7 February 2014

Kenya: Moving Beyond the ICC Impasse

analysis

London — The International Criminal Court's (ICC) case against Kenyan President Uhuru Kenyatta, long beset by controversies and delays, has heightened tensions between the ICC and the African Union (AU). But while dropping the case could alleviate friction, some say it may also erode the power of the court, which to date has only issued one judgement.

At a status conference on 5 February, lawyers for President Kenyatta continued to pressure the ICC to drop its case, which was supposed to start on 5 February but was postponed for a fourth time last month. Prosecutors said a witness had withdrawn and requested more time to gather evidence.

ICC prosecutor Fatou Bensouda is deciding whether the case against Kenyatta - who is charged with crimes against humanity for allegedly arranging murder, deportation or forcible transfer, rape, persecution, and other inhumane acts during Kenya's 2007-2008 post-election violence - should proceed.

Originally, six men faced charges in the ICC case, but now there are only three. In addition to Kenyatta, Kenya's deputy president, William Ruto, and former radio personality Joshua Arap Sang are currently on trial before the Hague-based court.

Bensouda said in January that a key prosecution witness was now unwilling to testify and that a second had confessed to giving false evidence.

Calls for dismissal

Intense pressure from Kenya and its allies - such as Rwanda - for the ICC to drop the cases has contributed to the souring of AU-ICC relations.

In October 2013, the AU called for sitting heads of state to receive immunity from prosecution and threatened mass withdrawal from the ICC.

The organization has also demanded that the case against Ruto, as well as another ICC case against Sudan's President Omar al Bashir, be deferred.

"The AU would be pacified by the [Kenya] cases not proceeding. That's a fact," said Stella Ndirangu, programme manager for the Kenya section of the International Commission of Jurists.

The mood was no more conciliatory at the latest AU summit in Ethiopia's capital, Addis Ababa, in late January.

A final communiqué at the summit expressed "disappointment" that the Kenya cases were continuing and urged African ICC members to "comply with African Union decisions on the ICC and continue to speak with one voice."

Stephen Lamony, senior advisor on the AU, UN and African situations at the Coalition for the International Criminal Court, said the collapse of the Kenyatta case would likely improve relations between Africa and the court.

"Kenyatta makes sure that his issue is on the agenda of the African Union," said Lamony, who attended the 30-31 January summit to rally ICC support. "I think as long as the Kenyatta case is before the ICC, this tension between the court and Africa will continue."

Greta Barbone, senior associate in the international criminal justice programme at international non-profit No Peace Without Justice, hopes the cases proceed.

"Relations with the African Union are very much influenced by the Kenyatta and Ruto cases, but I really hope the cases can go ahead, because the best thing for Kenya would be to have fair trials and justice for the victims of the post-election violence."

Richard Goldstone, a South African judge and former prosecutor at the International Criminal Tribunal for the former Yugoslavia, believes the ICC could be seen as weak if the Kenyatta case collapses.

"But if that happened because of interference with witnesses, the blame couldn't be laid at the door of the ICC, particularly the prosecutor's office," he said.

The office of the prosecutor was correct to ask for a postponement of the case, according to Barbone, because proceeding without sufficient evidence would be a risky strategy. "It's not the first case with which the prosecutor has had challenges with witnesses in Kenya, and it was a sound decision to ask for more time."

Added Ndirangu: "More could be done by the office of the prosecutor. They need to get serious in terms of how they are managing these cases.

They are allowing themselves to be bullied by all this power and shenanigans that have been marshalled by Uhuru and Ruto.. The way in which these cases are panning out, you could even doubt that the post-election violence happened."

Hot and cold

Relations started out well between Africa and the ICC, which was founded in 2002.

The governments of the Central African Republic, the Democratic Republic of Congo (DRC), Mali and Uganda all called on the institution to investigate crimes in their countries. Former prosecutor Luis Moreno Ocampo initiated cases in Kenya and Côte d'Ivoire, and the Security Council referred cases in Libya and Sudan.

But by 2009 - around the time Bashir was indicted for war crimes in Darfur - the relationship between the ICC and the AU had soured.

AU Chairman Jean Ping complained that all the indictments were for Africans and accused court officials of neo-colonialism. The 2011 arrest warrant for Libyan leader Muammar Gaddafi only strengthened African resistance.

Goldstone puts the change down to politics. "When it wasn't leaders [being indicted] there was full support," he told IRIN. "Once leaders started being targeted, the politics of the AU changed, and it's because of the people who run it. What is heartening is that all the threats of withdrawal haven't happened.

"Also, there seems to be a disconnect between leaders who are protecting themselves and victims who want to see justice."

