Back in October, when Kenyan President Uhuru Kenyatta arrived at the International Criminal Court in The Hague, Netherlands, it looked like it could be an important moment for international justice. The ICC had charged Kenyatta with crimes against humanity in 2012, and the Kenyan president was the first head of state to ever appear at the ICC since it was established in 2002 to prosecute war crimes.
There was a big problem, however. Kenyatta wasn’t in The Hague to address these crimes. Instead, he was there to discuss the lack of evidence against him.
“I also don’t think Kenyatta would be attending this hearing in person if he thought the prosecution had a meaningful, robust case against him,” Jeffrey Smith, an advocacy officer at the RFK Center for Justice & Human Rights, told WorldViews at the time.
Now, less than two months later, the ICC has announced that the charges against Kenyatta had been withdrawn by prosecutors.
“Evidence has not improved to such an extent that Kenyatta’s alleged criminal responsibility can be proven beyond reasonable doubt,” Fatou Bensouda, the ICC’s chief prosecutor, said.
On Twitter, Kenyatta was said to be feeling vindicated. “I am also deeply relieved by this decision, which is overdue by six years,” a message from him read. “I have repeatedly declared my innocence to the people of Kenya and the whole world.”
But for anyone who cares about international justice, this should be a very distressing development.
There are two ways of thinking about the Kenyatta case, one slightly reassuring and one deeply concerning. The first is that the court has, rightfully, behaved as it should. There simply was not enough evidence to prosecute a meaningful case.
Kenyatta’s charges relate to a series of violent clashes after the country’s disputed 2007 election. More than 1,000 people were killed and many more were raped or wounded during post-election violence.
Kenyatta, son of Kenyan founding father Jomo Kenyatta and a US-educated heir to a large fortune, was accused of arming and funding the attackers, including the now-banned ethno-religious gang called the Mungiki. Despite his alleged involvement in the violence, he won an election in 2013 and became president.
Throughout the court case, however, prosecutors have struggled to find evidence against Kenyatta. The court itself has admitted this is a huge problem.
“In ordinary circumstances, the insufficiency of evidence would cause the prosecution to withdraw the charges,” the ICC explained at the start of September. “This case has failed, and it has failed in a way that means there is no prospect of it going further,” defence attorney Steven Kay told the court in October.
Even if you suspect Kenyatta is actually guilty, few would argue that the court should prosecute cases without enough evidence. One of Kenyatta’s harshest accusations against the court was that its charges were politically motivated — and to be fair, it’s impossible to ignore that so far all of the defendants so far have been from Africa. Prosecuting the case without evidence would support that theory.
“Declining to proceed in cases where the evidence is insufficient is what we want courts to do,” Kate Cronin-Furman, a lawyer and PhD candidate at Columbia University who has worked at The Hague, told WorldViews in October. “So even though [a failure to prosecute Kenyatta] will be another blow to the court’s batting average, it’s a good sign about the legitimacy of its processes.”
But then there’s the second way of looking at it, which is thoroughly more distressing. When someone faces charges in a domestic criminal court, there is an assumption that prosecutors will be able to gather evidence. When you are a trying to charge a head of state in an international court, that suddenly becomes an altogether more difficult proposition. The person you are seeking to prosecute essentially controls the evidence. How on earth can you make a case?
Throughout Kenyatta’s trial, a large number of witnesses dropped out, which prosecution lawyers have claimed is due to serious witness intimidation. More worrying still, a number of Mungiki leaders appear to have been killed as the trial continued, and the Guardian claims to have spoken to one witness who admitted to being bribed.
The problems with evidence appear to have cut both ways: Defence lawyers claim that prosecution witnesses were being coached, and at least one witness in the case against Kenyatta’s co-defendant was reported to have admitted to telling lies in his testimony.
The court itself laid much of the blame with Kenyatta.
“It would be inappropriate for the Prosecution to withdraw the charges at this stage,” the ICC wrote in September, “in light of the Government of Kenya’s continuing failure to cooperate fully with the Court’s requests for assistance in this case and Kenyatta’s position as the head of the [Government of Kenya].”
If the ICC can’t prosecute serving heads of state, then it will be forced to go after only rebel commanders and low-level officials. This is not why it was set up, and it may well allow the “victors” in violent power struggles to act with impunity.
“I think the Kenyan government has given other would-be human rights abusers the world over a blueprint to avoid ICC prosecution by intimidating and disappearing witnesses and refusing to cooperate in good faith with the prosecutor,” RFK Centre for Justice & Human Rights wrote in an email.
The failed case has also severely damaged the reputation of the ICC in Kenya, where many people do still want to see justice served for the 2007-2008 violence. And across Africa, the ICC’s reputation has become toxic: The African Union has repeatedly criticised the court and threatened to pull out of its jurisdiction en masse, while Sudanese President Omar Hassan Al Bashir, also charged by the ICC, continues to refuse to visit the court and disparages its authority (in 2009, Bashir said that the ICC was a Western plot against Sudan and that he would “eat” his arrest warrant).
It’s unclear how the ICC can remedy this — some experts are now calling for a big reorganisation of the court. It’s also worth remembering, however, what the ICC lacks one important attribute that more successful ad hoc courts like the International Criminal Tribunal for the former Yugoslavia have: The financial backing and clout of the United States.
President Bill Clinton signed the Rome Treaty to help create the ICC, but George W. Bush subsequently pulled out of the court, fearful that American citizens could be targeted by the court. If US citizens ever want a sitting head of state to face trial, they may want their government to reconsider that.
— Washington Post
