Uncovered: Not lacking leadership, but other reasons for the axing of Lt. Gen. Ondieki from UNMISS

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“All the peacekeeping missions which have been established after 1992 are complex, multidimensional operations involving military, civilian police and civilian components. Their mandates are also very broad, covering a broad range of issues from traditional peacekeeping, to civilian protection to post-agreement peacebuilding” (International Policy Group, P: 14, 2016).

We have read, seen pictures and footage of the atrocities that happen in July 2016 in Juba as the SPLM/A and SPLM/A-IO went from each other in the stirring conflict in South Sudan, where the two leaders President Salva Kiir and Dr. Riek Machar has gone back to battlefield instead of dialogue. This happen as the Transitional Government of National Unity (TGNU) we’re about to be set-up and the peace-agreement we’re to be honoured by both parties.

Than the skirmishes and battles in the capital started, some of the action happens near the UN House of Juba and the Camp-site of Internally Displaced People together with the looting of the UN World Food Programme there as well. This was all evidence of the lacking management of the Kenyan Military Officer, but now there a report countering that argument for the sacking. It is worth dropping the knowledge to see if the Kenyan Government had it right to feel unjustifiable sacked from his position.  The man that had to fall on his sword was Lt. Gen. Johnson Ondieki.

Ban Ki Moon decision:

“The decision by the Secretary General was argued to have been made based on an independent investigative report conducted by the Danish Major-General Patrick Cammaert on the violence that had occurred in Juba from July 8 to 25 2016. However, after a careful investigation of the situation that surrounded the conflict, the independent report and its recommendations, and the systematic problems in the UNMISS framework, it is evident that the firing of Lieut-Gen Ondieki was not only unorthodox and a blatant violation of UN procedures, powers and processes, but was also an expedient political decision by the Secretary-General to turn the Kenyan soldier into a sacrificial lamb in order to appease and ward off pressures from some Permanent Members of the United Nations Security Council, mainly the United States of America and Britain” (International Policy Group, P: 12, 2016).

“Independent investigations into the Juba conflict have revealed a clear cover-up, with the USA mishandling the safety of its citizens and agents by not offering the proper protection when requested, leading to the violation in the Terrain compound. This investigative report on the circumstances leading to the removal and replacement of Lieut-Gen Ondieki as UNMSS force commander relied on a comprehensive review of official and non-official documents from the United Nations available on its website, UN documents on rules of engagement and procedures governing the code of conduct and dismissal procedures were consulted” (International Policy Group, P: 13, 2016).

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Key Strategic lacking will to act on Commands:

“A UN investigation on the attack showed that it took UN peacekeepers more than 12 hours to intervene, despite being next to the camp. Moreover, the investigation found that the Indian contingent refused to deploy troops or heavy armor to the area of fighting to defend civilians; the Ethiopians slept through the entire incident; while the Rwandan contingent insisted on written approval before acting. Finally, it is only the Rwandan contingent that responded to the violence and protected civilians. The investigation committee recommended several changes to the mission. Whether the UN or UNMISS implemented the recommendations is remains unclear: What is clear is that no action was taken against the Force Commander, the SRSG, or any other senior mission staff” (International Policy Group, P: 17 ,2016).

“Pressure from the UNP5, especially members from USA and UK, made the SG to make the decision without taking into consideration the investigations or recommendations made. The evidence, points to a clear gross violation and misconduct by the Secretary General’s decision, which was not only discriminatory against Lieut-Gen Ondieki, but was also an expedient political decision violating UN procedures and regulations” (International Policy Group, P: 21 ,2016).

“Lieut-Gen Ondieki had no direct control of deployment or response of the troops who were in the areas, according the UNMISS commanding framework. According to the rules of engagement, Lieut-Gen Ondieki could only send an order to the lead commanders who were in Juba, but they did not accept it. Therefore, Ban Ki-moon’s dismissal of Lieut- Gen Ondieki is not only an error in judgment, it is also unjust discrimination and a gross violation of his rights” (International Policy Group, P: 23 ,2016).

