COUNCIL FOR LEGAL EDUCATION

KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAM
FIRM 3B

CRIMINAL LITIGATION

PRESENTED TO:
M/S. ROSEMELLE MUTOKA
DATE: 27TH AUGUST, 2015

DECLARATION
We declare that this paper is submitted in part fulfilment of the requirements for the Advocates
Training Programme at the Kenya School of Law. The paper is the result of our own independent
investigation and all sources are dully acknowledged herein.
Signed;

LIST OF MEMBERS
NAME

ADM. NO

ASUKE PERRY

20150100

KAMAU CAROLINE WANJIKU

20150434

STELLA WANJIRU MBUGUA

20150891

NDEDA PATRICK ONYANGO

20151259

KEVIN KINUTHIA NJERI

20151344

NKONGE VICTOR MUTHURI

20151381

TABITHA MOIGE NYAMWEYA

20151417

RITUGA JOSEPH MWANGI

20151721

AGNES JEPKOGEI SIELEI

20151768

10

THUKU STELLA GATHONI

20151810

SIGNATURE

Contents
DECLARATION.............................................................................................................. i
LIST OF MEMBERS......................................................................................................... i
QUESTION................................................................................................................... iii
INTRODUCTION........................................................................................................... 1
i

1.0.

Question a: the structure and jurisdiction of the International Criminal Court (the ICC)............1

1.1.

STRUCTURE AND JURISDICTION OF ICC...............................................................1

1.2.

STRUCTURE OF THE ICC...................................................................................2

1.2.1.

The Presidency............................................................................................. 2

1.2.2.

The Judicial Divisions.................................................................................... 3

1.2.3.

Office of the Prosecutor (OTP).........................................................................3

1.2.4.

The Registry................................................................................................ 4

1.2.5.

Other Offices............................................................................................... 4

1.3.

JURISDICTION OF THE ICC................................................................................4

1.3.1.

Territorial Jurisdiction, Temporal Jurisdiction and Exceptions...................................5

1.3.2.

Subjects of the Court...................................................................................... 6

1.3.3.

Jurisdiction as to Certain Crimes.......................................................................6

1.3.4.

The Principle of Complementarity as a Limitation to Jurisdiction...............................6

2.0.

Question b: The ICC accused of inter alia targeting African leaders. Discuss.........................9

2.1.

BACKGROUND................................................................................................ 9

2.2.

A BIASED COURT: TRACING THE CURRENT ICC-AFRICA FEUD............................9

2.2.1.

ICCs Perceived Lack of Independence.............................................................10

2.2.2.

Failure to Live up to Standards.......................................................................11

2.2.3.

The Problem of Temporal Jurisdiction..............................................................11

2.3.

THE CASE AGAINST BIASNESS........................................................................11

2.3.1.

Self Referrals and Support for Independent Investigations......................................12

2.3.2.

Inability of African Countries to Prosecute High Gravity Crimes.............................12

2.3.3.

The Fight against Impunity............................................................................ 13

2.3.4.

Insincerity, Hypocrisy and Self Interest.............................................................13

2.3.5.

Protection of Victims................................................................................... 14

2.4.

CONCLUSION................................................................................................ 15
ii

3.0.

Question c: the Role ICC plays in Regional Justice Systems.............................................16

3.1.

INTRODUCTION............................................................................................. 16

3.1.1.

ICC as a Complementary to Regional Justice Systems..........................................16

3.1.2.

Triggering Reforms and international Jurisprudence.............................................18

3.1.3.

ICC as a Watchdog and the Role of Averting Imminent Crimes................................20

3.1.4.

Participation and Facilitation of Peace Negotiations.............................................21

3.2.
EVALUATING THE PERFORMANCE OF ICC WITH RESPECT TO ITS ROLE IN
REGIONAL JUSTICE SYSTEMS..................................................................................23
3.3.

CONCLUSION................................................................................................ 24

BIBLIOGRAPHY.......................................................................................................... 25
PROJECT MINUTES..................................................................................................... 28

QUESTION
a) Discuss the structure and jurisdiction of the International Criminal Court (the ICC).
b) The ICC has been accused of inter alia targeting African leaders. Discuss.
c) Discus the role, if any, the ICC plays in the regional justice system citing Kenya,
Rwanda, Democratic Republic of Congo Burundi and Uganda as examples and evaluate
its performance in this regard.

iii

iv

INTRODUCTION
This response paper is divided into three parts. Part one is an analysis of the structure and
jurisdiction of the International Criminal Court (ICC). Part two is a consideration of the debate
that ICC has directed its efforts in Africa in disregard of human rights violations taking place in
other continents. The last part is a discussion of the role ICC plays in regional justice systems. In
this part, reference will be made to Kenya, Rwanda, Democratic Republic of Congo Burundi and
Uganda as illustrations. The third part will be concluded by an evaluation of the performance of
ICC in regional justice systems.
1.0.

Question a: the structure and jurisdiction of the International Criminal Court

(the ICC)
1.1.

STRUCTURE AND JURISDICTION OF ICC

ICC is a treaty based permanent criminal Court.1 The Court mainly seats at The Hague,
Netherlands though it may hold its sittings elsewhere. 2 The court was established under The
Rome Statute of the International Criminal Court, to be referred as the Rome Statute in the
following parts.3 The Statute was adopted by 120 states and came into force on 1 st July, 2002.4
ICC was established to investigate and prosecute individuals who commit crimes of a grievous
nature including genocide, crimes against humanity, war crimes and crimes of aggression.5

Barbour E. C., Weed M.C., The International Criminal Court, Extradition and U.S Policy,
Congressional Research Service, 2010
2
Rome Statute the International Criminal Court ( Rome Statute) Article 3
3
Rome Statute Article 1
4
Understanding the International Criminal Court <http://www.icccpi.int/iccdocs/pids/publications/uicceng.pdf. > Accessed on 18th August, 2015
5
Rome Statute Article 5

The legal basis in terms of substance and procedure of the ICC is drawn from its foundational
treaty the Rome Statute.6 The provisions of the statute are further complemented by the Rules of
Procedure and Evidence (RPE) and the Regulations of the Court.7 The rules of procedure cut
across the range of the crimes within the jurisdiction of the Court to ensure consistency in the
application of the law in the situations referred for investigation and subsequent prosecution by
the Office of the Prosecutor.8

1.2.

STRUCTURE OF THE ICC

The ICC is divided into 4 organs. They are the Presidency, Judicial Divisions, Office of the
Prosecutor (OTP) and the Registry.9 The organisational design of the structure of the Court as
provided for in the Rome Statute allows for the separation and allocation of distinct powers and
functions which in turn enhances procedural efficacy.10
1.2.1. The Presidency
The presidency consists of 3 judges being the president and 2 vice-presidents who hold office by
virtue of election by an absolute majority of the 18 judges of the ICC. The judges serve for a
maximum of 2 terms each being three year.11 The role of the presidency is to oversee judicial and
legal functions of the Court. The organ also has administrative functions in relation to external
relations.

