Wednesday, 20 August 2014

Can the ICC hold Israel and Hamas accountable for war crimes?

During the early morning hours of July 30th, 2014, Israeli shells bombarded a United Nations Relief and Works Agency (UNRWA) for Palestine Refugees School housing 3,300 Palestinians, killing 15.
According to a briefing by the organisation Security Council Report, the UN Relief and Works Agency for Palestine Refugees (UNRWA) Commissioner, General Pierre Krahenbuhl, stated that the precise location of the school and that fact that it was housing thousands of Internally Displaced Persons (IDPs) was communicated to the Israeli army 17 times including just hours before the fatal shelling.
In addition to the attacks, the UNRWA stated that it had earlier found a cache of rockets at one of its schools in the Gaza Strip, lending credence to the accusation by Israel that Hamas was using these shelters, and they were therefore legitimate military targets.
The continuous shelling of designated UN Shelters and schools by the Israeli army has moved the United Nations Security Council to hold an urgent meeting to address the deteriorating humanitarian situation in Gaza.
In the 23 days since the beginning of the Gaza invasion, the accusations and counter-accusations of atrocities between Israel and Hamas has taken centre stage, leaving the victims of the conflict exposed, without hope for an end to the violence.
On July 25th, the Palestinian Authority filed criminal complaints at the ICC, accusing Israel of war crimes in its ongoing campaign in Gaza, a war whose death toll now includes more than 1200 Palestinians and 61 Israeli soldiers.
It is likely that Palestine will seek a UN Security Council referral of the Gaza situation to the ICC. In cases where crimes that fall within the mandates of the articles of the Rome Statute occur in non-member states, the UNSC is at liberty to make referrals to the ICC as is the cases of Darfur in Sudan, and Libya.
At this juncture, the considerations of the UN Security Council and the probability of referral of the situation to the International Criminal Court become most imperative. The greatest challenge is that Israel is itself not a state party to the Rome Statute.
The Palestinian Authority issued a declaration to accept the jurisdiction of the ICC over Palestine in 2012. Its acceptance of ICC jurisdiction was rejected by the then ICC Chief Prosecutor, Luis Moreno-Ocampo, as he could not make a determination as to whether Palestine was a state as per the tenets of the Rome Statute.
READ: The Situation in Palestine (International Criminal Court)
The challenge facing such a decision by the UNSC lies in both the legal limitations of the ICC and also the political considerations to be undertaken by the member states of the Security Council. As with such deliberations, the matter is likely to take a long and arduous course despite the best of intentions.
Moreover, should such a referral be made, the ICC would be forced to conduct thorough investigations into all parties’ actions, in order to obtain justice for victims of the conflict.
All this notwithstanding, it is clear that there is an incredible humanitarian crisis looming, and both the attacks on UNRWA-designated shelters and the use by Hamas of shelters for storing weapons leave the UN Agency and the IDPs it houses in grave danger.
Both the attack by Israel of designated UNRWA shelters and schools, and their use for weapons storage by Hamas are to be condemned.
The fundamental questions thus remains: while the ICC is intended to act as a deterrent to war crimes, in an ongoing conflict situation, can the ICC adequately provide any sort of deterrent against aggressive forces, especially when the parties involved are not state parties to the Rome Statute?
Moreover, how would the findings of the Court bring justice to those caught up in the ongoing conflict?
At this stage, it is increasingly clear that both Israel and Hamas are actively engaged in what could constitute crimes of war, by attacking designated humanitarian sites and using designated shelters to harbour weapons and militants.
These actions have placed the most vulnerable and unarmed right in the middle of an escalating situation. For this, both Israel and Hamas should be held accountable.
Update: The former chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo, has recently said that Palestine is eligible to join the Court.

