International Criminal Court (Kenya)

William Cash Excerpts

Wednesday 9th October 2013 Westminster Hall

[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.

[Ian Lucas (Wrexham) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Caton. I commend my hon. Friend the Member for Falkirk (Eric Joyce) for calling this debate, which has been very interesting. The speeches and interventions have added to our consideration and understanding of an intensely difficult issue. Although I will be seeking to find out the Minister’s position in due course, I do not envy his having to respond on so difficult an area, but such difficult questions are those faced in government. This reflective debate will assist us in analysing the difficult questions that international politics currently involves.

From what my hon. Friend said, he clearly understands about the security and the importance of Kenya. He has great respect for the Kenyan people, who are looking at the issue extremely closely. I know from communications I have received that the matter is of profound import. We have also heard from the hon. Member for Stone (Mr Cash), who has a particular role in the all-party group on Kenya.

Kenya always provokes interest because of our long-standing link with it and its people, and because of its significance in what, at the moment, is an important part of north Africa. Some of the biggest political issues on the planet are being played out in complex geographical areas across north Africa, with cultures, faiths and economies colliding and causing enormous issues. We must grapple with those issues if we are to make progress. Kenya, whose relationship with the UK is massively significant, is hugely important in that regard, for instance in addressing the difficulties in Somalia and the horn of Africa. That cause has been carried out at great cost to the people of Kenya over several years, most recently, of course, in Nairobi. The country is strategically important, and we all want it to be a strong international player.

Before I turn to Kenya’s membership of the ICC, I want to refer, as other Members have, to the dreadful recent attack in the Westgate shopping centre. Right across the world, the focus has been on Kenya because of what happened there. The confirmed death toll was 61 civilians and six security officers, and Britons were among those killed. Our thoughts are with all those affected by these tragic events. We must of course support the Kenyan Government in showing leadership in dealing with a problem that, as I have said, transcends the borders and boundaries of countries across the world, but is a specific issue across north Africa.

[Mr Cash]

Does the hon. Gentleman accept that there is a massive dilemma in what he says? On the one hand, we want to support the Government of Kenya, but on the other hand, are we to encourage the prosecution of the Kenyan Head of State in the International Criminal Court? That is the simple dilemma, but it is not only a dilemma: the question is whether justice and fairness are at the root of the matter. In my opinion, that is as yet uncertain and, in fact, I am deeply worried about it.

[Ian Lucas]

The hon. Gentleman makes an excellent intervention, and puts the difficult question very well. It is, however, important to remember that Kenya has chosen to be a member of the International Criminal Court. If it withdraws, it will leave an international institution that it chose to join. As we have already heard, several countries have refused to join the International Criminal Court. If we are a member of an institution, we have to accept that it has rules that it must apply to its members without fear or favour. The reason why we need to support the Kenyan Government is that they face the very difficult situation caused by the Westgate shopping centre attack, but equally, the fact is that Kenya chose to be a member of the International Criminal Court and, as a consequence of decisions made in Kenya, the court has been seized of the case and is proceeding with it.

To return to the Westgate shopping mall, rigorous inquiries are taking place, and must continue to do so, into the circumstances leading to the attacks. We need to support the Kenyan Government in their taking steps to bring those involved to justice and to ensure that such an incident does not recur. We must also, however, conduct rigorous inquiries into the perpetrators of the violence that followed the 2007 election, because we cannot take action in one area, but not in another, and I therefore turn to the Kenyan Government’s possible attempts to withdraw from the ICC.

We must reflect on the violence in 2007, when, as we have heard, more than 1,000 people were killed and 600,000 people were displaced. The investigations into the violence culminated in the ICC bringing charges, including against the Kenyan President, of crimes against humanity and of orchestrating ethnic violence. For that reason, charges have been brought against President Uhuru Kenyatta and Deputy President William Ruto.

[Ian Lucas]

That would be massively controversial, but we are a member of an international institution. We are discussing international problems, and the world has to deal with more and more internationally connected issues every day: events in Africa profoundly affect our constituencies in the UK. Far from this being a time for us to withdraw from international action, we should be more involved. If we submit ourselves as a nation to the authority of the International Criminal Court, we must accept that that court has jurisdiction. Such an issue would be difficult and many in the United Kingdom would not want to accept the court’s jurisdiction, but if we have submitted to the court through legislation, as has been mentioned, we must accept the consequences. We cannot duck out when it gets difficult; we must accept that such difficult issues need to be addressed, as they should be by the nations involved.

It is a difficult problem of that sort—nobody pretends that it is not difficult—that we now have to address. The Parliament of Kenya is dealing with the difficulty that, in the hypothetical case mentioned by my hon. Friend, might apply in the United Kingdom. The two politicians are not the only individuals facing charges. I understand that the ICC has also issued an arrest warrant for a journalist called Walter Barasa for offering bribes to prosecution witnesses in the trial of Deputy President William Ruto. However, I believe that this trial is the first time that sitting leaders have been tried before the court.