Rome Statute Article 4

Rome Statute Article 51 as read Article 52
8
Bogdandy A. and R. Wolfrum., The Procedure of the ICC: Status and Function of the
Prosecutor, Max Planck Yearbook of the United Nations Law Vol. 7, 2003, 513-552
9
Rome Statute Article 34
10
Bogdandy (n 10)
11
Rome Statute Article 38
7

1.2.2. The Judicial Divisions

The Judicial Divisions exercise the judicial function of the ICC. It consists of 18 judges
including the 3 judges of the presidency assigned to various judicial divisions namely: PreTrial
Division, Trial Division and Appeal Division. 12 The Pre-Trial Division resolves issues arising
before the trial phase. These include making determinations as to whether to issue warrants of
arrest or summons to appear at the request of the OTP and whether or not to confirm charges.
The Pre-Trial Chambers also have a supervisory role on the investigative and prosecutorial
functions of the OTP and guarantee the balance of rights as between suspects, victims and
witnesses in the course of trial and thus upholding the integrity of the trial process.13
The Presidency constitutes a Trial Division composed of 3 judges upon the confirmation of
charges. The Trial Division is mandated with the task to ensure the trial is fair and just, to render
decisions on acquittal or conviction and upon conviction imposition of sentence.14
The Appeal Division is composed of the president and 4 other judges. Parties may appeal or seek
leave to appeal from decisions and judgements the Pre-Trial Division and Trial Division. The
Appeals Division may uphold, reverse or amend the decision, judgment or sentences.15
1.2.3. Office of the Prosecutor (OTP)
The OTP is an independent organ of the ICC mandated with a two pronged mandate namely that
of investigation and subsequent prosecution. The office is divided into 3 divisions that enable it
to carry on its mandate as prescribed in the statute. These divisions include the investigation
decision, prosecution division and jurisdiction, complementarity and cooperative division. 16 The
12

Rome Statute Article 39

Rome Statute (nt 12) above
14
Rome Statute (nt 12) above
15
Rome Statute (nt 12) above
16
Rome Statute Article 42
13

Investigation Division is responsible for conducting investigations. This involves the collection
and gathering of evidence in support of its case. 17 The Prosecution Division is responsible for the
litigation of the case during the trial stage of the proceedings.18 Lastly, the Jurisdiction,
Complementarity and Cooperative Division analyses the situations referred to the ICC to
ascertain their admissibility before subsequent investigation and prosecution of the same by the
court.19
1.2.4. The Registry
The registry provides both administrative and operational support to the court. The registry is
also the focal point of communication as between the court and the outside world.20
1.2.5. Other Offices
Other Offices that work alongside the ICC organs are the Office of Public Counsel for Victims
and Office of Public Counsel for Defence. They fall under the Registrar though their work is
autonomous.

1.3.

JURISDICTION OF THE ICC

ICC is a statute based court and lacks universal jurisdiction in the prosecution of crimes. The
Court can only function within the Rome Statute. Generally, it may only exercise jurisdiction
over state parties to the Rome Statute and over certain individuals who have committed specific
offences within a specified time period.

17
18
19
20

Rome
Rome
Rome
Rome

Statute
Statute
Statute
Statute

(nt 16) above

(nt 16) above
(nt 16) above
Article 43

1.3.1. Territorial Jurisdiction, Temporal Jurisdiction and Exceptions

When a state becomes a signatory to the Rome Statute, it invariably agrees to submit itself to the
jurisdiction of the ICC.21 In determining the date of entry into force reference is made to, firstly,
the general entry into force of the Rome Statute on 1st July, 2002 which only applies to states that
ratified the statute prior to April 2002 and secondly, the individual entry into force of the Rome
Statute for a new state party. For the latter case, the Statute enters into force on the first day of
the month after the 60th day following the deposit of its instrument of ratification, acceptance,
approval or accession.22
Upon a state becoming a party to the Rome Statute after its entry into force, the court exercises
jurisdiction with respect to crimes that are committed after entry into force of the Statute
However, a state may make a declaration accepting retroactive application of the jurisdiction of
the Court.23
ICC may in certain circumstances acquire jurisdiction over states not parties to the Rome Statute.
This happens when a referral of a situation is made to the OTP by the United Nations Security
Council (UNSC) pursuant to Chapter VII of the U.N Charter. 24 In addition, the ICC acquires
jurisdiction when a state that is not a party to the Rome Statute or was not a party at the time the
alleged crimes were committed makes a declaration for the Court to have jurisdiction with
respect to the crimes in question.25

21

Introduction to the ICC, Structure and Basic Principles < https://www.fidh.org/IMG/pdf/5CH-II_Introduction_to_the_ICC.pdf> Accessed 18 August, 2015
22
Introduction to the ICC (nt 23 ) above
23
Introduction to the ICC (nt 23) above
24
Rome Statute Article 13 (b)
25
Rome Statute Article 12 (3)

1.3.2. Subjects of the Court

ICC prosecutes persons and not states or entities. The alleged perpetrator of a crime must be a
national of a signatory to the Rome Statute 26 whereby the crime in question is committed in the
territory of a signatory.27 The perpetrators subject to the courts jurisdiction include both those
who are directly responsible for committing the crimes as well as those responsible through
aiding, abetting or assisting in the commission of a crime regardless of positions they hold. 28
The Court has no jurisdiction with respect to any person who was under the age of 18 when the
crimes concerned were committed.29
1.3.3. Jurisdiction as to Certain Crimes
The mandate of ICC is to try the most serious crimes of common concern to the international
community. Article 15 of the Rome Statute lists such crimes that ICC may try. They are crimes of
genocide, crimes against humanity, war crimes and crimes of aggression. This means that ICC
has no jurisdiction to try any crime not specifically listed under article 15. Equally, the Court has
no jurisdiction to try civil cases as this has not been specifically allowed by the Statute.
1.3.4. The Principle of Complementarity as a Limitation to Jurisdiction
The preamble of the Rome Statute provides that ICC shall be complementary to national criminal
jurisdictions.30 This aimed to uphold state sovereignty by not interfering with trial processes by
states. As such, the priority is given to national systems in that the states to try perpetrators for
the most serious crimes.31 The ICC only intervenes where it is established that the state
machinery is incapable or unwilling to take up the responsibility of investigating and prosecuting
26

Rome Statute Article 12 (2)

Rome Statute (nt 26) above
28
E Greppi, The Evolution of Individual Criminal Responsibility under International Law 30 th
September http://www.icrc.org (accessed 16th March 2014)
29
ICC, Public Information and Documentation Section, Understanding the International
Criminal Court
30
Rome Statute Para 10
31
Rome Statute Article 17
27

the perpetrators of crimes that are subject to public outcry worldwide. 32 In other words, it is this
unwillingness and inability by a state party to try its matter that accords ICC full jurisdiction.
The principle of complementarity further limits the courts jurisdiction based on circumstances
listed under Article 17 of the Rome Statute. Under such circumstances, a case will be
inadmissible even though the court would have had jurisdiction.33 These circumstances are:
a) The case is being investigated or prosecuted by a willing and able State which has
jurisdiction over it.
b) The case has been investigated by a willing and able State which has jurisdiction over it and
the State has decided not to prosecute the person concerned.
c) The person concerned has already been tried for conduct which is the subject of the
complaint
d) The case is not of sufficient gravity to justify further action by the Court.
The case of Al Sennussi34 is a proper illustration of how the principle of complementarity applied
to disallow ICC jurisdiction over a matter. In the case, Libya challenged the jurisdiction of ICC
on the grounds that its national courts had taken up the investigations and thus willing and able
to try the case. However, the Pre-Trial Chamber was of the view that though Libya was willing to
prosecute, logistics were against it as it was just reconstructing its court system hence
impracticable to achieve the highest standards of justice but maintained ICC had no jurisdiction.

