Monday, August 8, 2016

Exploring the Concept of Plea Bargaining as a Potential Solution at the International Criminal Court: The Kenyan cases

Phoebe Oyugi, Case Manager, Ble Goude Defence Team
The International Criminal Court (ICC) faces tremendous challenges with regard to collection of evidence to be used at trial, language barrier, lengthy trials, long physical distance between the scene of crimes and the seat of the ICC, lack of state cooperation, and witness interference, among others. This is well illustrated, for example, by the challenges faced by the ICC during the prosecution of the Kenyan cases, that is, the cases against President Uhuru Kenyatta (Kenyatta) and Deputy President William Ruto (Ruto), both charged with crimes against humanity. These cases were among the most high profile cases at the ICC for many reasons among them being that it was the first time that a sitting head of state and his deputy appeared before an international tribunal. They therefore generated a lot of interest in the international community. Yet, both cases were terminated prematurely due to insufficient evidence.

In December 2014, the Prosecutor of the ICC having been ordered by the Chamber to either withdraw the charges against Kenyatta or commence trial, chose the former cause of action because she had insufficient evidence. Similarly, the charges against Ruto were vacated in April 2016 because the judges could not decide whether the insufficiency of evidence was due to the fact that there was simply no evidence to be found; or whether it was a result of witness interference. In both instances the Prosecutor blamed the insufficiency of evidence on the Kenyan Government, headed by the two accused persons, accusing it of failure to cooperate with her in obtaining evidence and of making deliberate attempts to frustrate the cases.

Because the Prosecutor was not able to present sufficient evidence, the Kenyan cases ended in a lose-lose situation. The ICC was unable to establish the truth or enforce international justice in fulfilment of its mandate; the accused persons still have the suspicion of crimes against humanity hanging over their heads and the possibility of being prosecuted afresh; and the victims received neither closure nor reparations. This lose-lose situation raises the question of whether such a situation could have been remedied through compromise.

This brings to mind the Anglo-American concept of plea bargaining, a compromise, which in its simplest form involves an agreement between the Prosecutor and the accused person where a guilty plea from the latter is obtained in exchange for a reduced sentence and/or the accused person’s cooperation in the investigations. This practise is not a novelty before international criminal institutions. International tribunals such as the International Tribunal for the Former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) have resorted to plea bargaining by, for instance, reducing sentences in exchange of guilty pleas and cooperation by accused persons. This was used in several cases, for example, the Prosecutor v Todorovic and the Prosecutor v Sikirica at the ICTY, as well as the Prosecutor v Serushago and the Prosecutor v Ruggiu at the ICTR. This eventually led to the inclusion of Rule 62 ter of the ICTY Rules of Procedure and Evidence (RPE) which regulates plea agreements at the ICTY.

However, the concept of plea bargaining is not used at the ICC. The main obstacle to the introduction of the practice of plea bargaining before the ICC is that it seems to negate the principles upon which the Court is founded. A similar concern led the ICTY judges to reject, at first, the suggestion to introduce this practice at the ICTY.  However, due to the particularities of international criminal proceedings, such as lengthy, complex and costly proceedings, plea bargaining was eventually introduced, and a number of cases were settled in this manner at both the ICTY and ICTR. The ICC has experienced and continues to face similar challenges as those faced by the ICTY and ICTR, which necessitated the introduction of plea bargaining in these two Courts. This, therefore, necessitates an exploration of plea bargaining as a potential solution to some of the challenges bedevilling the ICC.

If plea bargaining were permitted at the ICC, it might have been employed in the Kenyan cases, mentioned above, to result into a potential win-win situation. The Kenyatta and Ruto cases, just like all cases at the ICC, had three participants namely the Prosecutor, the Defence and the victims of the Kenyan Post-election Violence (PEV), all who had conflicting interests. These conflicting interests may be summarised as follows: on one hand, the Prosecutor’s duty was to prove the charges against the two accused beyond reasonable doubt with a view to obtaining a conviction against the two; but she was unable to secure sufficient evidence partly due to the power and influence of the two accused within the situation country. She, however, enjoyed the support of the ICC and most of the international community, except the African Union (AU).On the other hand, both Kenyatta and Ruto wanted to be acquitted of all the charges against them and for their names to be cleared. Being the President and Deputy President of Kenya respectively, they had the power to potentially hinder the investigations, influence witnesses and influence the AU and most African states against the ICC. They seemed willing to do all it took to prevent the cases from proceeding at the ICC. Lastly, the victims of PEV wanted someone to take responsibility for the horrible crimes which were committed against them and to receive reparations.

