International Criminal Court (Kenya)

Debate between Eric Joyce and David Simpson

Wednesday 9th October 2013 Westminster Hall

[Eric Joyce]

I thank the hon. Gentleman for his important intervention, which goes to the crux of the debate. I will explore some aspects of the decision that sits with the ICC, but it is becoming a political issue. Of course it is right to hold people to account, but things happen in the world, in Africa and, historically, closer to home, and sometimes a choice must be made between justice and peace. That is not to say that standards are lower, but as my argument develops it will be seen that this is one such case.

[David Simpson (Upper Bann) (DUP)]

Innocent people have been murdered and burned alive in churches, so surely the Government must address the whole issue of corruption in Kenya. Countries donate money to African countries where there is a lot of corruption, and Governments must deal with that.

[Eric Joyce]

I thank the hon. Gentleman for that intervention. It is true that when we think about Africa, politics and governance, we tend automatically to think about corruption. Corruption in many parts of Africa and of course in Kenya must be dealt with in every possible way. We must encourage the authorities to do that, and I think the authorities in Kenya, as in most African states, are willing to do so. Sometimes we are a little too ready and quick to flag up corruption as a synonym for a nation state’s name, instead of remembering that such states are sometimes making enormous progress. I will not rehearse the arguments about Rwanda, which is perhaps the best example, but Kenya is also a good example of a state that is making bounding progress. That is part of what causes me concern about the ICC action.

We know that there was violence before the 2007 general election, and we know that following the election, presidential candidates came together to form a Government of national unity. President Kibaki and Prime Minister Odinga were the two primary office-holders, and that coalition held together for a full term of office. Significantly, violence was almost entirely absent at the following election, after the coalition—the election that has just taken place. That suggests that a lasting resolution was achieved with the coalition back in 2007, and Kenyan people understand that.However, part of that coalition agreement was that there would be an inquiry, quite rightly, into the violence that took place during the election.

The inquiry was duly conducted by a Kenyan judge, Justice Philip Waki, who felt that six individuals had committed serious offences, but when the Kenyan Parliament took a vote—it votes on judicial or legal matters in a way that we probably would not—it decided not to refer the matter onwards, so the judge decided to refer it to the United Nations Secretary-General, with a recommendation that it should then be passed on to the ICC. That is why the series of six cases has ended up where it has. It was essentially a quasi-judicial process in Kenya, which has ended up as an administrative and legal process in The Hague.

Following a two-to-one decision in a pre-trial chamber in The Hague, the ICC indicted a number of people. Some of those cases have collapsed, but now, six years later, the cases against President Kenyatta and Vice-President Ruto, who won this year’s election, continue. Both men have been indicted and both have made voluntary appearances, unarrested, at The Hague. We have seen them on our televisions; they have freely attended as required, and they have supported the process up to a point.

The action by the ICC, six years after events on which there is one dissenting opinion, has enormous implications for the Kenyan people. It is true that Mr Kenyatta is not the first Head of State to be indicted by the ICC, and I will come to that shortly, but Kenya is of enormous importance to the UK—that is not to say that Sudan is not, but Kenya is particularly important to the UK and all our allies. Kenya has also successfully come through a period of strife, when other countries have collapsed under the terrible weight of internecine warfare. Kenya is the great economic success story of east and central Africa. It is leading the fight against terrorism in Somalia. We know now, given events over the past few weeks at the Westgate mall, how terrible a price the Kenyan people are paying for being at the front in that ongoing battle, but they have not wilted or split. Kenyans have remained united in the face of all that has been thrown at them by terrorists. It seems to me that we reward them by insisting that the President and Vice-President, who are leading them into what promises to be a very decent future, stand trial at the ICC, accused of hotly disputed offences that took place years ago.

People may well say that the ICC has an important role to play, and I would agree. They may say that it is not for us mere mortals to make judgments about evidence, and that there must be due process. They may say that politics should not play a part. I would say, however, that although it is not ordinary for politicians to intervene in judicial processes, the ICC is inherently political, as are its outcomes. It seems entirely appropriate that, at some points, when there are very significant political implications for a particular nation, it is for politicians and not civil servants to decide. In the same way, the Chancellor does not ask his civil servants to read out his Budget in the Chamber or ask them to lead the whole Budget process. In this case, it is for politicians around the world, including in the UK, fundamentally to make a decision. It is beyond the powers of civil servants, Government servants, or the international Government servants—whatever we call them—who run the ICC’s administration and procedures.

