(James A Goldston)

The declaration of a mistrial in the Ruto-Sang at the International Criminal Court (ICC) put the final nail in the coffin of a bid to investigate the horrific violence that erupted in Kenya after disputed elections in 2007, leaving more than 1,100 people dead and over 350,000 displaced.

Almost 15 years after the ICC came into being, the decision to vacate charges against Kenya’s vice president William Ruto and journalist Joshua Sang sends a sober message about the ICC’s potential to end impunity for political violence.

It need not have ended this way.

The Kenya cases offered perhaps the paradigmatic example of why an international criminal court was created.

Following the December 2007 vote, Kenya experienced a wave of unambiguously criminal violence. This was not a series of isolated incidents of common crime, but ethnically targeted to achieve political ends. In the language used by the Rome Statute, which established the ICC, to describe crimes against humanity, the carnage was “widespread and systematic.”

Moreover, national authorities were given every chance — and repeatedly failed — to bring those responsible to account. The Waki Commission — an official body of respected figures created to document crimes and make recommendations — called on the government to establish a special tribunal composed of national and international judges to investigate, prosecute and try the perpetrators.

It also identified and drew up a list of individuals it considered most responsible. The Commission made clear that, if the tribunal was not set up within a reasonable period, it would transmit its information to the ICC. In July 2009, after the Kenyan parliament rejected a bill to create a special tribunal, it did just that.

In November, when Kenya’s political leaders declined yet again to launch national proceedings, the ICC’s prosecutor requested permission to launch an investigation, which was authorized by the Court in March of 2010.

The refusal to initiate domestic prosecutions was not for want of proof.

The Waki Commission described more than 600 victims of sexual and gender based violence — the “tip of the iceberg” — who were treated at Nairobi Women’s Hospital within 72 hours of their rape. More than a quarter, the Commission found, were raped by police officers. Nearly 40% of the victims knew their attackers and could have identified them if the police had carried out proper investigations.

The ICC investigation eventually led to six individuals being charged with crimes against humanity, including political rivals Uhuru Kenyatta and William Ruto (who subsequently allied and won the presidency and vice-presidency in 2013). Charges against two of the six suspects were dropped after pretrial hearings. Then in December 2014, the Prosecutor withdrew her case against two more — including President Kenyatta. The final case was terminated this week.

More than eight years on, as the ICC’s cases have sputtered, only a handful of relatively minor figures have been tried in Kenya — out of more than 6,000 cases police sent to a special task force. Impunity — the evil the ICC was created to address — reigns supreme.

What went wrong, and what lessons does the Kenya experience offer as the ICC moves on to probe crimes in Afghanistan, Palestine and other politically treacherous environments?

First, don’t underestimate the intelligence and ruthlessness of the targets of ICC action.

Throughout the ICC proceedings, the Kenyan government has sown a climate of hostility toward anyone who offered information to the prosecution. It has blocked the Prosecutor’s access to the police, and has refused to respond to standard requests for bank, telephone, tax and other records.

The decision ending the Ruto and Sang trial cited “troubling incidence of witness interference and intolerable political meddling.” In all, seventeen witnesses who had agreed to testify against the accused subsequently withdrew their cooperation with the court. Prosecution witnesses were subjected to intimidation, social isolation and threats to prevent them from testifying. The Court has brought charges of witness tampering against three individuals.

Given the predictability of such high-level resistance, cases must be near bullet-proof in deploying documentary and digital evidence to corroborate highly vulnerable witnesses. Formidable as the government obstruction was, the prosecution shares some responsibility for the disappointing outcome — and for the previous failure of its attempted prosecution of Kenyatta. Then, the Court highlighted “serious concerns regarding the timeliness and thoroughness of prosecution investigations in this case.” If the ICC is going to take on a head of state, it must be at the very top of its game — in respect of the evidence it marshals and the strategic diplomacy it deploys to build legitimacy.

Second, don’t overestimate your “friends”.

Throughout the last several years, too many states who declared themselves supporters of accountability and of the ICC — many of them Rome Statute members — have failed to stand up to Kenyan government bullying in national capitals or at annual meetings of the Court’s governing body, the Assembly of States Parties. Others could have done more to facilitate the protection of witnesses in danger, but did not. As a result, the ICC was often left isolated in diplomatic circles and a number of civil society groups in Kenya were intimidated or silenced.

Finally, the ICC’s experience notwithstanding, the struggle for justice will continue in Kenya, because victims and their courageous allies will not give up. And it is ultimately in national courts where many solutions to impunity for grave crimes will be found.

The ruling in The Hague makes it more important than ever for the international community to signal clearly its backing for civil society voices in their search for accountability in Kenya, and around the world.
********
* The writer is an Executive director of the Open Society Justice Initiative. The article was first published by Journalists For Justice.