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ICC drops its Kenyatta case, leaving culture of impunity intact

This article was contributed by Frederick Cowell of Birkbeck’s School of Law. It was originally published on The Conversation.

“One down, two to go,“ was how Kenyan President Uhuru Kenyatta reacted to the International Criminal Court’s decision to drop its case against him.

Kenyatta had faced charges of being an indirect co-perpetrator of crimes against humanity after post-election violence in Kenya. On 5 December, the chief prosecutor of the International Criminal Court, Fatou Bensouda, announced that she was discontinuing the case against him.

The cases against Kenyatta’s two Kenyan co-accused, including Vice President William Ruto, have not yet been dropped – but as his reaction showed, they now have reason to be hopeful.

This is a major blow to the ICC’s credibility, and it’s likely to have implications for its ability to prosecute political leaders.

To the Hague

The ICC became involved in Kenya in 2009 after political parties failed to reach an agreement on the establishment of a special domestic tribunal to deal with the 2007-2008 post-election violence. An independent commission set up by the Kenyan government passed on the names of individuals suspected of being responsible for its orchestration to the ICC. The move seemed popular, with the Kenyan media pushing the slogan “don’t be vague, let’s go to The Hague.”

In January 2012, after an independent investigation by the prosecutor’s office, charges against six individuals for Crimes Against Humanity were confirmed. The Court ultimately proceeded with cases against four individuals accused of responsibility for the violence, which claimed over 1000 lives. The charges against Kenyatta included responsibility for orchestrating rape, sexual violence, and murder during attacks on the supporters of his political opponents.

This did not stop Kenyatta running in the 2013 presidential election. The Kenyan government and the African Union (AU) had been lobbying for the prosecution to be delayed. Under the Rome Statute of the International Criminal Court, the UN Security Council has the power to defer prosecutions for up to a year, and it was argued that a deferral was necessary in order to allow the Kenyan government to co-ordinate the campaign against Al-Shabaab in Somalia. The UN Security Council refused, and the Kenyan government sided with the anti-ICC states at the AU who were denouncing the court as imperialist.

Hostility towards the court had being building in the AU since 2009 when the prosecutor issued a warrant for the arrest of Sudanese President Omar Al-Bashir. While some AU members still support the ICC, there is a strong sentiment in favour of total non-co-operation with the ICC.

Finally, in September 2013, the Kenyan Parliament voted to withdraw from the ICC – and while this could not stop the case against Kenyatta, it made it very difficult for the prosecutor to proceed.

Dropping the Kenyatta charges

On 3 December, the Trial Chamber at the ICC rejected a request made by the prosecutor for a further adjournment of proceedings. Over the course of 2014, the prosecutor’s office held a series of conferences with the Kenyan government aimed at gathering evidence, such as records of phone conversations held before the outbreak of violence in 2007 and information held by the Kenyan security and intelligence services.

ICC Chief Prosecutor Fatou Bensouda. EPA/Michael Koor

The process faced endless delays, and although the judges noted the government’s lack of co-operation they said that in the interests of justice, they could not grant the extension that the prosecutor’s office was requesting. This resulted in the decision to drop the charges.

Kenyatta expressed excitement at the result; his British lawyer, Steven Kay QC, said that the prosecutor’s office owed him an apology for bringing the proceedings and for “impugning his [Kenyatta’s] integrity.”

For her part, Bensouda reiterated that the Kenyan government’s steadfast refusal to co-operate had posed “severe challenges” to the case. She also criticised the “relentless stream of false media reports” and widespread attempts at witness intimidation, which she said had led to her being forced to dismiss the charges. Crucially, the Court held that she could bring new charges at a later date should new evidence arise.

Impunity forever

The decision to cease Kenyatta’s prosecution almost certainly sends a signal that repeated failure to cooperate with the ICC can reap rewards.

The ICC still has outstanding arrest warrants for Bashir and two other individuals in Sudan who are who are charged with committing Crimes Against Humanity and Genocide in Darfur. Bashir has long resisted any attempt to prosecute him, and this recent decision will almost certainly give the Sudanese accused political ammunition against the ICC.

And while some states have co-operated with the ICC to ensure prosecutions of military leaders responsible for War Crimes and Crimes Against Humanity, most notably Uganda, the mission of the ICC was always meant to be much more ambitious. At the court’s creation, many optimistically hoped it would end the “culture of impunity” surrounding political leaders, bringing old tyrants to justice and deterring new ones from committing crimes.

Even though ICC is prosecuting the deposed former president of Côte d’Ivoire, Laurent Gbagbo, the Kenyatta case sends the message that if a political leader can hang onto power, de facto immunity is still theirs.

The Conversation

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