32

Rome Statute (nt 31) above

L Yang On the Principle of Complementarity in the Rome Statute of the International
Criminal Court June 2005< http://www.chinesejil.oxfordjournals.org> accessed 19 August
2015
34
The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi ICC-CPI-20140724-PR1034
33

The ICC also has jurisdiction in cases whereby there is undue delay to institute proceedings
which is calculated to operate as shield and consequently bar individuals from facing criminal
responsibility.35
Lastly, the Prosecutor can institute investigation on own motion on the basis of information on
crimes within the jurisdiction of the Court.36 However, the decision of the Prosecutor to institute
investigations on own motion is subject to the approval of the Pre-Trial Chamber.37

35

Philippe Kirsch, The Role of the International Criminal Court in Enforcing International
Criminal Law (2007) American University International Law Review 22, no. 4, 539-547, 544
36
Rome Statute Article 15
37
Rome Statute (nt 35) above

2.0.

Question b: The ICC accused of inter alia targeting African leaders. Discuss.

2.1.

BACKGROUND

Initially, the ICC enjoyed a friendly, cooperative relationship with the African Union (AU), with
several African governments referring situations to the Court. This cooperation changed in 2009
when the President of Sudan President Omar Al-Bashir was indicted after the situation in Darfur
was referred to the ICC Prosecutor by the UNSC. This prompted the AU to adopt a hostile
attitude towards the ICC and call on its member countries to stop cooperating with the Court. 38
Since then, ICC has faced criticisms of insufficiency and targeting Africa forgetting equally
severe crimes elsewhere.39 Indeed, about 24 people facing charges in the ICC and the only
persons convicted are from Africa, leading to accusations of bias.40

2.2.

A BIASED COURT: TRACING THE CURRENT ICC-AFRICA

FEUD

The term Selective justice is oftenly used by antagonists of the ICC to refer to the mode of
operation of the Court in which it is perceived to target indictment and prosecution of persons
from African countries. These antagonists charge that Africa seems to be taking the lions share
of ICCs jurisdiction. They assert that such selective justice is undesirable in its use as a tool to
control Africa.41 On top of that, the ICCs referral system may give the impression that the court
38

Assembly of the African Union, Decision on the Meeting of African States Parties to the
Rome Statute of the International Criminal Court (ICC)
<http://www.au.int/en/sites/default/files/ASSEMBLY_EN_1_3_JULY_2009_AUC_THIRTEENTH_OR
DINARY_SESSION_DECISIONS_DECLARATIONS_
%20MESSAGE_CONGRATULATIONS_MOTION_0.pdf> accessed 1 August 2015
39
Dr. Edwin Ndukwe, Selective Justice: Are African Leaders Targeted by ICC? July 18, 2013.
Available at: http://360naija.com/2013/07/18/selective-justice-are-african-leaders-targetedby-icc/#.VctVn1I0zIU.
40
ICC is hunting Africans
<http://www.telegraph.co.uk/news/worldnews/africaandindianocean/10082819/InternationalCriminal-Court-is-hunting-Africans.html> accessed 1 August 2015
41
Dr. Edwin (n39)
Dr. Edwin (n39)

can only be implemented by nations who volunteer to be part of it. As it will be seen, Africa now
lacks this voluntarism to involve ICC in its affairs.
2.2.1. ICCs Perceived Lack of Independence
This was demonstrated by the signing into law of the American Service-members Protection Act
(ASPA) to grant United States of America (USA) the right to use military force to free any USA
citizen being detained by the Court.42 This would mean USA has given itself the right to invade
The Hague, Holland, and the ICC must accordingly pander to Americas sensibilities. 43
Furthermore, the ICC is funded via voluntary contributions from the United Nations
contributions by state parties and others entities.44
There has also been funding of Non Governmental Organizations supporting ICC to convince
nations to accept the Court. This is in addition to the amended Cotonou Agreement of 2002 to
influence African nations into ratifying the Rome Statute. This Agreement, revised by the ICC
itself, explicitly stated that any African, Caribbean and Pacific country that refused to ratify the
Rome Statute would be denied huge development aid.45

42

Emily C. Barbour & Matthew C. Weed, The International Criminal Court (ICC): Jurisdiction,
Extradition, and U.S. Policy 2010
43
Dennis Jett, Two Warlords, American Policy Hypocrisy and the Power of Social Media 2012
<http://www.huffingtonpost.com/dennis-jett/icc-united-states_b_1368182.html> accessed
August 1 2015
44
Claire Calzonetti, Frequently Asked Questions about the International Criminal Court
2012 <http://www.cfr.org/international-criminal-courts-and-tribunals/frequently-askedquestions-international-criminal-court/p8981#p7> accessed August 1 2015
45
Mohammad Baseer, International Criminal Court and Africa, a Special Relationship
2012 < http://www.newafricanmagazine.com/special-reports/sector-reports/icc-vsafrica/europe-masters-behind-the-icc?print=1&tmpl=component> accessed August 1 2015

10

2.2.2. Failure to Live up to Standards

Arguably, despite the ICCs self-portrayal and founding tenets, it has consistently failed to live
up to its own standards. As such, many people and countries not only in Africa have found much
to criticize about the Court. The main reservations about the Court include the complementary
principle which allows the Court to judge other nations fitness to conduct their own trials and
the likelihood of manipulation by political influences.46 Further, there are sentiments that the ICC
can be politically manipulated due to the Prosecutors power to prosecute based on own initiative
and the involvement of UNSC.47
2.2.3. The Problem of Temporal Jurisdiction
This is seen as a source of criticism against ICC by people of African descent. Temporal
jurisdiction means that Europe or USA, for example, cannot be prosecuted for genocides done
before 1st July 2002 including the German genocide of 1904-1907, the European trans-Atlantic
slave trade of 1501-1865, the European Scramble for Africa of 1881-1914. This is despite the
fact that the crimes committed in these regions may have been of high gravity compared to
crimes committed in Africa. While time limitations on jurisdiction was fixed to post the time the
Rome Statute came into force, Africans may be tempted to feel that the court was established for
them. In other continents, the atrocities had already been committed before this time and
therefore the time limitation was questionably a shield.

2.3.

