Kenya's ICC cases debated in Washington

Stephen Lamony (left), an advisor on African Union and United Nations matters for an NGO that works with ICC and David Bosco an editor of a US foreign policy journal during the debate. KEVIN KELLEY | NATION 

By KEVIN J. KELLEY
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Supporters and critics of the International Criminal Court's Kenya prosecutions traded jabs in a debate held Tuesday at a university in Washington.

Neither of the two principals – the ICC and the Kenyan government – was represented on a four-person panel whose members presented conflicting views on issues of witness intimidation, political interference by outside parties and the impartiality of today's system of international justice.

(Read: US groups to debate Kenyan ICC cases)

“The ICC has shot itself in the foot,” declared Regina Njogu, a Kenyan who practices human rights law in the United States.

She accused the court of failing to honour the presumption of innocence and of bribing and coaching witnesses to give false testimony.

ICC investigators have “colluded with civil-society organisations” and have paid Kenyans to testify against the country's leaders, she charged.

Ms Njogu suggested that the ICC is being manipulated by the European Union, which, she said, supplies 60 per cent of the court's funding. “That kind of financial muscle is connected to this interference,” she charged.

Those allegations were rejected by two of the other panelists – Michael Greco, a former president of the American Bar Association, and Stephen Lamony, an advisor on African Union and United Nations matters for an NGO that supports the work of the ICC.

“You've made statements I believe are not fact-based,” Mr Greco told Ms Njogu.

It is the Kenyan government that has created “a climate of fear” that has led many prosecution witnesses to withdraw from the cases against President Uhuru Kenyatta and Deputy President William Ruto, Mr Lamony said.

Mr Greco added that the Kenyan government has given “no cooperation whatsoever” in regard to the ICC's efforts to obtain official documents it says are germane to the cases.

He also recalled that Kenya had supported efforts to hold heads of state accountable for criminal actions when it held a seat on the UN Security Council in the 1990s.

Mr Greco said it is inconsistent for Kenya to have favoured international prosecution of the head of state of the former Yugoslavia and to oppose it in regard to its own national leaders.

David Bosco, an editor of a US foreign policy journal and author of the recently published book “Rough Justice: The ICC in a World of Power Politics,” staked out a position midway between the two sides.

“I'm on the one hand fairly unsympathetic to Kenyan government,” Professor Bosco said. “It's doing what it can to make sure these cases fall apart.”

“But,” he added, “I'm quite sympathetic to the idea that we have a double standard of international justice. The ICC takes account of politics in regard to where it decides to investigate. It hasn't investigated in Afghanistan because it knows US and NATO would be hostile to that.”

Mr Lamony disputed claims that the ICC is biased against Africa. He noted that five of the Africa cases brought before the court – those involving parties in Uganda, Democratic Republic of Congo, Central African Republic, Cote d'Ivoire and Mali – were initiated at the request of those countries' governments.

Mr Greco and Prof Bosco both pointed out that the ICC had intervened in Kenya under terms set by a Kenyan commission. It had stipulated that the ICC should become involved only if Kenya's national judicial institutions failed to prosecute those believed responsible for the post-election violence six years ago.

“There still have not been any serious investigations of that violence,” Prof Bosco observed.

He noted later in the debate that the US judicial system has likewise failed to investigate “enhanced interrogation” techniques authorised by the Bush administration for prisoners in Iraq.
Ms Njogu emphasised at the outset of the debate that she was not speaking officially on behalf of the Kenyan government.

Kenya's Deputy UN Ambassador Koki Muli Grignon had been advertised by organisers of the event as a confirmed participant.

But Mr Greco explained that Ambassador Grignon was not able to attend because the head of Kenya's UN mission, Ambassador Macharia Kamau, was out of the United States and protocol required her to remain on post in New York.

The debate was sponsored by the American Bar Association, a Washington-based Africa diaspora group and by an Africa-focused student group at American University, the venue for the nearly two-hour forum attended by about 125 people.