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‘ICC Outlines Kenya Probe Plan’ (Al-Jazeera, 1 April 2010)

April 3, 2010 Leave a comment

This media report deals with the evolving role of the International Criminal Court (ICC) in achieving world order as it seeks to deal with political violence that took place in Kenya after the election in 2007.  (‘ICC Outlines Kenya Probe Plan’ (Al-Jazeera, 1 April 2010))  But in order to deal with that, we must get a brief historical overview, especially since Kenya is not well-known among most students in Australia, despite that the fact the current US President, Barack Obama, can trace his heritage back to this country .  First, let us look at the map of Kenya. 

Kenya is an East African country that borders Somalia, Ethiopia, Sudan, Uganda and Tanzania.  At least four of its neighbours are embroiled in widespread political violence.  To the northwest, the Sudanese government has been fighting a civil war against rebels in the south that led to accusations of war crimes and genocide, and the ICC currently has an arrest warrant for one of its government minister (Minister for Humanitarian Affairs) for Crime Against Humanity.  To the east, in Somalia civil war is continuing between the internationally recognised government in Mogadishu and the Islamist rebels.  On top of that, there are major piracy problems off the coast of Somalia that has drawn much international attention.  Recent media reports suggest that the Islamist rebels (Al-Shabaab) have actually been quite effective in restoring some semblance of law and order and civic governance, but is still currently shunned by the world community due to its alleged links with Al-Qaeda.   To the north, the Ethiopian government has been sending troops into Somalia to fight against the Islamist rebel government in Somalia, and there has been accusations of war crimes levelled against its troops.  Situation has been settling down in Uganda following decades of civil war and political violence after the rule of the violent dictator, Idi Amin.  Multi-party elections was successfully held in 2005, and there are continuing discusssions on the establishment of a war crimes court to with the legacy of its violent past.  The ICC actually has issued arrest warrants for five war crimes suspects from Uganda in 2005, but four of them are still at large, most notably that of Joseph Kony, leader of the notorious Lord’s Resistance Army.  Finally, an oasis of relative stability resides in Tanzania.  In fact, Tanzania has in recent years been an elected member-state of the UN Security Council, a clear sign of its relative political and economic stability.  In a nutshell,

  • Kenya resides in a part of Africa that has experienced major political upheavals.  This must have repurcussions for the political stability for Kenya, considering the porous nature of its borders.  A good example of would be the recent report of skirmishes between the Kenyan army and Al-Shabaab militias from Somalia, which points to poorly demarcated border between Kenya and Somalia being a factor in the tension between the two countries.  (Stratfor report, dated 1 April, 2010)
  • Despite its best effort, many wanted war crimes suspects by the ICC still remain at large.  This appears to indicate the continuing limit of its effectiveness.  However, ICC arrest warrants are often part of the overall discussions in conflict resolutions in that region, as evidenced by Joseph Kony’s specific requests for the rescinding of arrest warrants by the ICC as part of his conditions for ceasefire.  This suggests that in an organic way, the ICC is actually more effective than meets it first appears. 

Let us turn our attention to the post-election violence in 2007 in Kenya that has since drawn the direct attention of the ICC.  This is how IRIN summarises the events.  (IRIN is the humanitarian news and analysis service of the UN Office for the Coordination of Humanitarian Affairs, UNOCHA.) 

Kenya suffered its worst humanitarian crisis since independence following the December 30 results of a hotly-contested presidential election. Opposition leader Raila Odinga and his supporters rejected the declared victory of incumbent Mwai Kibaki, alleging it was the result of rampant rigging. Protests degenerated into widespread violence as decades of economic frustration and ethnic rivalry spiraled out of control. In the days immediately after the results were announced, gangs of youths blocked Kenya’s main roads and set fire to hundreds of homes of perceived ‘outsiders’. In all, more than 1,200 people were killed and some 350,000 displaced into temporary camps, with an equal number seeking refuge with friends or relatives. Agricultural activity was seriously hampered as farmers moved away from their fields, posing long-terms risks for the country’s food security – already threatened by drought and soaring fertiliser prices. The education and health sectors were also compromised by the large-scale displacement of professionals.

This wasn’t the kind of post-election violence that one might witness in Baghdad, where hundreds of people might die from a terrorist strike in a supermarket, but a fullscale upsurge of political violence that has led to the large scale displacement of people in hundreds of thousands (i.e. refugee camps) plus major disturbance to the civic institutions of the country.  This included key civic sectors such as health, education and judiciary.  (Note: Usahidi.com gives a really good map overview of the spread of violence in the country in 2007-2008.  (http://legacy.ushahidi.com/))  This has meant, among other things, the inability of the current judicial system in Kenya to deal with the scale of criminal cases that resulted from the post-election violence, particularly the ones that falls under the definition of ‘Crimes Against Humanity’. 

Let us quickly revisit the definition of ‘Crimes Against Humanity’.  According to the Rome Statute of International Criminal Court, ‘Crimes Against Humanity’ can be defined as

particularly odious offences (that) constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Murder; extermination; torture; rape and political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of falling into the category of crimes under discussion.

