So today we have a seminar on the similar theme of the ICC in International Criminal Justice,
and I thought it be it would be excellent to have two join us in the discussion.
Mickey Palmer, he's a research fellow in Oxford.
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.
So she will introduce our speaker and hopefully food will arrive while we're talking.
Thank you very much. In summary, keep this brief. It's an absolute pleasure to be able to introduce to you Chantal Schram.
He's a professor of law at the University of London School for African.
According to studies charges, CDS is low and detailed and and very impressive.
She is an author of various books and journal publications of which her most recent monograph was Peace as Governance,
Power Sharing, Armed Groups and Contemporary Peace Negotiations.
So I've had the privilege of being a colleague of China's for a while, and I'm very interested.
He had a speech today on the set of ICC positive complementarity and the situation in Kenya.
So I look forward to these discussions. Well, thanks and everyone.
I'm sorry about the sandwiches, although that's beyond my control. My only concern is that I have a grumpy audience.
And obviously, whenever. Whenever the food turns up, I won't be offended.
If you shuffle low enough, I'll shut up for a couple of minutes.
First of all, I want to thank Jennifer and Elac for inviting me and also CCW for being co-host of this seminar.
Just a couple of points about the paper that I'm going to present.
It's actually two papers, so if it sounds a little schizophrenic,
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.
Stephen Brown is political scientist at University of Ottawa and far more of a Kenya expert than I am,
because we've actually been engaged in a joint research project supported by Nuffield on
this side and the Social Sciences and Humanities Research Council of Canada on that side.
And we've been looking obviously at both political and legal dimensions of demands for post-election violence,
accountability for post-election violence in Kenya, starting with an emphasis on the expectation that a hybrid tribunal would be
created and ultimately focusing more and more on the International Criminal Court,
both, as you'll see, some of the specific legal engagements that it's had in the development of certain principles,
particularly around gravity and complementarity, but also around this idea,
as the title of my talk suggests, around this idea of the shadow of the ICC.
Right, trying to get to grips with the idea that somehow the ICC can have a real,
tangible impact on domestic questions of accountability before it ever actually initiates cases.
And indeed, in the absence of any cases at all, as some of its advocates will state more strongly.
So I want to say just a little bit as I get started about the history of post-election violence in Kenya,
I'm going to assume that most people have at least a passing awareness of what transpired in late 2011, 2008.
So I won't say very much, but I think it's important just to sort of understand,
particularly because a situation of post-election violence like this is relatively and I say relatively advisedly,
relatively atypical as a situation for the ICC to be involved in.
Although of course with with the situation in Cote d'Ivoire now being on its docket,
we are perhaps looking at an evolution and I want to situate all of this and
in a couple of larger debates in transitional justice and international law,
in international relations more generally, particularly in transitional justice,
about the impact of trials on future accountability, on human rights records.
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,
having the trials at various levels, although they focussed largely on domestic levels,
will tend to improve human rights records in the future in countries.
And related to that, there have been arguments about compliance with international obligations,
suggesting that as states sign up to international obligations like the ICC statute, that they will tend to bring their behaviour into conformity,
in part because they pass domestic legislation that implements their obligations and in part because there's some kind of normative weight,
some kind of normative pull to compliance.
And so really what I want to explore here is whether or not any of these things are actually really the case.
When you look at the engagement between the ICC in Kenya and indeed the overwhelming international
pressure that was brought to bear on Kenya to actually deal with post-election violence,
whether any of that pressure really actually had that much impact.
So obviously we're all aware that in late 2007, in December 2007, there was a very close election in Kenya.
And in fact, the result was contested. And the upshot was a wave of political violence which has been characterised variously by those
most aligned with the with the actual perpetration of it as simply spontaneous violence.
But actually, it's been analysed by many people as actually being multiple layers and different types of violence,
including spontaneous reactions to what was seen as a flawed election and a flawed election result,
but also including specific preplanned,
orchestrated violence on at least one side overreactions of the police and retaliatory violence that was also orchestrated.
