The case against ICC
The International Criminal Court (ICC) early in April, 2016, threw out the case against the Vice-President of Kenya, William Ruto and Joshua Arap Sang, a Kenyan journalist.
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Vice-President Ruto had been charged by the court for crime against humanity and war crimes. Sang’s charges were involving in murder, persecution and facilitating transfer of populations.
Both Vice-President Ruto and Sang had pleaded not guilty.
In dismissing the charges, two of the judges ruled in favour of the accused persons; one dissented. The accused persons were, however, not acquitted. There is the possibility of a retrial.
Judge Chile Eboe-Osuji, presiding, said the case was a mistrial because of “troubling incidence of witness interference and intolerable political meddling.”
“There is concern that the requirement of proof of aggregate complicity for purposes of crimes against humanity… may result in miscarriages of justice in this court,” Justice Eboe-Osuji said.
“A case may collapse, regardless of the fact of widespread or systematic attack against a civilian population and regardless of the complicity of the accused in the attack,” he added.
The other judge, who also decided in favour of the accused, Robert Fremr, said there was insufficient evidence for the prosecution to continue with the case.
According to the dissenting judge, Olga Herrera Carbuccia, the prosecution case had not broken down and added that there was enough evidence for the case to proceed.
The case under review followed the post-election widespread violence that resulted in the death of over 1,300 Kenyans in 2007.
It started after the opposition leader, Raila Odinga from the Luo tribe, had accused the then president, Mwai Kibaki, a Kikuyu, of rigging the 2007 elections.
Charges of crimes against humanity and war crimes had been levelled against President Uhuru Kenyatta of Kenya but the ICC dropped the charges about eight months ago.
In all, six Kenyans were charged, originally, in connection with the 2007 election-related violence. All the charges have been dismissed.
ICC indictment and prosecution of African leaders and individual Africans have provoked the African Union (AU) to prepare plans for ultimate withdrawal from the ICC.
One of the arguments against the ICC by the AU and others is that the international court, founded in 1998 and active since 2002, is founded on the Statue of Rome that can be regarded as a vague legal instrument.
Critics have claimed, for example, that the Statue of Rome does not state the exact number of victims required for the charge of genocide.
Another example is the well-known argument that the ICC has unfairly targeted only Africans for prosecution.
So far, eight African countries have been investigated and indicted by the ICC. The only country that has also been investigated is Georgia in Eastern Europe.
There is also the case that the ICC does not have a court of appeal, such as a supreme court, to which appeals from the ICC should go.
It has also been contended that the ICC lacks a legislature that should constantly review the Statue of Rome.
Some critics see the decision of the ICC to admit Palestine into the organisation as a flaw. They have argued that Palestine is not a state.
Mrs Fatou Bensouda, the ICC Chief Prosecutor, has responded to some of the criticisms made against the international court.
She has stated that cases referred to the ICC were those that African countries were not willing to prosecute.
According to her, the ICC takes on cases referred to it by the Security Council of the United Nations and the country of origin.
In answer to the argument that the ICC has no legislature and an appeal court, some experts have maintained that ICC is a new and young organisation that must be allowed to operate, learn by experience and improve.
On admission of Palestine to the ICC as a member state, the question is whether the ICC, with Mrs Bensouda as chief prosecutor, was right in deciding favourably on the admission of Palestine into the ICC.
As of now, Palestine, as an ICC member, could file charges of genocide against Israel.
Whether the ICC is right on admission of Palestine into the organisation is a question that should be left to international law experts.
It has been realised that the ICC is a very important international organisation that has come to fill a vacuum.
The following recommendations have been made to help the organisation to improve:
The ICC itself should begin consultations with Africans and African leaders – to gain a better insight into African problems and help Africa to appreciate the ICC’s work, how it functions, nature of its work and why it is a critical international body in the fight against impunity.
The ICC must improve and be open and transparent in its activities; and
To complement the ICC, each African country must develop its legal system to make it capable of trying cases such as genocide, war crimes and crimes against humanity.