In September 2013—last month—Kenyan MPs, having tabled a motion, voted to pull out of the ICC, and a Bill is likely to be introduced. The withdrawal will still have to pass through Parliament and could take more than a year to come into effect. The ICC will in the meantime continue with the trials of the President and the Deputy President, but if Kenya does pull out, no charges will be able to be brought in this way in the future.

I listened very carefully to the hon. Member for Falkirk and I am aware, of course, of the perception that exists in Africa, linked to the United Kingdom’s role on the continent—its “imperialist past”. Although I respect the hon. Gentleman’s views, I cannot agree with him in this case. I have to say to him that this is about the creation of international institutions and dealing with the very difficult issues to which the hon. Member for Stone referred. We talk about what is happening in Syria, Egypt, Somalia, and Mali. All these matters have in some way involved international capacity and interventions, whether they be military or non-military interventions, in different places at different times. The process of dealing with the problems has been one of using international institutions, because these are international problems.

[Mr Cash]

I am getting slightly worried; in fact, I am getting very worried about the line of route of the hon. Gentleman’s argument. I referred to civil wars and the total chaos that there is in the middle east and in parts of north Africa. Is he seriously suggesting that, ultimately, all these matters, because they have an international dimension, should, given the competing claims and counter-claims made by people who are engaged in political processes, be dealt with in an international court? We would spend all our time, and without any beneficial result, arguing about the legal questions, which are essentially political, tragic as they may be. I do ask the question.

[Ian Lucas]

I was not specifically, in the context in which I was speaking, talking about the International Criminal Court. I was talking about international problems being dealt with through international institutions. The United Nations and the Security Council of the United Nations are the most obvious example. I was making the general point that international institutions and countries, working together, need to deal with international problems, which manifest themselves within individual countries.

We know that in north Africa, for example, many of the things that have caused major problems in the region have involved groups of people crossing borders at different times. Those borders are often ill defined and not policed in any way. Mali would be one example, and Somalia and Kenya are another. I am talking about a collective approach, through organisations such as the United Nations, and a progression of that. I am saying that, in particular cases, the use of the International Criminal Court is appropriate. For that reason, when countries choose to join the ICC process, it is appropriate that we, as a country that has also submitted itself to that process, support the process.

I think that we need to respect the role of the ICC and international principles of justice and democracy and apply those principles in the future, so I would be extremely concerned about the implications of Kenya withdrawing from the ICC if Kenya were to withdraw, because that would be a step away from dealing with very difficult, shared problems in a collective way. It would be a step backwards, because it would be a step towards more isolation. Ultimately, that would bring about a lower level of capacity to solve the problems that we want to address.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mark Simmonds)]

It is a pleasure to be under your chairmanship and guidance this morning, Mr Caton. I congratulate the hon. Member for Falkirk (Eric Joyce) on securing this important debate, and on his continued interest in and knowledge of Africa, and Kenya in particular. I thank him for referring to the importance of having a detailed knowledge and understanding of the significant bilateral relationship, historically and today, between the United Kingdom and Kenya. I also thank my hon. Friend the Member for Stone (Mr Cash), who has significant knowledge and experience of east Africa and Kenya, and who shows a continuing energetic commitment to improving the lives of those who live in Africa. My hon. Friend and the hon. Members for Falkirk, and for Wrexham (Ian Lucas), powerfully articulated the complexities and sensitivities of the issue.

I will endeavour to address all the points that have been raised. First, I will take stock, as the hon. Member for Wrexham did, of our wider bilateral relationship, particularly in the aftermath of the horrific terrorist attack on the Westgate shopping centre in Nairobi on 21 September. I am sure that the whole House will join me in re-emphasising our deep sympathy and profound condolences to the Kenyan Government and people, and to the other countries affected by that abhorrent act. As the Prime Minister has said, it was a sickening and despicable act of appalling brutality.

Hon. Members may have spotted that yesterday my right hon. Friend the Foreign Secretary laid before Parliament a written statement setting out the UK Government’s response to the crisis. On the day of the attack, the Prime Minister spoke to President Kenyatta, and I spoke to the Kenyan Foreign Minister, Amina Mohamed, to express the UK’s solidarity and to offer assistance. The UK has provided assistance at the scene in identifying victims and collecting forensic evidence. We have also provided medical supplies and rations to the Aga Khan university hospital, where many of the wounded were taken.