But the ICC has also given its critics ammunition. It has issued just one judgment so far, a guilty verdict against Congolese militia leader Thomas Lubanga - a case that several times teetered close to collapse. Mathieu Ngudjolo Chui, who fought on the opposite side of Lubanga during the conflict in northeastern DRC, was acquitted in 2012.

Poor investigations, as well as witness interference, uncooperative governments and other factors, have been a hindrance, with some cases failing to make it past the first layer of proceedings, the confirmation of charges hearing.

Goldstone says many cases have taken too long to play out. "The court is moving at a snail's pace. The judges have been extremely slow. There is no reason that judgments should take months and months to come out," he said.

Lubanga's trial began on January 2009, with the verdict delivered in March 2012. Germain Katanga, originally tried with Ngudjolo Chui for crimes in DRC before the cases were separated, has been on trial since November 2009, with a verdict - postponed from February - now due in March.

The case against Jean Pierre Bemba, Congo's former vice-president, began on November 2010; the defence finished presenting its case last November.

Focus on Africa

The focus on African war crimes and defendants has irritated some, who point out that ICC investigations in countries including Afghanistan and Colombia have been ongoing for years with no action.

In response, the court says that it can only intervene when the domestic authorities are unable or unwilling to prosecute. It says that in many cases under review, it is still assessing whether alleged perpetrators are being dealt with by their own countries' authorities.

In Libya, for example, Abdullah al-Senussi, the former head of military intelligence and Gaddafi's brother-in-law, is accused of crimes at Abu Salim prison, including orchestrating the massacre of more than 1,200 prisoners in 1996. ICC judges decided last October that he could be tried in Tripoli because Libya is able and willing to carry out its own investigation.

"I do think the complementarity principle works, and when there are genuine proceedings, the court shows that it is willing to work with countries to see whether national jurisdictions can do it," said No Peace Without Justice's Barbone. "In Kenya, we just didn't have that possibility, because there were no investigations or prosecutions of people who were most responsible."

Goldstone admits he looks forward to seeing the ICC take on cases outside of Africa, but he doubts that will make much difference to its relationship with the AU. "If Colombia or Afghanistan suddenly came on board tomorrow, it's not going to cause a huge turnaround and suddenly there would be great support from the AU."

A matter of politics

But he added: "The real problem is the Security Council. There is no basis on which Syria and Sri Lanka shouldn't have been placed before the ICC, but that's the politics on the Security Council, and the court has to live with that."

Lamony, of the Coalition for the International Criminal Court, said, "Political leaders in Africa should pressure those with the ability to do more in these situations, like the Security Council, rather than proffer the argument that because there are no investigations in those situations there should be no investigations elsewhere."

Court watchers, like Elizabeth Evenson, a senior counsel in the international justice programme at Human Rights Watch, insist that the ICC is responsive, citing a decision by judges that Ruto did not have to attend the vast majority of his trial. She says that the ICC will only succeed by ignoring politics and doing its job.

"The takeaway here should not be that when the court doesn't have support to do cases against high-level accused in countries that are capable of mounting a political assault, then retreat and do lower-level cases only," said Evenson. "The takeaway is that the ICC's mandate is to do these big cases and how do we get there?"

ICC - for and against

For

Botswana has been the court's strongest supporter on the continent, refusing to back AU anti-ICC resolutions. President Ian Khama is on the record saying victims of war crimes need justice.

West Africa has also showed some support, with Côte d'Ivoire, Mali and Senegal and all said to be irritated with Kenya's strong-arm tactics within the AU.

Against

Rwanda leads the charge against the ICC and has taken a highly critical position, with President Paul Kagame calling it fraudulent. Rwanda, however, did facilitate the transfer of ICC indictee Bosco Ntaganda to the Hague.

Kenya's parliament voted to pull out of the ICC; Kenyatta and Ruto, meanwhile, have led a determined campaign to discredit the court. The ICC has alleged witness intimidation and lack of cooperation from Kenya.

Uganda's President Yoweri Museveni enthusiastically greeted the news that ICC prosecutor Ocampo had opened its first ever cases against the rebel Lord's Resistance Army in 2004. Relations have long since deteriorated, with Museveni now one of the court's loudest critics.

Sudan's Bashir is no fan of the ICC - not surprising as he is wanted by the court for war crimes in Darfur.

South Africa had previously supported the ICC, advising Bashir to stay away from President Jacob Zuma's inauguration, suggesting he would be arrested if he came. However, times have changed and it is now firmly in Kenya's camp.

On the Fence

Nigeria's position is not fixed. It has cooperated with the ongoing ICC investigation into Boko Haram, but observers doubt the goodwill would continue if the prosecutor targeted government troops.

[This report does not necessarily reflect the views of the United Nations.]

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