Recommendations:

UN Reformed to Ensure Effectiveness: UN Missions in Africa need to be reformed because without fundamental restructuring, particularly to counter UNMISS structural and systemic dysfunction, similar crises are very likely to recur. These reforms are therefore a critical consideration that must feature in future UN mandated missions in Africa.

AMISS – African Mission in Southern Sudan: An Africa Mission in Southern Sudan should be formed to replace UNMISS. A UN and AU-mandated Africa Mission in Southern Sudan (AMISS) may be the best mechanism for peace operations today. Such a mechanism will be more responsive and better anticipate emerging trends and solutions therein and in line with the African Union’s maxim of “African solutions to African Problems” (International Policy Group, P: 38, 2016)

It seems that Lt. Gen. Ondieki we’re picked out because of lose procedures between the different nations and their brigades in the UNMISS operation in the Republic of South Sudan. Is also questionable that the Danish leader Løj pulls itself out before the internal investigations before the Military Leadership are investigated; therefore the blame fall all on the Kenyan Lt.Gen. Ondieki get the blame, instead on the one that we’re on the top who was Løj at the time. Secondly that the leadership of the battalions we’re not reacting to the command and will of the general to get in line when the skirmishes between the South Sudanese forces happen in July.

We are allowed to question Ban Ki Moons reason for the sacking that he didn’t follow procedure and didn’t do a thorough decision when he made arrangement for termination of the contract of Lt. Gen. Ondieki, he we’re even offered a trip to New York for orientation, as he was new in his leadership role in the UMISS in June, so it wasn’t like he had a long time to settle before the battles started again between the South Sudanese forces.

The procedures should have been in place and it seems to be easy to put the blame on the Kenyan General instead of trying to swallow pride and says that the UNMISS needs amends that even been asked for since 2011. Peace.

Reference:

International Policy Group – ‘Children of a lesser God – Report of the investigation into the power politics behind the removal of the Kenyan Force Commander of the UN Mission in South Sudan (UNMISS) – November 2016

Victims of police brutality in Mumias speak out – Interview (Youtube-Clip)

“The brutal search for missing arms in Mumias has been stopped. The order was made by the Mumias West area deputy county commissioner Philip Soi.  This comes after a public uproar on police brutality during an operation to search for 7 guns stolen by armed men last week.  Residents have accused police officers of using unnecessary force. Soi, stated that the police force will employ other alternatives in the search” (Kenya NTV , 2016)

Weekend Prime: FORD Kenya endorses Wetangula as its presidential candidate (Youtube-Clip)

“Ford Kenya’s general council has endorsed its party leader, Moses Wetangula as its presidential flag bearer and given him greenlight to battle for CORD’s presidential flag bearer’s ticket with his coalition partners Kalonzo Musyoka and Raila Odinga. However, the function saw opposition leaders led by Kalonzo Musyoka and Wetangula himself bash Jubilee administration which they accused of condoning and perpetuating corruption blatantly as they warned of dire consequences including bringing the country to a standstill should Jubilee scuttle IEBC reconstitution process” (KTN News Kenya, 2016)

Ruto asks Raila to come clean on graft (Youtube-Clip)

“But even as Odinga defended himself, deputy president William Ruto led Jubilee leaders in challenging the cord leader to be more open on whether he had personally benefited from corruption schemes in the country. The leaders especially want Odinga to explain whether or not, he abetted Mumias sugar company financial woes” (Kenya Citizen TV, 2016)

Population Displacement Continues to Rise in South Sudan (25.11.2016)

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The number of internally displaced persons (IDPs) continues to rise, and has now reached an all-time high of 1.87 million since December 2013, according to recent UN figures.

JUBA, South Sudan, November 25, 2016 –As the armed conflict in South Sudan approaches its fourth year, civilians continue to flee the violence that has gripped much of the country and resulted in vast humanitarian needs.

The number of internally displaced persons (IDPs) continues to rise, and has now reached an all-time high of 1.87 million since December 2013, according to recent UN figures. Over 212,000 IDPs are hosted in UN protection of civilian (PoC) sites across the country.