Even with the Eastern African Standby Force, reforms are still needed

The Eastern African Standby Force and its accompanying protocols were adopted On 26th June, at the 23rd African Union Summit in Malabo Equatorial Guinea by the Assembly of Heads of State and Government of the Eastern Africa Region
Under the chairmanship of President Paul Kagame of Rwanda, the main role of EASF is seen as fighting the conflict in Somalia, and is expected to have the full support of its various governments.
The truth is, the formation of an Eastern African Standby Force in response to the threat of the Al-Shabaab group is neither novel concept nor unexpected.
The Harakat Al-Shabaab Mujahideen (HSM) group, an Islamic extremist group that seeks to set up an Islamic state in Somalia, was formed as the militant wing of the Islamic Courts Union (ICU), which at the time controlled much of central and southern Somalia.
Since the ICU lost power, Al-Shabaab has waged a relentless war against the then Somali Transitional Government, its successive established regimes and its Ethiopian supporters, with fighting escalating from May 2009.
In 2007, the formation of the African Union Mission in Somalia (AMISOM) under the auspices of the African Union’s Peace and Security Council , as documented in Security Council Resolution 1744 (2007) meant that the troubled Somali Transitional Government now had the support of an AU-led peace keeping force.
Al-Shabaab claimed its first terror attack outside Somali borders in June 2010 in Uganda during the World Cup finals, in which 70 people were killed and several injured. At the time Al-Shabaab threatened additional attacks if Uganda and other AU Countries did not withdraw AMISOM peace keeping troops.
At the time, the AMISOM mission was meant to last only 6 months, a temporary measure intended to support what it was hoped would be a quickly stabilized government. The 6-month deadline came and passed without this being accomplished.
By October 2011, it was clear that the Al-Shabaab group was a bigger threat to neighbouring Kenya after consistent cross border attacks left several people dead. In response, Kenya launched “Operation Linda Nchi” a military incursion by the Kenya Defense Forces into Somalia.
It is this particular act that seems to have refocused Al-Shabaab’s onslaught to Kenya. Since 2011, attacks within Kenyan borders have increased in frequency and intensity, with people being killed in attacks on ‘soft’ targets such as churches, shopping malls, markets and public vehicles. After the recent killings in Lamu the terrorist group warned the government of further attacks.
The decision by Mr Lenku to label the attacks on Mpeketoni as politically instigated and targeted at a particular ethnic community was strange, and also indicative of the distracted manner in which the entire ministry has approached the war on Al-Shabaab.
Make no mistake, Kenya is at war, and the use of the Eastern African Standby Force is an indication that this war is greater than the Kenya government cares to admit. The EASF is likely to provide a succinct “punch” against the forces of Al-Shabaab.  
However, much like AMISOM and “Operation Linda Nchi”, without a complimentary “block” in the internal structures of the concerned nations, terror groups may be able to hit back.
We can visibly see the effects of years of corruption in the police service especially. It is certainly necessarily to thoroughly examine the management of the police service and to extract the elements that hinder its success.