This, as you'll be aware, carried on for a couple of months, resulting in about 1300 deaths, several hundred thousand people being displaced,
and the estimates are at least 900 women raped, although, of course, the reporting on that is always somewhat problematic.
The result with the intervention of former U.N. Secretary General Kofi Annan, as you'll be aware, was a negotiated power sharing deal.
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,
the former President Kibaki, as president and allowed Raila Odinga to become prime minister.
Right. So you have what? Kenyans joking. We call the government of national impunity.
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.
And this is because of the the attribution of responsibility by many people in various quarters in Kenya of significant responsibility to both sides,
both the earlier and PNU.
Of of responsibility possibly going to the highest levels, but certainly going if not to Raila and Kibaki to at least one level below.
And it's actually that terrible, though, as we'll see that actually get indicted before the ICC.
So again, Anon not only negotiated this national dialogue and reconciliation process,
resulting in the power sharing deal, but also the creation of a commission of inquiry into post-election violence,
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,
possibly because some of its suggestions turned out to be slightly wacky.
One of the recommendations, and this is a key recommendation of the wacky report,
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.
And indeed, one of the legal advisers to the commission had worked at the special court for
Sierra Leone and so had this model in mind and certainly lobbied fairly hard for it.
And the argument was that you need to have this kind of hybrid tribunal for the reasons we often think we do,
because domestic tribunals or domestic courts are actually biased or otherwise otherwise flawed,
and certainly at least lack credibility, even if they actually turn out to be operational and unbiased in certain circumstances.
So the Commission then engaged in its investigation and developed its report, but it did one interesting thing.
It not only recommended that there be a hybrid tribunal, but developed what was called a self-enforcing mechanism,
which was that it actually compiled a confidential list of names of persons that it considered
might be most responsible for the violence in Kenya in the wake of the elections and said,
look, we will hand this over to the ICC if you don't actually create this hybrid tribunal by a particular deadline.
Now, that deadline slipped several times, notwithstanding international pressure,
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.
That notwithstanding, and I'll talk about several efforts that took place. The hybrid tribunal was never created.
There are basically three separate efforts at creating it, all of which fail for a variety of political reasons.
And in the meantime,
what you see is the government seeking to forestall ICC intervention with a variety of different stalling mechanisms or stalling tactics.
Not only the delay in the actual creation and indeed the non creation of the hybrid tribunal, but recommendations that, well,
perhaps the judiciary and police can simply be reformed and the domestic court system can actually take these cases,
not something that really stopped many people from falling out of their seats laughing.
Similarly, there was a suggestion and I'll get to the this commission in a minute,
that the Truth Justice and Reconciliation Commission is effectively a commission of inquiry,
might actually be able to hear judicial cases because after all, it had the word justice in its title.
Again, a slightly laughable proposition. So we saw a number of different suggestions by the government of Kenya in an attempt in
early days to try and avoid ICC involvement by triggering really complementarity mechanisms,
right. By triggering the idea that this case can't be admissible because there's some kind of process going on in Kenya.
As we know, in March last year,
the pre-trial chamber of the ICC did actually approve the opening of an investigation into the situation involving post-election violence in Kenya.
And I'll talk a little bit more about the subsequent proceedings. So what I want to talk about now is first,
the treatment of two critical elements in the statute that are pretty under defined and the way
in which the ICC has had to grapple with them so far in respect of the situation in Kenya.
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.
So first, to complementarity, I think most of us are probably familiar with the principle of complementarity as espoused in the statute,
although in fact it's not so termed in the statute,
which is essentially a bar on admissibility for cases for the ICC getting involved in cases unless it
can be shown that a state is genuinely unable or unwilling to pursue investigations and prosecutions.
I think we're all familiar with that and there is a reference within the statute to the idea of delaying tactics as well.
But beyond that, there's not a great deal of meat on the bones of complementarity in the statute.
