How to bet and win against the (international) system

Uhuru Kenyatta went to The Hague to defend himself against charges of war crimes. He's always managed to stay one step ahead of the Court.

President Kenyatta, Kenya. Image credit Suzanne Plunkett via Chatham House Flickr CC.

In the aftermath of the Kenyan 2007 presidential elections, political violence erupted, resulting in 1,200 deaths and the displacement of more than 600,000 people. In the end, three individuals stand accused of crimes against humanity before the International Criminal Court: Kenyan President Uhuru Kenyatta, Deputy President William Ruto, and the journalist Joshua Arap Sang.

Uhuru Kenyatta went to The Hague as a Kenyan citizen. In a dramatic political performance, Kenyatta stripped himself of his presidential powers, temporarily bestowing them on William Ruto, his second in command, and also on the ICC docket. Apparently, that was the price to pay to assuage the outraged Kenyans who saw their sovereignty trampled by the court. As a Kenyan friend once told me,  a few years ago, some folks in her country were asking how dare prosecutor Ocampo, “someone who rides a mere bicycle to work,” summon their leader?

But, whereas many are praising Kenyatta’s bravery for traveling to The Hague rather than skipping his day in court, let’s keep in mind that his appearance was his safest option. Al Bashir reminds us that having an ICC warrant out for your arrest may be a serious nuisance.

What is clear in this Kenyan saga is that the Kenyan state – or more precisely Kenyatta and Ruto — have always managed to stay one step ahead of the Court. From the early days of the legal proceedings against Kenyatta and Ruto, the ICC’s Office of the Prosecutor has been playing catch up with these guys, who have demonstrated that you can work within the international legal system and outsmart it at the same time. Long gone are days of the Kenyan political class chanting: “Don’t be vague. Let’s go to the Hague.” Using their ICC indictment as a political platform, former opponents joined forces as the Uhuru-Ruto ticket and won the 2013 presidential elections.

From the beginning, it was not a clear case. Did the Kenyan post-electoral violence (PEV) amount to crimes against humanity? The late Judge Hans-Peter Kaul issued a dissenting opinion, arguing that the ICC lacks jurisdiction ratione materiae in the situation of the Republic of Kenya. For him, the crimes committed during the 2007-2008 PEV in Kenya do not amount to crimes against humanity as defined by the Rome Statute. Nevertheless, when Kenyans failed to adequately put in place the mechanisms to reckon with the PEV, Ocampo used his proprio motu powers to initiate an ICC investigation.

The fact that two of the accused occupied the highest offices of Kenyan executive power made Ocampo’s job tricky, and brought to center stage many of the birth defects of the first permanent international criminal court. The ICC needs the cooperation of the states to carry out its investigations. For example, states grant visas to investigators (although as an international lawyer complained to me this past summer in The Hague “the prosecutor has investigated Darfur but has never set foot in Darfur. It raises an obvious question of how did they do it”).

The Kenyan state’s failure to facilitate the work of the ICC prosecutor has been disastrous to the prosecutor’s case against Ruto. All nine prosecutor’s witnesses have stopped cooperating, which led to the prosecutor having them declared hostile prosecution witness. Some witnesses have also recanted their prior testimonies, revealing that they were coached to incriminate Ruto. The Kenyatta case doesn’t look any more promising for the ICC’s prosecutor. As we await the Trial Chamber’s verdict on Ruto, it is very likely that the charges against Kenyatta will be dropped and the case closed.

Notwithstanding the obstruction of the Kenyan state, the prosecutor has made its fair share of mistakes as well. The Office of the Prosecutor has faced strong criticism for one-sided investigations elsewhere: targeting rebels or political adversaries while turning a blind eye on crimes that may have been perpetrated by government forces in Uganda, DRC and Cote d’Ivoire. And, Ocampo went for a cruise on the Dutch canals with then-Ugandan Defense Minister Mbabazi while the investigation in Uganda should have targeted both the LRA and the Ugandan army. Seriously, I’m not making this up. Sarah Nouwen wrote about it here, page 952 to be precise.

The novelty of the Kenyan cases lay in this being the first time the ICC was prosecuting two sides of the conflict simultaneously, but it seemed to have back-fired when those two sides joined forces to take the state. Now the ICC faces the challenge of prosecuting sitting heads of state.

In the end, if the case against Ruto collapses and the charges against Kenyatta are dropped – a very likely scenario – it will be a blow against the Office of the Prosecutor, but not necessarily a terrible outcome for the ICC. It would mean that a trip to The Hague is not necessarily a one-way ticket, which could dampen the neo-colonial critique of the Court, and strengthen its legitimacy.

For the Office of the Prosecutor, such an outcome could also lead to a new strategy for investigations: investigate first, and according to the findings, decide on who to prosecute, rather than focusing on specific individuals first and then trying to build a case against them. This might leave the court open to less political manipulation.

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