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So today we have a seminar on the similar theme of the ICC in International Criminal Justice,

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and I thought it be it would be excellent to have two join us in the discussion.

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Mickey Palmer, he's a research fellow in Oxford.

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He's working on issues of criminal justice and transitional justice to help us lead the session today and how to moderate some of the questions.

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So she will introduce our speaker and hopefully food will arrive while we're talking.

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Thank you very much. In summary, keep this brief. It's an absolute pleasure to be able to introduce to you Chantal Schram.

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He's a professor of law at the University of London School for African.

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According to studies charges, CDS is low and detailed and and very impressive.

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She is an author of various books and journal publications of which her most recent monograph was Peace as Governance,

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Power Sharing, Armed Groups and Contemporary Peace Negotiations.

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So I've had the privilege of being a colleague of China's for a while, and I'm very interested.

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He had a speech today on the set of ICC positive complementarity and the situation in Kenya.

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So I look forward to these discussions. Well, thanks and everyone.

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I'm sorry about the sandwiches, although that's beyond my control. My only concern is that I have a grumpy audience.

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And obviously, whenever. Whenever the food turns up, I won't be offended.

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If you shuffle low enough, I'll shut up for a couple of minutes.

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First of all, I want to thank Jennifer and Elac for inviting me and also CCW for being co-host of this seminar.

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Just a couple of points about the paper that I'm going to present.

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It's actually two papers, so if it sounds a little schizophrenic,

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it's because what I'm going to do is give you a talk from two papers that are actually written by myself and a co-author.

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Stephen Brown is political scientist at University of Ottawa and far more of a Kenya expert than I am,

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because we've actually been engaged in a joint research project supported by Nuffield on

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this side and the Social Sciences and Humanities Research Council of Canada on that side.

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And we've been looking obviously at both political and legal dimensions of demands for post-election violence,

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accountability for post-election violence in Kenya, starting with an emphasis on the expectation that a hybrid tribunal would be

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created and ultimately focusing more and more on the International Criminal Court,

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both, as you'll see, some of the specific legal engagements that it's had in the development of certain principles,

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particularly around gravity and complementarity, but also around this idea,

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as the title of my talk suggests, around this idea of the shadow of the ICC.

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Right, trying to get to grips with the idea that somehow the ICC can have a real,

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tangible impact on domestic questions of accountability before it ever actually initiates cases.

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And indeed, in the absence of any cases at all, as some of its advocates will state more strongly.

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So I want to say just a little bit as I get started about the history of post-election violence in Kenya,

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I'm going to assume that most people have at least a passing awareness of what transpired in late 2011, 2008.

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So I won't say very much, but I think it's important just to sort of understand,

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particularly because a situation of post-election violence like this is relatively and I say relatively advisedly,

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relatively atypical as a situation for the ICC to be involved in.

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Although of course with with the situation in Cote d'Ivoire now being on its docket,

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we are perhaps looking at an evolution and I want to situate all of this and

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in a couple of larger debates in transitional justice and international law,

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in international relations more generally, particularly in transitional justice,

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about the impact of trials on future accountability, on human rights records.

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And I think we're all familiar with some of the work of Paine, Olson and Ryder and of Katherine Sick, trying to suggest that, in fact,

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having the trials at various levels, although they focussed largely on domestic levels,

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will tend to improve human rights records in the future in countries.

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And related to that, there have been arguments about compliance with international obligations,

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suggesting that as states sign up to international obligations like the ICC statute, that they will tend to bring their behaviour into conformity,

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in part because they pass domestic legislation that implements their obligations and in part because there's some kind of normative weight,

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some kind of normative pull to compliance.

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And so really what I want to explore here is whether or not any of these things are actually really the case.

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When you look at the engagement between the ICC in Kenya and indeed the overwhelming international

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pressure that was brought to bear on Kenya to actually deal with post-election violence,

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whether any of that pressure really actually had that much impact.

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So obviously we're all aware that in late 2007, in December 2007, there was a very close election in Kenya.

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And in fact, the result was contested. And the upshot was a wave of political violence which has been characterised variously by those

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most aligned with the with the actual perpetration of it as simply spontaneous violence.

