International Crisis Group - Policy Briefing or Legal interference?

The International Crisis Group working out of Nairobi and Brussels has produced a report on the Kenya proceedings just before the ICC Pre-Trial Chamber II is due to return its decision on the confirmation of charges hearing. I can not let it pass without criticism but read it for yourselves.

‘Kenya: Impact of the ICC Proceedings,’ Africa Briefing No. 84, International Crisis Group, 9 January 2012′: http://www.crisisgroup.org/~/media/Files/africa/horn-of-africa/kenya/B084%20Kenya%20-%20Impact%20of%20the%20ICC%20Proceedings.pdf

This report like many others is disseminated by one of the core supporters of the ICC, the Coalition for the ICC, which distances itself from the documents it distributes, but nevertheless fulfills its task. The ICG worthily declares it is “Working to Prevent Conflict Worldwide” on its banner and its stated aims also declares it seeks to influence governments in its research and opinions. It has offices around the world and an experienced and eminent Board. Plainly a lot of money comes from somewhere to fund this kind of operation, and probably from taxpayers like me around the world. The authors of this report are anonymous, so having read what I have read, I will send a copy of this complaint about the content to Louise Arbour and to the Coalition for the ICC.

Why am I bothering to tell you this? Well, I spotted some dangerous text in this document that made me scrutinize its content further to see whether it is justice and fairness this organization seeks or it has other ends. Not only that, there is a clear misrepresentation of the role of the Defence in the ICC proceedings and I am not prepared to take such defamation lightly.

But first things first, it is confidently stated:

“If the court, as is expected, confirms charges for both cases on the same day, this could be a crucial step to help defuse a rise in ethnic tensions. There are real fears that if charges are dropped for suspects of one ethnicity and confirmed for those of another, ethnic tensions could increase sharply, regardless of the legal merits. The ICC’s decisions will continue to play a pivotal role in Kenya’s political process, especially in the crucial 2012 election.”
I am not sure why there should be expectation of the confirmation of charges, having taken part in the proceedings and observed reaction to the content of the respective cases of the parties at the time, but there is a clear message in this piece that the failure of the charges will be damaging to Kenyan society. Later on in the report this theme is repeated:

“Although this scenario would demonstrate the ICC’s impartiality and independence, it would be viewed as a set- back for efforts to combat impunity and deter political violence in Kenya.”

Therefore, this prosecution is seen as an end in itself to affect the politics of Kenya. I have never believed that prosecutions should take place on such a basis, but that if they do so, Judges have the job to ensure that such wrongful proceedings do not continue and that justice is lawfully done. It might be news to the International Crisis Group, but experience has shown that miscarriages of justice actually fan the fires of conflict. Ask any human rights lawyer who trained in the 1970’s. It is a pity that the authors of the report did not consider the Defence evidence that demonstrated how the matter of the allegations surrounding the electoral violence arose and how the international community walked into a carefully prepared trap. But I am not sure such information suits their purposes. Particularly, as they have another prepared view of Defence counsel expressed thus:

“While the ICC is still popular, the Kenyan public’s approval of its role has been declining, due to deft media manipulation by the suspects and their lawyers. In order to counter misrepresentations of the court’s decisions, the court and its supporters, including civil society and other friends, should intensify public information and outreach efforts to explain its mandate, workings and process.”

Without any factual support this rather outrageous allegation has been made against Defence counsel. I demand you at the ICG produce your evidence to support this assertion. I will even publish it on the ICLB blog for you. It is outrageous because we have hardly spoken to or dealt with the media as it is well known by all journalists is my practice. In fact Louis Moreno OCampo as Chief Prosecutor for the ICC has regularly conducted media exercises before, during and after these proceedings that have been criticized as exercises in manipulation to the PTC by the Defence! These complaints were not regarded as trivial by the Judges but the Court said it could do nothing but repeat its request for such practices not to occur. In fact the expectations about the strength of the Prosecution case, which turned out to be otherwise are referred to in the ICG report. Any comment there International Crisis Group or does that not suit your agenda? Does that not fan the fires of conflict in which you are so worthily concerned?

The report goes further to allege:

“During the hearings on the charges, the suspect’s lawyers, particularly Kenyatta’s team, argued that the prosecution built its cases on civil society reports and newspaper clippings that do not constitute legal proof.(91) Feeling vindicated, the former suspects would undoubtedly repeat on the campaign trail their claims of having been targeted by their political enemies, which would not be promising for peaceful elections.”

Well, this may be news to you ICG, but if you just base your opinions on recycled reports and not evidence, some day you will come a cropper! You see it is very easy to point fingers and allege. But if you run a justice system you need more, because if you make allegations without evidence, you tend to find that inaccuracy creeps in and what is more it becomes easy to make unfounded allegations. The history of criminal justice has taught us to tread carefully and look for the evidence, otherwise you fill prisons with innocent people. Then you really do have a conflict on your hands….By the way the footnote (91) does not support the proposition here either! Neither did the defence ever contest these hearings on the basis that the Prosecution did not have a “watertight case” as you have stated. Merely that there were not “substantial grounds to believe” which is the legal test to be applied at this stage.

The International Crisis Group seems much obsessed with the outcome of the elections. I wonder why? Who has a stake in this to be so obsessed? Thoughts anyone….