After its request being denied by UNSC, Kenya is now looking forward to the next session of ICC assembly of states where it will propose amendment to article 27 which speaks about individual criminal responsibility of head of state.
The chief prosecutor of the International Criminal Court announced she will not appeal last month’s ruling by judges at The Hague-based court that Libya is free to try Abdullah al-Senussi, Muammar Gaddafi’s former spy chief.
According to a report on the News24 site, the judges last month announced that since Libya was able and willing to give Gaddafi’s head of intelligence a fair trial on charges that were similar to the ICC’s, there was no need to transfer him to the ICC’s custody. Senussi’s lawyers have said they will appeal that ruling. ‘After fully studying the decision, my office has concluded that there is no legal basis for appeal,’ ICC chief prosecutor Fatou Bensouda told the UN Security Council during a meeting on Libya.
On November 9th, investigative journalist and human rights activist, John McNamer sent a request to the International Criminal Court to investigate Canada’s complicity in war crimes.
McNamer argues that Canada has “actively and intentionally failed to comply with legal obligations under The Convention against Torture and the Rome Statue” (page 1).
McNamer’s submissions to the ICC include that Canada has transferred detainees to the United States and Afghanistan with full knowledge that the detainees would be in extreme danger of torture and that Canada uses and shares intelligence likely obtained through torture. McNamer provides over 250 documents in support of his allegations.
In order for the ICC to have jurisdiction to investigate Canadians, Canada must be unwilling or unable to genuinely carry out the investigation or prosecution. McNamer contends Canada is unwilling.
As Canada is a party to the Rome Statute, the ICC Prosecutor has the power to initiate investigation proprio motu. There must be a reasonable basis on which to proceed.
It has also been reported that a group of Egyptian lawyers have submitted a complaint to the ICC accusing President Barack Obama of being an accessory to the crimes against humanity committed by the Muslim Brotherhood in Egypt. However, unlike Canada, the United States is not a party to the Rome Statute.
The only way the ICC could acquire jurisdiction to investigate President Obama is through a referral by the United Nations Security Council and the United States is one of five countries with veto power
So, finally United Nations Security Council (UNSC) refused to defer the trial of Kenya’s President and Vice President for one year.(1)The power to defer the proceedings has been invested with the UNSC under Article 16 of the Rome Statute. For purpose of deference, Kenya required total 9 votes according to Article 27 of UN Charter which states that matters except non-procedural require 9 affirmative votes in UNSC including all five permanent members.(2) But, it could gather only 7 votes because other eight members of UNSC abstained from voting which includes USA, UK and France. Whereas China and Russia voted in favor of deferral. The reason cited to defer the trial was that ‘court case is distracting and preventing Kenyatta and Ruto from carrying out their duties. And reference was also made to a terrorist attack in in September at a mall in Nairobi that left over 60 people dead.(3) China’s representative said that ‘Deferring ICC proceedings against Kenyan leaders is not only the concern of Kenya, but also the concern of all African countries. It is indeed an urgent need dictated bythe interest of maintaining regional peace and stability.’ (4) The question this remark raises is that can justice be traded off for peace and stability? what is meaning of peace without justice?
The African nations, led by Rwanda, who proposed the resolution faced strong criticism for the challenge and the way it was forced upon the council i.e. resolution was called as ‘un-necessary’, which created ‘artificial confrontation’ between International Criminal Court(ICC) and UNSC. (5) African countries was using the narrative of discrimination which is unfortunately true to some extent. This is evident from the fact that 20 cases in 8 situations brought before ICC are all from African Region. (6)But I don’t subscribe to the idea that we should let go of one criminal because others are not prosecuted. that reasoning is absurd. And another point to be noted is that out of these 8 situations about 4 situations were referred by those states themselves.
To date, four States Parties to the Rome Statute – Uganda, the Democratic Republic of the Congo, the Central African Republic and Mali – have referred situations occurring on their territories to the Court. (7) visited on 18-11-2013
But that should not blind us to fact that some countries are using ICC and exercising power without bearing any responsibility. Yes! I am talking about USA. But what about the citizens of Kenya. So there was poll conducted according to which 67 percent of 2,060 Kenyans surveyed think that President Uhuru Kenyatta should attend his trial at the International Criminal Court.(8) Apparently, a common man of Kenya doesn’t subscribe to the views of African Union.
The ICC charged Kenyatta and Ruto with crimes against humanity, including murder, forcible population transfer and persecution, for their alleged roles in postelection violence that left more than 1,000 people dead in late 2007 and early 2008. Kenyatta also is accused of responsibility for rape and other inhumane acts carried out by a criminal gang known as the Mungiki, which was allegedly under his control.
So i came across an article. I specially liked the ‘The case of UNSC deferral’ portion which actually makes it clear that diplomacy and play of politics has some, if not more, limitations in light of international law laid down. though, since states are sovereign, this limitation might not produce any desirable interest. And secondly, the principle of individual responsibility in international law is posing new problems as we are witnessing in kenya. where accused persons are at helm of state affairs and were democratically elected and trying to prosecute them at this time doesn’t seem feasible. but we can’t let them go free as they had committed crimes. Thirdly, there is another problem of selective justice i.e. by and large product of notion of sovereignty and economics mixed with politics. we have not came across any head of state from any of the western countries who has been proceeded against except the Nuremberg trials which is a separate category altogether.
Anyways, enjoy reading the article
Saudi Arabia on Friday rejected its freshly-acquired seat on the U.N. Security Council, saying the 15-member body is incapable of resolving world conflicts such as the Syrian civil war.The Saudi discontent stems from its frustration with longtime ally United States. The two are at odds over a number of Mideast issues, including how Washington has handled some of the region’s crises, particularly in Egypt and Syria. It also comes as ties between the U.S. and Iran, the Saudi’s regional foe, appear to be improving following a recent telephone conversation between President Barack Obama and Iran’s new president, Hassan Rouhani.
what it wants to achieve by rejecting the seat?