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But actually, it's been analysed by many people as actually being multiple layers and different types of violence,

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including spontaneous reactions to what was seen as a flawed election and a flawed election result,

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but also including specific preplanned,

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orchestrated violence on at least one side overreactions of the police and retaliatory violence that was also orchestrated.

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This, as you'll be aware, carried on for a couple of months, resulting in about 1300 deaths, several hundred thousand people being displaced,

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and the estimates are at least 900 women raped, although, of course, the reporting on that is always somewhat problematic.

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The result with the intervention of former U.N. Secretary General Kofi Annan, as you'll be aware, was a negotiated power sharing deal.

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Right. So not in a traditional sort of post-conflict sense, a peace deal, but a negotiated power sharing deal that allowed to remain in place,

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the former President Kibaki, as president and allowed Raila Odinga to become prime minister.

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Right. So you have what? Kenyans joking. We call the government of national impunity.

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Right. What in fact, and what we would like to call the government of national unity, but in fact, is rather viewed as something else.

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And this is because of the the attribution of responsibility by many people in various quarters in Kenya of significant responsibility to both sides,

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both the earlier and PNU.

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Of of responsibility possibly going to the highest levels, but certainly going if not to Raila and Kibaki to at least one level below.

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And it's actually that terrible, though, as we'll see that actually get indicted before the ICC.

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So again, Anon not only negotiated this national dialogue and reconciliation process,

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resulting in the power sharing deal, but also the creation of a commission of inquiry into post-election violence,

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which you may be aware is known in shorthand as the Wacky Commission, because it was just Justice Philip Wacky who wasn't there also,

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possibly because some of its suggestions turned out to be slightly wacky.

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One of the recommendations, and this is a key recommendation of the wacky report,

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was the creation of a special tribunal to try those responsible for the worst abuses, something akin perhaps to the special court for Sierra Leone.

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And indeed, one of the legal advisers to the commission had worked at the special court for

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Sierra Leone and so had this model in mind and certainly lobbied fairly hard for it.

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And the argument was that you need to have this kind of hybrid tribunal for the reasons we often think we do,

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because domestic tribunals or domestic courts are actually biased or otherwise otherwise flawed,

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and certainly at least lack credibility, even if they actually turn out to be operational and unbiased in certain circumstances.

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So the Commission then engaged in its investigation and developed its report, but it did one interesting thing.

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It not only recommended that there be a hybrid tribunal, but developed what was called a self-enforcing mechanism,

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which was that it actually compiled a confidential list of names of persons that it considered

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might be most responsible for the violence in Kenya in the wake of the elections and said,

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look, we will hand this over to the ICC if you don't actually create this hybrid tribunal by a particular deadline.

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Now, that deadline slipped several times, notwithstanding international pressure,

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but it did set up a mechanism by which the Kenyan government couldn't simply delay forever and simply promise a hybrid that would never appear.

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That notwithstanding, and I'll talk about several efforts that took place. The hybrid tribunal was never created.

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There are basically three separate efforts at creating it, all of which fail for a variety of political reasons.

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And in the meantime,

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what you see is the government seeking to forestall ICC intervention with a variety of different stalling mechanisms or stalling tactics.

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Not only the delay in the actual creation and indeed the non creation of the hybrid tribunal, but recommendations that, well,

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perhaps the judiciary and police can simply be reformed and the domestic court system can actually take these cases,

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not something that really stopped many people from falling out of their seats laughing.

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Similarly, there was a suggestion and I'll get to the this commission in a minute,

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that the Truth Justice and Reconciliation Commission is effectively a commission of inquiry,

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might actually be able to hear judicial cases because after all, it had the word justice in its title.

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Again, a slightly laughable proposition. So we saw a number of different suggestions by the government of Kenya in an attempt in

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early days to try and avoid ICC involvement by triggering really complementarity mechanisms,

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right. By triggering the idea that this case can't be admissible because there's some kind of process going on in Kenya.

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As we know, in March last year,

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the pre-trial chamber of the ICC did actually approve the opening of an investigation into the situation involving post-election violence in Kenya.

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And I'll talk a little bit more about the subsequent proceedings. So what I want to talk about now is first,

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the treatment of two critical elements in the statute that are pretty under defined and the way

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in which the ICC has had to grapple with them so far in respect of the situation in Kenya.

