International Criminal Court (Kenya)

Jim Shannon Excerpts

Wednesday 9th October 2013 Westminster Hall

[Eric Joyce (Falkirk) (Ind)]

I am conscious that some hon. Members on both sides of the Chamber know quite a lot about this subject and have shown great interest in Africa, particularly Kenya, over the years. Some of what I say will not be news to them, and will be well known to the Minister, but it is important to set the scene and to say a few things that may seem obvious to some, but not to others observing what is going on at the moment. Today, I am particularly concerned about the nature of the ongoing action by the International Criminal Court against President Kenyatta and Deputy President Ruto, and that is, primarily, the context in which I will speak. I will make a few comments about the ICC, but they will be entirely contextual and legitimate, and I will be careful not to stray too far, Mr Caton.

On Monday 13 October, the African Union will meet to discuss the possibility of African ICC member states withdrawing from the ICC en masse. That meeting will take place in Addis Ababa and was precipitated by the ICC’s treatment of President Kenyatta and Deputy President Ruto, but the crux has been a long time coming. There is nothing inherently unreasonable in holding people to account in front of the ICC, but the nature of the present action against President Kenyatta and Deputy President Ruto is of particular concern.

Some nations, particularly African nations, that are signatories to the treaty of Rome are placing the future of the ICC in question. There is a risk that Africans in the UK—I speak to many of them in diasporas of all sorts—and particularly Kenyans will see it as the African criminal court, rather than the International Criminal Court. I want to set out how and why that has happened. I am not critical in any sense of the Government’s position on Kenya over the past year or so; they have handled the situation not elegantly—that may be putting too fine a point on it—but rather well earlier in the year, when President Kenyatta won the election. The Prime Minister encouraged him to come to the UK and met him soon after his election, which sent a significant message. Nevertheless, there is a strange and strained diplomatic relationship, in that we still support the ICC and its ongoing action to bring the President to court.

Kenya is one of our most important allies on the African continent. One of our largest foreign training bases is there, and the UK and Kenya host each other’s large diasporas. Trade with Kenya through Nairobi has been increasing almost exponentially for some years. We have the strongest of historical links, too. I will not go into whether the empire was good or bad. There were many good things about it, although we tend to remember the bad things, but the long view shows benefits that accrued on both sides.

Sometimes our relationship with Kenya has been fraught, to put it mildly, notably during the Mau Mau uprising. It is to the Government’s credit that at the beginning of the summer they recognised that crimes that were broadly described as being against humanity took place when we were running the show, and reparation has been made to Kenyans who were affected. Some people are ambivalent about that, because some Kenyans were fighting against British soldiers at the time, but the Government’s general view—I am not sure what the Opposition’s position is—was that it was right to make reparation. Soldiers who behaved abominably, as some did, cannot be held to account now because they are dead, and we should remember that, but we should also remember the context in which the Mau Mau uprising took place, and the nature of the deployment that our troops faced. However, we bear in mind that we are making reparation for what can today be described as war crimes.

I will not rehearse the democratic period in Kenya, but will fast forward to 2007, when there was bad violence just before the election. There is no question about that, and no one doubts it.

[Jim Shannon (Strangford) (DUP)]

I thank the hon. Gentleman for bringing this matter to the Chamber for consideration. Some 600,000 people were displaced and 1,100 were killed, including 30 women and children who were burned alive in a church. Does he believe that now is the time—time is going by fast—for the International Criminal Court to try those who were responsible for those crimes?

[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.

--- Later in debate ---

[Eric Joyce]

The hon. Member is absolutely bang on. His intervention was very thoughtful and considered, and he is absolutely right. The difficulty at the moment is to get past what is a very dangerous phase for the ICC. If the ICC gets it wrong and if the international community gets it wrong in respect of Kenya, the ICC will fall apart; I do not think that it will continue, in a meaningful sense, in existence. I know that there is concern among NGOs and experts, including lawyers, that if there were to be a discontinuation of the case against the President and Vice-President of Kenya, that would effectively be the end of the ICC. I do not agree with that view. I will not put all the arguments as to why I disagree with it. I simply think that that would not be the case. It would be more practically effective to find a way of dealing with the situation, which effectively means putting a case into abeyance, but I will say more on that at my conclusion. I have one or two more points to make quickly before then.

[Jim Shannon]

The hon. Gentleman referred to the ICC and its credibility. The fact is that the Kenyan Government have decided to withdraw from the ICC and that there are cases pending at the court. How does he see the role for Government in trying to ensure that there will still be prosecutions, now that Kenya is no longer—at least on paper—part of the ICC?

[Eric Joyce]

I thank the hon. Member for his intervention. I think that the technical situation is that the case will continue even if Kenya withdraws, although my instinct is that it will be difficult to do anything in that situation. I suppose the ICC may criticise the President’s absence and then carry on with the trial. Theoretically, and it is pretty theoretical, the African nations that are considering withdrawing—I hope that they do not withdraw—would still be subject to any current cases involving them, although not to any future cases. So, for the moment the case against the President would continue. In a sense, therefore, it is academic whether Kenya has chosen to withdraw from the ICC or not, although I hope that it will come back in. I think that Kenya is making a very powerful statement, just as some other African states that are supporting Kenya’s cause at the moment are making a similarly powerful statement.

