ICC, Prosecution and Logistics: Let’s go to The Hague

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November 5, 2013

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I have been planning to give my two cents about The International Criminal Court, ICC, for quite some time now. This happens to be the opportune time, especially so, when Kenya debates on whether our president Hon. Uhuru Kenyatta should or shouldn’t go to The Hague!

According to Wikipedia (yes, I’m allowed to quote Wikis, this isn’t mainstream): The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although jurisdiction for the crime of aggression will not be awakened until 2017 at the earliest).

The ICC was created by the Rome Statute which came into force on 1 July 2002. The Court has established itself in The Hague, Netherlands, but its proceedings may take place in other countries depending of the nature of cases, at the Court’s discretion. It is intended to complement existing national judicial systems, and may only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes.

Currently, 122 states are parties to the Rome Statute and by extension, the Court’s jurisdiction, including all of South America, nearly all of Europe, most of Oceania and roughly half the countries in Africa.

The ICC has been accused by many, including the African Union, for primarily targeting Africans. To date, all the ICC’s cases have been from African countries. Four out of eight current investigations originate, however, from the referrals of the situations to the Court by the concerned state’s parties themselves.

The word “Hague” and the hash-tag “ICC” (#ICC) have become household enthrallments and trending topics in Kenya ever since former UN Secretary General, Koffi Annan handed over a sealed envelope to then-ICC chief prosecutor Louis Moreno-Ocampo.

What began as a blurry story in the aftermath of the disputed December 2007 election when Mr Isaac Ruto coined the ‘don’t be vague, let’s go to The Hague’ slogan, is now turning to be vivid. Pointing of fingers and blame shifting among rivaling factions and communities has been at play constantly since Ocampo revealed the top six names in the letter he received from Annan. The letter was in jest referred to as “Barua ya Ocampo!”

Almost three years down the line after the ICC process, that began in earnest December 15, 2010, the “Ocampo Six” has been halved to the current “Bensouda Three”.

If you’ll allow me to use the analogy of the wild in the natural habitat, where natural selection and survival for the fittest is the order of the day, you’ll definitely agree with me the ICC and the prosecution team is one that goes for the fittest itself.

ICC Chief Prosecutor, Fatou Bensouda. Photo Credit: Jamuhuri411

ICC Chief Prosecutor, Fatou Bensouda. Photo Credit: Jamuhuri411

To put this analogy into perspective, Ms Bensouda is the strongest and fastest Cheetah that goes for the fastest and strongest Gazelle, [read the suspects]. To play it safe, I’ll halt my itchy fingers from writing more about that matter that’s so thorny to many Kenyans.

Let’s talk about what brought you to this post, the heart of this blog: Logistics.

Yes the Kenyan cases have posed the greatest logistic challenges to the Hague based court. ICC President Sang-Hyun Song is on record saying the Kenyan cases were unique to the court.

Speaking at the Colombia University in New York February, Song said there were many challenges with regards to the Kenyan cases, presented by the verity that the suspects were still free men.

“At the moment, I must admit that the logistical aspect of the Kenya cases is not easy. The four suspects are under summons to appear. They are not arrested people. They have kept saying that they will comply with ICC procedures and so on and so forth. How will they come all the way to The Hague and for how long?” he posed.

While the current Kenyan cases at the Hague-based court remain unique by all means, with the suspects cooperating with the court, a new twist by the name Barasa emerged! The ICC issued an arrest warrant against journalist Walter Barasa for witness tampering. It’s an extremely dicey situation since Kenya has been accused of not cooperating with the prosecution. Whether he will be arrested and handed over to the ICC is the acid test.

Other than plying the Kenya – Netherlands route up to and until the judges decide on the cases put forth by the Bensouda-led prosecution and the high profiled defense team, the other logistical aspect is the ‘storage space’ for the stakeholder thereon.

During two status conferences in February, the judges raised a problem over the shortage of space. The ICC has only two courtrooms, which serve the pre-trial, trial and appeals divisions. Only Courtroom one can hold a case with two or more witnesses. At that time of the status conferences, the cases were before one trial chamber presided over by Judge Kuniko Ozaki. The chamber asked the president of the court to constitute two chambers for the two cases and that was done.

However, Judge Ozaki still had issues with the arrangement.

“Even if two chambers are composed, it would not be possible to conduct simultaneous full-day trials in both cases,” she said. “The most that could be done is to share this courtroom and to sit for four hours a day on each case, meaning four hours in the morning for one case and four in the afternoon for the other.”  Ruto’s ongoing trial is in Chamber V (a) is presided over by Judge Eboe Osuji. The other two judges are Olga Herrera Carbuccia and Robert Fremr.

With news that President Kenyatta’s case has been postponed to February 5th 2014, nobody is surprised. We in the logistics industry and the wider people of the land, that are peace loving, hope and certainly pray that the court will continue respecting Kenya’s sovereignty and the accused will co-operate fully with the court.


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