An ICC Trial Chamber brings the Kenyatta case closer to an end

By Dov Jacobs [Cross posted on Spreading the Jam

On 3 December 2014, a Trial Chamber at the International Criminal Court (ICC) issued two decisions in the case against President Kenyatta of Kenya. Together, these decisions bring the case yet closer to a close, even before the trial even started. As you might know, a few weeks ago, the Trial Chamber held two status conferences at which was discussed the question of Kenya’s alleged lack of cooperation with the Prosecutor’s investigation, the OTP request for another adjournment of the trial and the Defense’s corresponding request for a termination of the proceedings.

Today’s decisions when read together can only be read as an unmitigated disaster for the Office of the Prosecutor (OTP). In the cooperation decision, the Trial Chamber, while recognizing some elements of bad will on the part of Kenya, ultimately considers that it would be inappropriate to make a finding of non-compliance because ultimately “while cooperation by State Parties is crucial for the functioning of the Court, the primary responsibility for investigation lies with the Prosecution” (§85). In light of this, the Chamber considered that the OTP did not do all it could to follow through on its own request for cooperation. As noted by the judges (§88):

The Chamber considers that the approach adopted by the Prosecution to the cooperation was, in some respects, not reflective of a prosecutorial and investigative body effectively seeking to obtain the requested materials. If the primary objective of pursuing the cooperation request at this time was to actually obtain the requested materials, the Chamber would have expected to see a greater degree of diligence, persistence and, where necessary, flexibility on the part of the Prosecution. The Chamber does not accept that the Prosecution has no independent means of taking such an approach. It ought to be pursued both throughout the course of the cooperation and when ultimately seeking to persuade the Chamber that a finding under Article 87(7) of the Statute is warranted. In summary, considering the overall interests of justice and integrity of the proceedings, the Chamber does not consider that the requisite burden has been met.

This is a extraordinary indictment of the OTP’s perceived lack of diligence in the conduct of the investigation and follow-up of the cooperation request and justifies the finding that a finding of non-compliance is not warranted at this stage and that in any case “referral [of a state to the ASP] for the purpose of sanction should not be seen as a compensating for any deficiency on the part of the Part of the Prosecution in fully investigating and prosecuting the crimes under the jurisdiction of the Court” (§84).

The decision not to grant the adjournment follows the same logic. Essentially, the Chamber blames the OTP for the case falling apart (§52):

More generally, the Chamber also recalls its findings regarding the failure on the part of the Prosecution to take appropriate steps to verify the credibility and reliability of evidence on which it intended to rely at trial, being, in the Chamber’s view, the ‘direct reason’ for the Prosecution’s evidence falling below the required standard at such a late stage.

Given these circumstances, it would be unfair to the defendant to prolong the process any longer. In coming to this conclusion, the Chamber rightly rejects a number of points made by the OTP, and which I had criticized a few weeks ago when live tweeting the status conference.

For one, the Chamber considers that allegations that Mr. Kenyatta is responsible for the lack of cooperation of Kenya cannot be accepted without actual substantiation and that the proper route to address this would in any case be Article 70 of the Statute on offenses against the administration of justice (§53).

Second of all, the judges do not follow the OTP’s claim that the adjournment should be pronounced in order to send a message to States that they cannot frustrate the proper exercise of the function of the court by not cooperating. In my view, they do not reject this assertion strongly enough. They seem to accept the OTP’s point on principle, but say that it needs to be balanced with the rights of the accused (§44). For me, these issues are entirely unrelated. As the Chamber said in both decisions, the burden for building a good case rests on the OTP, not States and the existence of such a case should be the only relevant factor in proceeding to trial. The non-cooperation of a State, while a problem, should not be used to prejudice the defendant. If the drafters of the Rome Statute decided not to grant the Court with stronger powers against States, this is not the defendant’s fault.

