THINK AGAIN: How to beat the ICC - lessons from the Kenyatta case

‘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 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.

The overstretched and under-resourced ICC investigative unit was also hamstrung by bureaucratic operating protocols

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 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.

Others refused to testify out of fear or suddenly changed their testimony without explanation

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. 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.

Kenyatta was able to portray himself as yet another African victim of a racist western institution

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 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, ISS Consultant