The horror of crimes against humanity should end when the last victim takes the last breath, but it does not. Throughout history, the killing fields of the world have had something in common that is perhaps more horrifying than the killings- most of the perpetrators have gone unpunished!
The desire to bring perpetrators of crime against humanity to justice led to the establishment of the International Criminal Court (ICC) in 1998. Like the Nuremberg Tribunal and the International Criminal Tribunals for Yugoslavia and Rwanda before it, the ICC embodies the principle that no one is above the law and no one will escape punishment for horrendous crime. The ICC’s mission is to handle the most serious cases of war crimes, genocide and crimes against humanity, where national courts are unable or unwilling to do so.
Kenya’s ratification of the Rome Statute of the ICC a few weeks ago gave the international community at least three reasons to celebrate. First, the number of signatories to the Rome Statute edged closer to the 100th mark. Secondly, this was another statement that the ICC, arguably the most important recent development in international criminal justice, had been embraced by the international community and most importantly, Kenya’s signature entrenched the ICC deeper in international criminal justice thus hastening the end of impunity for crimes against humanity.
While the international community was celebrating the news that Kenya had finally ratified the Rome Statute, the Bush administration was working overtime to see how best to undermine Kenya’s ratification with the aim of clipping the power of the ICC all together. Kenya is now under intense pressure from the Bush administration to sign a Bilateral Non Surrender Agreement (BIA) also known as an Article 98 agreement.
By signing the BIA, Kenya would be bound to provide immunity to American citizens and personnel (including foreign sub-contractors working for the United States) for alleged war crimes, crimes against humanity and genocide. Kenya would also have to refrain from assisting other parties in their efforts to send American citizens to the ICC. The pressure on Kenya carries serious financial implications – at least Sh1.2 billion in form of military support now hangs in the balance.
The Bush administration’s efforts to undermine the ICC are not new on the international scene. In 2001, the Senate passed the American Service Members Protection Act, requiring that military assistance be suspended to all state parties to the ICC unless they have signed a BIA with the United States or obtained a waiver. In the following year, America withdrew it’s signature to the Rome Statute of the ICC and has since made at least 60 countries sign BIAs or face withdrawal of military aid. America’s targets are either small countries, or fragile democracies with weak economies.
Countries which have refused to enter into such agreements, have often had their military assistance withdrawn and so far, about 35 countries have suffered America’s wrath.
America’s reason for frustrating the ICC is that the tribunal may be used for politically motivated prosecutions of current and former US officials, soldiers or other Americans. However, the purpose for which the ICC was set up and the rules that guide it’s operations reveals that the Bush administration’s spirited war against it is unwarranted for two reasons: first, the ICC’s jurisdiction is complementary to national sovereignties and will only intervene when states are unwilling or unable to prosecute crimes against humanity.
While it cannot be denied that some of the complaints to the ICC may be politically motivated, the ICC’s rules make it impossible for the court to act politically. It would be short-sighted and unfair to judge the ICC by the complaints it receives but by what it does with those complaints. This argument arises from the thinking that in cases of ethnic conflict, the guarantee that at least some perpetrators of war crimes or genocide may be brought to justice acts as a deterrent and enhances the possibility of bringing conflict to an end.
In theory, the American government has been a ‘passionate defender of human rights’ for as long as America has existed. On the basis of her perceived passion for human rights, America has taken it upon herself to speak against other countries for their ‘wanting’ standards in human rights and has occasionally, for instance in the case of Iraq, initiated war crimes prosecutions against other countries’ leaders. However, if America was as keen about human rights as she appears to be, she would support the ICC for any one or more of the following reasons:
– For the first time in history, we have a court with universal jurisdiction that can punish individuals who commit crimes against humanity. Such crimes have gone unpunished in the past.
– Unlike ad hoc tribunals which are subject to geographical and time limits, the only crimes the ICC cannot handle are those committed before it came into existence.
– The ICC can prosecute masterminds of crime against humanity who may be holding senior positions in government or military and who may be beyond reach of national courts.
– The ICC serves as a warning to potential war lords and like minded individuals that crimes against humanity will not go unpunished.
The unwavering crusade against the ICC is not the only move the United States has made against justice and human rights. One of the clear indicators of America’s disregard for human rights emerged at the birth of the League of Nations in 1919. The American Senate would not let President Woodrow Wilson sign the charter and America did not join the League of Nations for the entire time that it was in existence.
America’s stand on international human rights issues has not changed over the years and to date, it refuses to recognise the Inter – American Court of Human Rights to which most other governments from the Americas are accountable for human rights violations. America has also refused to ratify major human rights treaties and conventions such as the Convention on the Rights of the Child and the Convention on Elimination of all forms of Discrimination Against women. The genocides in Rwanda and Cambodia had as many casualties as they did due to America’s policy of acting deaf and dumb in the face of massive human rights violations. No wonder the conclusion by many that America supports human rights only when it is politically expedient to do so.
When parliamentarians meet to discuss the motion on whether or not the government should bow to US pressure to sign a non-surrender agreement, a delicate balance must be maintained between the desire to defend Kenya’s sovereignty as well as uphold human rights and the benefits that Kenya could lose should the government not sign.
Our parliamentarians do not have much choice in this matter. Kenya must stand up against double standards in international justice even at the cost of offending the Bush administration. We must uphold human rights for victims of war crimes and crimes against humanity. If Kenyans made any other decision, we would be saying to the Adolf Hitlers, Pol Pots and Iddi Amins of this world that they can kill innocent men women and children with impunity and get away with it. In defence of our sovereignty as a nation and in the interest of human rights and justice, Kenya must stand her ground and refuse to sign the BIA even at the cost of losing America’s ‘aid’.