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,
what you do with delaying tactics that might or might not actually be somewhat legitimate.
Right. But there might actually be real processes behind it. And at what point you actually try and push for stronger scrutiny.
So indeed, in Kenya, what we actually saw was a sort of push pull and a sort of game playing with the idea of
complementarity as the government again tried several times to create or not create a hybrid tribunal,
as in fact it created a deeply flawed truth,
Justice and Reconciliation Commission, and as it played games with the ICC itself, promising cooperation, refusing to actually refer the situation,
and then engaging in a whole set of political tactics, trying to actually pull Kenya out of the ICC statute.
All right. So I want to say a little bit more about that.
One of the things that's noteworthy just in terms of a sort of superficial observation of practice, is the degree to which,
in fact, the office of the prosecutor did allow a fair passage of time before actually pushing for the opening of an investigation.
So there was a period of time where the Kenyan government's delaying tactics were,
I wouldn't say allowed, but allowed in the sense of as giving a space for negotiation.
So it wasn't the case as it might have been,
that the prosecutor insisted at the very outset there are simply no viable investigations or prosecutions going on in Kenya.
In fact, there was some space for a hybrid tribunal bill to try to be passed, which, of course, it wasn't.
There was some space allowed to see whether or not domestic prosecutions might actually go forward in any legitimate way.
And I'll say a couple of things about the few prosecutions that there have been.
So, in fact, complementarity doesn't allow undue delay, but we now know that undue delay might be up to a year.
Right. So we do know something in a sort of everyday kind of way about what practice might actually mean.
We also know that the other TP elaborated a rather creative understanding of complementarity, which is actually something else.
It's this three pronged strategy that actually involves complementary mechanisms rather than pure complementarity.
Right. So if the idea of complementarity is that you can't go forward,
if these prosecutions are already taking place, then complementary mechanisms actually are somewhat different.
Right. The idea was that you would have the ICC prosecuting those who have the most responsibility and
a very small number that a hybrid tribunal that would prosecute a larger number of people.
So domestically. But.
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.
Now, what's interesting about that is that it puts a very different shape on complementarity.
You're no longer saying that because you aren't or can't prosecute domestically.
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.
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.
So it's a quite curious treatment of of of complementarity.
This this three pronged strategy. I apologise.
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.
So please go with my croaky croak if you can. So I mean that.
So that's one of the first things.
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.
Right, because these other two fall away as any kind of viable element of accountability.
But interesting nonetheless. The second thing is how one actually deals with the idea of a case as one thinks about complementarity.
Because, of course, as the ICC, as the office of the prosecutor was moving forward,
he had to ask for the opening of an investigation before actually having named any possible perpetrators.
Right now, this is completely viable within the statute. It's not impermissible in any way.
But the idea of couching a case as spelling out a situation,
but then having to explain to judges what the possible types of cases and situations that
could come into future prosecutions would be without publicly naming the individuals.
And this turned out to be quite problematic or quite difficult for the prosecutor
as he was actually trying to make the case for the opening of an investigation.
And the judges did actually come back to the prosecutor with a request for more information.
There were some queries about why that might actually have turned out to be the case.
But this also has knock on effects, right?
Because then as one starts to think about the question of complementarity, once you actually have the so-called Kenya six.
Right. So in December 2010, the prosecutor requests summons to appear for for six Kenyans and divides the cases into effectively two sides.
Right. So two cases with three persons each.
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.
Objections raised by the government of Kenya, but also raised by attorneys for some of the named defendants,
saying, well, wait a minute, you're using the wrong standard.
You say that there are actually no viable domestic proceedings.
We say you're using the wrong legal standard, which is effectively one which is effectively same person, same conduct.
Right. So, look, we've got domestic prosecutions going.
We might be able to prosecute these guys, too. Just give us a minute.
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.
So it's not new, but you're actually using a standard that is too stringent.
And so you're judging complementarity incorrectly as well.
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.
