Wednesday, January 14, 2015
UN Security Council Affirms Critical Importance of Peacebuilding for Sustainable Peace and Development
Peacebuilding is of “critical importance” as the foundation for sustainable peace and development in countries emerging from conflict, the United Nations Security Council declared today, unanimously adopting its latest measure reaffirming commitment to the practice.
In a presidential statement adopted as part of a briefing by the Chair of the UN Peacebuilding Commission (PBC), the Council recognized peacebuilding’s role as an “important element” of the UN’s efforts in post-conflict nations and reaffirmed that sustainable peace and security requires “an integrated sustained approach based on coherence among political, security and developmental approaches.”
“The Security Council underscores that peacebuilding, in particular, institution building, the extension of State authority and the re-establishment of core public administration functions, requires sustained international and national attention, and financial and technical support in order to effectively build and sustain peace in countries emerging from conflict,” the statement declared.
The PBC, an intergovernmental advisory body created in 2005 with a mandate to support peace efforts in countries emerging from conflict, plays a “unique role” in UN peacebuilding efforts, according to its website.
Principally, it is tasked with bringing together all of the relevant actors, including international donors and financial institutions, national governments, troop contributing countries; marshalling resources and advising on and proposing integrated strategies for post-conflict peacebuilding and recovery and where appropriate, highlighting any gaps that threaten to undermine peace.
Addressing the Council members, Ambassador Antonio de Aguiar Patriota, Permanent Representative of Brazil to the United Nations and Chair of the Peacebuilding Commission, pointed to the vast swathe of crises afflicting nations around the globe as indicative of the need for “further sharpening the tools at the disposal of the United Nations with a view to preventing relapse into violent conflict.”
“The crises in the Central African Republic, South Sudan and Libya, as well as the risks posed by the Ebola crisis, remind us that our response must be multifaceted, carefully sequenced and sustained over the long term,” Mr. de Aguiar Patriota told the Council Members.
“Attention and support to nationally-owned and inclusive political, socio-economic development and institution-building processes should be prioritized,” he added.
Nonetheless, he warned, peacebuilding is still being not granted “the sustained attention and commitment that is required by the international community to meet the complex and long-term challenges to sustainable peace.” In particular, he added, the implementation of peacebuilding was still being deprived of the critical financing mechanisms necessary for the fulfilment of its ambitions.
“Early investment in peacebuilding activities, including security sector and justice reform as well as socio-economic development, is a necessary complement to political and security focused mandates,” Mr. de Aguiar Patriota continued.
“The Commission will continue to support regional and national efforts aimed at catalysing greater international commitment to address this challenge.”
UN Press Release and UN Photo/Loey Felipe
Friday, January 9, 2015
- Matthew Charity, Western New England School of Law, Chair (pictured here)
- Anatasia Telesetsky, University of Idaho College of Law, Vice Chair
- Shalanda Baker, University of Hawaii School of Law, Secretary
- Milena Sterio, Cleveland Marshall College of Law, Treasurer
- Thomas McDonnell, Pace Law School, Newsletter Editor
- Cindy Buys, Southern Illinois University School of Law, Immediate Past Chair and Mentor Coordinator
Members of the AALS International Law Executive Committee include:
- George Edwards, Indiana University School of Law
- Andrew Strauss, Widener University School of Law
- Ved Nanda, University of Denver, Strum College of Law
- Mark Wojcik, The John Marshall Law School, Chicago
- Claudio Grossman, American University Washington College of Law
We look forward to continued excellent programming from the Section in 2015!
(cgb and mew)
Thursday, January 8, 2015
At the annual conference of the American Association of Law Schools (AALS), the International Law Section
sponsored a very interesting discussion of how, when and to what extent lawyers and policy makers in the U.S. government take international law into account when engaging in decisionmaking. The panel included Mary McLeod, Principal Deputy Legal Advisor at the U.S. Dept. of State, Sandra Hodgkinson of DRS Technologies, formerly Deputy Director, Office of War Crimes Issues and Deputy Assistant Secretary of Defense for Detainee Affairs, and Professor Ralph Steinhardt of George Washington University. Matthew Charity, Professor at Western New England School of Law and Vice Chair of the International Law Section moderated.
