Springer Series in Transitional Justice Series Editor: Olivera Simic More information about this series at http://www.springer.com/series/11233
Lionel Nichols The International Criminal Court and the End of Impunity in Kenya
Lionel Nichols Honorable Society of the Inner Temple London, England Faculty of Law University of Tasmania Tasmania, Australia ISBN 978-3-319-10728-8 ISBN 978-3-319-10729-5 (ebook) DOI 10.1007/978-3-319-10729-5 Springer Cham Heidelberg New York Dordrecht London Library of Congress Control Number: 2014951718 Springer International Publishing Switzerland 2015 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)
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Acknowledgements As might be expected for a piece of work which was five years in the making, its completion would not have been possible but for the generosity of a great many persons, the most significant of which I would like to take this opportunity to acknowledge. First, I would like to thank all of those who so generously provided the funding for this research, without which this project would not have been possible. In particular, I would like to thank the Rhodes Trust for funding tuition at the University of Oxford and providing such an enriching community during my studies. In particular, I am extremely grateful to Warden Don Markwell for the outstanding support he provided throughout this project. Special thanks also to Don Ferencz and the Planethood Foundation for their generous funding of the Global Justice Research Fellowship at St. Anne s College. I also wish to acknowledge Lincoln College and the Faculty of Law for their assistance in funding my fieldwork. I am especially thankful to all of those involved in establishing the Tim Hawkins Memorial Scholarship and thereby affording me the opportunity to enter the world of international criminal law. I also owe a great deal of thanks to the many people who provided such helpful guidance, advice, supervision and feedback. In particular, I wish to acknowledge the contribution of Dr. Phil Clark, who was involved in this project from the very beginning and was heavily influential in transforming a thread of an idea into this completed manuscript. I am tremendously grateful to Phil for his outstanding academic input, practical advice and good humour throughout this project. I also owe a great deal of thanks to Dr. Fernanda Pirie for so adeptly guiding me through to the completion of this work. Special thanks also to those who provided such insightful and helpful feedback on my work at various stages, including Professor David Anderson, Professor Dapo Akande, Professor Daniel Branch and Dr. Gabrielle Lynch. I also wish to acknowledge the contributions of the Oxford Transitional vii
viii Acknowledgements Justice Research network, the Centre for Criminology, the Centre for Socio-Legal Studies and the British Institute in East Africa. Thank you also to all of those in Kenya, The Hague and elsewhere who so generously gave up their time in answering my questions and assisting with my research. Special thanks to Francis Okomo-Okello for the active role he played in this regard. Most of all, however, I am most grateful to the many Kenyans who helped this dogo mzungu feel so welcome in their country. Finally, I owe the greatest thank you of all to Ekaterina Aristova, whom I met during the early stages of this project and by its completion had become my wife. I am most grateful for her love and support throughout this project.
Contents 1 Introduction... 1 1 The Prosecutor s Promise... 2 2 The Effectiveness of International Criminal Justice... 4 3 Methodology... 8 3.1 Scope... 8 3.2 Research Method... 9 3.3 Assessing the ICC s Impact... 11 4 Ending Impunity... 12 4.1 The OTP and the End of Impunity... 13 4.2 The Ending of Impunity for Kenyans... 14 4.3 Assessing the End of Impunity... 16 5 Precursors for Positive Complementarity... 17 6 Structure of Project... 20 Bibliography... 24 2 The Strategy of Positive Complementarity... 29 1 Origins of Positive Complementarity... 30 1.1 Complementarity and the Rome Statute... 30 1.2 The Birth of Positive Complementarity... 31 2 OTP s Understanding of Positive Complementarity... 32 2.1 The Two Dimensions of Complementarity... 33 2.2 Strategy for Encouraging Prosecutions... 34 3 Positive Complementarity in Practice... 38 3.1 Early Years and Negative Complementarity... 38 3.2 Success Stories?... 40 3.3 The Shadow Side of Complementarity... 42 4 Conclusion... 43 Bibliography... 44 ix
