ICC in Kenyan Victims Assistance Dilemma

Campaigners are calling on the International Criminal Court, ICC, to assist victims of the post-2007 election violence in Kenya, with experts warning this might prejudice pre-trial proceedings against suspects charged with responsibility for the bloodshed.

They also point out that while the ICC has a provision to assist the victims, it is not obliged to do so, while the Kenyan government has a duty to offer support to those who suffered.

Approximately 1,100 people were killed and over 3,000 injured during violent uprisings following the contested results of Kenya’s 2007 presidential elections. In the aftermath of the disturbances, former United Nations secretary-general, Kofi Annan, brokered a power-sharing deal between the Orange Democratic Movement, ODM, and the Party of National Unity, PNU in early 2008.

The ICC has summoned six leading Kenyan public figures, including the deputy prime minister and the former police commissioner on charges of crimes against humanity for their alleged role in orchestrating the attacks.

The court has not yet undertaken any action to help the victims of the unrest, although it does have a mechanism to do so.

The Trust Fund for Victims, TFV – set up under the Rome Statute, the treaty that created the ICC – offers support to people who have suffered from crimes being probed by the ICC.

“Many of these victims' needs are urgent and cannot wait for commencement of substantive proceedings,” said Christine Alai, acting head of the International Centre for Transitional Justice, ICTJ, in Kenya.

“Particularly victims of sexual violence and gunshot wounds are in urgent need of medical and psychological assistance, while many others require material support to be able to rebuild their livelihoods.”

The Waki Commission, which conducted an investigation into the post-election violence, concluded that many of the victims had suffered gunshot wounds, burns, repeated rapes and forced circumcision.

However, TFV says it is too early in proceedings against the six suspects to begin providing assistance to those who bore the brunt of the violence.

Hearings were held during September to assess the evidence against the suspects who are charged in two separate cases. ICC judges will now decide whether to confirm the charges against them and send the cases for trial.

According to the TFV, since the charges have not yet been confirmed it is too early in the Kenyan case for the fund to be activated.

“At present, no warrants of arrest have been requested in the Kenya situation nor have any been issued by the court,” Gaëlle van der Meerendonk, executive assistant at the TFV secretariat, said. “Given the uncertainties related to these preliminary judiciary issues, this is why at this moment the Kenya situation is premature for purposes of generating rehabilitation support from the TFV.”

Van der Meerendonk added that the TFV was “closely monitoring the developments” in the proceedings.

If charges are confirmed in either of the two cases, Van der Meerendonk says that the board of directors of the fund “may” make a determination on assistance for victims.

However, Alai of ICTJ insists that the impression created that the fund can only assist when substantial proceedings have begun is misplaced.

She pointed to interventions from the TFV in Uganda and the Democratic Republic of Congo, DRC, before formal charges had been confirmed against suspects.

“The TFV should certainly intervene to provide assistance to victims of the [post-election violence] in a timely manner, including medical, psychological, rehabilitation and material assistance,” Alai said.

Eric Kioko is now in his late 20s living in Mathare, a Nairobi slum. A father of two, he had one of his hands cut off during the 2007/2008 violence when he came to the aid of a woman who was being raped. The incident has drastically changed his life.

“I have left my attackers to God to judge them. I have, however, been left in a begging situation and this can be quite traumatising, especially knowing I once could eke out [a] living,” he said.

Kioko still owes Kenyatta National Hospital 30,000 Kenyan shillings (around 300 US dollars) for the treatment he received for his injuries in 2008. He negotiated an agreement with the hospital to pay 200 shillings a month, but says he has not been able to pay a single cent to date.

“No one, be it the government, ICC or NGOs have helped me in any way. I cannot even go back to Kenyatta Hospital or even take my kids there because I am in their black book – my life has changed for the worse,” he said.

The ICC can object to the TVF providing assistance to victims if it determines that it would be prejudicial or inconsistent with the rights of defendants or compromise a fair trial.