All the panelists agreed that international law plays a critical role in U.S. foreign policy. Ms. Hodgkinson stated that while the United States does not undertake treaty obligation lightly, she believes U.S. compliance is exceptional once it belongs to a treaty. Ms. McLeod also talked about how international law is something she works with every day.
Professor Steinhardt presented his paper, “International Law and the Administrative State,” which was selected from a call for papers. He talked about the role of administrative agencies and how administrative rulemaking is hardening international soft law. He suggested that to ignore the work of international bodies drafting voluntary guidelines is dangerous because those non-binding guidelines often end up being implemented by other bodies with rulemaking authority. He suggested a broadening of accepted sources of international law under Article 38 of the Statute of the International Court of Justice to take into account this administrative law, as well as the adoption of a Charming Betsy principle for administrative regulations similar to statutes (i.e., administrative regulations should be interpreted consistently with international obligations whenever possible).
Ms. McLeod and Ms. Hodgkinson both talked about the relationship of academic scholarship to their work at government decisionmakers. Both suggested that academics can be helpful to government lawyers, particularly when academics research and write about topical issues. The government attorneys often don't have time to do in-depth historical research, for example, and rely on work by academics in helping to formulate policy positions and to find precedent to support legal arguments. Ms. McLeod stated that she often reads blogs by international law professors that analyze issues on which she is working.
The AALS Section on International Law is grateful to all the panelists for their participation in this very interesting and informative discussion.
Sunday, January 4, 2015
Mark Wojcik, a professor at John Marshall Law School in Chicago and co-editor of this blog, received a lifetime achievement award today from the Association of American Law Schools Section on Legal Writing, Reasoning, and Research. The Section Award is given to an individual who has made "a significant lifetime contribution to the field of legal writing, reasoning, and research."
Mark is known for his many contributions to the field, including spearheading international conferences, serving as a past Chair of the AALS Section on Legal Writing, Reasoning, and Reearch, serving three terms on the Board of Directors of the Legal Writing Institute, helping to create the LWI One-Day Workshops, serving as Treasurer of Scribes--The American Society of Legal Writers, and working with the Law Library of Congress.
Friday, January 2, 2015
For law professors attending the American Association of Law Schools (AALS) Annual Meeting in Washington, DC this weekend, be sure to participate in the programs sponsored by the Section on International Law.
The first program is “Adding Foreign and Comparative Law to Your Courses: Guidelines, Materials, and Practical Advice for Law Professors” and will be held on Saturday, January 3, 2015 from 5:15-6:30 pm.
The second program is “The Influence of International Law on U.S. Government Decision-Making” and will be held on Sunday, January 4 from 10:30 am -12:15 pm.
See you soon!
Sunday, December 28, 2014
One of the issues President Obama campaigned on was the closure of the Guantanamo Bay detention facility. After entering office, his plans were stymied by Congress' refusal to cooperate and the detention facility remains open. However, recently, President Obama has secured the transfer of several detainees at Guantanamo Bay to third countries, perhaps in an attempt to at least partially fulfill his earlier promise.
Shortly after entering office in January 2009, President Obama issued an Executive Order calling for the review of the individual cases at Guantanamo Bay to determine the proper disposition of all the pending cases in accordance with U.S. and international law. President Obama also began the process of the U.S. government acquiring alternate detention facilities in Illinois to house remaining detainees. However, in 2010, Congress blocked funding for any alternative facilities in the United States for detainees from Guantanamo. In March 2011, President Obama issued another Executive Order reinstating a review process for detainess and trials by military tribunals under rules revised to comply with Supreme Court decisions applying U.S. and international law. In May 2013, President Obama promised to begin the process of transferring individuals who had been cleared for release by an inter-agency task force.
30 detainees have been released since 2010. However, there has been a recent uptick in activity. Seven detainees were transferred out of Guantanamo in November and and six more were released to Uruguay in December. 136 detainees still remain.