THE CASE AGAINST BIASNESS

The criticisms highlighted above may point out ICC as a biased institution or a court that may be
manipulated in execution of its functions to the disadvantage of the African Continent. However,
46

Lu Jianping & Wang Zhixiang, Towards the ICC J Int Criminal Justice (July 2005) 3 (3): 608620
47
Usha Ramanathan, India and the ICC (2005) journal of international criminal justice 627

11

there are persuasive interpretations which expose the protest by Africans against ICC as insincere
or unfounded.
2.3.1. Self Referrals and Support for Independent Investigations
Investigations into African situations have mostly been opened at the request of or with the
support of African states.48 Three of the African situations currently under investigation were
self-referred while two have been referred by the UNSC.49 The DRC, Benin and Tanzania voted
in favour of the UNSC referral of the Darfur situation to the ICC. South Africa, Gabon and
Nigeria voted in favour of the UNSC referral of the Libya situation to the ICC while Ivory Coast
accepted the jurisdiction of the ICC and undertook to cooperate with the ICC.
Former President of Kenya, Mwai Kibaki, and Prime Minister Raila Odinga pledged support to
the Prosecutors independent decision to open an investigation into crimes in Kenya. Economic
Community of West African States (ECOWAS) supported Malis decision to refer to the ICC the
crimes occurring on its own territory since January 2012. Despite a record of severe attacks on
the ICC, Uganda still referred Dominic Ongwen to the Court.
With these observations of self referrals and independent support for ICC, it may be argued that
the allegation of bias by the Court is unfounded.
2.3.2. Inability of African Countries to Prosecute High Gravity Crimes
In the African countries whose situations are before ICC, the status of civil and political rights in
serve as an indicator for their capacity to handle ICC type cases. 50 Generally, these countries
score very poorly on fragile states indices hence a presumption of lack of capacity to investigate
48

Coalition for the International Criminal Court, Africa and the International Criminal Court
< http://www.iccnow.org/documents/Africa_and_the_ICC.pdf> Accessed 2 August 2015
49
Usha (nt 47)
50
Fragile state index 2015 http://fsi.fundforpeace.org/

12

and prosecute ICC type cases on their own. Six of the 20 most critical countries in the failed state
index are under investigation, namely the Central African Republic, Cte dIvoire, the DRC,
Kenya, Sudan and Uganda.51 Although there is no state precluded from addressing crimes against
humanity, there is high probability that there would be serious difficulties in conducting fair trials
that satisfy international standards in majority African countries.
2.3.3. The Fight against Impunity
Escaping responsibility for crimes due to power and authority is a recurrent theme in Africa. 52 As
such, most governments in Africa are unwilling or cannot hold to account powerful persons
responsible for egregious atrocities. Ending impunity is one reason why the ICC was established.
Arguably, it is this impunity that ICC targets in Africa. This was mentioned by former United
Nations (UN) Secretary General Kofi Annan, when he stated that it is the culture of impunity that
is being targeted by ICC and not the African leaders.53
2.3.4. Insincerity, Hypocrisy and Self Interest
Despite ICC's concentration in Africa, self-interest is manifest in criticisms towards it by
Africans. It was only after the prosecution of heads of state such as Omar Al Bashir of Sudan and
Uhuru Kenyatta of Kenya that the AU began to vigorously criticize the Court. Kofi Annan and
the leadership in Kenya supported a Kenyan led process as parliament failed to pass the
necessary laws to create a Special Tribunal thus surrendering jurisdiction to the ICC. Laurent
Gbagbo was quick to accept the jurisdiction of the Court in April 2003 so that it could prosecute
rebels. However, as soon as he was arrested to face charges in The Hague, his supporters
51

Fragile state index 2015 (nt 50) above

Biong Kuol Deng, The ICC and Culture of Impunity in Africa ICC Warrant of Arrest against
President Bashir of the Sudan 2010
53
Kofi A. Annan, Justice Vs. Impunity, International Herald Tribune, May 30, 2010
http://www.nytimes.com/2010/05/31/opinion/31iht-edannan.html
52

13

immediately chastised the Court as a Western Court. Politicians commitment to justice often
shifts based on their shifting personal and political interests.
At one time, President Museveni of Uganda joked, Tyranny is colour blind. and warned that
Africas silence in the face of gross abuses undermined its moral authority to condemn the
excesses of the Pretoria regime.54 It is quite ironic that today, President Museveni is one of ICCs
fiercest critics. African leaders have had few complaints when the ICC goes after rebels or militia
leaders in African states like Uganda or the DRC. It is the pursuit of senior government officials
that has provoked the tension.55 This is an indicator that the criticism against ICC is dishonest.
2.3.5. Protection of Victims
The ICC acts to protect the rights of victims of crimes no matter which continent they are from. 56
The perpetrators of such crimes portray themselves as the victims of a westernized Court. The
same African leaders, who overwhelmingly agreed to the Rome Statute, now complain about it
because it is doing its job too well, by pursuing justice and accountability especially, at the level
of heads of state.57

Victims of mass crimes know that African courts are invariably unable or unwilling to prosecute
powerful perpetrators of crimes. These victims deserve justice regardless of the allegations that
54

President Museveni of Uganda, in his first address to the Heads of State and Government
of the Organization of African Unity (OAU) in 1986
http://csis.org/files/publication/anotes_0886.pdf
55
Makau Mutua addressing the Hague University on Africans and Hague Justice: Realities
and Perceptions of the International Criminal Court in Africa
http://www.scienceguide.nl/media/1700733/programmaboekje_african_justice_0413_spread.pdf
56
AU says ICC prosecutions are discriminatory http://www.voanews.com/content/article-african-union-says-icc-prosecutions-are-discriminatory-125012734/158424.html
57
Kenya Tests International Justice, By Makau Mutua
http://www.nytimes.com/2013/11/06/opinion/kenya-tests-international-justice.html?_r=1

14

ICC targets Africa. In this sense, ICC attention in Africa can be justified on the need to protect
victims of crimes who happen to be more in Africa. Indeed, it could be argued that the situations
under ICC investigation or prosecution in Africa are increased by the gravity of the crimes
perpetrated, an estimated, 2.5 million victims in Darfur, 2 million in the DRC, and 1.3 million in
Uganda.58

2.4.

CONCLUSION

The ICC has investigated and tried many cases from Africa compared to any other continent. It is
in the interests of justice and authority that the Court stretches its work in Africa. Ordinary
Africans are not complaining since they know that there is little chance that they will see justice
done locally without the intervention of ICC. Of the cases before ICC, most are self referrals and
were supported by the same persons who are now the fiercest critiques of the Court.
Interestingly, the criticism is intense when certain personalities are targeted by the Court. The
criticism is not there at all when the persons targeted are rebels opposing African governments.
Deductively, the criticism that ICC targets African leaders is dishonest and unfounded.

3.0.

Question c: the Role ICC plays in Regional Justice Systems

3.1.