And so now, obviously, we're we're waiting for the cases to go forward,
obviously still waiting on all of the confirmation charges, hearings to be completed.
So I think, again, this tells us a little bit more about how the ICC is sharpening the principle of complementarity.
Right. Particularly that it's drawn a line around the idea that just because you have domestic
proceedings for some people doesn't mean we need to suspend proceedings for these people.
Now, that should already have been evident in the charter in the Rome Statute.
Sorry that wasn't spelled out in the perhaps the detail that might have been useful.
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,
we're talking about the same persons in the same conduct, because, in fact,
there have been some domestic prosecutions in Kenya for post-election violence.
There've been a very low level people and have resulted either in acquittals,
continuing cases that haven't been completed or in the only case of a conviction
that I'm aware of conviction of individuals for the killing of two police officers,
which is fairly atypical in terms of the scope of the violence post-election.
In fact, the police were attributed with about a third of the actual violence and killing.
Right. So the fact that you've only got one conviction for the killing of police officers
suggests that these aren't quite the cases that the ICC was looking for.
Okay. So that's the first thing in terms of where Kenya's.
Bringing us to in terms of sharpening complementarity.
The second thing is that the Kenyan situation also forces us to come to face squarely another under defined standard in the statute,
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.
If the cases are not of sufficient gravity. And this has always been a conundrum, right.
As Moreno-Ocampo has said himself, by definition, all of the crimes in the statute are grave.
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?
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?
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.
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,
limited ability to actually go out and arrest people or get people arrested for it.
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.
And I don't know if any of you remember. Excuse me.
My voice is really missing. You don't know how many of you remember a few years ago,
the memo that was issued by the Office of the Prosecutor in declining to pursue investigation
or consideration of investigation into abuses committed in Iraq by British soldiers.
The grounds on which he did this sounded a lot like gravity. He effectively said, Look,
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.
However, we're only going to have jurisdiction over those crimes committed by British soldiers,
and we think we're ultimately looking at an incredibly small number of possibly a dozen.
Right. And in what he sort of says in this kind of schoolmarm ish way, in this memo, is, you know,
he proceeds to remind the reader that I'm looking at the DRC, I'm looking at situations like that.
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.
Right. So there's a real hint there that what the prosecutor is thinking about is numbers.
He's definitely stood down from that and said quite openly, no, it can't be about numbers.
It's got to be about something more complex than that. And there have subsequently been policy papers issued by the Office of the
Prosecutor that try and put a little bit more shape on the idea of what kind sorry,
of what gravity is. And now there are four criteria.
And as we'll see, the judges have actually picked up on this since.
The first is scale of crimes, although this doesn't seem to be about numbers per se, it certainly about intensity.
The second is nature of the crimes. Third is manner of their commission.
And the fourth is the impact on victims and families. Now, I think we can probably quibble with all of these.
For example, we might say clearly all of these types of crimes have an impact on their victims.
Right. We might want to ask ourselves what actually intensity solves for us in terms of scale.
There's something interesting about the manner of commission, which is yet to be spelled out.
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?
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,
but they haven't actually fleshed that out. And as we'll see, the judges haven't really helped us there yet either.
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,
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.
And I know it's very crass to talk in these terms,
but there's actually really no other way to talk about it to a degree, which is that people do ask, why Kenya?
Right. Why not somewhere else? This isn't really that severe.
If we think about the range of war crimes and crimes against humanity that we could identify other places in the globe.
And that is by no means to undercut or undermine the nature of the abuses and the appalling nature of the abuses at that.
But rather to say, look, again, we've got an institution that's got to make pragmatic choices.
One of the ways it does that is around gravity. Why is it choosing this case or is it choosing this case?
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.
Sorry, it's the Kentucky coming out. So, I mean, one possible answer might be, well,
this refined understanding of of the scale of crimes may actually explain something, because 1300 deaths may not sound like a lot,
but 1300 deaths in 200 to 250000 people being displaced, forced from their homes,
having their homes destroyed in effectively two months is quite intense for a short period of time.