Third of all, the judges courageously, given the sensitive dimension of the question, to let the “interests of victims” affect their decision. They note that:

in the context of criminal proceedings, the interests of victims must be balanced with other interests of justice. While the victims’ legitimate interests include seeing those responsible for the crimes committed being held accountable, the Chamber does not consider that, in light of the presumption of innocence, it would be in the interests of justice, or the interests of the victims, for the current proceedings to be continued on the speculative basis which has been presented.

Again on this point, I would have possibly framed this slightly differently. Indeed, the victims have “interests” while the defendant has actual “rights” that are at the heart of the fairness of the proceedings. The balancing test can therefore not be balanced, if I can express it it this way. But given the current practice of the Court in relation to victims, the Chamber can only be lauded for putting the rights of the defense first.

Finally, it should be noted that the Chamber did not follow the Defense’s clever , but unrealistic, invitation to enter a verdict of acquittal, which would conveniently triggered the ne bis in idem principle. Rather, the Chamber chooses to respect the last shred of discretion left to the Prosecutor at this stage: either show that there is enough evidence or drop the charges. This reminds me a little bit of the mafia boss who gets to the insider witness who was going to testify against him, leaves a loaded gun on the table and tells him: “you know what is the decent thing to do” before leaving the room…

Overall, in the circumstances, based on the OTP’s concession that its case is just not good enough to go to trial, one can only agree with the Trial Chamber’s decision.

What is the effect of this decision? it is obviously a huge success for Mr. Kenyatta who is likely to remain a free man and won the fight even before entering the ring.

From the Court’ perspective, things are a little ambiguous. On the one hand, the judges (and to some extent the OTP) took their responsibilities seriously in not proceeding to trial without a case. In a way, and rather counter-intuitively for some I’m sure, this actually proves that the system works. On the other hand, this is one more massive blow to the practices of the OTP in terms of investigations, the same week that Judge Usacka leveled the same criticism in a dissenting opinion in the Lubanga Appeals Judgment, and after difficulties faced in both the Katanga and Gbagbo cases. The OTP has been very vocal in the past few years about changing its investigative practices. Even accepting the genuineness of these claims, it is time for actual results to be seen in that respect.

For the Court generally, this case illustrates the difficulties of investigation senior political figures in power and raises doubts about the general efficiency of the process. Seven years after the post-electoral violence in Kenya that triggered these proceedings one cannot help but note the irony of the ICC telling Kenya, at the time, that it had not moved fast enough in prosecuting those responsible. If the Court is going to present itself as the judge of the adequacy of domestic measures to fight impunity, it should start setting the right example.

Defintion of Aggression finally agreed upon for Rome Statute

by Mel O’Brien

The Review Conference of the Rome Statute has just wrapped up in Kampala. While some of what emerged from the Review Conference (RC) were just statements of support for the ICC, one significant result of the RC has been the agreement of a definition of aggression- a definition many thought would never actually happen. However, it is far from an ideal defintion. A few brief observations… Article 8 bis (2)(c) includes in the definition of an act of aggression, ‘The blockade of the ports or coasts of a State by the armed forces of another State’, which immediately brings to mind Israel and the current blockade of Gaza. However, any high ranking Israeli officials certainly do not have to worry about being brought to justice before the ICC anytime soon. Articles 15 bis (3) and 15 ter (3) state: ‘The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute’. Thus, while the definition has been agreed upon, the amendment itself has not been made, still may not be made, and even if it is made, won’t be for another seven years. Continue reading

ICC Internships

ICC BuildingBy Mel O’Brien

On Otto’s post about UN internships, we have received a question about ICC internships, so I thought I would write a separate post about these, as they are different to UN internships. The post asked about the recruitment process and time-line for that. I did an ICC clerkship some years ago now, in the Legal Advisory Section of the OTP. To be honest, I can’t remember exactly when I applied, but it was possibly December. The clerkship I did started in September, and I think I had a reply about it sometime around April or May. A friend of mine doing a clerkship now with the OPCD applied for his in May, heard back last August, & started in December. So it takes about 3-5 months before you will hear back from them. The application process is detailed on the ICC website, under the "recruitment" section, "Internships and visiting professionals". Continue reading

