Kenyatta failure deals blow to ICC

On Dec. 5, the International Criminal Court’s chief prosecutor, Fatou Bensouda, dropped charges of crimes against humanity against Kenya’s President Uhuru Kenyatta, dealing a major blow to the cause of international justice. After more than a decade of subpar performance, the Hague-based court has failed to become the “gift of hope to future generations” that then–United Nations Secretary General Kofi Annan envisioned at the time of its establishment.

Along with his Deputy President William Ruto, Kenyatta was charged with orchestrating acts of violence after Kenya’s disputed 2007 national elections — which resulted in the killing of more than 1,000 civilians and pushed more than half a million people from their homes. Political rivals at the time, the two men were accused of mobilizing youth gangs to attack each other’s supporters. Joshua arap Sang, a popular radio host, was accused of using his show to incite ethnic attacks. Sang and Ruto are still on trial.

The withdrawal of charges against Kenyatta marks a nadir in the history of the International Criminal Court (ICC). Established by the Rome Statute in 1998, the ICC was formed “to help end impunity for the perpetrators of the most serious crimes of concern to the international community.” Its prosecutor may initiate investigations within the court’s jurisdiction or in response to a referral from a member state or the U.N. Security Council. To date, 21 cases, all of them in Africa, have been brought before the ICC.

In recent years, it has drawn criticism for unfairly targeting African perpetrators, overlooking transgressions in the Middle East and handling investigations poorly. The setback in Kenyatta’s case will undermine the court’s already limited power to deter grave crimes. It will also reinforce growing skepticism about international law’s ability to constrain political actors. Most important, it does disservice to the victims.

To be sure, prosecuting a sitting head of state was never going to be easy. Still, this unfortunate result was not inevitable. In the case’s failure, no one looks good — not the Kenyan government, not the prosecution, not even the judges.

While formally cooperating with the proceedings, the government of Kenya launched a political assault on the ICC in international forums, including mobilizing fellow members of the African Union to oppose the Kenyatta case.

At home, the government sowed a climate of hostility toward anyone who offered information to the prosecution and blocked the prosecutor’s access to police officers. “Several people who may have provided important evidence regarding Mr. Kenyatta’s actions have died, while others were too terrified to testify,” the prosecutor said in a statement on Dec. 5. “Key witnesses who provided evidence in this case later withdrew or changed their accounts, in particular, witnesses who subsequently alleged that they had lied to my office about having been personally present at crucial meetings.”

Repeated prosecution requests for bank, telephone, tax and other records — the kinds of evidentiary material routinely relied upon in domestic tribunals — were met with refusals, contradictory responses or silence on the part of government officials. “The Kenyan government has taken no meaningful steps to compel production of the requested materials,” the trial chamber noted last week. “The chamber found that the approach of the Kenyan government to the cooperation had not met the standard of good faith cooperation required from states parties under the Rome Statute.”

Formidable as the government obstruction was, the prosecution shares responsibility for the disappointing outcome. While some observers have questioned the high-risk decision to go after a head of state, absent overwhelming evidence of guilt, the trial chamber found fault with what it termed the prosecution’s “complaisant approach” when confronted with government noncompliance.

“The chamber would have expected to see a greater degree of diligence, persistence and, where necessary, flexibility on the part of the prosecution,” the judges wrote (PDF), in dropping the charges against Kenyatta. “The chamber had noted serious concerns regarding the timeliness and thoroughness of prosecution investigations in this case.” In short, the prosecution’s delay in pursuing investigations and following up on record requests aggravated the negative effect of the government’s intransigence.

But government resistance and prosecutorial shortcomings explain only so much. The judges have perhaps inadvertently compounded the harm. For example, after finding that the government “breached its international obligations” and “compromised the prosecution’s ability to thoroughly investigate the charges,” the court inexplicably decided not to refer Kenya for possible discipline by the Assembly of States Parties (ASP), a legislative body of the 122 countries that have ratified the Rome Statute. While not a substitute for ongoing court proceedings, the ASP can apply political and diplomatic pressure on member states to promote cooperation in line with their legal responsibilities.

In rejecting the prosecution’s request for referral, the chamber understated the gravity of the government’s defiance and its consequences for a weak court still struggling to prove itself. And it let off the hook other world leaders who might have been forced by an ASP referral to stand up and defend the institution. Whatever the rationale underlying the decision not to refer — the chamber offered a number of reasons — it is likely to be seen as a reward for bad behavior.

The reaction to the ICC’s decision has been swift. Kenyatta reiterated his innocence, said he was “excited” and “deeply relieved” by the court’s decision and expressed hope that related charges against Ruto and Sang would be similarly dismissed. The representative of the families of the dead and forcibly displaced lamented that their “quest for justice has been cruelly frustrated, both in Kenya and at the ICC.” Kenya has yet to convict any mid- or senior-level perpetrators of crimes arising from the violence. Turned away by the ICC, the victims are left still looking for redress from Kenya’s domestic prosecutors and judges.

To be sure, this is not the end for the ICC. But the devastating loss of Kenyatta’s case will make it harder to fulfill the court’s once shimmering potential.