Today the International Criminal Court (ICC) Prosecutor, Luis Moreno Ocampo, filed two applications for summons to appear for the six persons that the Prosecutor’s Office believes are most responsible for Kenya’s 2007/2008 post election violence.
There had been progressively spirited attempts to stop the application as well as the case at the ICC.This included a last ditch attempt by the government to set up a local tribunal to try the suspects after numerous attempts had failed.
“Irrespective of what transpires at the ICC on Wednesday 15 December, 2010 and in view of the fact that ICC is only a court of last resort, the Government will establish a local judicial mechanism in accordance with the Rome Statute within the framework of the new Constitution. The only reason that the post-election violence cases are being investigated by the ICC is because there is no appropriate local judicial mechanism which could carry out investigations, prosecutions and determination of the post-election violence cases for international crimes,”
The establishment of a local tribunal is welcome. The ICC will only be dealing with the 6 deemed most responsible for the violence. For comprehensive justice a national mechanism will be needed to try perpetrators that do not fall within this category. The ICC is meant to complement a national process not replace it.
Many of the people I have spoken to are sceptical of the reason behind the sudden willingness to set up a local tribunal. Some have gone as far as to say that the establishment of a local tribunal is not only intended to halt the ICC process, but to create a local mechanism that can be manipulated to protect certain persons.
Given the timing of the decision, the failure of two previous attempts to establish a local tribunal, and a history of political manipulation of the rule law, who can blame them?
If the speculation is correct and the intention behind setting up the local tribunal is disingenuous or if the local tribunal is intended as a smoke screen to shield certain perpetrators from criminal responsibility. The plan is unlikely to work.
Section 17 of the Rome statute envisages such a situation and protects against it. So the Court will still act if the local tribunal is created “for the purpose of shielding the person (s) concerned from criminal responsibility”, or if the process is being conducted in a manner “inconsistent with an intent to bring the person concerned to justice”.