I will start to draw to a conclusion. I visited the ICC’s former chief prosecutor, Luis Moreno-Ocampo, in The Hague a couple of years ago, regarding a particular case; it is pertinent to this debate, so I hope that you will bear with me, Mr Caton. My concern at the time was that all these people being indicted were Africans, and I was concerned about one particular case. I was concerned about President al-Bashir, as a head of state, being indicted, but in particular I was concerned about a chap called Bemba, who was a Congolese leader indicted for an alleged crime in the Central African Republic. I spoke to Luis Moreno-Ocampo and I was with him for much of the day—strangely. He gave me a tutorial in how the ICC operated, and convinced me that he was doing his best and that the ICC was doing its best. It was taking a long time to get a prosecution. It has now had one successful prosecution, that of Thomas Lubanga of the Democratic Republic of Congo. Mr Moreno-Ocampo was very convincing and he convinced me that the ICC is indeed a good thing. There are clear difficulties, which the ICC recognises, in pursuing cases in the orbits of nations that do not fancy having the ICC in their own backyard, as I have described before.

Then, however, Mr Moreno-Ocampo was gone, and he has been replaced by the former Gambian Justice Minister. My instinct, although it is harsh to say it, is that, although I have no doubt she will be a very fine lawyer, that appointment in itself was a political nod—“We are only indicting Africans, so we will have an African in charge”. However, just to show the difficulty, she herself—I will not be critical of her personally but contextually—was the Justice Minister in Gambia. Gambia is not the most pure place on the planet. The last time that I was in Gambia, as we were driving to the airport there was lots of security around and we discovered that the President had just shot a whole bunch of prisoners, some of whom were political prisoners essentially. Gambia has its issues, so it seems to me that a political nod in a particular direction may have had the opposite effect to that intended. I think that the ICC recognised the need to make a political gesture, and to some degree therefore it accepts that the whole thing is a political process.

It seems to me that at the moment we tend, right across the board, to apply values straight from our desks and pop them straight down on to the desks of politicians and other leading folk in African states, without really considering the period of development that those countries are going through right now, as we speak. Just as I walked across here to Westminster Hall, I was reflecting—I am not quite sure why—on the fact that most of us would put our hands up and say, “Chemical weapons—bad thing.” However, as far as I can remember, we were developing chemical weapons into the ’80s. Chemical weapons became a bad thing in the ’90s, but I think it was still British military doctrine to use chemical weapons until just a few years before then. I remember that when I was a private soldier, troops alongside me volunteered to go to Porton Down to have chemicals put on their hands—I do not think that Porton Down was looking for a solution to the common cold—and that was in the ’80s.

We have now moved forward and we say that chemical weapons are a horror; Winston Churchill was a fan of chemical weapons, but now we say that they are a horror and it has taken us 15 or 20 years for us to get to that point. Now we say, “Here is a democracy in Africa and we expect you to uphold the same standards that we do here in all the same ways”, without trying to contextualise things. That is a tough gig, as the Africans become increasingly nationalistic, and pan-African nationalistic, if that is not too grand a phrase to use; I am not harking back to a slightly different phenomenon from 60 years ago. However, if Africans are in that zone and in many cases looking towards China rather than looking towards us, it is because there is a very strong taint of a kind of imperialist attitude.

My understanding—what I am about to say may be wrong, but I do not think that it is—is that the Kenyans have refused to accredit three diplomats; the would-be ambassadors from France, Germany and Belgium. I understand that that happened just a few days ago, and I also understand that the Tanzanians refused to accredit the new German ambassador, on account of the fact that she had invited—probably unwisely, because it was clearly a gesture on her part—the former Prime Minister, Raila Odinga, as a guest of honour for a wee party before she left. That was a clear statement, so the Tanzanians went, “That was a nice statement. Here’s another one—off you go.” So that was a neat political statement by a daft German ambassador—a former German ambassador to Kenya—but there is a lot of that going on.

During the election in Kenya, the American ambassador—everyone will have heard references to the British ambassador, which are not true—allegedly said, “Choices have consequences.” And the Kenyans went, “OK, then, so we will choose to do the thing you don’t want us to do, obviously.” The consequence was that the Americans got the person they did not want, ironically just as we got Jomo Kenyatta, who was originally not the guy we wanted. There it is—we handled it then and we handle it now.

To conclude—I have been going on rather a long time—I know that it is a difficult situation for the Government. They have to support the ICC; I have no question about that. I know that the Government are seized of the importance of maintaining the rule of law—as far as we can—but also of the importance of maintaining a strong relationship with a really important ally, for all the reasons that we all know; I will not rehearse them again. However, the fact is that there is a crux and if the crux is not properly climbed then the ICC will fall off and it will no longer be an effective and meaningful international force.

