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.