The IDP population at the PoC site in Bentiu, Unity, has reached more than 108,300, representing an increase of over 14 percent since August, and matching levels not seen since April of this year. More than 7,300 people have arrived at the site since the end of October, largely from Koch, Leer and Rubkona counties.

Insecurity and corresponding increases in humanitarian needs in these parts of Unity are likely driving the increase in displacement to the PoC site. Fighting, particularly in Leer, is likely to continue prompting people to move to the Bentiu PoC site or more stable areas in Unity.

“Worsening trends of insecurity are preventing IDPs from returning to their homes in many parts of the country. While civilians are grappling with deteriorating humanitarian conditions, access constraints are making it more difficult for IOM and relief agencies to deliver aid to the most vulnerable, particularly in recent weeks,” said IOM South Sudan Chief of Mission William Barriga.

As camp manager at the Bentiu PoC site, IOM tracks entries and exits at the site. It also registers IDPs for the efficient delivery of humanitarian services, and supplies relief agencies with data to inform response planning.

Displacement figures also remain high in Wau, Western Bahr el Ghazal, the site of heavy fighting in June and ongoing insecurity. Over 41,000 people, the highest number since June, are sheltering at the PoC site adjacent to the UNMISS base and in collective centres across Wau town, according to IOM-led population counts.

Of the 174 IDPs who arrived at the Wau PoC site last week, all cited security concerns as their core motivation for seeking protection at the site.

Outside the town, IOM and humanitarian agencies have been unable to consistently provide assistance to populations in areas south of Wau, due to bureaucratic constraints and blockages since early July.

Violence also continues to drive increased displacement in other parts of the country, including areas around Yei, Central Equatoria.

Nearly 3 million South Sudanese have fled their homes in the past three years. With over 1.1 million refugees in neighbouring countries, over 362,000 people have fled the country since July, according to the UN Refugee Agency.

IOM continues to coordinate with relief partners to provide multi-sector humanitarian assistance to displaced and conflict-affected people across South Sudan.

South Sudan: PDM Press Statement on recent Massacres following the President’s Inflamatory Rhetoric against Equatorians (24.11.2016)

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Kenya – Worsening drought in Mandera and Samburu (23.11.2016)

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  • Drought conditions are deteriorating particularly in northern Kenya. Around 1.3 million people are reportedly food insecure.
  • Food security is expected to shift from stressed (phase 2 of the Integrated Food Security Phase Classification/IPC) to crisis level (IPC phase 3) for pastoral areas in early 2017. Global acute malnutrition is expected to remain critical, with rates above emergency thresholds.
  • The government of Kenya announced an allocation of 5.4 billion Kenyan shillings (nearly EUR 50 million) to mitigate the effects of the drought.
  • DG ECHO partner organisation Acted launched an emergency appeal for USD 2.6 million for immediate life-saving support to drought-affected communities in the districts of Mandera and Samburu.

Kenya: Press Statement on the Status of the Recruitment of Chairperson, Ethics and Anti-Corruption Commission (21.11.2016)

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MPs turn violent, exchange blows after meeting Interior CS (Youtube-Clip)

“Two members of parliament from Laikipia County engaged in a physical confrontation as they emerged from a peace meeting convened by interior affairs cabinet secretary joseph Nkaissery at harambee house. Laikipia north MP Mathew Lempurkel clashed with nominated MP Sarah Paulata Korere during which they are reported to have exchanged blows and kicks. Both MPs recorded statements with the police accusing each other of assault” (Kenya Citizen TV, 2016)

Advocacy Brief on Kenya: 15th Session of the Assembly of State Parties (ASP) to the Rome Statute of the International Criminal Court 16-24 November, 2016 (21.11.2016)

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Background

At the height of the violence that gripped Kenya after the disputed 2007 elections, the Party of the National Unity and the Orange Democratic Movement, who were parties to the conflict, wrote to the International Criminal Court (ICC) seeking its intervention to stop what they called genocide. A local investigatory commission with international participation found that some actions during the post-election violence likely met the threshold of crimes against humanity and recommended the establishment of a Special Tribunal for Kenya, or in the alternative, the handover of the sealed evidence to the Prosecutor at the ICC.

