Sunday, April 8, 2012

ICC judge advised Mutula against petition


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Former Justice minister Mutula Kilonzo. Photo/FILE
Former Justice minister Mutula Kilonzo. Photo/FILE 
By MURITHI MUTIGA mmutiga@ke.nationmedia.com
Posted  Saturday, April 7  2012 at  22:30
One of the judges appointed to hear the Kenya case at the International Criminal Court warned the government not to rush into making an admissibility challenge over the trials following the confirmation of charges against four suspects.
Nigerian judge Chile Eboe-Osuji told the government that the Rome Statute, the treaty that lays out the court’s functions and structure, allowed only one chance to lodge such a challenge and it would be unwise to squander it. He wrote his opinion at the request of former Justice minister Mutula Kilonzo.
Article 19 of the Statute says that a state party has a right to petition for a case at the ICC to be heard and determined in local courts. But such an appeal can only be lodged once, and subsequent challenges require the permission of the court.
Commencement of trial
“Outside of this exercise of the indicated right, leave of court is required to bring a challenge more than once or to bring it after the commencement of the trial,” Mr Eboe-Osuji said in the March 9 letter. He was appointed a judge of the ICC two days later.
The lawyer, who until his election as an ICC judge was the legal adviser to the United Nation’s High Commissioner for Human Rights Dr Navi Pillay, wrote the letter in response to a request for advice on the matter from Mr Kilonzo.
The Nigerian jurist was elected to serve as a judge in The Hague on March 11. The nomination came after a long career in international law which included stints as principal appeals counsel for the prosecution in the Charles Taylor case and as a prosecutor at the International Criminal Tribunal for Rwanda (ICTR) in Arusha.
A defence lawyer who worked with him in Arusha described him as a “brilliant courtroom lawyer” who was also principled outside it, describing an incident when he resigned after chief prosecutor Carla Del Ponte plucked a lawyer from the United States to take over as lead counsel in a case he was hearing.
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Reports last week indicated that lawyers for the defence in another case in which Mr Eboe-Esuji has been appointed involving two Sudanese rebel leaders charged with killing peacekeepers in Darfur have asked him to step down from hearing the matter.
Peacekeepers killed
Lawyers Nicholas Koumjian and Karim Khan – who is also a lawyer for former Public Service head Francis Muthaura – say the judge might be biased against them because nine of the 12 peacekeepers killed in that attack were Nigerian.
They also claim that Mr Eboe-Esuji had taken various positions on the ICC in the past, including asserting that the African Union was right to urge caution on calls to arrest Sudan president Omar al-Bashir, arguing there was a need to strike a balance between justice and politics.
The lawyers say the article which spoke of chaos if al-Bashir was arrested “clearly reveals that Judge Eboe-Osuji is basically advocating the status quo – that al-Bashir remains in power to pave the way for a peaceful transition”.
Ironically, the position that the lawyers are protesting about seems very similar to the line taken by some in government and supporters of accused Uhuru Kenyatta and William Ruto that barring the duo from the next election risks fomenting violence.

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