The fact is that the two accused persons literally held the keys to Kenya, the one place which contained all the evidence the Prosecutor needed to establish the cases against them. It was not realistic for the Prosecutor to expect them to cooperate in helping her gather evidence against them. The accused persons also held the fate of the victims in their hands and had the power to put in place a national system of reparations if they so wished. For this reason, I think it would have been prudent to enter into discussions with them with a view to reaching a plea agreement. As part of the plea deal, perhaps Kenyatta and Ruto would have been required to take responsibility for some of the crimes that were committed during the PEV. As Kenyan leaders who enjoy massive support of the members of their respective political constituencies, even if they did not incite people to violence, I believe that they had it in their power to stop the violence or to reduce the effects thereof. In return, the Prosecutor would have offered to reduce or withdraw the charges against them. Alternatively an agreement would have been reached whereby upon conviction, the sentences would not include imprisonment. Furthermore, it would also have been prudent for the Victims’ Representative to enter into negotiations with the two accused persons with a view to setting up a reparation system to the benefit of all the PEV victims. The Kenyan government would have been required to, for example, ensure the resettlement of all the victims, some of who still live in camps as internally displaced persons to date.

Admittedly, this situation seems like a bargain of justice. However, in my view it seems like a practical solution in that it would have ensured that someone took some responsibility for the crimes committed and it would also have resulted in the victims’ reparation. As a result of the plea deal, Kenyatta and Ruto may also have had their names cleared and the ICC would have been unable to recommence cases against them in future. This to me seems like a win-win situation compared to what actually occurred.

Plea bargains are used all over the world especially in the United States where over 90% of federal convictions are achieved through guilty pleas. Furthermore, as shown above, plea bargaining has been used by other international tribunals, namely the ICTY and the ICTR, to settle cases. By not considering this potential solution, the ICC was unable to deliver the promise of international justice to the Kenyan people, the Prosecutor was deeply embarrassed by her inability to close these two high profile cases, Kenyatta and Ruto still have suspicion hanging over their heads and the possibility of future prosecution, and the victims did not receive any reparation. This is a very undesirable lose-lose situation which, in my opinion, ought to have been avoided by resorting to plea bargaining as described above.

Guest Post by Phoebe Oyugi (Phoebe Oyugi is a Kenyan lawyer who specialises in International Criminal Law, International Human Rights Law and International Humanitarian law. She currently works as a case manager and consultant in the Defence team of Charles Blé Goudé at the International Criminal Court)

Sunday, May 15, 2016

Why the Tribunal Dealing with the South China Sea Dispute Should Step Aside to Make Way for a Negotiated Settlement

Ruikun Sun
Prof. Tom Zwart

Increasingly, in the West, in the class rooms of law schools and offices of foreign ministries, international law is being associated exclusively with courts and tribunals. The idea seems to be that something can only be regarded as law if it emanates from an international court. This judicialization of international law overlooks the fact that these international bodies owe their existence to treaties, which are concluded by states, which still are the main actors in international law.  

These international courts and tribunals are not the success story law professors and legal advisers would like us to believe. Thus, over time support for the International Court of Justice has been eroding. This is a consequence of the fact that weaker states use the Court to put pressure on more powerful states, which then renounce the jurisdiction of the Court if they lose. The International Criminal Court has been hailed as the global criminal court, but many of the big players, including three out of the five permanent members of the Security Council, have refused to sign up. Furthermore, the Court and its Prosecutor have managed to alienate the African states parties to such an extent that a mass exodus has almost become inevitable.

Political science teaches us that the support courts enjoy is not unlimited. To retain their legitimacy, they should stick to applying neutral and objective legal principles to facts in a technical fashion. Therefore, they ought to refrain from deciding cases which are unfit for adjudication. The South China Sea dispute, which is currently pending before an Arbitral Tribunal set up under the United Nations Convention of the Law of the Sea (UNCLOS), is such an unsuitable case for three reasons.