INTRODUCTION

This part will discuss the role ICC plays in the regional justice systems. The discussion will
make reference to Kenya, Rwanda, Democratic Republic of Congo, Burundi and Uganda as

58

Is the International Criminal Court (ICC) targeting Africa inappropriately?

http://iccforum.com/africa

15

examples. Lastly, the paper will evaluate the Courts performance in execution of the roles
described.
3.1.1. ICC as a Complementary to Regional Justice Systems
The ICC was established to complement national justice systems. 59 The Court assumes
jurisdiction over crimes that have happened within the jurisdiction of member states when the
courts of the respective states are unwilling or unable to prosecute the crimes. 60 This would mean
that ICC is part of justice systems of countries which are members to the Rome Statute. For
instance, the ICC is part of the Kenyan criminal justice system. Its mandate is premised from the
fact that Kenya is party to the Rome Statute since 1st July 2005. Further, the courts jurisdiction is
consequently recognised by the countrys own Constitution which provides that any treaty or
convention ratified by Kenya forms part of the law of Kenya under the Constitution 61, and thus,
the Rome Statute that establishes the ICC is part of the Kenyan legal framework.
Following the 2007-2008 Post-Election Violence (PEV), the ICC had concurrent complementary
jurisdiction with Kenya in relation to the investigation and prosecution of individuals bearing the
greatest responsibility for the gravest crimes against humanity committed during the PEV.
However, the ICCs jurisdiction could only be triggered as a last resort, if Kenya either failed to
act or demonstrated unwillingness or lack of capacity in its investigations or prosecutions.
Regrettably, the Kenyan Parliament failed to pass legislation in 2009 to create a Special Tribunal
to prosecute these crimes prompting the ICC62 to intervene through its Prosecutors.63 This led to
the indictment of the current Kenyan President Uhuru Kenyatta and his deputy William Ruto,
59
60
61
62
63

Rome Statute Para 10

Rome Statute Article 17
Constitution of Kenya, 2010, article. 2 (6)
Rome Statute Article 13 (c)
Rome Statute Article 15

16

former Commissioner of Police Major General (Rtd.) Hussein Ali, former Head of Civil Service
Francis Muthaura, Former Industrialisation Minister Henry Kosgei and Former Radio Journalist
Joshua Arap Sang.
The ICC is the only independent, international court and legal system, providing impartial
investigations and prosecutions of individuals responsible for committing mass atrocities in the
DRC.64 This offers justice for the war crimes committed on the territory since 1 st July 2002. In
the DRCs justice system, the ICC has jurisdiction to prosecute individuals who are accused of
committing crimes defined under the Rome Statute. The DRC ratified the Rome Statute of the
ICC on 11th April 2002.65 On 3rd March 2004, the government of the DRC referred the situation
on its territory to the ICC, therefore being one of the first country situations referred to the court
requesting that the prosecutor of the ICC, Luis Moreno Ocampo, commence investigations. The
involvement of ICC in DRC was purely due to the inability of the countrys justice system to
handle the atrocities.66
3.1.2. Triggering Reforms and international Jurisprudence
This role has a close nexus with the principle of complementarity where member states to the
Rome Statute have the priority of handling crimes. As mentioned earlier, states especially in
Africa are not willing to collaborate with ICC or have their matters tried by it. This may be
implied from appeals lodged by states objecting to admissibility of the cases in the ICC. For
instance, the Kenyan government appealed the admissibility of the cases in August 2011 on the
grounds that it had initiated a variety of substantial reforms regarding due process rights,

64

Nidal Nabil Jurdi, The International Criminal Court and National Courts: A Contentious
Relationship, (Ashgate Publishing Company 2011) 264.
65
Brett Bowden and Hilary Charlesworth, The Role of International Law in Rebuilding
Societies After Conflict: Great Expectations, (Cambridge University Press 2009).
66
Gysbert Engelbrecht, The ICCs Role in Africa African Security Review 12(3) 2003, 67

17

ensuring an independent judiciary and police sector, as well as the incorporation of new laws that
would allow the national courts to try crimes from the PEV, dispensing with a need for a special
tribunal. These reforms it argued, had clearly enabled its national system to prosecute the
accused, and thus it had illustrated its willingness to do so. Nevertheless, the Appeals Chamber at
the ICC rejected the appeal on the grounds that the Kenya cases would be inadmissible only if a
current national investigation of the same accused individuals was under way. The court further
held that the government of Kenya had failed to provide sufficient evidence to prove that it was
in fact investigating the six suspects for the crimes alleged by the ICC67.
However, while there are yet to be any successful conviction, the impact of ICC on the Kenyan
justice system cannot be under estimated. This is manifested in the various legal reforms that
Kenya has undertaken or aim in establishing strong and effective institutions that aim to address
prosecution of international crimes. The current initiative by the Kenyan Government to create
an International Crimes Division within the High Court in Kenya is one of such efforts 68
Moreover, the justice system in Kenya has fundamentally improved and more people are now
confident in the capacity of the system to handle matters.
Although, the ICC has no jurisdiction over Rwanda Genocide of 1994, it is prudent to consider
the impact that has been made by International Criminal Tribunal for Rwanda (ICTR) which was
constituted to try the perpetrators of crimes committed during the genocide.

67

Rachael Goodman, Nokukhanya Mncwabe, International Criminal Justice in Africa:

Neocolonial Agenda or Strengthened Accountability? (October, 2011), African Transitional
Justice Research Network
68
The International Criminal Court in Kenya: Victims Rights to participate and seek
reparation before the ICC- A Guide for Victims of Post-Election Violence in Kenya (10 June
2013), Kituo Cha Sheria, 20 Redress

18

Since 2011, the ICTR has transferred several genocide cases to the Rwandan courts. The first
was that of Jean Bosco Uwinkindi, in April 2012 whose proceedings begun in the High Court in
Kigali. In order to obtain the transfer of cases from the ICTR, as well as extraditions of genocide
suspects from other countries, the Rwandan government has undertaken a number of legislative
reforms aimed at meeting international fair trial standards. The abolition of the death penalty in
2007 and the creation of a witness protection unit are notable examples. 69 That notwithstanding,
ICTR judges turned down several earlier requests by the ICTR prosecutor to transfer cases to
Rwandan courts, notably in 2008, as they did not consider the Rwandan judiciary capable to
guarantee a fair trial. For this refusal, the Rwandan government introduced additional reforms,
which eventually paved way for the ICTR to agree to transfer cases to Rwanda for domestic
prosecution.70
Moreover, the ICTR has played a pioneering role in the establishment of a credible international
criminal justice system, producing a substantial body of jurisprudence on genocide, crimes
against humanity, war crimes, as well as forms of individual and superior responsibility. The
ICTR is the first ever international tribunal to deliver verdicts in relation to genocide, and the
first to interpret the definition of genocide set forth in the 1948 Geneva Conventions.71
3.1.3. ICC as a Watchdog and the Role of Averting Imminent Crimes
The ICC plays an important role in Africa and in the rest of the world by providing general
oversight over member states and their justice systems. This is additional to other oversight
mechanisms put in place by respective states. Some states have respected the rule of law and
allowed their criminal justice systems to function effectively due to the involvement of ICC.
69

Phil Clark, Testifying to Genocide: Victim and Witness Protection in Rwanda 2012
Alison Des Forges and Timothy Longman, Legal Responses to Genocide in Rwanda <
http://faculty.vassar.edu/tilongma/justice.html> accessed 7 August 2015
71
Article 2(2) ICTR statute
70

19

This may be seen to have worked in Kenya where there is a history of violence every time there
are general elections. The trend seems to have come to an end after ICC prosecuted prominent
persons suspected to have perpetrated 2007-2008 PEV. Notably, the elections in March 2013
were largely peaceful unlike previous elections. Arguably, this change may be traced to ICC
involvement in Kenya.