Immunities clause at the African Court of Justice and Human Rights is outrageous

On June 27th at the 23rd AU Summit in Malabo, Equatorial Guinea, the General Assembly surreptitiously adopted draft legal instruments giving immunity for Heads of State and government at the African Court of Justice and Human Rights.
The immunities article (Article 46A bis "Immunities") states that:
"No Charges shall be commenced or continued before the court against any serving AU head of state or government or anybody acting or entitled to act in such capacity or other senior state officials based on their official functions, during their tenure in office."
Most notable about the structure of this particular article is the ambiguity in relation to exactly who is liable for prosecution. In totality, the article gives immunity to just about every senior government official in every government of every member state of the AU.
The clause not only completely weakens the jurisdiction and ultimate purpose of the African Court of Justice and Human Rights, but makes an utter mockery of the entire reason for expansion of the court to include prosecution of individuals for war crimes and crimes against humanity.
Steve Arther Lamony, Senior Adviser - AU, UN and Africa Situations at the Coalition for the ICC (CICC) put it most succinctly:
“This outcome is disgraceful. The principle of no immunity for grave crimes before international tribunals or courts - no matter the status of the offender - is crucial to the fight against impunity and part of the foundation of the Rome Statute of the ICC, which most African states have signed and ratified. African members of the ICC should bear that in mind and not ratify this protocol. Africa should be moving forward in the fight against impunity, not retrogressing!”
Such a move by the AU goes directly against its own efforts, through the Peace and Security Council, to stabilize these countries and bring about constitutional order. There certainly can be no peace without justice.
“At a time when the African continent is struggling to ensure that there is accountability for serious human rights violations and abuses, it is impossible to justify this decision which undermines the integrity of the African Court of Justice and Human Rights, even before it becomes operational,” said Netsanet Belay, Amnesty International’s Africa Director for Research and Advocacy.
Indeed, the very creation and adoption of the clause exacerbates many conflict situations. It gives free reign to perpetrators of grave crimes in the knowledge that as long as they retain power they will not be held accountable.
“Accountability is surely needed in countries like the CAR and South Sudan if they are to return to peace. Under the AU’s proposal, however, government leaders would be beyond the reach of justice even if they were found to have directed alleged atrocities,” says Lamony.
The adoption of such a protocol seems to be only the tip of the iceberg when it comes to the apparent reluctance of the African Union to commit to the pursuit of justice for African citizens.
The African Court not only faces the challenge of restrictive and harmful legal instruments that impede its jurisdiction, but also the challenge of funding a matter that severely limits the ability of the court to function.
The matter of funding for the court in turn hinges on the political commitment from the member states and the heads of state and government. It is quite a conundrum.
"This amendment is a law to shield the strong and the powerful; it does nothing to protect the victims of horrendous crimes in Africa," said Carla Ferstman, the Director of REDRESS. "Not surprisingly, the decision comes at a time when two sitting presidents and one former president are facing charges for serious human rights abuses at the International Criminal Court."
The inclusion of an immunities clause makes the argument for an African Court similar to the ICC null and void, given that the AU is yet to show the slightest commitment to its own justice agenda.
"This decision calls into question the African Union's commitment to ensuring justice for victims of serious crimes such as war crimes, crimes against humanity and genocide," added Ferstman. "At a time when the African continent is grappling with accountability for massive violations, one should wonder why some leaders instead of cooperating to ensure justice, would want to give themselves immunity unless they are worrying about their own fate."
The International Criminal Court is intended to be a complimentary court to regional international tribunals, but with the inclusion of such a broad and ambiguous clause, there can be no complementarity between the ICC and the African Court. According to Mr Lamony:
“In its current form, the Rome Statute of the ICC is only complimentary to national criminal jurisdictions. Kenya and South Africa submitted an amendment suggesting that the ICC should also be complimentary to regional criminal jurisdictions, but if the expanded African Court gives immunity to heads of state, it will in an important sense not be complimentary to the ICC, because it will be unable to prosecute the most powerful perpetrators of grave crimes.”
Moreover, the broad description means that one cannot determine who is a senior member of government and who is not, leading to a situation where immunity can be granted at the mere behest of a person’s official title.
The immunities clause goes against the AU Constitutive Act, as well as the constitutions of several member states and protocols of regional bodies. Steve Lamony explains:
“The new protocol would also be in contradiction to many AU members’ own constitutions that do not allow immunity, e.g. Kenya Article 143(4) and the Protocol for the Prevention and the Punishment of the Crime of Genocide, War Crimes and Crimes against Humanity and all forms of Discrimination of the International Conference of the Great lakes region.”
The immunities clause in the draft protocol of the African Court, quite simply, has dealt the ultimate blow to the court.
It is the culmination nearly 18 years of reluctance by the AU to form any regional functional judicial system, where the people of Africa can seek legal duress against regimes that commit crimes against humanity.
As it stands now, the survivors and victims of atrocities will be forced to seek justice from other international tribunals, hopefully none of which will contain any sort of “African solution.”

Friday, 13 June 2014

These Journalists aren’t Loyal!

A Nairobi based Editor once told me that the laziest professionals in this city are journalists; you would have to look hard to find even a handful of committed journalists who are avid readers, researchers and have well developed material. Given the pointed ignorance by the media of situations that should ideally be the focus of their news reports and features, I am inclined to agree.
Ever since the Jubilee government took office in April 2013, the mainstream media in Kenya has actively pursued an agenda of bare-faced brown nosing and boot-licking, self censorship and general laziness when it comes to the most basic news stories. Events will occur right under their noses, go on for days and only upon getting some kind of go-ahead signal from the regime then choose to donate about 5 minutes of their time to the subject.
There is no situation more grievous in Kenya today than the illegal arrests and incarceration of ethnic Somali people in a highly controversial and racially motivated “security operation” called Usalama Watch. Led by the Cabinet Secretary for Interior and Coordination of National Government Mr Joseph Ole Lenku, Usalama Watch not only ignored a 2013 ruling by the High court stopping the forced transfer of 50,000 Somali refugees to Dadaab and Kakuma camps, it also is now considered the most widespread government sanctioned ethnic profiling ever undertaken by Kenya. Using as yet unwarranted and inexplicable means, this government has decided that the face and source of terror activities is Somali people. 