As President Obama enters his final two years in office and considers his legacy, it appears he wants to at least partially fulfill his promise to end detention at Guantanamo Bay. His efforts to transfer persons who have been cleared for release from Guantanamo Bay are to be commended, but it is unlikely he will be able to fulfill his promise to close the facility completely in light of continued Congressional opposition.
Tuesday, December 23, 2014
South Korea notified the Secretariat of the World Trade Organization (WTO) yesterday of its request for consultations with the United States regarding U.S. antidumping duties imposed on oil country tubular goods from Korea. If consultations fail to resolve the matter within 60 days, Korea will have the right to request the establishment of a WTO dispute resolution panel. More information regarding the dispute may be found on the WTO website.
Law professors may be interested to learn about the new IBA-VIAC International Mediation and Negotiation Competition Vienna. The "CDRC Vienna" is a premiering event in the field of Consensual Dispute Resolution, especially focusing on the fields of mediation and negotiation. The Competition will bring together students from around the world who specialize in mediation or negotiation to enable them to prove their skill and strategy to achieve the best deals in simulated legal mediations based on an adapted version of the Willem C. Vis International Commercial Arbitration Moot problem. The four-day competition event will include over 40 competition sessions and will be accompanied by a variety of educational and social events, including world-class mediation and negotiation trainings.
The first Competition will take place in Vienna from 1-4 July 2015. University teams from around the world are currently invited to apply online to be among the selected teams to enter the 2015 Competition. If you are interested in applying please find all relevant information here. If you have a strong mediation or negotiation background and would like to volunteer as an Expert Assessor for the competition please sign up here.
Wednesday, December 17, 2014
In an historic move, President Obama announced today that the United States will restore normal diplomatic relations with Cuba. According to press reports, secret negotiations have been taking place between the United States and Cuba for the past 18 months, which led to today's announcement. As part of the deal, the United States has agreed to release from prison and return to Cuba the remaining three of the original "Cuban Five", imprisoned in the U.S. for spying in the United States. In exchange, Cuba is releasing at least two American prisoners. President Obama also announced that he will ease travel and financial restrictions.
This announcement does not mean an end to the U.S. embargo on Cuba, however. Although the sanctions on Cuba were originally put in place by way of an Executive Order, Congress wrote many restrictions into legislation through the Helms-Burton Act, among other statutes. Accordingly, Congress must act in conjunction with the President to fully restore normal trade and other relations between the two countries.
Georgetown University Law Center's journal "Laws" is seeking papers for a Special Issue on Climate Change and International Economic Law. The following description is taken from the Guest Editor, Sonia Rolland:
"The relationship between international environmental regulation and global economic governance has long been seen as replete with conflicting discourses with missed opportunities for cooperation. However, the concerns surrounding climate change make a pressing case for a more coherent approach.
While international economic law and multilateral efforts to regulate climate change mutually acknowledge each other, neither is really designed to account for the other’s objectives. As a result, environmental measures often have to be justified as exceptions to trade disciplines, or come second to investor expectations of benefits in international investment law. At the same time, trade and investment help to disseminate clean energy technologies and make environmental goods and services more accessible to a greater number of consumers and businesses. International finance also acts as a vector to facilitate trade and investment transactions in products and technologies that might help mitigate or remedy our climate impact. In fact, the intent of trade and investment treaties is explicitly the promotion of sustainable development. This suggests that economic development and environmental sustainability, including as it relates to climate change, are actually meant to be complementary. An optimistic view, then, might construe the tensions between the two regimes as mostly the result of outdated path dependent interpretation and implementation shortcomings that should now evolve towards a more holistic approach.