It is significant to note that all 32 indictees of the ICC have come from Africa. Eight African states have been involved, so I guess that is about four each. Initially, they were primarily from the Congo, and now a number are from Kenya. Four of those countries—it says this in Wikipedia, and I have also seen ICC officials saying it—referred cases involving their own people to the ICC. The ICC says, “Come on guv, you can’t blame us for taking action, because they were referred to us,” but that is where it becomes inherently political, because we put great pressure on those states to refer cases to the ICC. We cannot just hold our hands up and say, “Nothing to do with us, guv.” Clearly, we put enormous pressure on those states. Cases involving the Lord’s Resistance Army, for example, in Uganda, remain a cause célèbre—although less than they were, I suppose—and there are other cases.

Enormous pressure was put on those states, and they did what we asked, but now, because they did, they find themselves in a terrible bind. The only place that the ICC is able to act is Africa, and that is a terrible state of affairs. It cannot act in nations that are in the orbit of China—we all understand why—or of Russia, so the “stans” and the far east are out. Sri Lanka is out, obviously. India is out. Anything in the orbit of America is out. Obviously, Europe is out—we are not going to indict ourselves, are we? The United States did not sign up to the ICC originally, because it was concerned that former politicians might be arraigned in front of the ICC. It did not sign up for political reasons, and it still has not signed up for the same reasons. Of the five permanent members of the Security Council, the three most powerful have not signed up for political reasons. That takes out the great majority of the countries of the world, leaving those that are not considered to be strategically important, and—guess what?—are in Africa.

The Africans say, “This is the African criminal court, really, isn’t it? It is not an international criminal court at all.” The ICC says, “We are having a look at other cases,” but we know that it will not take action against FARC or anybody else in Colombia, for obvious reasons—because there is a peace process. It clearly will not take action, nor would I particularly want it to. Therefore, we end up with action being taken only against Africans, and even then only when political implications have been considered. In many cases, action has not been taken because of politics. Therefore, people who say that it is up to ICC officials are missing the point; it is fundamentally a political issue.

I shall not bang on forever, Mr Caton—other Members may wish to jump in—but I will say a little more. I suspect that at least one Government Member will correct me if I am wrong, but I recall that, when I arrived in this place, just before the final stage of the International Criminal Court Act 2001, the then Opposition opposed joining the ICC. It may be that they changed and voted to do so at the end, but I remember that, at the time, the argument in the Chamber was that the then Opposition—now the Government—strongly opposed it. They did so because they were concerned—I voted for and still support the ICC’s existence, but the concern was legitimate at the time—that soldiers, deployed as they are around the world, in all sorts of different places, might find themselves captured, not returned to the UK, and in front of the ICC. There was a deep concern about that.

Those fears were largely allayed, and clearly, the Government are a supporter. The fears have not come to fruition, because we are willing and able to try our own people. We show that and have actually done it, so there does not seem to be a great risk. I notice, however, that the Americans still have not signed up, so they clearly think there is a risk. There is at least one politician, famously—it would not be fair to say his name, but I think most of us know who it is—whom many lawyers have said might well be arraigned in front of the ICC. Even that one case, and the fear that others might happen in future, would stop the Americans signing up.

Such fear is significant. UK citizens are not more likely than anybody else to commit serious offences, but the concern was that it might become political, and indeed, I think that has proven to be the case, almost by default. It has not become political on purpose; it has become political because the ICC has been unable to be even-handed across the world, for strong political reasons.

I will not go through the entire history of the ICC, although I quite rightly could. However, it is worth reflecting on the principle of the ICC. I may have sounded very condemnatory of the ICC before, but the principle is entirely laudable. Obviously, it extends out of our experiences with more than one tribunal in the mid-part of the last century, just after world war two.