Date: Tue Dec 9 11:51:10 2014
THINK AGAIN: How to beat the ICC - lessons from the Kenyatta case
9 December 2014
'Today is a dark day for international criminal justice,' said Fatou
Bensouda, Chief Prosecutor of the International Criminal Court (ICC), as she
reluctantly withdrew the charges against Kenyan President Uhuru Kenyatta on
Friday, 5 December.
Bensouda was given little choice in the matter. Struggling to collect
evidence, the Office of the Prosecutor (OTP) had asked the
<http://www.issafrica.org/iss-today/prosecuting-kenyatta-damned-if-you-do-da
mned-if-you-dont> judges of the ICC to adjourn the case. The OTP requested a
pause in proceedings until investigators could come up with stronger
evidence, or the Kenyan government could be persuaded to cooperate fully.
The court denied this request, asking the prosecution to indicate whether it
could proceed under the circumstances or alternatively, drop the matter
altogether.
Aware that she did not have enough evidence for a conviction, Bensouda took
the latter route. '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
said.
There are no positives to be taken from the end result, however. For the
prosecution and the ICC, it's a devastating blow to their credibility.
Critics of the ICC, and there are many, will use the collapse of the case
against Kenyatta as a powerful example to again question the court's
competence and its motives.
Supporters of the ICC will be even more disheartened. The reason the
prosecution went ahead was that there was a strong prima facie case
implicating Kenyatta in Kenya's horrific post-election violence in 2007 to
2008.
To prove this beyond reasonable doubt, the prosecution needed investigators
to find some new evidence, witnesses to testify to Kenyatta's role, and
cooperation from the Kenyan government, which included sharing key financial
documents that might have implicated the accused.
It failed on all three fronts. The overstretched and under-resourced ICC
investigative unit was also hamstrung by bureaucratic operating protocols
(which require, for example, governments under investigation to be informed
in advance of the presence of the investigators). Some witnesses died or
went missing, while others refused to testify out of fear or suddenly
changed their testimony without explanation.
This points to a sustained campaign of intimidation against witnesses, while
few trusted the ICC's guarantees of protection. The Kenyan government,
meanwhile, failed repeatedly to hand over the full list of documents
requested by the prosecution, and the court was unable to force the
cooperation it demanded.
The prosecution's struggles illustrate the
<http://www.issafrica.org/iss-today/think-again-withdraw-the-charges-against
-kenyatta-undefined-for-now> difficulties, or even the limits, of
international justice. Ultimately, prosecuting Kenyatta required far too
much active cooperation from Kenyatta himself - who, as sitting president of
Kenya, was perfectly positioned to frustrate the proceedings.
But perhaps the most damaging aspect of the collapse of the case is that
Kenyatta has demonstrated to others exactly how to beat ICC charges. Thanks
to Kenyatta, there is now a proven template for evading international
justice.
The first stage in Kenyatta's defence began far away from the courtroom in
The Hague, on the Kenyan campaign trail. When he was charged in 2012 with
crimes against humanity, Kenyatta was deputy prime minister in the
government of national unity.
<http://www.issafrica.org/iss-today/president-kenyattas-dilemma-over-his-imp
ending-icc-trial> After the 2013 election, he became president. Arguably the
ICC charges - which he portrayed as victimisation - actually helped his
campaign, as did his political alliance with another ICC accused, William
Ruto. (Incidentally, Ruto and Kenyatta were on opposing sides during the
2007 to 2008 post-election violence, and Ruto remains on trial at the ICC.)
Once in power, Kenyatta was able to rally the full weight of the Kenyan
government to his cause. This helped him in two ways. First, the issue of
cooperation. Kenyatta's legal team repeatedly denied that the president had
influenced the relationship between the ICC and the Kenyan government,
pointing to the separation of powers in the Kenyan constitution and the
independence of various government bodies.
This was disingenuous, however. In Kenya, power flows directly from State
House, and it would take an exceptionally brave public official to hand over
anything that might incriminate the head of state. The deaths and
disappearance of witnesses underscored the danger. While there is no
evidence suggesting that Kenyatta was personally involved in the campaign of
intimidation, it's undeniable that his defence was greatly strengthened by
it, suggesting that whoever did orchestrate it was doing so to benefit the
president. It is also surely no coincidence that no one has been arrested or
charged in connection with witness intimidation.
Second was the diplomatic offensive. In every conceivable forum, from the
Rome Statute annual Assembly of States Parties to the African Union summit,
Kenyan diplomats sought to criticise and undermine the ICC. They were
particularly successful in depicting the court as biased against Africans,
even persuading African leaders to issue a strong statement of
<http://www.issafrica.org/iss-today/the-aus-icc-summit-a-case-of-elite-solid
arity-for-self-preservation> condemnation at an extraordinary summit to
discuss the ICC cases. This put the court under huge pressure, and also
bolstered Kenyatta's public image.
Instead of an alleged international criminal, Kenyatta was able to portray
himself as yet another African victim of a racist western institution. This
image generated plenty of solidarity and shielded Kenyatta from continental
pressure to cooperate fully (or the imposition of sanctions, such as a
travel ban, to that effect).
In the end, this was a perfect defence, as the withdrawal of charges proves.
Unfortunately, the message it sends to other suspects under investigation by
the ICC is that one way to beat the court is by taking control of the state.
This raises yet another difficult paradox for the ICC to grapple with:
indirectly, its efforts could encourage some of the world's most dangerous
men to seek more power, not less.
But the biggest losers in all of this remain, of course, the more than 20
000 victims of Kenya's post-election violence for whom justice is still far
away. 'Seven years ago, tens of thousands of people in Naivasha and Nakuru
were targeted for no reason other than their ethnic identity. Men were
beheaded in the streets. Human heads were paraded on sticks. Women were
serially raped, and then doused in paraffin and set alight. Children were
burnt alive. Houses, and tiny business premises, were pillaged and destroyed
in their thousands,' explained Fergal Gaynor, legal representative for the
victims at the ICC.
'It is regrettable that the victims have received almost nothing from the
entire ICC process. The victims' quest for justice has been cruelly
frustrated, both in Kenya and at the ICC,' he concluded.
Simon Allison <https://twitter.com/SimonAllison> , ISS Consultant
http://www.issafrica.org/images/img_nodes/9-12-2014-Kenya-election-violence-
Content.jpg
(image/jpeg attachment: image007.jpg)