NAIROBI, Kenya, May 31 – A review conference for the International Criminal Court (ICC) kicks off in Kampala, Uganda on Monday amid raging fears in Nairobi that Kenya was plotting to scuttle an ongoing probe into the 2008 post election violence cases.
The allegations were laid bare on Sunday by non-governmental organisations and a legislator who claimed to have seen a confidential brief the government would be tabling at the review conference.
Gitobu Imanyara, MP for Imenti Central and directors of the International Centre for Policy and Conflict (ICPC) told a media conference in Nairobi that government representatives had been dispatched to request the ICC to defer its investigations – for at least one year, due to the ongoing constitutional review process in the country.
We could not however, verify the reports independently.
“The conference in Kampala should have been an opportunity for the Kenyan government to show its commitment. Instead of participating at the conference, we have now seen a leaked document reflecting the government’s position, which is to ask the ICC to defer investigations for at least one year,” Mr Imanyara said.
Ndung’u Wainaina of the ICPC said his organisation would do everything possible to ensure the ICC investigations are not halted.
“Accordingly, we are calling on the delegations to the ICC review conference in Kampala to dismiss with the contempt it deserves, the manoeuvres by the government of Kenya or the African Union to use the forum to obstruct the cause of international justice,” he said.
Mr Imanyara, whose Motion on the establishment of a Local Tribunal is still pending in Parliament, said they are also aware of the fact that there are already disagreements between the coalition parties on the proper representation at the Kampala conference.
It is understood representatives at the meeting will be drawn from the Attorney General’s office, Justice Ministry as well as coalition advisors of both President Mwai Kibaki and Prime Minister Raila Odinga.
When he visited Kenya earlier this month, the ICC Prosecutor Luis Moreno-Ocampo vowed to make Kenya an example in his investigations and subsequent prosecution of the leaders or government officials found to be most responsible for crimes committed in the country during the post election violence.
He has already started investigations to nail suspected masterminds of the deadly violence which claimed the lives of some 1,500 people and displaced 500,000 more.
Mr Ocampo has pledged to return back to Kenya in a few months time, when he will visit areas which were worst hit by the violence, mainly in the Rift Valley Province.
The Kampala conference brings together member states who will be meeting to review its performance and seek ways of bringing more suspects to justice. It is the first such meeting since ICC’s establishment eight years ago.
Founded with the 1998 Rome Statute which entered into force in 2002, the Hague-based tribunal is a key instrument of global justice but has faced many obstacles in the cases undertaken so far.
In a statement issued on Thursday, UN Secretary General Ban Ki-moon, who is also attending the review conference, said the ICC had already proved itself to be more than a "paper tiger."
But he urged member states to "fully cooperate with the court. That includes backing it publicly, as well as faithfully executing its order."
With investigations under way in the Democratic Republic of Congo, Sudan, the Central African Republic, Uganda and Kenya, 13 arrest warrants have been issued but only four are in ICC custody.
"Unless governments actually make arrests, the ICC cannot deliver justice to victims of mass atrocities," Richard Dicker, Human Rights Watch\’s international justice director, said in a statement.
Uganda, the conference host, violated Ban\’s directive when it invited Sudan’s indicted president Omar El-Bashir to Kampala and refused to commit to arresting him if he accepted.
With three Sudanese, three Ugandan and two Congolese indictees still at large, delegates are expected to issue a declaration on how to improve cooperation between the court and the member states\’ security services.
And since all five active investigations are in African countries, some delegates will try to counter the growing impression that the ICC is resented by many on the continent.
"Some leaders have tried to paint Africa as against the ICC, our voices are testament to the fallacy of such claims," a coalition of 124 African civil society groups said in a statement.
African countries were among those who lobbied the hardest for the ICC\’s creation during the negotiations that led to the 1998 treaty.
One of the most contentious issues to be discussed at the conference in Kampala will be extension of the court\’s jurisdiction to the crime of aggression.
President of the ICC’s Assembly of State Parties Christian Wenaweser said he was "cautiously optimistic" member states could strike a deal on aggression, which, if put into force, would join war crimes, crimes against humanity and genocide as actionable offenses.
While member states have informally agreed on how aggression should be defined, the real challenge lies in determining who has the power to initiate an investigation.
Wenaweser explained that states have agreed that the United Nations Security Council should have the first say but rights groups argue the body should not have final authority.
"Human Rights Watch has long opposed control of any crime within the court’s jurisdiction by external bodies because it would undermine the ICC’s judicial independence," the New York-based watchdog said.
The issue is complicated because it tends to pit the court’s most powerful member states against the less powerful majority.
The United States is not an ICC member and its war crimes ambassador Stephen Rapp said last year that the Security Council – where the US and four other powers have a veto – should decide whether aggression has occurred.
One diplomat who took part in the Rome negotiations said the inclusion of the crime of aggression in the court\’s jurisdiction would be significant.
"For example, would the invasion of Iraq have been an aggression? That\’s why it\’s so political. UN Security Council members do not want to give up their de facto monopoly on the determination of what is an aggression," he said.
"So (the Kampala review) could be a victory for the small states, depending on how it is framed."
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