x Contents 3 Kenya s Post-Election Violence and History of Impunity... 47 1 Kenya s Post-Election Violence... 48 1.1 Disputed Presidential Elections and the Road to Violence... 48 1.2 Causes of the Violence... 51 2 History of Institutionalised Impunity... 53 2.1 Colonial Era... 53 2.2 Post-Independence... 55 2.3 The Institutionalisation of Impunity... 59 2.4 Culture of Impunity... 61 3 Conclusion... 64 Bibliography... 65 4 From Nairobi to The Hague... 69 1 Phase One: Commencement of Preliminary Examinations (February 2008 July 2009)... 70 1.1 Monitoring the Situation... 70 1.2 The Waki Report and the Sealed Envelope... 71 1.3 Strike One... 72 2 Phase Two: Encouragement of Domestic Prosecutions (June 2009 November 2009)... 74 2.1 The Complementarity Contract and the Delivery of the Sealed Envelope... 74 2.2 Strike Two and the Division of Labour... 75 3 Phase Three: ICC Investigations (December 2009 December 2010)... 78 3.1 Strike Three and Investigations Proprio Motu... 78 3.2 Continued Encouragement of Domestic Proceedings... 80 4 Phase Four: ICC Pre-Trial Stage (December 2010 March 2013)... 82 4.1 The Ocampo Six... 82 4.2 The Ocampo Four... 84 4.3 The Ocampo Three... 85 5 Conclusion... 86 Bibliography... 87 5 Prosecuting Perpetrators... 91 1 A Yardstick for Success... 91 2 The Small Fish... 93 2.1 Prosecutions by Numbers... 95 2.2 Prosecutions by Crimes... 99 2.3 The OTP s Influence... 101 3 The Big Fish... 102 4 The Foreign Affairs Façade... 103 4.1 The Special Tribunal and Motion Without Movement... 104 4.2 Justice Delayed but Justice Assured... 106 4.3 Investigating the Ocampo Six... 108
Contents xi 5 Kenyans in The Hague... 110 5.1 Local Support for ICC Intervention... 110 5.2 A Blow to Impunity... 114 6 Impunity Gaps... 115 7 The Shadow Side of Complementarity... 119 7.1 Increased Threats to Witnesses... 119 7.2 Politicisation of the ICC... 121 8 Conclusion... 125 Bibliography... 127 6 Don t Be Vague, Go to The Hague!... 133 1 An Unsuitable Strategy... 134 1.1 Political Suicide... 135 1.2 Domestic Inability... 136 2 The OTP s Influence... 139 2.1 Not the Initial Impetus... 139 2.2 Influencing Leaders... 142 2.3 Imminent but not Inevitable... 147 2.4 Vested Interests... 151 3 Foreign Affairs Façade... 156 3.1 Reneging on Referral... 156 3.2 Rescuing the Ocampo Six... 157 3.3 Withdrawal from the Rome Statute... 158 3.4 Security Council Deferral and Shuttle Diplomacy... 159 3.5 Article 19 Application... 160 3.6 East African Court of Justice... 162 3.7 African Court of Justice and Human Rights... 163 3.8 Motions Without Movement... 164 3.9 Obstructing Investigations... 165 4 The Shadow Side of Complementarity... 169 4.1 Discouragement of Local Prosecutions... 170 4.2 A Mechanism We Can Control... 171 5 Conclusion... 174 Bibliography... 176 7 Rule of Law Reforms: Post Hoc Ergo Propter Hoc?... 183 1 The OTP and Rule of Law Reform... 184 2 The Tenth Parliament s Rule of Law Reforms... 186 2.1 Constitution... 188 2.2 Criminal Justice System... 189 2.3 Electoral Process... 191 2.4 National Reconciliation... 192 3 Catalysts for Reform... 194 3.1 The Ongoing Reform Process... 194 3.2 The Post-Election Violence... 198 3.3 Legacies and Campaigns... 200
xii Contents 3.4 International Pressures... 202 3.5 Domestic Pressures... 204 4 The OTP s Impact... 206 4.1 The International Crimes Act 2008... 206 4.2 Witness Protection... 208 4.3 Judicial and Security Sector Reforms... 212 4.4 Simultaneous but Separate... 213 5 The Shadow Side of Complementarity... 216 5.1 The Government of National Disunity... 216 5.2 Delays and Distractions... 220 5.3 Illusory Reforms... 221 6 Conclusion... 223 Bibliography... 225 8 Culture of Impunity... 233 1 Ending the Culture of Impunity... 234 2 Judging the Judges... 236 3 Policing the Police... 239 4 The Shadow Side of Complementarity... 243 5 Conclusion... 246 Bibliography... 246 9 Conclusion... 249 Bibliography... 254 Appendix: Timeline... 257 Index... 265
Abbreviations ACJHR AG ASP CAR CID CREAW DPP DRC EACJ ECK FIDA-K GLJOS GNU HRW IBA ICC ICG ICJ-K ICPC ICTR ICTY IEBC IIEC JMVB JSC African Court of Justice and Human Rights Attorney General Assembly of States Parties Central African Republic Criminal Investigations Division Centre for Rights Education and Awareness Women Director of Public Prosecutions Democratic Republic of the Congo East African Court of Justice Electoral Commission of Kenya Federation of Women Lawyers-Kenya Governance, Justice, Law and Order Sector reform programme Government of National Unity Human Rights Watch International Bar Association International Criminal Court International Crisis Group International Commission of Jurists-Kenya International Centre for Policy and Conflict International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia Independent Electoral and Boundaries Commission Interim Independent Electoral Commission Judges and Magistrates Vetting Board Judicial Services Commission xiii
xiv Abbreviations KHRC KNCHR KNDR LRA LSK NCIC ODM OHCHR OSI OTP PTC SCCED TJRC VPRS WPA Kenya Human Rights Commission Kenya National Commission on Human Rights Kenya National Dialogue and Reconciliation process Lord s Resistance Army Law Society of Kenya National Cohesion and Integration Commission Orange Democratic Movement Officer of the High Commissioner for Human Rights Open Society Institute Office of the Prosecutor Pre-Trial Chamber Special Court on the Events in Darfur Truth, Justice and Reconciliation Commission Victims Participation and Reparations Section Witness Protection Agency
About the Author Lionel Nichols is a barrister of the Honourable Society of the Inner Temple and an Adjunct Lecturer in Law at the University of Tasmania. He has previously worked on the trials of Radovan Karadzic at the ICTY and Charles Taylor at the SCSL. He is the former convenor of the Oxford Transitional Justice Research group and was the University of Oxford s Global Justice Research Fellow. He lives in London with his wife and daughter. xv