President Kenyatta’s trial: How to destroy the ICC from Within

(David Bosco)

Uhuru Kenyatta, the president of Kenya, arrived at the International Criminal Court (ICC) in The Hague on Oct. 9, smiling broadly. Making his way through a phalanx of media, he greeted chanting well-wishers. But the almost festive atmosphere belied the purpose of the visit: Kenyatta was there for a status hearing, where he discussed with judges charges that he helped incite Kenya’s spasm of post-election violence in late 2007.

Kenyatta’s cheery, relaxed demeanor was more than mere bravado. The case against him is, by the ICC prosecutor’s own admission, falling apart. Key witnesses against the president have decided not to participate, often citing concerns for their security. The Kenyan government has produced only a portion of the evidence that the court wants, arguing that its national law prevents full disclosure. The absence of key documents and witnesses forced ICC prosecutor Fatou Bensouda to acknowledge last month that her team doesn’t yet have the evidence it needs for trial.

On the diplomatic front, Kenya has convinced many African leaders that the court is a neo-colonialist enterprise with a vendetta against the continent. The African Union has blasted the court for its investigations, and an East African regional organization — the Intergovernmental Authority on Development — this week called for the investigation to be shelved, at least until Kenyatta has left office, citing worries that the trial of a sitting president would disrupt the fight against terrorism in the region.

In short, Kenyatta has every reason to believe that this may be his last appearance in The Hague. And when he leaves, he’ll take a piece of the ICC’s credibility with him.

At the hearing, the court’s judges considered whether to dismiss the indictment against Kenyatta or suspend the trial indefinitely. Unsurprisingly, Kenyatta’s lawyers have insisted that the charges against him must be dropped. “This case has failed and it has failed in a way that means there is no prospect of it going further,” his attorney told the judges. Even as its prospects dwindle, the prosecution wants to keep the hope of a trial alive. “There remains a considerable body of evidence that implicates Mr. Kenyatta,” prosecution lawyers said.

For the three judges presiding over Kenyatta’s hearing, neither option is attractive. Dismissing the case would reward the Kenyan government’s obstruction of justice, while keeping the proceedings in limbo is scarcely more appealing. Perversely, an indefinite delay might begin to infringe on Kenyatta’s rights as a defendant, including his right to a speedy trial.

But the Kenyatta case risks damaging the court in several lasting ways. First, the Kenyan government has essentially created a how-to manual for frustrating court investigations without resorting to the more dramatic steps of barring court personnel or withdrawing entirely from ICC membership. For all its obstruction and obfuscation, the Kenyan government has maintained a veneer of cooperation, as Kenyatta’s appearance suggests. In recognition of Kenya’s ostensible help, the ICC never converted the summons for Kenyatta into an arrest warrant, as it has for suspects in other investigations. Presidents, prime ministers, and generals in other countries that may face ICC scrutiny could find the Kenyatta precedent quite attractive.

The course of the Kenyatta investigation also suggests that the court’s most enthusiastic backers — including those in Europe — have not exerted enough political pressure on Kenya to work with the court. European powers, including Britain, France, and Germany, hastened to join the court and — through the European Union — have routinely implored other states to do so as well. But how effective that broad political support for the court would be in concrete cases has always been an open question.

In practice, the interests of justice have to compete with a host of other political, economic, and commercial concerns. In theory, key European states should have great leverage. Trade between Britain and Kenya, for example, exceeds $1 billion, and Britain is the largest external investor in the country. It’s not clear what London, Paris, and Berlin have been saying to the Kenyan leadership about working with the ICC — but whatever it is hasn’t been enough.

Finally, the Kenyatta case may make the court more cautious in ways that could exacerbate its already formidable legitimacy problems, including the perception that it unfairly targets Africa. The Kenya investigation wasn’t just another investigation for the court: It marked the first time the prosecutor launched an investigation without either the support of the territorial state or the blessing of the U.N. Security Council. As the first use of the prosecution’s so-called “proprio motu” power to initiate investigations on its own, the Kenya investigation was an important test.

If the case does ultimately collapse, it’s likely that Bensouda, who has proven generally cautious thus far, will hesitate before launching new investigations without the support of the most involved states. And that, in turn, means the court will become more vulnerable to the charge that it has become an instrument of state power rather than a restraint on it. Court investigations in Uganda, the Central African Republic, Congo, and the Ivory Coast, for example, have focused squarely on the sins of rebel groups or those who have been evicted from power. Prior to the Kenya case, the ICC has directly challenged sitting leaders only when the formidable U.N. Security Council has asked it to do so, as in Sudan and Libya. Bensouda and her predecessor, Luis Moreno-Ocampo, have also avoided opening investigations in places where influential states would prefer that it did not, including in Afghanistan, Georgia, Palestine, and Colombia.

Some commentators have noted that Kenyatta’s appearance in The Hague was itself an achievement for the ICC. One human rights group called it “a significant step forward in holding even the most powerful officials accountable for their actions.” The BBC described Kenyatta’s appearance as a “landmark.” If it is a landmark, it’s the kind that might lead the court into the wilderness. The Kenyatta case has inflicted serious damage on an already fragile institution.


* Originally published on Foreign Policy, on Oct. 11, 2014, titled “How to Destroy the International Criminal Court From Within“.

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