Efforts to establish the Tribunal were defeated by political forces aligned to suspected perpetrators, hence triggering the handover of evidence to the ICC and the subsequent investigation. Six Kenyans were named in connection with seven crimes against humanity charges; the ICC Pre-Trial Chamber II confirmed charges against four suspects. Two suspects – Uhuru Kenyatta and William Ruto were subsequently elected President and Deputy President, respectively, before their trials could begin at the ICC. Thereafter, the Prosecutor withdrew charges against two suspects – Francis Muthaura and Kenyatta – citing witness bribery and intimidation, as well as failure by the Kenya government to cooperate with the court. The remaining case against Ruto and journalist Joshua arap Sang was terminated citing “intolerable levels of witness interference and political meddling”.

Kenyans for Peace with Truth and Justice (KPTJ) has followed closely the developments around accountability for the crimes committed during the 2007 post-election violence. Since the opening of the investigations in March 2010, we have observed certain shortcomings and challenges on the part of the Government of Kenya, the ICC, the Assembly of States Parties (ASP) and the African Union (AU). This brief seeks to focus on key issues emerging from the situation that the ICC and international justice finds itself in today, while drawing linkages from how the Kenya cases and other ICC cases were managed. KPTJ also makes recommendations on actions that require to be undertaken by the ASP, the ICC and African governments in order to address the emergent challenges.

  1. Engage and Withdraw Simultaneously?

A Contradiction in the Mandate of the AU Open Ended Committee

  1. The 27th ordinary session of the African Union’s assembly in July 2016 issued a decision on the ICC[1] pursuant to a similar one from the previous session[2]. Besides praising the court’s termination of the case against Kenya’s Deputy President William Ruto, the AU outlined a five-point agenda for the Open-Ended Committee of Foreign Ministers on the ICC, which included the following:
  • Engaging with the United Nations Security Council (UNSC) before the January 2017 AU Summit and before the 15th Assembly of State Parties in November 2016.
  • Maintaining the earlier decision from January 2016, to develop a comprehensive strategy to inform the actions of AU member states that are party to the Rome Statute; a strategy that includes collective withdrawal from the ICC.
  • Concluding a review of the ICC’s interpretation of Article 93 of the Rome Statute regarding the compulsion of unwilling witnesses to testify, with a view to inform debate at the 15th
  • Conveying the message that AU member states object to the inclusion of language requiring the UNSC to mandate UN peace-keeping missions to enforce arrest warrants in Africa.
  • Utilising the AU Mission in Brussels, Belgium, as the secretariat to the Open-ended Ministerial Committee and provision of institutional support to the African Group in The Hague, Netherlands, to ensure effective coordination of its activities.
  1. The AU has since held a meeting with the UNSC in September 2016 to present pre-formulated terms developed by the Open-ended Ministerial Committee as conditions to keep African States as parties to the Rome Statute. These conditions were as follows[3]:
  • Immunity under the ICC’s Rome Statute for sitting heads of state and government as well as senior officials;
  • Intervention of the ICC in cases involving African states only after those cases have been submitted to the AU or AU judicial institutions; and
  • Reduction in the powers of the ICC Prosecutor.
  1. Recent developments have seen South Africa, Burundi and The Gambia commence processes to withdraw from the ICC; seemingly as part of actualising the intention cited in the agenda of the Open-ended Ministerial Committee. These actions expose the agenda by the AU to be disingenuous and presupposes that the deliberations within the ASP would be futile.. The wave of withdrawals occurs against a counter-wave of support for the Court by countries including Cote d’Ivoire, Nigeria, Senegal, Sierra Leone, Tanzania, Malawi, Zambia and Botswana[4]; an indication that the strategy for mass withdrawal does not enjoy the consensus suggested by the AU decision of July 2016. These countries have suggested that concerns expressed by African states are not insurmountable and can be addressed within the framework of the ASP. Their support for the ICC underscores the fact that the obligations under the Rome Statute are State obligations and not AU obligations; as such, decisions on withdrawal will be based on national interest that cannot be assumed by the AU.
  1. Furthermore, the strategy for AU member states to withdraw undermines the other outlined agenda items of engagement with the ASP, such as the review of the interpretation of Article 93 of the Rome Statute and the enforcement of arrest warrants. Such contradictory actions raise the question of whether the AU is negotiating ICC reforms in good faith.
  1. In light of the foregoing, KPTJ recommends that:
  • African States abandon and disregard calls for mass withdrawal from the Court and instead consolidate the member bloc to advance their concerns within the bounds of the ASP in deliberations based on good faith.
  • African states should continue to publicly reaffirm their support for engaging with the ICC through the ASP and prevail on the AU to adjust its engagement strategy accordingly. We applaud the statements made by Cote d’Ivoire, Nigeria, Senegal, Sierra Leone, Tanzania, Malawi, Zambia and Botswana.
  • An ICC Liaison Office should be established at the AU headquarters in Addis Ababa to facilitate more productive and sustained communication between African States and the ICC as part of restoring a relationship that has become plagued by mistrust and misunderstandings.
  1. Absence of Accountability?