Peacekeeping Mission Mandates Need to Include Power to Arrest ICC Wanted

By Mel O’Brien

I have already brought up the issue of the need of the international community- states- to step up to the table and condemn Bashir’s actions and execute the ICC’s arrest warrant. I now read that Bashir has been to Eritrea on an official state visit. So, we have an internationally sought-after (alleged) war criminal, residing in a country in which not just one, but TWO peacekeeping missions are based (UNMIS and UNAMID), and who has been on an invited visit to a country where another mission was, until last year, located (UNMEE). He has also been to Egypt– state of the very first peacekeeping mission back in the 1950s. Continue reading

The Bashir Arrest Warrant- why is the ICC being blamed for repurcussions, actual or potential?

Why are people so deeply concerned about the issuance of an arrest warrant? What people should be deeply concerned about is retaining someone like Bashir in a position like head of state, where he is in a position to continue committing crimes. The bottom line is that Bashir is a war criminal (perhaps I should say alleged, but it is completely unlikely the ICC Prosecutor would bring such a case before the Court without certainty of the guilt of the accused). It is Bashir who has been the cause of the death, rape, torture and displacement of millions of people. How is this moment now the “critical juncture” in the peace process, when the peace process has been ongoing for years now, and in reality, is unlikely to succeed anytime soon with or without the existence of the arrest warrant for Bashir? I think we can categorically say that Bashir is not the key to peace in Sudan. It is not the ICC that has pushed out humanitarian organisations from Sudan- it is Bashir. It is not the ICC that has been involved in ongoing violence targeting civilians- it is Bashir. Why is it seen as acceptable to have such a person leading a country and being involved in a peace process, but not for such a person to be held accountable for his actions?

Yes, of course, the answer is politics, and fear of leaders that they too will be held accountable for any crimes they may commit. They cry “violation of sovereignty and immunity”. Yet international law has moved far beyond blanket application of state sovereignty and immunities. While the sanctity of these two concepts is still respected, there are limitations on their application. Achieving peace should not and does not have to equal immunity for those who have committed crimes. The ICC was established with the aim of ensuring individual criminal responsibility- accountability- for the most horrific crimes, regardless of the position of the person committing the crime. While I personally do not agree that the ICC should restrict itself to only prosecuting the big fish (and am relieved the Pre-Trial Chamber’s ruling in this regard was overturned on appeal, see Prosecutor v Ntaganda), it is still vital that the Court does ensure the biggest fish are brought to justice. It is rare that a state will prosecute a former head of state (although not entirely unheard of, e.g. Fujimori), so the ICC needs to guarantee that there is a forum in which these leaders can be held accountable. One thing that was reiterated at the arrest warrant press conference was the fact that the ICC is a judicial institution and political considerations are not in its ambit- and that is indeed the way it is and should be.

What all states should be calling for is the immediate carrying out of the arrest warrant, the arrest of Bashir. States should recognise that the removal of one of the main elements of the conflict in Sudan will be the positive step towards peace, not the retention of that element. Bashir should be under pressure from all sides, from all regions. He should be unable to travel anywhere outside of Sudan without being arrested. The Security Council should not heed (which they have not done, and hopefully will not do) the appeals of the AU and Arab League to exercise their authority under Article 16 of the Rome Statute to suspend proceedings. Instead, they should adjust the mandates of UNAMID and UNMIS to include the power to arrest any persons currently wanted by the ICC. There should be unencumbered support by all states and the UN (both the GA and the Security Council) for the ICC’s decision to take a concrete step and call for the arrest of someone responsible for past and ongoing war crimes and crimes against humanity (and genocide? This we will see on appeal, undoubtedly). It’s about time someone was held accountable for the atrocities being committed in Sudan.