Carla Ferstman, the director of the London-based rights group, REDRESS, says that this reading of the court’s regulations is perhaps what is holding the TFV back from intervening in Kenya.

“This is arguably a narrow interpretation [of the court rules governing the TFV], but not a wrong one,” she said. “The trust fund is simply being careful and prudent, because it believes that if it makes a request to the chamber now, before [the confirmation of charges are] settled, then the chamber will reject the request; so it seems the trust fund prefers to wait [until charges have been confirmed or not].”

Meanwhile, experts point out that while – through the TFV – the ICC has a facility for providing compensation to victims of violence, the court does not actually have a duty to do so.
Financial assistance for victims of violent conflict were first formally conceived under the Van Boven Principles, which were adopted by the UN General Assembly in December 2005. The principles provide guidelines on the right of victims to remedy and reparations for gross violations of international human rights law.

While the court’s regulations say victims are “entitled” to assistance from the trust fund, this is interpreted as a moral rather than a legal obligation on the court.

“The issue is whether they are also ‘entitled’ as a matter of law; [that is] in a way that could be enforceable either before domestic courts or in some international forum,” said Professor William Schabas, an expert in international law from the Irish Centre for Human Rights. “I do not think this is the case. I don’t think victims have any strict right to assistance from the ICC. The trust fund’s decisions are essentially discretionary.”

Schabas added that the Van Boven Principles are “guidelines that are advisable to follow” but which do not create enforceable rights.

Experts have also questioned the level of funding available to the TFV to support victims of the post-election violence.

“[The TFV] is severely underfunded and cannot possibly address even just the immediate needs of the victims needing its assistance,” said Ruben Carranza, ICTJ's head of reparative justice in New York.

At the end of June this year, the TFV had a total of 3,494,837 euro (approximately 455 million Kenyan shillings) in its accounts.

However, there could be significant challenges in meeting victims’ expectations even if the Kenyan cases go to trial and the TFV receives adequate funding.

According to Carranza, the ICC will need a process for identifying, registering and consulting victims and assessing their most urgent needs.

“This will not be easy, given the number, geographic diversity and community [or] identity sensitivities related to the 2007 post-election violence cases,” he said.

The International Centre for Policy and Conflict which has been working with the victims in Kenya says that, funding problems aside, the TFV has to a “certain degree” failed Kenyan victims.

The TFV ought to have informed victims of the potential for a remedy and any reparations that might be offered at a later date, it said.

“Victims can see and hear of the work the fund is doing in DRC and Uganda,” said Ndung’u Wainaina, the executive director of International Centre for Policy and Conflict in Nairobi. “The least the fund ought to have done is to engage them on a dialogue of sorts and explain these issues.”

While accepting this criticism, the TFV executive director, Pieter de Baan, said the fund’s limited approach to outreach in Kenya was partly driven by the need to minimise the expectations of the Kenyan victims.

“I understand the comparison that people are making between the Kenyan situation and others like Uganda but it also has to be understood that the fund is[limited in scope],” Bann said.

“We have to take into account our relationship with the court in the decisions we make as well as avoid raising expectations of victims to a level where we might disappoint them.”

Meanwhile, experts say the potential of the TFV should not take the spotlight off the Kenyan government which carries the primary and immediate responsibility to provide support to victims of the violence.

“Kenya’s government is obligated to provide reparations without waiting for the ICC to confirm the charges,” Carranza said.

While the ICC will be able to help some victims, experts point out it is the government which must deliver the necessary remedies to those who suffered across Kenya.

“The TFV will only intervene in cases of most dire need,” Alai said.

“Like the court, the TFV should be viewed as a complementary measure and not one intended to take over the state's obligations.”

Nzau Musau is an IWPR-trained journalist in Nairobi.

This article was produced as part of IWPR’s international justice training programme for Kenyan journalists that was held in The Hague.