Even when ICC has not taken an active role in investigating and prosecuting cases, mere threat
of prosecution is one of the few ways which have ensured that imminent mass human rights
violations do not happen. This happened in Burundi when the ICC prosecutor issued a threat of
prosecution of persons responsible for deteriorating political and security environment in
Burundi a few weeks before elections in 2015.72 The people and the civil society were protesting
against an allegedly unconstitutional third presidential bid of Pierre Nkurunziza. The
demonstrations were violently repressed by the police force. In a declaration dated 8 May 2015
Fatou Bensouda, the Prosecutor of the ICC stated that her office was giving full attention to the
situation in Burundi. Although the situation in Burundi led to deaths of people, the situation was
not as bad as the PEV in Kenya in 2007-2008.
ICC has mandate to closely monitor incitement that can lead to violence as stated by ICC
prosecutor Fatou Bensouda. In a press release she stated that the OTP, in accordance with its
mandate under the Rome Statute, would be closely observing developments in Burundi and
record any instance of incitement or resort to violence.73

72

Burundi: The ICC Prosecutor warns persons responsible for serious crimes <
https://www.fidh.org/International-Federation-for-Human-Rights/Africa/burundi/burundi-theicc-prosecutor-warns-persons-responsible-for-serious> accessed 20 August 2015
73
www.icc-cpi.int/en_menus/icc/press and media/press releases/pages/oto-stat-150508.aspx
accessed 20 August 2015

20

3.1.4. Participation and Facilitation of Peace Negotiations

The ICCs investigations play an active and positive role in encouraging peace negotiations. In
Uganda past efforts to negotiate peace with the murderous Lords Resistance Army (LRA) had
become impossible.74 However, in the months following the issuing of arrest warrant by ICC in
October 2005, the leader LRA, Joseph Kony, and his deputy Vincent Otti initiated peace talks
with the Ugandan government.75 Deductively, the ICC warrants were at the forefront of Kony
and Ottis considerations and the incentive to reach a settlement. Further, it may be that the
LRAs decision to pull most of its troops out of northern Uganda and to issue standing orders not
to attack anyone in the area is in part due to deterrence by the ICC.

In addition, the ICCs investigation made it more difficult for the LRA to enjoy continued
support from its key foreign ally, Sudan.76 Beginning in 1994, Khartoum provided a steady
stream of weapons, training and transportation. For Khartoum, the ICCs case increased the
stakes for supporting the LRA and prompted the Government of Sudan to sign a 2005
memorandum of understanding with the Court to cooperate with arrest warrants issued against
LRA commanders. Regardless of whether Khartoum actually fell within the orbit of the ICCs
criminal investigation, the threat had a deterrent impact.

Moreover, the ICCs investigation raised awareness and focused the attention of the international
community, which in turn provided a crucial broad base of regional and international support for
the fledgling peace process. One of the key problems of previous peace initiatives was weak
74

Louise Parrott, the Role of the International Criminal Court in Uganda: Ensuring That the
Pursuit of Justice Does Not Come At the Price of Peace (2006) AUSTRALIAN JOURNAL OF
PEACE STUDIES [Vol 1, 18-28
75
Louise Parrott (nt 74) above.
76
Michael Otim, the traditional justice, the role of the ICC, the Juba peace process, the
humanitarian situation: perspectives from the ground (2007)

21

external support. The UN and a number of countries are providing significant support for the
talks in Juba.

Lastly, the ICCs attempt to hold the LRA leadership criminally liable for its atrocities in
northern Uganda has embedded accountability and victims interests in the structure of the peace
process. The parties to the talks have accepted that robust accountability is inevitable. LRA is
being pushed towards accountability on multiple fronts by multiple actors.

3.2.

EVALUATING THE PERFORMANCE OF ICC WITH RESPECT

TO ITS ROLE IN REGIONAL JUSTICE SYSTEMS

Over the last two decades, human rights situation, Africa in particular has improved. 77 This has
been attributed to ICC involvement in situations of human rights violations. As seen from the
foregoing discussion, ICC has so far prosecuted many cases, especially from Africa. The court
has also severally issued threats averting imminent violations of human rights. This was the case
in Burundi during the period before elections in 2015. In addition, ICC has triggered noticeable
reforms and development of jurisprudence within justice systems in many countries where it has
been involved. In Kenya for example, people are now confident that the justice system can
conduct a fair trial unlike before just after the PEV. Substantial reforms have been carried out in
other countries too which may be attributed to ICC involvement. Lastly, ICC has in certain
instances participated or triggered peace negotiations. Uganda is a good case in point where LRA
agreed to negotiate peace with the government weeks after ICC announced its interest in the
Uganda situation.

77

Jeremy Sarkin, The Role of the International Criminal Court (ICC) in reducing massive
Human Rights Violations Such as Enforced Disappearances in Africa: Toward s Developing
Transitional Justice Strategies Studies in Ethnicity and Nationalism: Vol. 11, No. 1, 2011

22

The successes highlighted are far reaching looking at the results achieved in the respective
countries where ICC has been involved. In Kenya, ICC achieved peace and reforms though no
conviction has taken place. The atrocities in Uganda have reduced and the situation is better
today than it was some years back. Undeniably, these are commendable impacts that have been
largely incidental to the Courts execution of prescribed objectives.
It would be unsupported to authoritatively state that ICC has failed to achieve its role with regard
to regional justice systems. The current feeling of dissatisfaction with Courts performance
comes against a backdrop of high expectations which at times do not put into consideration the
real legal and political complexities involved in the ICC trial process. In any case, there are some
lessons that the Court in general and the OTP in particular need to learn from the Kenyan,
Rwanda, Democratic Republic of Congo Burundi and Uganda cases. First, the Prosecutor should
conduct independent fieldwork investigations rather than rely on documented evidence from
both state and non-state actors as it was in the Kenyan situation. Two, trying alternatives to
prosecutions would have far reaching results. This is in consideration of the fact that ICC has no
enforcement mechanism of its own and relies on state parties to effect its directives. Indeed, most
of the persons the Court has issued arrest warrants against, including Joseph Kony and Omar El
Barshir are still at large. Alternatives to prosecutions would include mediating peace
negotiations. Lastly, while most of the cases before ICC are from Africa, the Court needs to
make an international appearance so that all states can reap the benefits of the Courts
participation in regional justice systems.

3.3.

