Courtenay Griffiths, Desmond de Silva, and Paul Mylvaganam, three British lawyers specializing in international law, spoke to the Monitor in Nairobi about prosecutions linked to Kenya’s post-election violence, which killed 1,300 after disputed polls in 2007.
Here are excerpts from the conversation:
CSM – You are aware that there are no domestic proceedings ongoing to prosecute those responsible for the clashes. There is only the ICC case at The Hague. What are your thoughts on that?
COURTENAY GRIFFITHS – It would be interesting to have a meaningful debate here in Kenya as to the appropriateness of any trial taking place in the ICC as opposed to taking place here in theatre. I don’t think all the possible options were properly debated here. It seemed to be a straight choice between Kenyan courts or the ICC. There seems to have been very little debate about the model of a hybrid court in theatre, under the United Nations.
If it’s a question of [Kenyans] questioning the integrity of their own judiciary to withstand political pushing, why not set up a hybrid court like the Special Court for Sierra Leone, drafting in foreign lawyers, do it under the direction of the UN.
In simple terms, the events took place here in Kenya, the victims are here in Kenya, the lessons to be learned should be learned by Kenyans. Justice should not just be done, they should be in a position of seeing it being done.
CSM – How would we now look at establishing such a hybrid court here in Kenya, and isn’t it too late, now that the ICC has begun investigations?
DESMOND DE SILVA – It would be up to the Kenyan government to make an approach to the Secretary General of the United Nations, ultimately these courts only truly have proper credence if they are UN-backed. There is no reason why the Secretary General shouldn’t agree.
And remember, the ICC does not have jurisdiction if the local domestic authorities decide to investigate and prosecute. Even if it’s a hybrid, that’s seen as local action. If the domestic government says, yes, we are willing to undertake a course of action that would result in the creation of a treaty-based court system in this country, the jurisdiction of the ICC will fade away.
CSM – So this hybrid is your preferred option?
DS – This is the preferable system, there’s no question about it. The international community would prefer that trials take place in theatre, because victims are entitled to see justice being done on their own doorstep.
PAUL MYLVAGANAM – We would like to stress that we’ve not come here to tell the Kenyan Law Society or the government what to do. Perhaps we can underline this hybrid idea, with examples, in a way that has not been done before. Remember that there may only be three people taken to the ICC. What’s going to happen to the many others?
CSM – You have all worked in international trials. Mr. Griffiths, you are defending Charles Taylor. Mr. Mylvaganam, you are on the defense team for [former Bosnian Serb politician] Radovan Karadzic. Aren’t you all here looking for work from potential Kenyan ICC suspects?
CG – Not at all. Because we work in this area, we are always available for employment, but it’s totally against the rules of our profession to tout for work, and we’ve certainly not come down here for that.
DS – We have not met any of the senior politicans while we have been here.
CSM – A significant number of African countries appear to have turned their backs on their responsibilities as signatories to the Rome Treaty [establishing the ICC], I’m thinking of the failure to arrest [Sudan's president Omar] al-Bashir [wanted by the ICC for genocide, war crimes, and crimes against humanity]. What impact really can the ICC have in Africa?
CG – I’m on record as criticising the ICC because of the way historically it’s exercised this mandate. Every single defendant on trial, or awaiting trial, is from guess where? And every investigation is guess where?
It’s why it’s important for a country like Kenya, which has the infrastructure to conduct a trial of integrity, given assistance from ourselves. Doing so will head off this argument that international justice is some neo-colonialist enterprise. African countries need to be taking responsibility so that the world at large can see that they’re taking the idea of human rights, and impunity, seriously.
As things currently stand, it’s very easy for a Bashir to turn around and shout racism, neo-colonialism. He isn’t going to be able to do that if Africans start taking responsibility for prosecuting those crimes.