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.
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.
Right. So they simply list the criteria that are actually in the Office of the Prosecutor Policy paper,
tell us they're using them and then say gravity is reached. Now, why do we care about this?
Well, we care about this because somewhere down the road we may actually see this arise
again in terms of either in other situations or indeed in the Kenya situation.
And because the judges did actually ask for more information right back in early mid 2010
in ways that made people wonder if in fact the question was actually one of gravity,
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.
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,
which was entirely about the threshold for crimes against humanity, he pushed for a fairly high standard of organisational plan or policy,
and one that if we understand manner of commission and gravity to mean something about organisation may may find a
seeing these things merged may find us having problems not only with crimes against humanity but also with gravity.
So for those of you who aren't familiar with judge calls percent effectively what he says is taking the language in the statute,
which does rely upon the idea that for crimes against humanity you need to have a state or state like organisational plan or policy.
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.
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,
but the other is that he may not really understand the organisation of election related violence in Kenya.
Right, and the ways in which there are actually systems of organisation of violence.
These weren't spontaneous outbursts of frustration, anger and violence.
Some bits were, but certainly significant chunks of the violence were not.
They were pre organised and pre organised along existing party lines, existing ethnic lines and in ways that had happened around prior elections.
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.
But I think there are also some open questions or questions that may get opened up about gravity.
And because of this question of organisational plan and how it may or may not relate to the idea of manner of commission, again,
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.
One of the critical things I think that we see in the Kenya situation, perhaps, if not more well, actually,
I think more than many of the situations that the ICC has engaged with is a real
obsession on the part of the office of the Prosecutor for positive complementarity.
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,
but to actively encourage domestic proceedings. Right.
Both with reference to the three pronged strategy and with the sort of prolonged and
indeed sort of diplomatic engagement that Moreno-Ocampo has engaged in with with Kenya.
Right. If you think about the number of visits that he's actually made to Kenya, trying to really sweet talk politicians,
the accused and engage a variety of NGOs saying we're here for you,
we want to support the development of the Kenyan justice system, whatever that means.
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,
which is for the ICC to never have any cases because countries would handle it themselves.
Now, whether he ever actually believed that is another question.
But the manner of engagement does suggest that what he was really after was this kind of positive complementarity and reasons, I think,
and I'll explain why some interesting questions about whether positive complementarity
can work when you've got fairly cynical and savvy states seeking to protect their own,
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,
Christopher Hall of Amnesty International calls perverse complementarity.
Right. This sort of grasping on to the idea of complementarity by states seeking to evade the prosecution
of their their most powerful politicians by engaging in a bit of a game of chicken with the ICC.
Okay. So again, if we think about the three tracks or sorry, the three prongs of the so-called three pronged strategy,
it's worth quickly running through how it is that they failed in the first.
Of course, that I want to start. With is that of the hybrid tribunal.
It's important to understand that the hybrid tribunal bill has failed not once, but three times.
The first time it was actually voted down through effectively sort of a politics make strange bedfellows situation.
That is to say, there were a range of human rights and accountability advocates who didn't want to vote for it because
it was actually quite a weak hybrid tribunal bill and it would have allowed for presidential pardon.
So they voted against it because they thought it had too many loopholes.
Those who feared accountability voted against it because they thought it was too strong. All right.
So that bill dies, a second bill gets circulated and it's much improved within the Kenyan cabinet,
but they fail to introduce it to parliament and instead,
in conjunction with failing to introduce it to parliament, actually come up with this preposterous suggestion that,
hey, we can reform the domestic judiciary and police, so let us have the cases.
Right. So you see this again, really sort of game playing not only with the hybrid tribunal,
but with the idea of complementarity and trying to keep the court out by making these promises.
The third bill then was introduced or would be introduced if it weren't actually perennially boycotted by backbencher MP Getachew Minara,
who has tried on several occasions to have the bill read.
But because in fact an insufficient number of nmps actually turn up, they actually boycott the reading.