To date the transformation of the Safaricom Kasarani Stadium into a police station is yet to be explained – the claim that it was defined as such via gazette notice is yet to be verified as to when this was done and using which laws. Most egregious is the fact that there have been documented systematic human rights abuses including and not limited to extortion and ransoming of those arrested, rape, beatings and forcible transfers of asylum seekers and Kenyan citizens who are documented.
The fact that the mainstream media has chosen to wholly ignore the ongoing illegal detentions and deportations over 70 days since operation Usalama Watch began speaks volumes of the utter betrayal by journalists. Not only have they not investigated the claims of human rights abuses, they have also refused to further cover the situation entirely.
The sum total result of this is that while thousands of Somali people are intimidated, harassed and violated, the rest of the country remains engulfed in a veil of darkness, wrongly believing that Usalama Watch has and continues to provide “increased security.” The claims by Administration Police spokesperson Masoud Mwinyi that “terror attacks have stopped in Eastleigh area since the Usalama Watch operation started” in an interview with Al-Jazeera’s social media show AJStream  on 22nd April were immediately debunked when a day later a blast at Pangani Police station resulted in the deaths of 4 people among them two policemen. Since that time, neither Usalama Watch nor the bombings have stopped, with multiple blasts occurring in both Nairobi and Mombasa. 

While the rest of the country is now forced to deal with being searched at every entry point to a public space, including when getting into public service vehicles, the journalists have chosen to generally remain mum about this; they do not question, they do not highlight, and they certainly do not investigate.
This sort of self-censorship is an affront to the principles of journalism, insulting to democratic values and quite frankly completely unethical. If these journalists don’t want to do their job and be journalists then they should do now what many of them choose to do later – leave the profession and move on to other careers.
In any progressive state, the function of the Fourth Estate is crucial to the management and culture of the nation. A lazy brood of ineffectual journalists and their complicit media houses contribute negatively to the overall social fabric; we have a reduced capacity to be a democratic country simply because these journalists aren’t loyal to the people!
More importantly, it is an ugly stain on our conscience to have a convenient silence when an entire community is targeted and suffers extensive, prolonged abuse. There can be no justice if the media is silent about the grave atrocities inflicted upon one ethnicity. The fact remains, that if the media does not speak up, when they are supposed to, then none of us can be safe while the government wages a “war on terror”.