First of all, the case is a typical example of what Lon Fuller has called 'polycentricity'. The case involves so many actors and affects so many interests, that the binary format of a court case between opposing parties can never do justice to all. Six states and Taiwan have declared a stake in this matter, but the case only relates to the Philippines and China, while the latter does not even accept the authority of the Tribunal. Because of the remit of the Tribunal under UNCLOS, it is only able to deal with some lesser aspects of the dispute, but it will have to forgo on others, like the crucial issues of maritime boundaries and sovereignty. This means that an award on the merits will only settle part of the issues between some of the interested actors at best, while leaving out other affected parties and points of contention.

In addition, the Tribunal deals with the case on the basis of adversarial court proceedings which pit one party against another on the basis of polarising positions. Such an approach is alien to East Asia's culture of harmony, which relies on a willingness to invest in reconciling conflicts and differences. Consequently, in the region the award will be widely regarded as the fruit of a poisonous tree, and it will fail, therefore, to garner the necessary support.

Finally, the South China Sea, which serves as the passageway for half of the world's goods, is of vital geopolitical importance. Consequently, the dispute should be decided at the political level and not by a judicial tribunal. China has decided not to appear before the Tribunal because it contests its jurisdiction. It is an illusion to think that a legal award in a matter of high politics is going to gain any traction when one of the parties, which also happens to be a permanent member of the Security Council, refuses to take part in the proceedings.



The South China Sea dispute is ideally suited for what is called 'integrative negotiation', which favours cooperation over competition. Rather than opting for a win-lose outcome, where one party prevails at the expense of the others, the parties involved look for a win-win solution, which does justice to the interests of all. Considering the importance attached to harmony in the region, such an integrative approach has a high chance of being successful in this case.

One could rightly claim that thus far attempts to deal with the matter amicably through negotiations have not been successful. This is where something good may come out of the involvement of the Tribunal. In its decision it could appoint a Special Master, who will be entrusted with the responsibility to bring all directly affected parties to the table as part of integrative negotiations. The Tribunal will refrain from pronouncing itself on the merits of the case until a comprehensive settlement will have been reached, or, alternatively, until the Special Master reports that achieving such a settlement is unlikely. This will stimulate all parties involved to invest in the negotiations.

In the past reputable courts have decided to refrain from granting relief if the long term interest of justice so required. Thus, the legendary Chief Justice John Marshall of the U.S. Supreme Court denied the plaintiff's petition for a writ of mandamus in Marbury v. Madison in 1803. Chief Justice Marshall felt that issuing a mandamus would irreparably harm the relations between the Court and the executive branch headed by President Thomas Jefferson. The decision in Marbury v. Madison is widely regarded as a defining moment in the history of the Supreme Court, which went on to become to most highly respected judicial body in the world. Therefore, the members of the Arbitral Tribunal should draw inspiration from this very sound judgment.       

Guest post by Prof. Tom Zwart, Professor of Law, Utrecht University, and Director of the Cross-Cultural Human Rights Centre and  Ruikun Sun, Fellow at the Netherlands School of Human Rights Research

Tuesday, March 22, 2016

A Quest for Cross Cultural Perspectives to Human Rights

Receptor Meeting with Prof. Abdullahi An-Naim
On the 8thof March 2016, the Receptor Group had the opportunity of meeting with Professor Abdullahi An-Na’im, one of the most ardent and talented supporters of cross cultural views to human rights. An-Na'im, a Sudanese born scholar is currently  the Charles Howard Candler Professor of Law at Emory Law, Associate Professor in the Emory College of Arts and Sciences, and Senior Fellow of the Center for the Study of Law and Religion of Emory University. He is a recognized scholar of Islam and human rights and human rights in cross-cultural perspectives. An -Na'im’s work is of particular importance and relevance at this particular juncture in time, especially in light of the recent terrorist attacks in Paris, including the radicalization of terrorist groups such as ISIS. He has recently written an opinion piece on this issue for The Conversation 

At the meeting that took place on the 8th An-Na'im shared some of his insights with the Receptor Team, mainly on his view on human rights, attaining  its effective implementation and cultural legitimacy, its monopolization by powerful states and the effective relationship it can share with Islam.