We are determined to work with Kenya on the shared challenge of addressing regional terrorism and building stability in Somalia. The close co-operation and understanding that underpin the UK response to the Westgate attack is a reminder that the UK and Kenya share many priorities and interests. The relationship between the countries today is one of partnership, shared mutual interests and shared concerns, through being members of the Commonwealth, through strong commercial security and through personal ties. The UK is the largest commercial investor in Kenya and the second-largest trading partner, with bilateral trade worth more than £1 billion a year. Thirty thousand British nationals reside in Kenya, and 180,000 British nationals visit Kenya every year. Kenya is also one of the largest bilateral recipients of DFID aid, with the UK contributing £135 million annually in support of Kenya Vision 2030. Our projects tackle conflict, increase stability and improve education and health care.

I have read what the hon. Member for Falkirk said in a similar debate that he secured in March. In that debate, he highlighted the fact that we have a strong defence and security relationship. The British Army trains 10,000 British soldiers in Kenya every year, which benefits not only the UK but the Kenyan defence forces and the wider economy. We want that co-operation to continue and develop for the mutual benefit of the UK and Kenya.

Before I move on to specifics about the International Criminal Court, I will address a couple of points that arose in interventions on the hon. Member for Falkirk. The hon. Member for Upper Bann (David Simpson) rightly raised the importance of trying to reduce, if not eradicate, corruption in Kenya. Department for International Development programmes are involved in supporting greater transparency and accountability at national and county level. The hon. Member for Falkirk mentioned the Mau Mau settlement. It is important to understand that that did not constitute reparation; it was a settlement of claims that recognised the pain and suffering experienced by people on all sides during those events many years ago.

At the heart of our relationship with Kenya is counter-terrorism engagement, through which we assist Kenya in defending itself and countering cross-border security threats, many of which stem from Kenya’s leading role in the African Union Mission in Somalia. Kenya made significant sacrifices during that mission in its attempts to secure peace and stability in Somalia, and we recognise and welcome the significant contributions that Kenya and others have made.

I turn to the issue at the heart of the debate, namely the International Criminal Court. I think it would be helpful if I briefly set out what the ICC is about and why it is so important before I address some of the complexities and sensitivities involved in the issue that we are talking about. The UK and Kenya are among the 122 countries that are signatories to the ICC’s founding Rome statute. Of those countries, 34 are African states; that is the biggest bloc anywhere in the world. As the hon. Member for Wrexham pointed out, we strongly support the ICC’s work around the world as an impartial, independent guardian of the rule of law. It is a court of last resort for the most serious crimes, including genocide, war crimes and crimes against humanity. It takes up cases only when national authorities are unable or unwilling to do so. It provides no immunity for those in positions of power, even Heads of State—a point that has been made powerfully. That universality is one of its strengths. It plays a vital role in ending impunity, holding perpetrators to account and delivering justice for victims.

In July, my right hon. Friend the Foreign Secretary launched the Government’s ICC strategy, which sets out our thinking on how we can ensure that the ICC retains its independence—that is vital—delivers justice, increases its membership, builds more support for its decisions from states and the UN Security Council, gains wider regional support and completes its work more efficiently.

As I have said, the ICC will take on cases only where national authorities lack the capabilities or the will to undertake prosecutions, as was the case in Kenya. The UK is committed to helping to provide training and mentoring to national authorities to help them develop their own laws and systems.

The hon. Member for Falkirk powerfully highlighted the common perception that the ICC is anti-Africa, and I want to address that point. In Africa, the court is working tirelessly to deliver justice for millions of Africans who endured appalling treatment at the hands of fellow Africans. African states have been some of the most important supporters of the creation and effective functioning of the ICC. African states played an active role in the negotiations that led to the establishment of the court, and 22 African countries were among the founding ratifiers of the Rome statute. Interestingly, the first and most recent states to ratify the Rome statute, Senegal and Côte d’Ivoire, were African. The majority of African Union member states—34 African states—are now ICC state parties. It is important to recognise that Africans are among the highest level of ICC officials, and they serve as judges and prosecutors at the court.

The ICC investigates situations, not people, and only after situations have been investigated do prosecutions occur. Suggestions that the ICC focuses solely on Africa do not tell the full story. Preliminary investigations are already under way in cases outside Africa, including in Afghanistan, Colombia, Georgia and Honduras. The majority of cases brought against Africans have been lodged with the ICC by Africans.

I turn to specifics that all hon. Members raised about the ICC and Kenya. Of course I accept that the topic is controversial and sensitive, and creates difficulties for the Kenyan Government, but after the appalling post-election violence in 2007-08, many believe that justice is essential for national reconciliation and healing, and that the trials must continue to give the victims and the accused access to justice. We should remind ourselves of the numbers involved. I underline the figures that hon. Members have mentioned: more than 1,000 people were killed; 3,000 people suffered serious sexual violence; and more than 600,000 people were displaced. We strongly welcome the Kenyan Government’s co-operation with the court and urge them to continue to co-operate, as they have pledged to do.