Some prominent trade and environmental scholars have delved into these issues over the past 20 years. Yet, we are now facing additional challenges as the very fabric of international economic regulation is undergoing major transformations. Will the trends towards trade and investment regional agreements create opportunities for a better consideration of the climate impacts of economic activities? Will the increased voices from large emerging countries propose alternative models for managing the relationship between climate regulation and economic law? More generally, what will be the impact of the apparent retrenchment from multilateralism in trade and climate regulation, as both the WTO and the UNFCCC frameworks are unable to act as effective forums for implementing the next steps? In the face of deadlocks at the multilateral level both with respect to climate regulation and trade regulation, are states undertaking unilateral actions to protect the environment through economic law instruments? The EU’s attempt at regulating airline emissions is an example.
Meanwhile, political scientists have developed a substantial literature on governance dynamics in the face of scientific uncertainty and collective action problems such as those raised by international coordination in response to climate change. Can we draw lessons from this research to help devise a more effective approach to climate change domestically and internationally?
This Special Issue aims to bring together a broad range of perspectives, including law, economics, and political science, pertaining to the future avenues for a symbiotic relationship between climate regulation and international economic law. Submissions in two main areas are encouraged:
- Cross-cutting regulatory and governance tools for climate change that reflect the current shifts in state balance of power, public-private instruments, trade and investment instruments, and the renewed interest in the regulation of international finance.
- Subject-matter specific law and policy tools at the intersection of economic law and climate change including those that relate to energy; water; fisheries, forestry/timber and other natural resources threatened by climate change.
Collaborations between legal scholars and social scientists or STEM are encouraged. This Special Issue also particularly welcomes views form different regions of the globe."
If this invitation sparks your interest, contact the Guest Editor, Sonia Rolland, to discuss further the specific content and logistics (please note that the editing processing fee is waived until the deadline for this issue). Additional information may be found here.
Thursday, December 11, 2014
The General Council of the World Trade Organization (WTO) approved Seychelles' application to become a member at a meeting yesterday. Seychelles has until June 1, 2015 to ratify the Protocol of Accession. Its membership will be effective 30 days after it notifies the WTO of the ratification.
Seychelles originally applied for membership in 1995, but encountered difficulties as a small island developing state. If all goes as planned, Seychelles will become the 161st member of the WTO.
For more information, visit the WTO website.
Wednesday, December 10, 2014
A program on "CFIUS Insights from the CFIUS Staff Chairperson, Practitioners" will be held next Wednesday (December 17, 2014) from 12:30 p.m. and 2:00 p.m. at the offices of Hogan Lovells US LLP (555 13th Street, N.W., Washington, DC 20004). During this "off-the-record" program, the Staff Chairperson of the Committee on Foreign Investment in the United States (CFIUS), seasoned practitioners, and in-house counsel will discuss recent developments involving CFIUS, including the controversial ruling issued earlier this year by the U.S. Court of Appeals for the District of Columbia in Ralls Corp. v. CFIUS, No. 13-5315 (D.C. Cir. July 15, 2014).
In 1950, the United Nations General Assembly proclaimed December 10 to be Human Rights Day in commemoration of the day in 1948 that the UN General Assembly adopted the Universal Declaration of Human Rights. The UN General Assembly proclaimed the Universal Declaration to set forth a “common standard of achievement for all peoples and nations” towards which individuals and societies should “strive by progressive measures, national and international, to secure their universal and effective recognition and observance.” The Universal Declaration includes a broad range of rights, including civil, political, economic, social and cultural. While originally adopted as a non-legally binding General Assembly resolution, the Declaration has contributed both to the development of customary international law, as well as inspiring more than 60 international treaties on human rights.
This year’s slogan is Human Rights 365, which encompasses the idea that every day is Human Rights Day. It celebrates the fundamental proposition in the Universal Declaration that each one of us, everywhere, at all times is entitled to the full range of human rights, that human rights belong equally to each of us and bind us together as a global community with the same ideals and values.
What are you doing to promote human rights today?
Tuesday, December 9, 2014
Not a single country is immune to the risk of genocide, said the United Nations Secretary-General’s Special Adviser on Prevention of Genocide today as he marked the 66th anniversary of the signing of the 1948 Genocide Convention.