Peace, Security and Stability

  1. The characterisation of the ICC as undermining the peace and security of states or threatening their stability has become a recurring theme by those advocating disengagement or withdrawal from the ICC. In its notice of withdrawal, South Africa claims that its aspirations for the peaceful resolution of conflicts were being hindered by its obligations under the Rome Statute[5] to arrest Sudanese President Omar Al Bashir when he attended the June 2015 AU Summit in Johannesburg. Kenyan government officials have also previously described the cases against Kenyatta and Ruto as an existential threat to peace and stability.
  2. A closer scrutiny of this assertion in the face of ongoing conflict situations suggests the contrary. The absence of accountability processes does not necessarily facilitate peaceful resolution of conflicts; the South Sudan and Burundi conflicts instead point to protagonists willing to escalate violence, even in the context of peace negotiations. Burundi and The Gambia have commenced processes to withdraw from the ICC at a time when their respective governments stand accused of acts of repression and mass human rights violations. Rather than advance the cause for peace, the clamour for withdrawal from the ICC is playing into the hands of those wary of the prospects of accountability in the aftermath of conflict. Even more concerning is an apparent trend of rising post-election violence, such as that witnessed in Kenya previously and in Gabon currently, or violence stemming from efforts to instal third-term incumbencies in the Democratic Republic of Congo (DRC) and Burundi. Such trends are bound to persist in the absence of mechanisms for accountability, of which the ICC is a critical component.
  3. The assertion that the African Court of Justice and Human Rights (African Court) and its proposed expanded criminal jurisdiction through the Malabo Protocol would fill in any void created by a mass withdrawal from the ICC is erroneous. The African Court is a distant prospect for addressing the impunity gap: it is far from being operational. Since 2013, only five states namely Benin, Kenya, Congo, Guinea Bissau and Mauritania have signed but not ratified the Malabo Protocol, which requires the ratification of 15 states to begin operations. Kenya is the only state thus far that has made a financial pledge of USD 1 million to operationalise the court — a far cry from the resources required for a court of broad jurisdiction consisting of a mandate on human rights as well as international law and interstate disputes. It has previously been estimated that a singular international criminal trial costs USD 20 million to undertake. In addition, the protocol contains contentious provisions that undermine its viability as an alternative platform for international crimes, the most notable being the clause of immunity for sitting heads of state and senior government officials. As a testament to the inability of the African Court to be an immediate replacement of the ICC as desired by some, even South Africa through its Justice Minister has indicated that it will ask for a review of the Malabo Protocol to address contentious issues. Furthermore, limited progress has been made towards establishing national mechanisms that can sufficiently undertake the obligation of accountability for international crimes.
  4. KPTJ recognises the pursuit of justice in conflict and post-conflict settings as an essential pillar of rebuilding democracies and restoring rule of law. These are the pathways to lasting peace, security and stability. Rather than push to void international justice mechanisms after the conflict to facilitate mediation, we recommend that:
  • African states fully implement and consistently apply already established norms on democracy, peace and security as a preventative measure to conflict including: the African Charter on Human and Peoples’ Rights; the African Charter on Democracy, Elections and Governance and; the African Governance Architecture.
  • African states must critically reflect on and address the issues of the African Court’s capacity, accessibility, legal standards outlined for crimes under international law and expunge provisions conferring immunity on sitting Heads of State and senior government officials. This process must not be rushed or predicated on a manufactured crisis precipitated by a strategy of mass withdrawal from the ICC.
  • African states should establish robust and credible national mechanisms to address the accountability question at first instance and in complementarity with regional and international mechanisms. They must also broaden their policy considerations to include comprehensive reparation programmes for victims of international crimes.
  • Disparity between State Obligations and Reality?