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And then I want to come back to this whole question of the shadow of the ICC and what on earth it possibly means in the context of Kenya.

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So first, to complementarity, I think most of us are probably familiar with the principle of complementarity as espoused in the statute,

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although in fact it's not so termed in the statute,

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which is essentially a bar on admissibility for cases for the ICC getting involved in cases unless it

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can be shown that a state is genuinely unable or unwilling to pursue investigations and prosecutions.

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I think we're all familiar with that and there is a reference within the statute to the idea of delaying tactics as well.

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But beyond that, there's not a great deal of meat on the bones of complementarity in the statute.

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Right. There's not a great deal of definition about what you do when you're prevented with what looks like a transparently sham mechanism,

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what you do with delaying tactics that might or might not actually be somewhat legitimate.

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Right. But there might actually be real processes behind it. And at what point you actually try and push for stronger scrutiny.

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So indeed, in Kenya, what we actually saw was a sort of push pull and a sort of game playing with the idea of

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complementarity as the government again tried several times to create or not create a hybrid tribunal,

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as in fact it created a deeply flawed truth,

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Justice and Reconciliation Commission, and as it played games with the ICC itself, promising cooperation, refusing to actually refer the situation,

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and then engaging in a whole set of political tactics, trying to actually pull Kenya out of the ICC statute.

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All right. So I want to say a little bit more about that.

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One of the things that's noteworthy just in terms of a sort of superficial observation of practice, is the degree to which,

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in fact, the office of the prosecutor did allow a fair passage of time before actually pushing for the opening of an investigation.

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So there was a period of time where the Kenyan government's delaying tactics were,

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I wouldn't say allowed, but allowed in the sense of as giving a space for negotiation.

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So it wasn't the case as it might have been,

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that the prosecutor insisted at the very outset there are simply no viable investigations or prosecutions going on in Kenya.

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In fact, there was some space for a hybrid tribunal bill to try to be passed, which, of course, it wasn't.

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There was some space allowed to see whether or not domestic prosecutions might actually go forward in any legitimate way.

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And I'll say a couple of things about the few prosecutions that there have been.

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So, in fact, complementarity doesn't allow undue delay, but we now know that undue delay might be up to a year.

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Right. So we do know something in a sort of everyday kind of way about what practice might actually mean.

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We also know that the other TP elaborated a rather creative understanding of complementarity, which is actually something else.

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It's this three pronged strategy that actually involves complementary mechanisms rather than pure complementarity.

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Right. So if the idea of complementarity is that you can't go forward,

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if these prosecutions are already taking place, then complementary mechanisms actually are somewhat different.

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Right. The idea was that you would have the ICC prosecuting those who have the most responsibility and

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a very small number that a hybrid tribunal that would prosecute a larger number of people.

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So domestically. But.

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With mixed international and national judges and then a T GRC or something like it that would deal with the responsibility of the larger masses.

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Now, what's interesting about that is that it puts a very different shape on complementarity.

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You're no longer saying that because you aren't or can't prosecute domestically.

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We must have these cases actually creating tears. It starts to look a little bit more like the idea in Rwanda of stratified concurrent jurisdiction.

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Right. So it's quite curious and it's not actually been advocated as explicitly anywhere else by the ATP, by the office of the prosecutor.

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So it's a quite curious treatment of of of complementarity.

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This this three pronged strategy. I apologise.

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I'm obviously using my voice. I taught a seminar held really late last night, and I think I'm starting to feel the after effects.

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So please go with my croaky croak if you can. So I mean that.

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So that's one of the first things.

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And as we'll see when I get to the question of the shadow of the ICC, it becomes clear that in fact the ICC becomes the only remaining problem.

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Right, because these other two fall away as any kind of viable element of accountability.

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But interesting nonetheless. The second thing is how one actually deals with the idea of a case as one thinks about complementarity.

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Because, of course, as the ICC, as the office of the prosecutor was moving forward,

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he had to ask for the opening of an investigation before actually having named any possible perpetrators.

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Right now, this is completely viable within the statute. It's not impermissible in any way.