CONCLUSION

The role that ICC plays in regional justice systems cannot be underestimated. In the countries
where the Court has made an appearance there is a noticeable benefit within their justice
23

systems. These include complementary benefit where the regional systems are unable to work,
triggering legal and institutional reforms and facilitating peace deals. These benefits have been
largely incidental and formalization of the roles would probably have far reaching benefits.
Lastly, the Court needs to expand its involvement in all parts of the world to ensure that more
states benefit from its involvement within their justice systems.

BIBLIOGRAPHY
Laws and Treaties
International Criminal Tribunal for Rwanda
Rome Statute the International Criminal Court
The Constitution of Kenya 2010
Cases
The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi ICC-CPI-20140724-PR1034
Articles and internet materials
Alison Des Forges and Timothy Longman, Legal Responses to Genocide in Rwanda <
http://faculty.vassar.edu/tilongma/justice.html> accessed 7 August 2015
Assembly of the African Union, Decision on the Meeting of African States Parties to the Rome
Statute of the International Criminal Court (ICC)
<http://www.au.int/en/sites/default/files/ASSEMBLY_EN_1_3_JULY_2009_AUC_THIRTEEN
TH_ORDINARY_SESSION_DECISIONS_DECLARATIONS_
%20MESSAGE_CONGRATULATIONS_MOTION_0.pdf> accessed 1 August 2015
Barbour E. C., Weed M.C., The International Criminal Court, Extradition and U.S Policy,
Congressional Research Service, 2010
Biong Kuol Deng, The ICC and Culture of Impunity in Africa ICC Warrant of Arrest against
President Bashir of the Sudan 2010
Bogdandy A. and R. Wolfrum., The Procedure of the ICC: Status and Function of the
Prosecutor, Max Planck Yearbook of the United Nations Law Vol. 7, 2003, 513-552
24

Brett Bowden and Hilary Charlesworth, The Role of International Law in Rebuilding Societies
After Conflict: Great Expectations, (Cambridge University Press 2009).
Claire Calzonetti, Frequently Asked Questions about the International Criminal Court 2012
<http://www.cfr.org/international-criminal-courts-and-tribunals/frequently-asked-questionsinternational-criminal-court/p8981#p7> accessed August 1 2015
Coalition for the International Criminal Court, Africa and the International Criminal Court <
http://www.iccnow.org/documents/Africa_and_the_ICC.pdf> Accessed 2 August 2015
Dennis Jett, Two Warlords, American Policy Hypocrisy and the Power of Social Media 2012
<http://www.huffingtonpost.com/dennis-jett/icc-united-states_b_1368182.html> accessed August
1 2015
Dr. Edwin Ndukwe, Selective Justice: Are African Leaders Targeted by ICC? July 18, 2013.
Available at: http://360naija.com/2013/07/18/selective-justice-are-african-leaders-targeted-byicc/#.VctVn1I0zIU.
E Greppi, The Evolution of Individual Criminal Responsibility under International Law 30th
September http://www.icrc.org (accessed 16th March 2014)
Emily C. Barbour & Matthew C. Weed, The International Criminal Court (ICC): Jurisdiction,
Extradition, and U.S. Policy 2010
Fragile state index 2015 http://fsi.fundforpeace.org/
Gysbert Engelbrecht, The ICCs Role in Africa African Security Review 12(3) 2003
ICC is hunting Africans
<http://www.telegraph.co.uk/news/worldnews/africaandindianocean/10082819/InternationalCriminal-Court-is-hunting-Africans.html> accessed 1 August 2015
ICC, Public Information and Documentation Section, Understanding the International Criminal
Court
Introduction to the ICC, Structure and Basic Principles < https://www.fidh.org/IMG/pdf/5-CHII_Introduction_to_the_ICC.pdf> Accessed 18 August, 2015
Jeremy Sarkin, The Role of the International Criminal Court (ICC) in reducing massive Human
Rights Violations Such as Enforced Disappearances in Africa: Toward s Developing Transitional
Justice Strategies Studies in Ethnicity and Nationalism: Vol. 11, No. 1, 2011
Kofi A. Annan, Justice Vs. Impunity, International Herald Tribune, May 30, 2010
http://www.nytimes.com/2010/05/31/opinion/31iht-edannan.html
25

Louise Parrott, the Role of the International Criminal Court in Uganda: Ensuring That the
Pursuit of Justice Does Not Come At the Price of Peace (2006) AUSTRALIAN JOURNAL OF
PEACE STUDIES [Vol 1,
Lu Jianping & Wang Zhixiang, Towards the ICC J Int Criminal Justice (July 2005) 3 (3): 608620
L Yang On the Principle of Complementarity in the Rome Statute of the International Criminal
Court June 2005< http://www.chinesejil.oxfordjournals.org> accessed 19 August 2015
Makau Mutua addressing The Hague University on Africans and Hague Justice: Realities and
Perceptions of the International Criminal Court in Africa
http://www.scienceguide.nl/media/1700733/programmaboekje_african_justice_04-13_spread.pdf
Makau Mutua, Kenya Tests International Justice,
http://www.nytimes.com/2013/11/06/opinion/kenya-tests-international-justice.html?_r=1
Michael Otim, the traditional justice, the role of the ICC, the Juba peace process, the
humanitarian situation: perspectives from the ground (2007)
Mohammad Baseer, International Criminal Court and Africa, a Special Relationship
2012 < http://www.newafricanmagazine.com/special-reports/sector-reports/icc-vs-africa/europemasters-behind-the-icc?print=1&tmpl=component> accessed August 1 2015
Nidal Nabil Jurdi, The International Criminal Court and National Courts: A Contentious
Relationship, (Ashgate Publishing Company 2011)
Phil Clark, Testifying to Genocide: Victim and Witness Protection in Rwanda 2012
Philippe Kirsch, The Role of the International Criminal Court in Enforcing International
Criminal Law (2007) American University International Law Review 22, no. 4, 539-547,
President Museveni of Uganda, in his first address to the Heads of State and Government of the
Organization of African Unity (OAU) in 1986 http://csis.org/files/publication/anotes_0886.pdf
Rachael Goodman, Nokukhanya Mncwabe, International Criminal Justice in Africa: Neocolonial
Agenda or Strengthened Accountability? (October, 2011), African Transitional Justice Research
Network
The International Criminal Court in Kenya: Victims Rights to participate and seek reparation
before the ICC- A Guide for Victims of Post-Election Violence in Kenya (10 June 2013), Kituo
Cha Sheria, 20 Redress
Understanding the International Criminal Court <http://www.icccpi.int/iccdocs/pids/publications/uicceng.pdf. > Accessed on 18th August, 2015
26

Usha Ramanathan, India and the ICC (2005) journal of international criminal justice 627

PROJECT MINUTES
MINUTES FOR FIRM 3B MEETING HELD AT THE GATE B GROUNDS ON 30 TH
JULY 2015 FROM 1400HRS TO 1530HRS
Members Present
1. ANYANGO PERRY ASUKE
20150100
......
2. MBUGUA STELLA WANJIRU
20150891
.....
3. KAMAU CAROLINE WANJIKU
20150434
......
4. NDEDA PATRICK ONYANGO
20151259
......
5. NJERI KEVIN KINUTHIA (Firm Leader)
20151344
......
6. NKONGE VICTOR MUTHURI
20151381
......
7. NYAMWEYA TABITHA MOIGE
20151417
......
8. RITUGA JOSEPH MWANGI (Compiler) 20151721
.......
9. SIELEI AGNES JEPKOSGEI
20151768
......
10. THUKU STELLA GATHONI
20151810
......

