The Independence of the International Criminal Court must be enhanced

Press release

On 26 November 2015, the ASP concluded its 14th ordinary session marked by Kenya’s political offensive to avoid any action by the International Criminal Court (ICC) against Kenya’s Deputy President William Ruto who is currently on trial for crimes against humanity.

The Assembly of States Parties (ASP) agreed on a consensus with Kenya, adopted the ICC budget and amended the ICC Statute. In response to Kenya repeated efforts as well as the challenge to the implementation of the ICC’s universal mandate, we call on all States to continue to support ICC action all over the world and to give it all necessary resources to achieve its mandate, especially where crimes within its jurisdiction are currently being committed and where States are unable or unwilling to prosecute those responsible.

Late on 26 November, the ASP finally reached an agreement on Kenya’s proposal concerning the implementation of Rule 68. FIDH has strongly condemned Kenya repetitive attempts to undermine the International Criminal Court’s independence at the 14th ASP. We call for all States to continue to promote the ICC’s universality and for the Court to continue to adhere to strict principles of independence of the judiciary.

“Kenya’s threats to withdraw from the ICC if its proposals were not accepted by the Assembly of States Parties were no more than despicable attempts to hold the ASP hostage. Such measures show utter contempt for the rights of victims of heinous crimes committed in the wake of Kenya’s 2007 elections,”

Karim Lahidji FIDH President

At the Assembly, Kenya, represented by a very large delegation (including many parliamentarians and journalists) proposed to forbid the retroactive use of Rule 68, which allows for the use of prior-recorded testimony in cases at the ICC which began before the rules were amended to accept such testimony. This proposal was intended to protect Kenya’s Deputy President William Ruto who is currently on trial for crimes against humanity, by excluding witness testimonies, and is the direct continuation of Kenya’s previous attempt to make evidence against Ruto disappear by tampering and harassing witnesses.

States and civil society organisations repeatedly stressed that such matters are pending before the ICC’s Appeals Chamber, and therefore should not be considered by the ASP. Lengthy diplomatic discussions with Kenya ultimately led to the inclusion of a paragraph stating the ASP’s understanding of non-retroactivity of the amended rules in the ASP’s non-binding report, leaving to the Judges the final interpretation and decision.

“Though this compromise paragraph should not affect the independence of the Court, we must not allow States to believe they can influence judicial proceedings. The judges of the ICC must remain free of political pressure and the Court must answer only to the rule of law, not politics.”

Katherine Gallagher, FIDH Vice President and Senior Staff Attorney at the Center for Constitutional Rights

FIDH has repeatedly reported that there has been no national progress on investigations or prosecutions of those responsible for post-electoral violence, nor have victims been provided with redress or reparation. Kenya’s attempts to interfere with the ICC make supporting a transparent and independent judiciary at an international level all the more crucial.

We fully anticipate that the judges of the ICC will continue to apply the Rome Statute and its Rules for Procedure and Evidence with the utmost independence, adhering to the strict letter of the law. The compromise reached with Kenya at the ASP should in no way impact the rights of Kenyan victims of atrocities to seek justice and redress for the harm they have suffered.

The Assembly also adopted an increase of 7% for the 2016 Budget, less that the ICC had requested for continuing its activities in 2016.

“States should be providing the ICC with the budget it needs to fulfill its mandate, expand the scope of its investigations and increase its field presence,”

Sheila Muwanga Nabachawa, FIDH Vice President, Deputy Director of Programme at Fondation for Human Rights Initiative

This session of the ASP was also marked by very strong threats and harassment against civil society organisations, in particular from the delegations of Kenya and Burundi.

“These direct attacks are unbearable. NGOs engaged with affected communities should be protected from harassment and threats, during the ASP sessions and in their home countries,”

Shawan Jabarin, FIDH Vice-President and General Director of Al Haq

Finally, FIDH welcome the amendment to the ICC Statute agreed upon by the ASP, which deleted Article 124 of the Statute. Article 124 was a transitional provision, enabling States parties to ratify the ICC Statute opting out ICC jurisdiction for seven years on war crimes committed by its nationals of on its territory. It has only been invoked by France and Colombia in the past

“FIDH welcomes the deletion of this clause in support of impunity. There is no longer special regime for war crimes.”

Patrick Baudouin, FIDH Honorary President

The OTP of the ICC opened an investigation into the Kenyan situation in 2010, bringing cases against four Kenyan individuals, including Uhuru Kenyatta and William Ruto, who were later elected President and Deputy President of the country.

Kenya has continuously obstructed the ICC proceedings. In the case against President Kenyatta, the government denied access to crucial evidence, to the point that the ICC prosecutor had to drop the case. ICC judges are currently examining the Kenyan government’s lack of cooperation with the Court.
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