Note that I have underlined parts that apply particularly to Kenya.  What separates violent crimes from ‘crimes against humanity’ are the questions of scale and the question of policy.  The post-election violence in Kenya in 2007-2008 was of such a large and systematic scale that credible allegations of crimes against humanity arose.  As it happens, ‘crimes against humanity’ falls under the jurisdiction of the International Criminal Court.

The International Criminal Court prosecutor has pledged to focus on victims as he prepares to begin an investigation into Kenya’s 2007-08 post-election violence.

Luis Moreno-Ocampo told Al Jazeera on Thursday that he assures protection to the victims and witnesses of the violence…

Moreno-Ocampo said he has a list of 20 possible suspects made up of political and business leaders and that he will prosecute “those most responsible”

Louis Moreno-Campo, chief prosecutor of the International Criminal Court, is making impressive promises during his interview with Al-Jazeera.  However, the International Criminal Court will be facing some very difficult challenges in fulfilling its promises.  Some of its twenty suspects are members of the current Kenyan government.  The ICC will face a lot of difficulties in its investigations if it does not receive the cooperation of the Kenyan government.  Questions must also arise as to the ability of the International Criminal Court to protect its own witnesses.  Moreno-Campo has stated he will not rely on Kenyan government to protect its own witnesses.  This means it will need to be careful in how it distributes its limited financial resources as it grants witness protection. 

ICC’s track record in Sudan and Uganda has been questionable.  Let’s hope that Moreno-Campo will be able to do better in Kenya. 

‘Crimes of the colony brought to trial’ (Sydney Morning Herald, 2 April 2010)

April 3, 2010 Leave a comment

A little trip down the memory lane.  Welcome to the history of criminal justice in colonial Sydney, New South Wales.

Crimes of the colony brought to trial‘ (Sydney Morning Herald, 2 April 2010)

Professor Bruce Kercher and researcher Brent Salter, from Macquarie University, have for the first time compiled the goings-on in NSW’s earliest courts into a fat and entertaining tome called The Kercher Reports: Decisions of the NSW Superior Courts, 1788 to 1827.)

Sydney, Australia began as a convict colony for the convicted criminals from England.  It was not surprising that law and order was a major problem during the early years of colonial New South Wales.  The colony of New South Wales, the forerunner to the subsequent nation of Australia, was established on the legal assumption of terra nullius.  That meant that there were no prior legal system in place.  Today it is commonly accepted that this was legal fiction.  Nonetheless we must understand this in order to appreciate how the early colonial administration imposed law and order in a colony filled with convicted criminals.

The women of the First Fleet had arrived in Sydney Cove on February 6, 1788, sparking uproarious celebrations. With admirable foresight, the judge advocate, David Collins, read the Act and Letters Patent establishing the courts the following day.

The first colony in Australia inherited Crown laws of England in its fullness.  So, the first court in Sydney was an extension of English legal sovereignty into a distant colony.  Court in the early days of the colony was a very place from courts of today.

The judge advocate in charge was not legally trained, his fellow officers were soldiers or ”fit and proper persons” appointed by the governor. In the court of appeal, the governor himself – another legal amateur – presided solo over disputed decisions of the court of civil jurisdiction.

And there were no appeals from the court of criminal jurisdiction – only the governor’s mercy.

Many of the civil legal rights that we can take for granted today did not exist back then.  Death penalties and corporal punishment like lashing were dealt out for petty crimes like theft of a linen cloth and pieces of bread.  It would be decades later before court officer positions were filled with legally trained professionals.  Sydney was essentially a colony that existed under quasi-military rule, where the rule of law was only beginning to take root.

‘They are making up law on the spot. They probably didn’t have the power but they did it anyway,” says Kercher. ”It kind of says, ‘We are going to take law really seriously here, even if it’s not the English law.’ …”

So, what were the cases that typically preoccupied the early years of colonial Sydney?  There were the usual crimes like theft, assaults, sexual assaults and public drunkenness.  There was also a gradually increasing number of Aboriginal defendants, who undoubtedly had the extra difficulty of dealing with an alien legal system as well as common racism within nineteenth century England.  It is important, however, to note that at times the imposition of Crown law also protected individual Aborigines from settlers violence by recognising them as full subjects of the Crown.

As late as 1827 white defendants were arguing, although unsuccessfully, that they could not be tried for killing Aborigines because the victim was not a subject of the Crown. (The barrister who made that argument, Dr Robert Wardell, later established a newspaper before being shot by bushrangers near his estate in Petersham.)

Also notable was the prominent role religion played in the operation of criminal trials in the early days of colonial Sydney.  This can be seen in the first rape trial involving a soldier, Henry Wright, as a defendant.

In the first rape case a soldier, Henry Wright, was sentenced to death but then pardoned and sent to Norfolk Island for assaulting an eight-year-old girl called Elizabeth Chapman at Lane Cove – or, as the minutes put it ‘‘for not having the fear of God before his eyes but being moved and seduced by the instigation of the devil’‘. The girl had to show she knew her catechism and recite the Lord’s Prayer before she gave evidence at the trial.

The preservation of these court records and respective correspondence helped to give us insights into the social discourses within the early years of colonial Sydney.  As H.V. Evatt once wrote, the courts were the earliest forum of the colony.

“They had no competitors as a means of expressing individual or public grievances. There was no legislature, no municipal government, no avowed political association or party, no theatre, and no independent press,” Evatt wrote.