AU seeks to entrench the impunity of Heads of State

This contradicts the political stance of the AU regarding the provision of justice on the African continent.
This amendment could be adopted at the upcoming 23rd Ordinary Session of the AU Summit in Malabo, Equatorial Guinea.
Of particular concern is the decision to ignore the many pleas from civil society and human rights organizations who appealed to the African Union on this matter. In a letter to the African Union in May 2014, 19 civil society organizations wrote to the Justice Ministers and Attorney Generals:
“The irrelevance of official capacity is at the core of making accountability for the gravest crimes meaningful. The alternative would carve out a sphere of impunity for high-level perpetrators, and create an incentive for such perpetrators to hold on to power indefinitely. Such impunity is further inconsistent with the needs of victims and ensuring justice for the gravest crimes.”
It seems that the African Union has a serious challenge ensuring the actions of its member states keep in line with the Constitutive Act of the African Union. Under Article 4 (o) of the Act, the AU is mandated to adhere to “respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities.”
As it is, at least 15 member states are currently in a state of conflict, and it is alleged that severe atrocities are being committed by both governments and insurgent groups.
The most devastating conflict currently receiving global attention is in the Central African Republic (CAR), where it is estimated that thousands have been killed in bloody sectarian violence that has seen the worst atrocities committed, including cannibalism in some instances.
Hot on the heels of the CAR conflict is the recent uprising by rebel groups allied to former deputy President Riek Machar in South Sudan. Severe atrocities have been reportedly committed by both government and rebel groups in a conflict said to have taken on ethnic dimensions. Despite several attempts at a ceasefire, the two parties to the conflict have yet to bring the war to a decisive end, and only recently signed an agreement to that effect on 6th June, 2014.
It is quite disconcerting, therefore, for the AU to proceed with an intention to set up the African Court of Justice with a clause to provide immunity for heads of state, a matter that is also contrary to Article 4 (h) which states that the AU has “the right to intervene in a Member State pursuant to a decision of the General Assembly in respect of grave circumstances namely:  war crimes, genocide and crimes against humanity.”
The most insidious thing about the proposed amendment is not just that it is likely to be adopted by the General Assembly, but that it is the very heads of state seeking immunity who will adopt it.
Despite the seemingly well-intended legal instruments put together to formulate the African Court of Justice, it is now becoming clear that the AU is not only incapable of following through with its own decisions to seek justice for victims, but also that no successful prosecution of state government or individuals will occur in tandem with the political objective of such an amendment.
Whereas the AU and its member states repeatedly wax lyrical about seeking an “African Solution” to various peace, security, justice and human rights concerns, they actively remove the possibility of any form of accountability on the part of governments or heads of state.
This state of affairs leaves the very intention behind the push for the African Court of Justice open to question. What is the point of having a court that cannot prosecute?
Perhaps the answer lies in the ongoing political war being waged between the AU and the International Criminal Court.
In the meantime, for the millions of victims of human rights abuses, justice from the AU remains elusive.

Jubilee government is still neglecting IDPs from post election violence

In early April, Journalists for Justice, a non-governmental project on media, commissioned Ipsos Synovate to conducted focus group discussions across Kenya to assess the needs of victims and survivors of the post-election violence of 2007/08. I attended these discussions.
For each area, there were two groups, one for men and another for women. What followed were the most heart wrenching narrations, graphic illustrations from a group of people politicians dared to claim have moved on.
One by one, survivors recounted the events of 2008, before the elections, during and after. The two hours that were allocated for the focus group discussions seemed completely insufficient to fully address and express the sort of needs that the survivors who were gathered felt were imperative.
At times, the conversation would get so charged with emotion that it felt like one could cut open the air and hate and anger would pour out.
While there may indeed be some victims who have forgiven their tormentors, it is in general a completely inaccurate statement that any victim of politically instigated violence in Kenya has simply “moved on.”
Actually, many victims have been unable to recover in any form, primarily because the government and its state agencies have implicitly failed to provide any sort of humanitarian assistance or restitution towards their recovery after the events of 2007/08.
This egregious state of affairs is the salient factor behind two public interest cases filed at the High Court of Kenya. The first case is a petition in which eight survivors of SGBV and 4 civil society organizations are suing the Attorney General and 5 other senior government officials for failing to protect them and provide assistance during the PEV of 2008.
The second case is a constitutional application in which Internally Displaced Persons are seeking restitution from the court because the government, they assert, had provided almost no assistance whatsoever to nearly 314,000 IDPS despite various claims by Cabinet Secretary for Devolution and Planning Anne Waiguru that all registered Internally Displaced Persons had been re-settled.
It appears the political objective of the Jubilee coalition may be to diminish the gravity of the situation as regards the victims and survivors of the 2008 PEV, and to challenge the credibility of the cases at the International Criminal Court based on that erasure of victims.
The general logic behind this was “if there are no victims or if the victims have moved on then the cases have no merit.”
The condition of the victims remains so dire, that in a letter to the Special Rapporteur on the Human Rights of Internally Displaced Persons at the Office of the High Commissioner for Human Rights, the Common Legal Representative for Victims in Case 1 at the ICC, Mr. Fergal Gaynor, urged Dr. Chaloka Beyani to call upon the government in the strongest terms possible to meet their obligations towards IDPs (see download below).
For seven years, the government of Kenya has wholly ignored the plight of 314,000 IDPS from the post-election violence, those of whom were considered “integrated”.
By integration what the government means is that these IDPs were temporarily at the IDP camps after which they were transported to what was considered to be their “ancestral homes.”
For thousands of Luo, Luhya and Kisii people this meant that they were transported to the Western and Nyanza regions of Kenya and dumped at market centres, churches and other public places.
Many of these IDPs had not visited these areas in years if at all. After this relocation by government, no further assistance was provided to these people.
As a result of the government’s actions, the ethnic cleansing objectives set out by militia and politicians who instigated the post-election violence were successfully accomplished.
There are now entire regions of Kenya previously considered hotspots for violence in which you will not find any member of other ethnic communities, parts of Kenya where “foreigners” are not able to live.
In its recommendations on displaced persons in its 2008 report, Human Rights Watch stated that the Government of Kenya should “ensure that internally displaced persons are protected from further violence regardless of their ethnicity and location, and ensure that the fundamental and social and economic rights of all those displaced by recent and previous events are met, including through equitable access to food, health, and education services.”
In his State of the Nation address presented before Parliament on March 27th 2014, President Uhuru Kenyatta asserted that:
“In September 2013, the government began the implementation of a cash payment programme for all pending cases of IDPs that had not been resettled so far, a total of 8298 households. A total of 777 have received cash payments of Sh400000 per household, totalling Sh3.3 billion. The exercise continues. This settlement was followed by a concerted effort by government that focused on peace building among communities.”
The most noticeable inconsistency in this statement is the fact that the figures mentioned by the President do not add up. 777 households receiving Sh400,000 each comes to Sh310,800,000 and not  Sh3.3billion. The difference represents a massive shortfall of 2,989,200,000.
Further, one cannot tell which IDPs the President is referring to, whether they are Mau evictees or post-election violence IDPs.
There is a clear lack of political will to provide any form of justice to victims of post-election violence, and along with this, the decision to churn propaganda concerning the situation of the victims only causes further harm. 
There seems to be no end to the victimization of the survivors of the post-election violence by government. Given this situation, it is indeed quite necessary to turn to litigation on behalf of the victims in order to seek what is their constitutional right.