The UK Government recognise that President Kenyatta and Deputy President Ruto have constitutional obligations and important responsibilities at home, as the Westgate attack illustrated so graphically. We therefore believe that the court’s decision to alternate the trials of the President and Deputy President, to ensure conformity with the Kenyan constitution, and to agree a short delay to allow Deputy President Ruto to take part in the Kenyan Government’s response to Westgate, showed welcome pragmatism.

The hon. Member for Wrexham raised the issue of witness intimidation. We remain deeply concerned by reports of witness intimidation, and call on all state parties to assist the court in preventing it. That would mean Kenya responding to the arrest warrant the court issued last week.

The hon. Gentleman also raised the issue of the Kenyan Parliament’s vote in support of a motion to withdraw from the Rome statute. We must be clear: it is for Kenya, as a sovereign country, to decide whether to withdraw. We, of course, very much hope that it does not. Withdrawing from the Rome statute would not remove Kenya’s obligation to co-operate with the court on the current investigation, as the hon. Members for Falkirk, and for Wrexham, pointed out. The UK Government support the process, but we are clear that it must be recognised that defendants remain innocent until proven guilty. It is for a competent court—in this case the ICC—not the UK or any Government or individual, to pass judgment. The strength of the court lies in its independence, and its processes are, rightly, independent of the UK. I do not share the analysis of the hon. Member for Falkirk that the court process is political, not judicial; it is very clearly a judicial process. We are determined to ensure that the UK’s support for international justice and the ICC does not jeopardise our wider bilateral relations with Kenya.

[Mr Cash]

Is the Minister entirely satisfied that the methodology and process adopted in respect of President Kenyatta and Mr Ruto have been followed in what one would objectively regard as the appropriate manner?

[Mark Simmonds]

As I said earlier, the ICC only takes up matters when the country in question does not put in place the requisite judicial process to allow relevant prosecutions or investigations to take place. Specifically, the Waki commission, to which the hon. Member for Falkirk referred, gave the Kenyan authorities time to put in place the necessary and appropriate structures to deal with the judicial process, as it relates to the terrible atrocities that occurred in 2007-08. It is only because the Kenyan authorities did not do that at the time that the matter was referred to the ICC.

There are seven cases before the ICC, including the Kenyan issue. Of the other six, four were referred to the court by Africans themselves, and two were referred by the UN Security Council. The hon. Member for Falkirk raised the issue of the speculation that the African Union summit could result in some states withdrawing from the Rome statute. He will not be surprised to hear that I will not engage in speculation, but I shall make two points. Although there is a perception that the ICC is focused only on Africa, there is a broad range of views, as there would be in the UK, across the African Union. Only a couple of days ago, 130 groups from across Africa called for not only sustained but greater co-operation with the ICC. He will not be surprised to hear that we urge African states to continue their support for the court, and encourage those African states not party to the Rome statue to consider ratification or accession and other ways that they can support the court’s work. African support and expertise continues to be vital to enable the court to fulfil its mandate of delivering justice for victims and tackling impunity.

I am the first to acknowledge that the court is a young institution. The UK is among those, not only in Africa, but elsewhere, who would like to see improvements. My hon. Friend the Member for Stone made a powerful point about other countries around the world that are not signatories to the Rome statute, and the terrible atrocities in Syria, which we have seen on our television screens. I am sure that he is aware of the UK Government’s position: those who perpetrated those horrific crimes should face justice.

Before I conclude, I shall reflect for a moment on the Kenyan elections in March. The Kenyan people and politicians need to be congratulated on the peaceful nature of the elections, which was in stark contrast to the violence which marred the election in 2007-08. That demonstrated the determination of the Kenyan people to express their democratic right to elect a Government of their choosing in an environment free from violence and intimidation. Kenyans should be proud of that significant achievement. The UK played a role in supporting the democratic process, including by providing £16 million to support free and peaceful elections. The UK position has been consistent and clear: it is for the Kenyan people to elect their leaders and for the courts to resolve any disputes that stem from the election process.

[Mr Cash]

Is the Minister willing to continue this dialogue after the debate, in light of my remarks regarding my uncertainties about the manner in which the ICC goes about a lot of its business?

[Mark Simmonds]

As always, I am happy to talk to my hon. Friend about his views. I will of course be pleased to hear how he thinks the ICC could work better.

The UK-Kenyan relationship is significant, and we want it to continue to develop. We want trade to grow. We want more UK companies to invest in Kenya and more Kenyan entrepreneurs and businesses to invest in the UK. We want to strengthen our partnership in a range of areas, from counter-terrorism co-operation to defence matters, as well as help, through Department for International Development programmes, to alleviate poverty, build capacity and assist those in Kenya who are less fortunate than all of us here today. However, the UK also supports the ICC. We acknowledge, respect and welcome President Kenyatta’s pledge to respect Kenya’s international commitments and to continue co-operation with the ICC.