A look at State Cooperation

  1. The Kenya and Sudan cases have exposed the frailties within the Rome Statute framework in as far as state cooperation is concerned. These cases have laid waste to the presumption that States will willingly engage with the court in the face of cases seeking to prosecute sitting heads of state, their deputies or powerful elites in close proximity to power. State cooperation has only demonstrably worked in instances where the target for prosecution is a vanquished foe of conflict as seen in the cases of Uganda and Cote d’Ivoire, that are fast advancing a notion of “victor’s justice”. This challenge is further compounded by the fact that the final recourse for addressing the lack of state cooperation rests with the ASP. The ASP being a political organ of the Rome Statute is influenced by political rather than purely legal considerations in making its decisions, which makes the issue of resolving the non-cooperation of states problematic. A final challenge to state cooperation is the failure of the United States, China and Russia to ratify the Rome Statute while also being members of the UNSC with the power of referral of matters to the court. This has created the notion of double standards within the international justice system and emboldened other states to disregard cooperation with the court.
  2. KPTJ calls on the members of the UNSC who have not ratified the Rome Statute to display leadership on State cooperation with the court by first ratifying the Statute and utilising its discretion on referral and deferral in a manner that adheres to the objectives of the Statute. We further wish to reiterate that state cooperation must denote effective cooperation that facilitates the mandates of the respective organs of the court and not feigned cooperation which creates the perception of facilitating the court but in fact consists of using procedural and technical obstacles to undermine the court. We call on the ASP to adopt a consistent and objective legal standard in the assessment of state cooperation.
  3. Are there lessons to be learned?

Taking stock of the experience in the Kenya cases

  1. The Kenya cases and the manner of their termination carry critical lessons for consideration to inform future actions by the court and the content of reforms within the strategic plans of its respective organs. The Office of the Prosecutor (OTP) as well as the bench on various occasions decried the instances of witness tampering and intimidation as well as non-cooperation by the state in responding to the OTP requests for information and a failure to execute ICC warrants of arrest with respect to three Kenyans suspected of witness tampering. This in fact has led to a finding of non-compliance against Kenya and led to its referral to the ASP under article 87(7) of the Rome Statute. In the midst of all this, was an unprecedented and disruptive diplomatic effort that deliberately exerted political pressure on the court with a view to influencing the outcome of the Kenya cases. It is arguable that these diplomacy efforts yielded the concession of excusing President Kenyatta and Deputy President Ruto from continuous presence at their trial and that the current wave of withdrawals from the ICC on the basis of an apparent bias by the court against Africans are a fallout from these diplomatic efforts. The capitulations of the cases have also pointed to significant flaws in the investigative and prosecutorial approaches that informed the development of the cases and must lead to some introspection from the relevant mechanisms. The fact that the Trust Fund for Victims is yet to commence operations in Kenya cannot go without mention.
  2. KPTJ urges all the organs of the court to reflect on these experiences and take due cognisance of the following lessons and recommendations:
  • The ICC, particularly the ASP, should do more to ensure that it does not allow political statements to interfere with the judicial independence of the Court.
  • The ICC should ensure that it takes steps to respond to messages of a political nature and correct inaccurate statements in a timely manner. In addition, it should ensure that such key messages reach the right audiences, including victims and affected communities.
  • The Court should continue to build its relationship with African States that openly support the mandate of the ICC; in addition, the ICC should do more to improve its relationship with, and image at, the AU.
  • The Trust Fund for Victims should commence operations in Kenya, as victims have received little to no assistance from the Kenyan government.
  • The Prosecutor should carefully consider when to request ‘summons to appear’ as opposed to ‘warrants of arrest’ and take into account the individual circumstances of each accused person in doing so, particularly their potential to intimidate witnesses and interfere with evidence.
  • Swift action should be taken by the Prosecutor and the Court in instances of non-cooperation by States Parties. Any instances of non-cooperation should be resolved as speedily as possible, in such a manner that the outcome of proceedings on non-cooperation can be applied to strengthen an ongoing case and not be delayed to the point that the outcome is only of academic significance.
  • The Prosecutor should continue to carry out a review of its investigative strategies and methods in order to improve its chances of success at trial.
  • The Prosecution should ensure that its staff are able to spend as much time as possible on better understanding the context and nuances of a given situation country.
  1. Pursuit of reform without prejudice?