Foreign governments do no wrong in protecting their citizens

In his address on May 16 2014, President Kenyatta claimed that Usalama Watch had disrupted the networks that supported radicalization and violence.
This is certainly not the case. If anything, activities under Usalama Watch have opened up new avenues for the unfiltered flow of information and finances, given the accepted corrupt nature of arrests, ransom and release going on at Kasarani and Pangani police stations.
It’s no longer a secret that the security agents and in particular the police have taken the opportunity accorded to them under Usalama Watch to exort the community. The horror visited upon ordinary citizens is depicted in a short film by InformAction, a not-for profit organization.
At the  time over 400 tourists were evacuated from the Kenyan coast by Thomson Travels, a long established tours and travel company,  President Kenyatta was stating that his government had received no intelligence from its partners, including Britain.
As he addressed the nation, two blasts occurred in Gikomba open air market, killing 12 people and injuring 70 others.
It's a well known fact that the Anti-Terror Police Unit is supported by both British and US agencies that focus on counter-terrorism.
It is highly unlikely and implausible that foreign intelligence agencies will act independently on a nation's soil, receiving information on imminent terror attacks and not share that information with the host nation despite being partners in a "war on terrorism" leaving civilians at risk.
The idea that the National Intelligence Service, the Anti-Terror Police Unit, the Criminal Investigations Department and Kenya's entire military intelligence network were absolutely unaware of a threat so massive and serious that over 400 people had to be evacuated at short notice to another continent is rather ludicrous.
That Kenyan authorities can seek to shift economic blame to a foreign government seeking to protect its citizens is laughable.  
At a time when the forces behind trans-national crime in Kenya are at their strongest, it appears that the Kenya government is conveniently providing  political cover for their shortcomings by shifting blame to partners who see the risks and the dangers clearly and take action.
The only idea that Kenyans can derive from this sort of policy is that Kenyan lives seem to matter far much less than those of tourists.
Most certainly, it is time that the call to sack certain officials and appoint new smarter and more intelligent replacements was heeded.