose to us all. This is very bad indeed for the country.

    We should also realize that what happened in 2007/8 can happen again. Given that no reconciliation has been initiated. Jubilee leaders simply used escapist cries to rally their tribesmen behind them. Former PM Raila was illogically pointed out as the enemy that used foreigners to wear down our tribal support. With that, our politics remains wickedly and poisonously tribal. Judicial reforms have aborted under the weight of unyielding impunity. Our leaders have also continued to conduct themselves as if the country was their personal estate. Tribesmen have been unleashed to “defend their tribal posts.” By assaulting the constitution to suit our tribal desires, we are unwittingly beckoning another circle of violence. In such a scenario, a repeat of 2007/8 PEV is just too real. Where is the country going to turn to in such eventuality? We are being too narrow to call!!!!

    • Guest

      “..Tribesmen have been unleashed to “defend their tribal posts.” By assaulting the constitution to suit our tribal desires, we are unwittingly beckoning another circle of violence. In such a scenario, a repeat of 2007/8 PEV is just too real…….”. Well you are saying that we don’t need ICC to sort out our mess. However as I have always said ICC is (was) needed to get Uhuruto make the road to State House more certain and not for justice of the victims. The case is crumbling (watch this space) or do you have overwhelming evidence to strengthen the case or than a prayer that Uhuru & Ruto be jailed IRRESPECTIVE of evidence

      • Kwessi Pratt

        Do you know whats justice? Justice is NOT only just about jailing and thats all we want. And my take is that its just too early to make predictions. After all, in DP’s case, its a simple matter of establishing some shred of structure and he is done. The threshold is really too thin, make no mistake about it. Its more or less like confirmation hearings. But you know this is completely new matter to us. We find it hard to delink it from our fixation with Milimani courts that see no wrong in a big shot!

        • George mwaura

          You can be sure that you will really wait for evidence of your so called structure and possibly die of old age waiting.Look keenly at the proceedings and see it is clear that the structure could only have existed within HIS party then and to establish the same one must sacrifice the head; a matter the o.t.p did not want to do.This prosecution was only meant to whip the deputy President to toe his party line but the current prosecutor strangely does not see this!

          • Kwessi Pratt

            I thought I said so many times we have never shown that evidence which directly incriminates this “head” you are talking about? You think if there was any shred of evidence against this big catch, guys would drown alone? We are merely saying things to please our constituency Mwaura! But I suggest you wait instead of going over yourself for nothing!

        • Guest

          No man (or woman), this is not a civil case. It is a criminal case and burden of proof lies with prosecutor. It is not a simple case (or matter) of establishing some shred of structure, it is a matter of providing hard core evidence as is with any criminal matter. I once again go back to my statement, ICC case is not about justice but throwing some people deemed as greatest obstacle to jail. Why then would you say that it is a simple matter of establishing some shred of structure other than it not being not your wish that Uhuru & Ruto are found guilty irrespective of lack of evidence

          • Kwessi Pratt

            Kwessi Pratt is a total man fellow! You dont know male names when you pretend to run around all over the place? Greatest obstacle for what? This is just the stale stuff thrown around to create victims of sorts! It was a tool used to fool tribesmen in supporting people leashed by ICC. The results are now problems the country is beginning to witness. Business climate is already going negative, Suspects are screaming helplessly in the air and this “Guest’ fellow still thinks nothing is serious! By the way, which court can possibly deliver justice to these guys as far as you are concerned? If Uhuru, Ruto and Sang have solid evidence to exenorate themselves, nothing is going to happen to them. The only slight problem is the antics that they have been employing. You know inciting situations that direct assault the court in which you stand accused is abit tricky.

          • Guest

            okay total man fellow, yes I do not know male names as I pretend to run around. Business climate is negative – prove it using fundamentals. And again, the antics as you call them, I repeat, it is not a simple case of establishing structure, but hard solid evidence. Today, we saw the prosecution disowning the authenticity of its own documents it presented as evidence to defense. You (and your kind) are the one who running around and claiming people are guilty. Show us the evidence not a wishful prayer

          • Kwessi Pratt

            Cases are not even half way through! But I guess desire to side with your own is getting you worked up. Take it easy fellow! If the guys are innocent they SHALL definitely come back. You are getting it all wrong. We are not condemning them. But rather these antics of attempting to shield themselves using national offices. Mind you, we told them a trillion times that by running for offices when they were suspects, they were putting the country in their personal problems. That has indeed come to pass. However, tribalists, in their own wisdom, havent stopped beating war drums! And Madam/Mr. ‘Guest’ you dont need to prove air exists. Perhaps, as far as you are concerned, you can only prove air exists once you completely stop breathing!!!!

  • VINCENT O.O. OUMA

    Blaming US,UK and the EU will not be our salvation.Kenya took itself there and has to sort the issue legally preferrably. The other alternative is Bashir style.By the way what is the true purpose of delaying the cases. Doesn’t make sense a year from now or is there a hope that ICC will have vanished by then.Gosh.

  • peace be

    Your argument: US and UK committed crimes against humanity and got away with it. So Kenyans who commit crimes against humanity should also get away with it. What logic is that? ….”Our Kenyaness = capacity to sort our own issues in our own ways…..” And how are Kenyans sorting out issues of corruption, mass rape and murder, and trying sittng presidents, or granting justice to victims?

  • Japuonj

    Has it occurred to you that we may change sides in future?

  • wn2007

    Very thought provoking piece that shows double sided sword that US and Britain hold against everyone else: “America has a problem when Kenya fights against its citizens being accused in the ICC. It argues that Kenya ratified the treaty; the same treaty they themselves are on record saying “has insufficient checks and balances on the authority of the ICC prosecutor and judges” and “creates a self-initiating prosecutor answerable to no state or institution other than the Court itself” and where “without such an external check on the prosecutor, there is insufficient protection against politicized prosecutions or other abuses.” Dare I say more? Let us watch what happens next….

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