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But the idea of couching a case as spelling out a situation,

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but then having to explain to judges what the possible types of cases and situations that

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could come into future prosecutions would be without publicly naming the individuals.

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And this turned out to be quite problematic or quite difficult for the prosecutor

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as he was actually trying to make the case for the opening of an investigation.

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And the judges did actually come back to the prosecutor with a request for more information.

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There were some queries about why that might actually have turned out to be the case.

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But this also has knock on effects, right?

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Because then as one starts to think about the question of complementarity, once you actually have the so-called Kenya six.

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Right. So in December 2010, the prosecutor requests summons to appear for for six Kenyans and divides the cases into effectively two sides.

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Right. So two cases with three persons each.

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We can talk about whether or not that's also problematic in other ways, but then we get a number of different defences being raised.

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Objections raised by the government of Kenya, but also raised by attorneys for some of the named defendants,

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saying, well, wait a minute, you're using the wrong standard.

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You say that there are actually no viable domestic proceedings.

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We say you're using the wrong legal standard, which is effectively one which is effectively same person, same conduct.

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Right. So, look, we've got domestic prosecutions going.

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We might be able to prosecute these guys, too. Just give us a minute.

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And in fact, you're using a standard and this is a standard that the ICC had elaborated in the context of dealing with Lubanga and the ICC.

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So it's not new, but you're actually using a standard that is too stringent.

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And so you're judging complementarity incorrectly as well.

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As, you know, just a short time ago, the appeals chamber of the ICC rejected this claim and said, no, actually, this is the right standard.

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And so now, obviously, we're we're waiting for the cases to go forward,

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obviously still waiting on all of the confirmation charges, hearings to be completed.

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So I think, again, this tells us a little bit more about how the ICC is sharpening the principle of complementarity.

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Right. Particularly that it's drawn a line around the idea that just because you have domestic

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proceedings for some people doesn't mean we need to suspend proceedings for these people.

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Now, that should already have been evident in the charter in the Rome Statute.

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Sorry that wasn't spelled out in the perhaps the detail that might have been useful.

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So we're seeing, again, the judge is putting a little bit more meat on the idea of complementarity and making it clear that, no,

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we're talking about the same persons in the same conduct, because, in fact,

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there have been some domestic prosecutions in Kenya for post-election violence.

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There've been a very low level people and have resulted either in acquittals,

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continuing cases that haven't been completed or in the only case of a conviction

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that I'm aware of conviction of individuals for the killing of two police officers,

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which is fairly atypical in terms of the scope of the violence post-election.

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In fact, the police were attributed with about a third of the actual violence and killing.

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Right. So the fact that you've only got one conviction for the killing of police officers

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suggests that these aren't quite the cases that the ICC was looking for.

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Okay. So that's the first thing in terms of where Kenya's.

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Bringing us to in terms of sharpening complementarity.

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The second thing is that the Kenyan situation also forces us to come to face squarely another under defined standard in the statute,

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which is that of gravity. As you know, the standard of gravity is not defined in the statute other than it's an admissibility bar, right.

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If the cases are not of sufficient gravity. And this has always been a conundrum, right.

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As Moreno-Ocampo has said himself, by definition, all of the crimes in the statute are grave.

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We're talking about the most serious international crimes. So what on earth could it mean to say these crimes are not of sufficient gravity?

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And there's been a lot of speculation out there, some of it fuelled by Moreno-Ocampo himself, that maybe it's something to do with numbers, right?

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That maybe it's something to do with the idea that, you know, sometimes are grave in the sense that they look like crimes against humanity.

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They look like a genocidal effort. But the numbers are really low. And given that we've got a court with limited capacity, limited finance,

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limited ability to actually go out and arrest people or get people arrested for it.

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We can't take all these cases. We've got to draw a line somewhere. And it might simply be that some cases fall below the threshold.

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And I don't know if any of you remember. Excuse me.

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My voice is really missing. You don't know how many of you remember a few years ago,

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the memo that was issued by the Office of the Prosecutor in declining to pursue investigation

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or consideration of investigation into abuses committed in Iraq by British soldiers.

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The grounds on which he did this sounded a lot like gravity. He effectively said, Look,

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there are clearly a large number of cases of possible crimes that may have been committed in Iraq during periods of American and British occupation.