“As we continue to fight and to realize the objectives, we pay tribute to the millions of men and women who have lost their lives to genocide,” said Mr. Adama Dieng as he briefed reporters at UN Headquarters in New York, as part of a series of events in the run-up to Human Rights Day, commemorated annually on 10 December.
“We owe to them and to ourselves and future generations to realize a world free of genocide. We are still far from that, but we aim to make it happen,” he added.
Genocide must and can be prevented if we have the will of applying the lessons learned from Rwanda, Srebrenica, and the Holocaust. It is important to identify risk factors that would lead to genocide rather than to wait to when people are being killed.
The Holocaust did not start with the gas chambers and the Rwandan genocide did not start with the slayings. It started with the dehumanization of a specific group of persons.
Genocide is defined by the UN as a crime that is committed against members of a national, ethnic or religious group solely because they are members of that group. Genocide also entails there being intent to exterminate a particular group.
Genocide is when “you are being killed not for what you have done, but for who you are,” Mr. Dieng explained.
Currently, 140 Member States are party to the UN Convention on the Prevention and Punishment of Genocide, which was adopted in 1948.
On Thursday, Mr. Dieng’s office along with the Permanent Missions of Italy and Tanzania will launch a new Framework of Analysis for Atrocity Crimes which will focus on early warning signs and prevention strategies.
“We know from our experience that genocide is not a single event but a process that takes time, planning and resources which could be halted at any stage,” he said.
Marking the anniversary of Convention is an opportunity to renew our commitment to prevent genocide. “We must accept that there is no part of the world that can consider itself immune from the risk of genocide and all regions and all States must build resilience to these crimes,” the Special Adviser noted.
It is the collective responsibility of Member States, international institutions, civil society as well as the media to prevent such crimes.
He said that in 2005 world leaders committed to protecting populations who are at risk of genocide through the R2P, or ‘responsibility to protect’ initiative, now an international norm that addresses the failure to prevent and stop genocides, war crimes, ethnic cleansing and crimes against humanity.
But the question remains why some States have been ready to address genocide and in some cases even prevent it, while others have, unfortunately, failed to do so.
“We are still unable to protect people in Syria from human rights violations,” he said, adding that had the Security Council acted when the uprising against the Syrian Government was still peaceful, the current and devastating situation might look different.
“Would we still have seen the rise of the barbaric group like ISIL[Islamic State in Iraq and the Levant]? Such groups do not come from nowhere,” Mr. Dieng said. As for other conflicts, he said atrocious crimes in South Sudan and the Central African Republic (CAR) are being committed based on the issue of identity because they are easily manipulated to generate fear, hatred, and violence.
“We need to think about the significance of the Genocide Convention and do more on the promise of ‘never again.’ We need political leadership from Member States and the courage to take steps that are not always easy,” he said.
When asked about the recent decision by the International Criminal Court (ICC) to drop the charges of crimes against humanity for Kenyan President Uhuru Kenyatta, Mr. Dieng said that he respected the independence of the Court. Accountability for gross human rights violations which occurred in Kenya is important. Victims are waiting for justice.
Answering a question on Gaza, he said he was not here to make a legal determination of genocide but analyse the risk of genocide. Last summer’s conflict may have led to crimes against humanity or war crimes. He was aware of Israel’s disproportionate military response. But when you send rockets from a civilian area, like Hamas did, that is a crime as well.
When asked about crimes committed during the time of United States intervention in Iraq, he said that the American soldiers who were indicted and flown over to the United States to face justice. This is an example of a country that has no capacity to bring to justice criminals.
On Ukraine, he said that the claims by civilians of genocide in the eastern part of the country, he reiterated that no region in the world is immune to atrocious crimes and called for all efforts to protect the rights of minorities in Ukraine.
He also responded to questions on the treatment of the Tamils in Sri Lanka, increasing anti-Semitism in Europe, and Islamophobia.
(UN Press Release)
A United States Senate report has confirmed what the international community has long believed – that there was a clear policy orchestrated at a high level within the Bush Administration which allowed to commit gross violations of international human rights law, the United Nations Special Rapporteur on counter terrorism and human rights said today.