An-Na'im  is mainly concerned with questions of  legitimacy of internationally recognized human rights standards in different cultural and contextual settings, which he believes, is not solely the responsibility of states per se but also depends on the broader efforts of individuals and groups that come into contact with human rights issues. He takes the view that states are not the sole protector of human rights especially because they are prone and susceptible to promoting their own competing interests and goals. Furthermore, the state as an entity cannot effectively be held accountable by the international  system for its failure to adequately protect human rights, essentially because the human rights treaties that they sign up to, are without any without any real 'teeth' and therefore cannot  effectively guarantee a state’s commitment and resolve to upholding such rights. Many states as a result, end up taking these obligations lightly and in some cases start showing an indifferent attitude as a result.  

Relatedly another reason as An-Na'im puts, is that in almost every instance the state is hijacked by the market mainly because trade or business treaties carry more weight than human rights treaties do. Thus, he concludes, the state is essentially “a-moral” and that those who act on behalf of it mostly do so with their own interests in mind.  He therefore believes that human rights can be best achieved through moving away from a “state centered system to a more people centered system," one in which people or groups of people might be in the best position to promote and defend human rights.  Some of these actors would include civil society organizations, social scientists, lawyers and judges, as well as community leaders who are regularly in contact with human rights and are therefore in the best position to do so.

Specifically in this regard, An-Na'im has emphasized the value and need for dialogue. For example, he suggests that there should be more internal discourse and cross cultural dialogue to encourage goodwill, mutual respect and equality with other cultural traditions.  Internal discourse would naturally feature at a national level and would include scholarly works as well as political action. An-Na'im has stressed the importance of cross cultural dialogue and internal dialogue in order to reach consensus on a “body of beliefs” within the human rights framework. This, according to him is only achievable through dialogue and respect, and a common form of reciprocity between various cultures, which he suggests, is treating others in the same way as one would like to be treated. An-Na’im, therefore takes the position that human rights can only gain legitimacy and subsequently can only be observed if it is sanctioned through a person’s own cultural identity. This is what he believes is necessary and crucial for the cultural legitimacy of human rights.


On the relationship between the North and South and their prevailing power relations, An-Naim has observed that this is another area disenfranchising the effective spread and legitimacy of human rights. Here he spoke of the role of the international donor system and northern type NGO’s that continuously criticize the South and create a type of human rights dependency system indicative of neo-colonialism . Initially the Universal Declaration of Human Rights was a treaty owned by all states but later subsequently became  hijacked by more powerful states to the detriment of weaker states, in his view. As a result, this created a top down system of human rights where a type of imperialism and domination is the resultant order of the day and where human rights are imposed rather than shared, agreed upon and genuinely believed in. This same ‘colonizer and colonized’ mentality which was internalized in the past by Africa through colonialism, continues to be internalized through the conduit of human rights nowadays, indicative of the current North South divide.

An-Na'im, as a result calls for agency and self-determination of disempowered groups that do not equally participate in human rights dialogue and debate. In his view “agency of the subject of human rights” is critical and necessary. Each society must struggle for their rights because transformation and liberation can only take place if there is struggle within and without one’s society for change to occur. In his view change is inevitable and will in each society, come with time, but it is necessary that people themselves lead it. It is therefore essential internally that people engage with their own communities as well as with other individuals and communities across cultures, so as to find common ground and consensus.

Lastly on the issue of human rights and Islam, An-Na'im observes that secularization and religion are currently part and parcel of Islamic tradition. This, in his opinion should not be the case as it creates friction. Rather, it is necessary to separate the state and Islam but only to the degree that the state allows an individual freedom enough to practice his/her faith without fetter. While it is essential is that this type of model of separation, should allow for neutral decision-making by the state, it should not resemble the French model of laicity, where religion is accorded lower rights than for instance freedom of speech. So, while An-Na'im believes that separation of state and religion is necessary, it is necessary that it be done is a culturally and religiously sensitive way. This is because rights are not absolute and therefore need to be properly balanced for the good of the society concerned. On the adjacent  issue of terrorism and radicalization and the rise of ISIS, An-Na'im suggests that the roots of Islamic violence needs to be re-traced in order to understand the emergence of radical terrorism. In his opinion only Muslims can defeat ISIS, by exposing the fallacy of their religious claims. So Islamic dialogue is not only necessary, it is essential in combatting terrorism. On a personal level and from the side of his activist fervor and passion for the effective spread of human rights An-Na'im  eventually hopes to see Islam become a catalyst for social justice, equality and human rights.

Posted by Ingrid Roestenburg-Morgan