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However, we're only going to have jurisdiction over those crimes committed by British soldiers,

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and we think we're ultimately looking at an incredibly small number of possibly a dozen.

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Right. And in what he sort of says in this kind of schoolmarm ish way, in this memo, is, you know,

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he proceeds to remind the reader that I'm looking at the DRC, I'm looking at situations like that.

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Right. Well, you can't really think anything on reading these comparisons except 12 versus how many hundreds of thousands or millions of people dead.

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Right. So there's a real hint there that what the prosecutor is thinking about is numbers.

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He's definitely stood down from that and said quite openly, no, it can't be about numbers.

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It's got to be about something more complex than that. And there have subsequently been policy papers issued by the Office of the

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Prosecutor that try and put a little bit more shape on the idea of what kind sorry,

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of what gravity is. And now there are four criteria.

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And as we'll see, the judges have actually picked up on this since.

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The first is scale of crimes, although this doesn't seem to be about numbers per se, it certainly about intensity.

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The second is nature of the crimes. Third is manner of their commission.

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And the fourth is the impact on victims and families. Now, I think we can probably quibble with all of these.

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For example, we might say clearly all of these types of crimes have an impact on their victims.

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Right. We might want to ask ourselves what actually intensity solves for us in terms of scale.

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There's something interesting about the manner of commission, which is yet to be spelled out.

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Right. Is it about organisational structure? Is it about a particular type of viciousness or glee that's taken in the nature of the atrocities?

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What is it? Right. And informal discussions with some people around the office of the prosecutor suggests that it might be a mixture of these,

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but they haven't actually fleshed that out. And as we'll see, the judges haven't really helped us there yet either.

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But it is important for us to think about this in the context of Kenya, because if you're thinking about the scale from Iraq,

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the British atrocities through to the DRC, Kenya clearly falls somewhere on the lower end of the scale might if we're talking about 1300 deaths.

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And I know it's very crass to talk in these terms,

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but there's actually really no other way to talk about it to a degree, which is that people do ask, why Kenya?

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Right. Why not somewhere else? This isn't really that severe.

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If we think about the range of war crimes and crimes against humanity that we could identify other places in the globe.

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And that is by no means to undercut or undermine the nature of the abuses and the appalling nature of the abuses at that.

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But rather to say, look, again, we've got an institution that's got to make pragmatic choices.

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One of the ways it does that is around gravity. Why is it choosing this case or is it choosing this case?

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Because the case was foisted upon it in this very sort of interesting kind of game of chicken mechanism that was set up by the Wacky Commission.

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Sorry, it's the Kentucky coming out. So, I mean, one possible answer might be, well,

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this refined understanding of of the scale of crimes may actually explain something, because 1300 deaths may not sound like a lot,

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but 1300 deaths in 200 to 250000 people being displaced, forced from their homes,

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having their homes destroyed in effectively two months is quite intense for a short period of time.

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So we might be able to say we can we can recover it there. We might also want to explore the manner of their commission.

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Now, at the opening of investigation stage, the pre-trial chamber did actually apply these criteria or said it was, but it never told us how.

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Right. So they simply list the criteria that are actually in the Office of the Prosecutor Policy paper,

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tell us they're using them and then say gravity is reached. Now, why do we care about this?

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Well, we care about this because somewhere down the road we may actually see this arise

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again in terms of either in other situations or indeed in the Kenya situation.

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And because the judges did actually ask for more information right back in early mid 2010

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in ways that made people wonder if in fact the question was actually one of gravity,

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it was one of organisation what in fact they wanted to know more about in order to go ahead and approve the opening of an investigation.

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And we may care about this because of Judge Cole, but for those of you who are who are familiar with Judge Cole's dissent,

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which was entirely about the threshold for crimes against humanity, he pushed for a fairly high standard of organisational plan or policy,

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and one that if we understand manner of commission and gravity to mean something about organisation may may find a

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seeing these things merged may find us having problems not only with crimes against humanity but also with gravity.

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So for those of you who aren't familiar with judge calls percent effectively what he says is taking the language in the statute,

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which does rely upon the idea that for crimes against humanity you need to have a state or state like organisational plan or policy.