Released this afternoon, the so-called Feinstein report, after long-time US Senator Dianne Feinstein who chaired the Senate Select Committee on Intelligence that compiled the document, probes crimes of torture and enforced disappearance of terrorist suspects by the Bush-era CIA.
“It has taken four years since the report was finalised to reach this point,” said Ben Emmerson in a statement.
Now it is time to take action, he added. “The individuals responsible for the criminal conspiracy revealed in today’s report must be brought to justice, and must face criminal penalties commensurate with the gravity of their crimes,” he said.
Identities of the perpetrators, and many other details, have been redacted in the published summary report but are known to the Select Committee and to those who provided the Committee with information on the programme.
“The fact that the policies revealed in this report were authorized at a high level within the US Government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability,” Mr. Emmerson explained.
International law prohibits the granting of immunities to public officials who have engaged in acts of torture. This applies not only to the actual perpetrators but also to those senior officials within the US Government who devised, planned and authorised these crimes.
The US is legally obliged, by international law, to bring those responsible to justice. The UN Convention Against Torture and the UN Convention on Enforced Disappearances require States to prosecute acts of torture and enforced disappearance where there is sufficient evidence to provide a reasonable prospect of conviction.
“States are not free to maintain or permit impunity for these grave crimes,” Mr. Emmerson said.
It is no defence for a public official to claim that they were acting on superior orders. CIA officers who physically committed acts of torture therefore bear individual criminal responsibility for their conduct, and cannot hide behind the authorisation they were given by their superiors.
However, the heaviest penalties should be reserved for those most seriously implicated in the planning and purported authorisation of these crimes. Former Bush Administration officials who have admitted their involvement in the programme should also face criminal prosecution.
“President Obama made it clear more than five years ago that the US Government recognizes the use of waterboarding as torture. There is therefore no excuse for shielding the perpetrators from justice any longer. The US Attorney General is under a legal duty to bring criminal charges against those responsible,” he said.
Torture is a crime of universal jurisdiction. The perpetrators may be prosecuted by any other country they may travel to. However, the primary responsibility for bringing them to justice rests with the US Department of Justice and the Attorney General.
Independent experts or special rapporteurs are appointed by the Geneva-based Council to examine and report back on a country situation or a specific human rights theme. The positions are honorary and the experts are not UN staff, nor are they paid for their work.
(UN Press Release)
Monday, December 8, 2014
The American Association of Law Schools (AALS) Section on International Law is pleased to sponsor two programs at the AALS 2015 Annual Meeting in Washington D.C. from January 3-4, 2015.
The first program is called “Adding Foreign and Comparative Law to Your Courses: Guidelines, Materials, and Practical Advice for Law Professors”. Using comparative and international materials can enrich teaching of almost any course and can better prepare law students for the transnational contexts of their future legal work. This panel will provide practical examples, materials, and advice on how to integrate foreign and international law materials in basic first-year courses, as well as some upper-level courses. It will be held on Saturday, January 3, 2015 from 5:15-6:30 pm. Audience participation in sharing ideas is strongly encouraged, but the program will be led by:
Professor Cindy G. Buys, Southern Illinois University School of Law (constitutional law)
Professor Matthew Charity, Western New England School of Law (contracts)
Professor Milena Sterio, Cleveland-Marshall College of Law (criminal law/civil procedure)
Professor Mark Wojcik, John Marshall Law School – Chicago (torts)
The second program is titled “The Influence of International Law on U.S. Government Decision-Making” and will be held on Sunday, January 4 from 10:30 am -12:15 pm. This panel will explore the role that international law plays in informing the policy outcomes arrived at by U.S. government decision-makers. It will examine questions such as: To what extent is international law determinative or even influential, and to what extent does the policy area, the branch of government, or the ideological orientation of the decision-maker matter? As a more practical matter, at what stage in the decision-making process is international law taken into account and who are the most influential actors? How can academics be most influential in that process?