It's not quite so it never gets written. It can't be voted on.
This is actually probably the strongest bill, but a minority himself doesn't actually believe it will ever be passed.
So what we have is, again, this kind of push pull by the Kenyan government promising and then stepping back.
And the same thing happens with regard to the JRC.
Right. The Truth Justice and Reconciliation Commission, which for those of you who are familiar with it,
you would know that it was really hobbled from the outset, but it was given a more than 50 hour, nearly 50 year mandate.
Right. To actually investigate violations going back to independence.
It was given at the time, two years to run started about six months late to begin with, has been hobbled financially.
And of course, the person who was originally made chair of the of the of the commission was Bethel Kiplagat, who, of course,
was a minister under President Daniel Arap moi and is implicated in a number of massacres that the commission would have had to investigate.
So you have a protracted standoff in which he actually refuses to resign as commissioners from commissions, from commissions of inquiry,
from South Africa, from Sierra Leone, from across Africa, call on him to resign, as in fact, fellow commissioners call on him to resign.
The international commissioner, Ron Slide, keeps resigning and then resigning in an attempt to sort of get him to move.
They always refer to him as the sly one in Kenya. It's very cute.
But anyway, so you have this sort of, again, this game playing at the same time that the government is saying,
hey, this is our judicial mechanism if you want it. So after a time, you do actually finally have Kiplagat resigning.
But again, what you have is a deeply hobbled and deeply suspect institution with a huge mandate,
very little time, very little money, and very little expectation that it will speak to not only the wide,
wide swath of impunity, abuses and lack of accountability that have been seen in Kenya across the decades,
but certainly not to the most recent round of post-election violence.
So what does that leave? Well, it leaves one prong standing, right? It leaves the ICC.
And I want to sort of close now where I started, which is, well,
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,
not least by its own prosecutor, vis a vis Colombia, for example,
by the claim that it was ICC scrutiny that sort of pushed the the the constitutional
review of the Justice and Peace law with earlier arguments that in fact,
it was ICC scrutiny that kept Cote d'Ivoire from exploding, which unfortunately we've seen obviously did not end with arguments that,
of course, ICC involvement could actually end the war in northern Uganda.
I think we're all familiar with some of the maximalist claims that have been made.
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,
but in fact insisted throughout has insisted throughout this engagement that it will cooperate,
that it will obey its obligations under the statute of state cooperation with the ICC,
notwithstanding the fact that, of course, it did not wish to refer.
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.
We've seen that Kenya has on at least two occasions in recent memory played host to the president of Sudan,
not least when they actually had the promulgation of the Constitution last year, even though there's an active arrest warrant against against Bashir.
And it would be the obligation of Kenya as a state party, in fact, to arrest him, rather.
Then to invite him, welcomed him and promised him not to be arrested.
And we've seen Kenya actively trying to undermine its own obligations first with
first with the parliament actually voting for withdrawal from the ICC statute.
I think probably misunderstanding that legally,
that would actually have no bearing on cases that were already going forward because any withdrawal would take a year to enter into effect.
And then going on a diplomatic offensive at the Security Council,
trying to get votes for a 12 month deferral of of of the ICC engagement and the situation in Kenya.
So I think this really puts a bit of a damper, I guess I would say,
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,
and we've seen it's had great difficulty, in fact, obtaining custody over many of them,
but also they might be able to have this longer term, this positive complementarity,
knock on effect push, helping to push for accountability in a domestic justice system,
possibly helping to promote domestic rule of law, to really, in fact,
create what I guess the advocates like to talk about as the Rome system of international criminal justice.
Right. So not just a statute, not just a court, but entire global system whereby states would start filling in the gaps.
And I think what we've seen in the situation in Kenya is rather, rather the reverse,
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.
What you actually see is that states can actually be for long periods of time quite evasive,
quite manipulative, and still continue to insist that they're abiding by their obligations under the statute.
So I think I'll stop there and thanks for your attention.