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He leans quite hard on it and basically says empirically the situation in Kenya doesn't give you a state or state like organisational plan or policy.

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And I think there's two things about that. One is that he seems to have quite a stringent understanding of what constitutes an organisational plan,

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but the other is that he may not really understand the organisation of election related violence in Kenya.

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Right, and the ways in which there are actually systems of organisation of violence.

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These weren't spontaneous outbursts of frustration, anger and violence.

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Some bits were, but certainly significant chunks of the violence were not.

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They were pre organised and pre organised along existing party lines, existing ethnic lines and in ways that had happened around prior elections.

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Right. So this isn't new. So there are reasons to be a bit curious about what Paul is doing vis a vis crimes against humanity here.

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But I think there are also some open questions or questions that may get opened up about gravity.

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And because of this question of organisational plan and how it may or may not relate to the idea of manner of commission, again,

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once we actually or if we actually see it elaborated more, um, so, so much for the sort of legal criterion how they are not evolving around Kenya.

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One of the critical things I think that we see in the Kenya situation, perhaps, if not more well, actually,

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I think more than many of the situations that the ICC has engaged with is a real

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obsession on the part of the office of the Prosecutor for positive complementarity.

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Right. For not just trying to find a way to ensure that you're you're not taking cases that the state is unable or unwilling to take,

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but to actively encourage domestic proceedings. Right.

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Both with reference to the three pronged strategy and with the sort of prolonged and

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indeed sort of diplomatic engagement that Moreno-Ocampo has engaged in with with Kenya.

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Right. If you think about the number of visits that he's actually made to Kenya, trying to really sweet talk politicians,

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the accused and engage a variety of NGOs saying we're here for you,

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we want to support the development of the Kenyan justice system, whatever that means.

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You see and you see a prosecutor that's trying very hard to somehow get Kenya to do what he's always said he wanted the ICC to enable,

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which is for the ICC to never have any cases because countries would handle it themselves.

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Now, whether he ever actually believed that is another question.

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But the manner of engagement does suggest that what he was really after was this kind of positive complementarity and reasons, I think,

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and I'll explain why some interesting questions about whether positive complementarity

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can work when you've got fairly cynical and savvy states seeking to protect their own,

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which will not surprisingly often be the case. And I would suggest that instead of what we might be seeing is what for those of you who know him,

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Christopher Hall of Amnesty International calls perverse complementarity.

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Right. This sort of grasping on to the idea of complementarity by states seeking to evade the prosecution

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of their their most powerful politicians by engaging in a bit of a game of chicken with the ICC.

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Okay. So again, if we think about the three tracks or sorry, the three prongs of the so-called three pronged strategy,

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it's worth quickly running through how it is that they failed in the first.

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Of course, that I want to start. With is that of the hybrid tribunal.

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It's important to understand that the hybrid tribunal bill has failed not once, but three times.

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The first time it was actually voted down through effectively sort of a politics make strange bedfellows situation.

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That is to say, there were a range of human rights and accountability advocates who didn't want to vote for it because

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it was actually quite a weak hybrid tribunal bill and it would have allowed for presidential pardon.

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So they voted against it because they thought it had too many loopholes.

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Those who feared accountability voted against it because they thought it was too strong. All right.

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So that bill dies, a second bill gets circulated and it's much improved within the Kenyan cabinet,

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but they fail to introduce it to parliament and instead,

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in conjunction with failing to introduce it to parliament, actually come up with this preposterous suggestion that,

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hey, we can reform the domestic judiciary and police, so let us have the cases.

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Right. So you see this again, really sort of game playing not only with the hybrid tribunal,

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but with the idea of complementarity and trying to keep the court out by making these promises.

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The third bill then was introduced or would be introduced if it weren't actually perennially boycotted by backbencher MP Getachew Minara,

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who has tried on several occasions to have the bill read.

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But because in fact an insufficient number of nmps actually turn up, they actually boycott the reading.

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It's not quite so it never gets written. It can't be voted on.

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This is actually probably the strongest bill, but a minority himself doesn't actually believe it will ever be passed.

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So what we have is, again, this kind of push pull by the Kenyan government promising and then stepping back.

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And the same thing happens with regard to the JRC.