Mary McLeod, Principal Deputy Legal Advisor, Office of the Legal Advisor, U.S. Department of State
Sandra Hodgkinson, Vice President of Planning and Chief of Staff at Finmeccanica, North America and DRS Technologies. Ms. Hodgkinson formerly served as Assistant Secretary of Defense for Detainee Affairs and as Deputy to the Ambassador-at-Large for War Crimes Issues. She also worked for the Coalition Provisional Authority in Iraq as Director of the Office of Human Rights and Transitional Justice from 2003-04.
Ralph Steinhardt, Professor of Law & Arthur Selwyn Miller Research Professor of Law, George Washington University Law School. Professor Steinhardt is the winner of the Section’s Call for Papers and will present his paper, “International Law and the Administrative State.”
The panel will be moderated by the Section Chair, Professor Cindy G. Buys, from Southern Illinois University School of Law.
Please spread the word to your colleagues. We hope to see you there!
Saturday, December 6, 2014
The application period for 2015 Helton Fellowships is open until January 19, 2015, or until the first 50 completed applications have been received, whichever comes first. The Helton Fellowship Program, established in 2004, recognizes the legacy of Arthur C. Helton, who died in the August 19, 2003, bombing of the UN mission in Baghdad. Funded by contributions from members of the American Society of International Law, interest groups, and private foundations, Helton Fellowships provide financial assistance in the form of "micro-grants" for law students and young professionals to pursue field work and research on significant issues involving international law. Click here for more information.
Friday, December 5, 2014
The Prosecutor of the International Criminal Court (ICC) announced Friday that she has decided to drop the charges against the President of Kenya, Uhuru Kenyatta, two days after the judges refused to postpone the trial as she had requested.
“I am withdrawing the charges against Mr. Kenyatta because I do not believe that it is possible at this time, for me to fully investigate and prosecute the crimes charged in this case,” said Ms. Fatou Bensouda in a statement released in the Hague today.
“The withdrawal of the charges does not mean that the case has been permanently terminated. Mr. Kenyatta has not been acquitted, and the case can be re-opened, or brought in a different form, if new evidence establishing the crimes and his responsibility for them is discovered,” she added.
“This is a painful moment for the men, women and children who have suffered tremendously from the horrors of the post-election violence, and who have waited, patiently, for almost seven years to see justice done,” Ms. Bensouda said.
She added that she based her decision on the specific facts of this case, not on any other consideration and stressed that as Prosecutor, her actions and decisions have “always been guided by the law and the evidence.”
There were, however, “severe challenges” to the Prosecutor’s Office and her investigation.
“Several people who may have provided important evidence regarding Mr. Kenyatta’s actions have died, while others were too terrified to testify,” Ms. Bensouda said.
On Wednesday, a Trial Chamber of the ICC rejected the request of the Prosecutor to adjourn the case. The Chamber ordered the Prosecution to file, within one week, a notice to withdrawn charges until at least the level of evidence had improved to a degree that would warrant a trial.
Mr. Kenyatta faced five counts of crimes against humanity (murder, deportation or forcible transfer of population, rape, persecution and other inhumane acts) for allegations that he helped incite violence following Kenya’s December 2007 presidential election.
The charges against him had been confirmed January 23, 2012 and the case was referred to trial before the Trial Chamber.
Ms. Bensouda said that Mr. Kenyatta’s Government had failed to fully cooperate with the investigation and in providing the most relevant documentary evidence regarding the post-election violence.
“Ultimately, the hurdles we have encountered in attempting to secure the cooperation required for this investigation have in large part, collectively and cumulatively, delayed and frustrated the course of justice for the victims in this case,” said the Prosecutor.
“Today is a dark day for international criminal justice. Be that as it may, it is my firm belief that today’s decision is not the last word on justice and accountability for the crimes that were inflicted on the people of Kenya in 2007 and 2008; crimes that are still crying out for justice,” she said.
(UN press release)
PHOTO: President Uhuru Kenyatta appeared at the Status conference at the International Criminal Court (ICC) in the Hague on 8 October 2014. Photo: ICC-CPI from the United Nations