Just as a slight digression, I will say that it is possible for someone to spend five years in the ICC and then get found not guilty, as one Congolese chap did at the end of last year. So we suspend certain rules and assumptions—reasonably, because it is very hard to gather evidence—but we should remember that Jean-Pierre Bemba remains there. His trial is now in its third year and he has been there for almost six years, with no end in sight. If he is found not guilty, he will have spent seven or eight years in custody. If anyone tried to do that anywhere else, we would say that that country was a dictator state. We have made allowances and allowed that to happen at the ICC. I am concerned about how long the process takes but I am not critical per se, because I know that it is very hard to gather evidence and to argue the case when we are talking about certain countries, such as the Central African Republic. In this case, it is for the politicians to make a political decision to take the matter out of the hands of administrators and to put the case against President Kenyatta and Deputy President William Ruto. That would give the Kenyans a fair crack of the whip at a time when they really need our support.

[Mr William Cash (Stone) (Con)]

This is an interesting and important debate. I am chairman of the all-party parliamentary groups on Kenya and on Uganda and, as chairman or secretary of various other all-party groups, I have been much involved in all matters relating to east Africa since the 1980s. I have a strong sense that that part of the world is extremely important both in its own right and in relation not only to the United Kingdom but to the world as a whole. Economically, it is one of the fastest-growing areas in the world and, as with all countries—and I exclude none—there is a process of evolution and a necessity to ensure that justice and fairness prevail.

At the heart of all this lies the question whether domestic matters should be adjudicated by a methodology applicable through international law when the better route could well be to have them dealt with in the country in question. That important issue is illustrated by the fact that in many, many countries in the world—I do not need to set them all out, but Vietnam is a case in point—terrible things happen. There are civil wars. We had a civil war, as did the United States, and there are times when innocent people get caught up. We have a vast range of civil wars going on all over the middle east; it is a very disturbing picture. Not unnaturally, people will attribute blame to individuals who have been involved in the process, but it is an unwise person who makes assumptions about who was responsible for any particular causal event or incident.

[Jim Shannon]

One concern is that if the ICC case collapses, and there is every possibility that it might, the credibility, security and safety of the witnesses who have been called come into question. Does the hon. Gentleman share my concern about those independent witnesses who may feel under threat if the case collapses?

[Mr Cash]

I certainly do. There must be a significant review of the methodology that is applied in relation to the ICC process, which can be encapsulated in an expression from Maine’s “Ancient Law” that says that justice is to be found in the interstices of procedure. It sounds grandiloquent, but it is extremely important given the incredible number of events that are taking place. We have to look at not just what is happening in countries such as Syria, where people from both sides commit atrocities all the time, but the motivation for such atrocities and the extent to which they are politically driven. Some would argue that the use of atomic weapons or chemical weapons is a matter where distinctions need to be drawn. It could also be said that all weapons of mass destruction should automatically be regarded as of one kind, which they are not.

In relation to the terrible events that took place in Kenya some years ago, the methodology that was applied in the prosecution and indictment is a matter that requires very careful consideration. There are good grounds, I believe, for taking a step back and looking at the matter again, taking into consideration the evidence and who is responsible for the conduct of the prosecution and the manner in which it is being deployed. It is also extremely important to bear in mind that the most incredible sensitivities will arise, and have arisen, which may lead to the African Union and other individual countries, many of which I am familiar with, withdrawing from the ICC.

There are several issues to be considered. One relates to justice, fairness and the question of procedures and methodology. Another relates to the impact of what is being done in relation to the African Union and individual countries there, and the extent to which they are taking a position, which, to say the least, is radical. Then there is the question whether the matter should really be dealt with in domestic courts. Is there the political impetus to prosecute a Head of State or one or two people when the evidence could as well be addressed in a domestic arena?

I was shadow Attorney-General for several years, and have always had certain reservations, to say the least, about the assumptions that lie behind some human rights trials. I will not enlarge on that, but what I will say is that with the massive number of conflicts and potential conflicts in the middle east—in countries such as Egypt, Libya, Syria and Tunisia—Somalia and elsewhere in Africa, a complete analysis of the whole matter is required. In addition, some of the most significant countries, not only numerically but in terms of power and influence, are not members of the ICC. How can we have a system of justice that is based on differentiation between those countries that are not involved in the process because they have not signed up, and others that are? There are so many interwoven complexities that it makes me seriously wonder about the whole question of justiciability and the methodology that lies at the heart not only of the procedures but of the underlying consequences of the ICC system.

I do not want to say any more, because I want everyone to stand back and ask themselves some central questions. The Minister, for whom I have the highest regard, has a very difficult task here. I have raised the matter with the Foreign Office, both after and in the run-up to elections, because I was concerned about the politicisation of what could be regarded as a matter of domestic legal process. Justice and fairness are key, and how we arrive at that, and whether the ICC can do so in this case and in many others, is a very big question. I will rest my argument there, but I shall continue to pursue such questions, because I believe that fundamental issues arise for not only us, but many other countries.