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Right. The Truth Justice and Reconciliation Commission, which for those of you who are familiar with it,

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you would know that it was really hobbled from the outset, but it was given a more than 50 hour, nearly 50 year mandate.

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Right. To actually investigate violations going back to independence.

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It was given at the time, two years to run started about six months late to begin with, has been hobbled financially.

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And of course, the person who was originally made chair of the of the of the commission was Bethel Kiplagat, who, of course,

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was a minister under President Daniel Arap moi and is implicated in a number of massacres that the commission would have had to investigate.

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So you have a protracted standoff in which he actually refuses to resign as commissioners from commissions, from commissions of inquiry,

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from South Africa, from Sierra Leone, from across Africa, call on him to resign, as in fact, fellow commissioners call on him to resign.

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The international commissioner, Ron Slide, keeps resigning and then resigning in an attempt to sort of get him to move.

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They always refer to him as the sly one in Kenya. It's very cute.

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But anyway, so you have this sort of, again, this game playing at the same time that the government is saying,

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hey, this is our judicial mechanism if you want it. So after a time, you do actually finally have Kiplagat resigning.

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But again, what you have is a deeply hobbled and deeply suspect institution with a huge mandate,

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very little time, very little money, and very little expectation that it will speak to not only the wide,

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wide swath of impunity, abuses and lack of accountability that have been seen in Kenya across the decades,

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but certainly not to the most recent round of post-election violence.

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So what does that leave? Well, it leaves one prong standing, right? It leaves the ICC.

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And I want to sort of close now where I started, which is, well,

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so what do we think the ICC can do if we think about some of the sort of maximalist claims that have been made for the court,

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not least by its own prosecutor, vis a vis Colombia, for example,

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by the claim that it was ICC scrutiny that sort of pushed the the the constitutional

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review of the Justice and Peace law with earlier arguments that in fact,

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it was ICC scrutiny that kept Cote d'Ivoire from exploding, which unfortunately we've seen obviously did not end with arguments that,

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of course, ICC involvement could actually end the war in northern Uganda.

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I think we're all familiar with some of the maximalist claims that have been made.

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I think there's reason for real caution, right? Because here we're actually talking about a state that not only was a state party,

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but in fact insisted throughout has insisted throughout this engagement that it will cooperate,

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that it will obey its obligations under the statute of state cooperation with the ICC,

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notwithstanding the fact that, of course, it did not wish to refer.

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But what we've seen at the same time as incredible recalcitrance, right? We've seen all of the game playing that I preferred to.

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We've seen that Kenya has on at least two occasions in recent memory played host to the president of Sudan,

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not least when they actually had the promulgation of the Constitution last year, even though there's an active arrest warrant against against Bashir.

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And it would be the obligation of Kenya as a state party, in fact, to arrest him, rather.

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Then to invite him, welcomed him and promised him not to be arrested.

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And we've seen Kenya actively trying to undermine its own obligations first with

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first with the parliament actually voting for withdrawal from the ICC statute.

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I think probably misunderstanding that legally,

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that would actually have no bearing on cases that were already going forward because any withdrawal would take a year to enter into effect.

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And then going on a diplomatic offensive at the Security Council,

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trying to get votes for a 12 month deferral of of of the ICC engagement and the situation in Kenya.

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So I think this really puts a bit of a damper, I guess I would say,

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on the kinds of enthusiasm that we've seen out there about the ways in which the ICC may not only be able to prosecute a few high level individuals,

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and we've seen it's had great difficulty, in fact, obtaining custody over many of them,

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but also they might be able to have this longer term, this positive complementarity,

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knock on effect push, helping to push for accountability in a domestic justice system,

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possibly helping to promote domestic rule of law, to really, in fact,

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create what I guess the advocates like to talk about as the Rome system of international criminal justice.

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Right. So not just a statute, not just a court, but entire global system whereby states would start filling in the gaps.

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And I think what we've seen in the situation in Kenya is rather, rather the reverse,

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but the reverse in a rather interesting way and distinct than what we've seen with Bashir, where you sort of where you have open defiance.

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What you actually see is that states can actually be for long periods of time quite evasive,

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quite manipulative, and still continue to insist that they're abiding by their obligations under the statute.

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So I think I'll stop there and thanks for your attention.