UN Reform vs ICC Reform

  1. The unique role played by UNSC in referral and deferral of cases before the ICC means that the debates on reforming the court and reforming the UN and in particular the UNSC have inevitably intersected. We have witnessed both undertones and overt accusations of imperialism and undue influence directed at the court on account of cases on Africa referred to it by the UNSC (Libya and Sudan). Arguments made to amend the Rome Statute to confer immunity for sitting heads of state and senior government officials are laced with grievance against the UNSC permanent five members possessing a de facto immunity from prosecution under the ICC on account of their veto power. The end result is a misdirected effort to amend the Rome Statute or in the extreme withdraw from the ICC on the basis of perceived excesses that are better addressed by engaging the broader debate of UN reforms.
  1. While KPTJ acknowledges the slanted relationship of the UNSC with the court and supports a robust conversation on its reforms, we call on states not to misdirect the agenda of reforming the UNSC into discussions on improving the functions of the court and occasion amendments to the Rome statute that sacrifice the future of the court as part of a bargaining process on UNSC reforms. We call on African states in particular, to distinguish the broader question of UN reforms as enshrined in the “Ezulwini Consensus” from the question of reforming the Rome Statute and reflecting on the performance of the court. We call upon African member states to the Rome Statute not to sacrifice the promise of justice for victims of atrocity crimes at the altar of grievance against the unequal power relations represented by the UN Security Council.

end/kptj/16.06.2016

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About KPTJ:

This brief was prepared by Kenyans for Peace with Truth and Justice (KPTJ), a coalition of Kenyan citizens and over 30 organisations working in the human rights, governance and legal fields that came together during the crisis over the disputed results of the 2007 presidential election to seek truth and accountability for the elections and the widespread violence that followed; and who continue to work closely with the victims of that period. It is a brief update on the situation in Kenya as pertains to pursuing accountability for the crimes against humanity committed during the 2007-2008 Post-Election Violence as well as its adherence to its obligations under the Rome Statute.

[1] Assembly/AU/Dec.616 (XXVII)

[2] Assembly/AU/Dec.590(XXVI)

[3] Press Release: “UN/African Union: Reject ICC withdrawal”. Available here: http://www.khrc.or.ke/2015-03-04-10-37-01/press-releases/552-un-african-union-reject-icc-withdrawal.html

[4] Article: “Which African states slammed Burundi, South Africa and Gambia’s withdrawal from ICC?” Available here: http://www.ibtimes.co.uk/which-african-states-slammed-burundi-south-africa-gambias-withdrawal-icc-1589711

[5] https://www.justsecurity.org/wp-content/uploads/2016/10/South-Africa-Instrument-of-Withdrawal-International-Criminal-Court.jpg