AGENDA
1) Subdivision and assignment of tasks.
2) Setting of a timeline on presentation of the subgroup findings.
MIN/1/2015: Preliminaries.
Joseph called the meeting to order at 1400 hrs and inquired as to whether everyone had
familiarized themselves with the particulars of the question to which member responded in the
affirmative.
MIN/2/2015: Subdivision and assignment of tasks.
It was agreed that the assignment be divided as follows:
27

Question (a): Caroline Kamau, Stella Thuku.

Question (b): Victor Muthuri, Perry Asuke. Patrick Ndeda
Question (c): Stella Mbugua, Tabitha Nyamweya, Agnes Jepkogei. Kevin Kinuthia.
Compiler: Joseph Mwangi
It was also agreed that every subgroup of firm members to present their findings to the firm for
deliberation before incorporation into the final draft.
MIN/3/2015: Setting of a timeline on presentation of the subgroup findings.
Perry proposed that members be given two weeks to research on the areas they had been
assigned. This she said would be sufficient time bearing in mind that most of other projects had
been completed. This was seconded by Patrick and ultimately adopted by other members of the
firm.
MIN/4/2015: Any other business.
There being no other business, the meeting came to a close at 1530 hrs.
MIN/5/2015: Next meeting.
The next meeting is scheduled for 14th of August 2015.

28

MINUTES FOR FIRM 3B MEETING HELD AT THE GATE B GROUNDS ON 14 TH

AUGUST 2015 AS FROM 1400HRS TO 1700HRS
Members Present
1. ANYANGO PERRY ASUKE
20150100
......
2. MBUGUA STELLA WANJIRU
20150891
.....
3. KAMAU CAROLINE WANJIKU
20150434
......
4. NDEDA PATRICK ONYANGO
20151259
......
5. NJERI KEVIN KINUTHIA (Firm Leader)
20151344
......
6. NKONGE VICTOR MUTHURI
20151381
......
7. NYAMWEYA TABITHA MOIGE
20151417
......
8. RITUGA JOSEPH MWANGI (Compiler) 20151721
.......
9. SIELEI AGNES JEPKOSGEI
20151768
......
10. THUKU STELLA GATHONI
20151810
......

AGENDA
1) Submission of findings on tasks assigned and deliberations on the same.
MIN/10/2015: Submissions on question a of the assignment
Caroline and Stella Thuku led members through their findings on Question (a). They explained
the divisions of ICC including the presidency, judicial chambers and the office of the prosecutor.
Further, they guided the members through the jurisdictions that ICC has. They also explained the
exceptions to provisions relating to jurisdiction including the principle of complementarity.
Members raised questions during the presentation and most, if not all, were answered by the
presenters. The most notable question was one relating to the principle of complementarity asked
by Kevin. He went on to note that the principle allows the prosecutor wide discretionary powers
to decide whether a member state is not willing or unable to handle a matter. Stella Thuku noted
that the issue would be handled in part two of the question.
Stella Mbugua also noted that the Rome Statute referred to the judicial and prosecutorial organs
of ICC as divisions and not chambers as it appeared in the written work.
29

MIN/11/2015: Submissions question b of the assignment.

Victor, Patrick and Perry led members through their findings. While making the presentation
Victor clarified to the members that ICC is also conducting investigations in several countries
outside Africa and therefore the allegation of biasness is insincere and driven by self interests.
This was in response to an observation made by Tabitha regarding the same.
MIN/12/2015: Submissions on question c of the assignment.
This was done by Kevin, Stella Mbugua, Agnes and Tabitha regarding their respective sub parts.
Joseph sought a clarification on how ICC has been involved in Burundi. Agnes responded that
ICC has not been actively involved in Burundi but only issued a threat of prosecution to those
perpetrating human rights violations during the period before the 2015 elections.
Patrick also noted that there was a need to identify roles of ICC in regional justice systems and
only cite the case studies of Kenya, Rwanda, Democratic Republic of Congo Burundi and
Uganda as illustrations.
It was agreed that members send the relevant changes to their bits and send them to the compiler
by 17th August 2000hrs.
MIN/12/2015: Any other business.
There being no other business, the meeting came to a close at 1700hrs with the next meeting
scheduled for 21st August 2015.

MINUTES FOR FIRM 3B MEETINGS HELD AT THE GATE B GROUNDS ON 21 ST

AUGUST 2015 AS FROM 1400HRS TO 1600HRS
Members Present
30

1. ANYANGO PERRY ASUKE

20150100
......
2. MBUGUA STELLA WANJIRU
20150891
.....
3. KAMAU CAROLINE WANJIKU
20150434
......
4. NDEDA PATRICK ONYANGO
20151259
......
5. NJERI KEVIN KINUTHIA (Firm Leader)
20151344
......
6. NKONGE VICTOR MUTHURI
20151381
......
7. NYAMWEYA TABITHA MOIGE
20151417
......
8. RITUGA JOSEPH MWANGI (Compiler) 20151721
.......
9. SIELEI AGNES JEPKOSGEI
20151768
......
10. THUKU STELLA GATHONI
20151810
......

AGENDA
1) Review of the draft compiled draft document.
2) Adoption of the compiled draft.
MIN/13/2015: Review of the draft compiled draft document.
Joseph led the firm member with the review of the assignment. There were further proposals
made to the document. These included the following:

Agnes proposed that the compiler arrange the bibliography alphabetically and categorize
the sources.

Caroline noted that there are additional offices that form part of ICC. These, she proposed,
should be included under question a. She promised to send to the compiler a paragraph to the
effect that other offices that work alongside the ICC organs are the Office of Public Counsel
for Victims and Office of Public Counsel for Defence which fall under the Registrar.

Victor noted that the part on evaluation of the performance of ICC in regional justice systems
was not clear as it should be. He recommended that the part be changed to answer the
question. Members agreed to redraft the part during the meeting which they did.

MIN/14/2015: Adoption of the compiled draft.

Having been satisfied with the review, the members adopted the compiled draft subject to editing
where necessary.

31

Tabitha proposed that the compiler be assisted by another firm member to do the final editing of
the draft. Stella Thuku volunteered to assist Joseph in compiling the final draft.
Perry requested that the final edited draft be sent to all members before submission so that any
proposals as to form would be incorporated with the approval of other firm members. Members
were in agreement and the compiler agreed to comply accordingly.
MIN/15/2015: Any other business.
There being no other business, the meeting ended at 1600 hrs.

32