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Investigating Kenya: What's In A Name?

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Diplomats, scholars and lawyers from around the world united to create the International Criminal Court (ICC) in 1998 after decades of dogged effort to bring war criminals to justice, combat impunity for dictators, and provide a small measure of relief to victims of torture, forced deportation, rape, and genocide.

That's why the ICC is investigating the states with the very worst human rights records. Seriously, go ahead, name a country. Iran? Ehh, other than a few extrajudicial executions and debasement of women, not too much is going on over there. Syria, you say? C'mon, what's a massacre between friends (and let's not forget Russia's heavy arms support of Assad)?

No, you've got it all wrong. The biggest human rights violator, the state on which the ICC should be focusing all of its prosecutorial power and judicial resources, is Kenya. That's right, Kenya -- a place where a major national concern is the credit rate of the central bank.

Surprised? Join the club. According to three professors who rank among the top thinkers on international criminal law actually alive today, you aren't alone. Here are the two major concerns as relayed by the "big three": Profs. William Schabas of Middlesex University in London, Jens David Ohlin of Cornell Law School, and Kevin Jon Heller of Melbourne Law School.

1. Get your $#!^ together, Prosecutor.

Alright, that's not as much of a concern as an order. Most of you may know that the ICC recently released two out of six suspects for crimes against humanity allegedly committed in Kenya. This occurred at the "confirmation of charges" stage, a process that is unique to the ICC and requires the Prosecutor to show "substantial grounds" that the suspects are guilty. If he does so, the case goes to trial. If he doesn't, the suspect is released.

Professor Schabas hails from Toronto and is currently one of the most cited and respected authors in international criminal law. According to him, four out of six isn't good enough. In fact, the Prosecutor has only confirmed 10 out of 14 cases, including the recent release of Mbarushimana and Abu Garda of Sudan. This rounds out the Prosecutor's success rate at a whopping 71%. That score is bad news for anyone not trying to pass the NY Bar Exam. By way of comparison, Prof. Schabas reckons that the prosecutors at the UN tribunals set up after the war in the former Yugoslavia had a conviction rate of 86%. Keep in mind we're talking convictions -- proof beyond a reasonable doubt. Confirmation charges require only "substantial grounds" to believe that the person committed the crimes charged.

"What's so bad about a 71% conviction rate?" you might ask. After all, US Department of Justice statistics show that only 67% of murder suspects are convicted in state court. First of all, murder convictions again require "beyond a reasonable doubt." Secondly, the Prosecutor is meant to try those most responsible for the most serious of crimes. Professor Heller agrees that the indictment had included relatively "minor players." The Prosecutor is meant to be following his mandate and the mandate of the court by avoiding the low-hanging fruit and seeking the arrest of those who enjoy the most impunity -- that means agitation for Security Council inquiries into potential crimes in countries like Syria and Myanmar. Anything else, as Prof. Schabas puts it, is a waste of judicial resources, a source of false hope to the victims, and an injustice to the accused, who can languish in the Hague's prison for as long as five years.

2. Organization? What organization?

The Prosecutor had to show the existence of an "organization" twice in the Kenya case, once to show that a "state or organizational policy" was responsible for the crimes against humanity (as required by Article 7(2)(a) of the Rome Statute) and again to show that the defendants were "indirect co-perpetrators" with "exclusive control" over a state-like apparatus.

As Professor Ohlin discusses, there are at least two bases for questioning the Prosecutor's characterization of the alleged organizations. First, it's questionable whether or not the so-called Network of the Ruto case (a.k.a. Kenya I) or the ethnic elements of the Mungiki tribe in the Muthaura (a.k.a. Kenya II) constitute an organization. In fact German Judge Hans-Peter Kaul dissented from the confirmation decision, taking issue with this exact claim. Professor Heller stated in an email that he would have voted with Judge Kaul if he was on the Pre-Trial Chamber, concurring that "the majority overly diluted the policy requirement."

The Prosecutor had to show a form of organization a second time due to his form of charging in which the suspects where considered "indirect co-perpetrators." This form of liability was created in Article 25 of the Rome Statute and extrapolated by the judges in order to capture the leaders of a criminal organization and prevent their escaping liability simply by being the organizers and commanders (a subject I treat here in the context of US war crimes).

Grouping loosely affiliated people into a Network in Kenya I and diverse tribal elements in Kenya II does indeed seem to dilute the "organizational policy" requirement, potentially expanding the Court's jurisdiction over crimes against humanity and "machine-like apparatuses" to groups such as the mob, the Crips, and the London rioters.

Concluding Remarks

It's easy to say charges and investigations at the ICC are political -- that they are undertaken against those without a big veto-holding backer in the UN Security Council. That that's why the Syria-Russia and Myanmar-China alliances are bigger obstacles to ending impunity than Kenya ever was. It's easy to say that the Court is Afro-centered for the same reason. But for now let's avoid the low-hanging fruit.

Professor Schabas concludes that the judges of the ICC are doing their job by "weeding out" loser cases brought by the Prosecutor. Let's hope that the next cases brought are winners with real "organizational policies" committing the most serious of crimes.