On Wednesday December 3rd, 2014 amidst public grumblings that the International Criminal Court (ICC) would lift the indictment against the current President of Kenya, Uhuru Kenyatta, ICC Prosecutor, Ms. Fatou Bensouda did just that. On Friday, December 5th she withdrew all five counts of “Crimes against Humanity” against the newly- elected President of Kenya. Kenyatta had been previously indicted under the tenure of former ICC Prosecutor, Luis Moreno-Ocampo for funding and orchestrating the violent actions of a secret sect known as Mungiki and inciting its members to perform crimes of rape, arson, and murder within Kibera, the largest slum in East Africa, the city of Kisumu, and the municipalities of Nakuru and Naivasha during the 2007 Presidential elections. An estimated 1,300 people were killed as a result of this organized brutality while an additional 600,000 lost their homes or property and were moved by the government into displacement camps. It was determined that Kenyatta’s primary objective in inciting this violence among the tribes was to ensure the election of then incumbent President Mwai Kibaki, a close political friend and fellow member of the Kikuyu tribe. Mr. Raila Odinga, member of the Luo tribe and opposition leader from the Lake Victoria Region had been steadily gaining in popularity and Kenyatta was eventually accused by the court of creating and maintaining this civil unrest during 2007/2008 to ensure that Mr. Kibaki, not Mr. Odinga won the election. Mr. Odinga stated publically immediately after the 2007 election that he had been “cheated of victory” claiming that the voting “had been rigged.” Supporters of Mr. Odinga continued to riot well into 2008 causing President Kibaki to create a new position for Mr. Odinga appointing him Kenya’s Prime Minster in order to help stem the violence. Ms. Bensouda cited “lack of evidence” as the reason for her withdrawal but warned Kenyan officials that she reserved the right to re-file these charges if and when “substantial evidence” emerged to support the indictment.
Mr. Fergal Gaynor, the ICC- appointed lawyer for the victims of the 2007-2008 presidential election violence informed a host of foreign news agencies that the Kenyan government did not cooperate and “did everything it could to withhold information as well important documents such as bank statements and telephone records” that would have shown Kenyatta’s specific role in planning the bloodshed. He claimed that witnesses in this case had either been bribed to change their statements or threatened with death if they testified against Kenyatta and his associates at their trials. He went on to say that government officials “had systematically undermined the court’s ability to conduct a full and just investigation of this matter.” According to Gaynor, Kenyan politicians shielded their president from prosecution by “conducting a well- organized and united effort, planned to undermine the judicial process”. Ms. Bensouda supported Gaynor’s claims also accusing the Kenyan government of “failing to cooperate” and admitting that their actions had had a “severe impact on the court’s ability to carry out a complete investigation.”
Kenyatta, son of the first President and Liberator of Kenya, Jomo Kenyatta had voluntarily appeared before the court on April 8, 2011 to attend the Information of Charges hearing at The Hague in order to learn about the five counts brought against him. With the indictment against him withdrawn he will no longer have to suffer through a long drawn-out trial in Belgium and spend many months away from his office in Kenya. He took the news graciously at first then admonished the members of the court for displaying what he believed was a clear example of “political persecution”. He pointed out that the ICC prosecutor had incurred “a certain loss of respect” as a result of conducting what he deemed was “a very hurried and disorganized investigation”. And he wasn’t alone in feeling victimized just for being African. In September 2013, Kenya’s National Assembly passed a resolution to withdraw from the ICC in protest over the indictment of both their President and Deputy President. And in October of the same year the African Union organized a special summit to consider the current actions of the ICC. A motion was made that “every country in the Union immediately withdraw from the ICC” but was not acted upon. Yet the African Union did make their position on this matter perfectly clear in all subsequent communiques to the ICC stating that “standing heads of state in all African countries must not be placed on trial” and by November, 2013 the ICC had promised to consider the African Union’s request. Unfortunately, this was not the first time African nations had called for a mass exodus from the ICC. In June 2003, the countries of Comoros, Djibouti, and Senegal called for all African countries to withdraw from the ICC in protest over the fact that only residents of African nations “had been indicted, brought to trial, or convicted of Crimes Against Humanity” and were especially outraged over the indictment of Sudanese President Omar al- Bashir.
The International Criminal Court (ICC) was created in July of 1998 after the ratification of the Roman Statute the treaty which established the global mission of this court. The statue delineates the court’s goals, structure, and jurisdiction. It began its official judicial operations in The Hague, Belgium as of 2002 by establishing definitions for the four international crimes used in identifying and prosecuting all cases. The specific crimes have been listed as: 1.) Genocide, 2.) Crimes against Humanity, 3.) War Crimes, and 4.) Crimes of Aggression; although the court cannot prosecute anyone for Crimes of Aggression. None of these crimes are subjected to any Statue of Limitations and defendants can be tried freely at any time well into the future. This international tribunal is only permitted to investigate and prosecute individuals who have engaged in the first three crimes in countries who are unable or unwilling to do so themselves. The ICC may also be directed to investigate specific allegations of any one or all of these three crimes by the United Nations Security Council. By 2014 the ICC had a global membership of 122 countries, 34 of which are located on the continent of Africa. Since its inception it has publically indicted 36 individuals and convicted two. Thomas Lubanga Dyllo was tried and sentenced to 14 years in prison while Germaine Katanga was tried and sentenced to 12 for crimes committed during the two wars in the Democratic Republic of the Congo. Had Kenyatta’s indictment not been dropped he would have been the second standing President to be charged by the court. Muammar Gaddafi was indicted for Crimes against Humanity as well in June of 2011 but was killed on October 20, 2011. Omar al- Bashir, President of the Republic of the Sudan was the first. Mr. Bashir was declared a fugitive by the court for not responding to his indictment or summons in 2009. He is still President of this country and lives openly in Sudan even traveling to other sympathetic countries in Africa when he chooses. The ICC has no standing army or police force of its own to enforce arrest warrants so must rely on the United Nations and/or host countries’ troops to locate and arrest indicted fugitives.
So why wasn’t the ICC’s indictment of Kenyatta able to stand on its own merit? Well, according to David Kaye, a specialist in international affairs it had little to do with Ms. Bensouda’s actions and everything to do with those of the previous ICC prosecutor Luis Moreno-Ocampo. In his 2011 article published in the Journal of Foreign Affairs entitled, “Whose Afraid of the ICC?” Mr. Kaye goes on to explain Moreno-Ocampo’s “poor management and decision-making style that alienated subordinates as well as court officials”. He describes Moreno-Ocampo’s “ petty battles over turf and resources”; “erratic decision-making; brash behavior; and charges of politicization,” all undermining his success as the ICC Prosecutor. He believed that “Moreno- Ocampo’s recurring judicial setbacks have cast doubt on his role as Prosecutor.” And Mr. Kaye was not the only one who’d demanded Mr. Moreno- Ocampo’s resignation.
In November 2009, Human Rights Watch sent a public letter to the ICC expressing their deep concerns about Moreno- Ocampo’s role as the ICC Prosecutor. They criticized his performance accusing him of “grandstanding and holding press conferences rather than collecting the evidence needed to support each indictment”. They added that in the case of Darfur he had not “adequately protected his witnesses from the Sudanese government.” Luis Moreno- Ocampo, an Argentinean lawyer started his position as first Prosecutor elected by the governing body of the ICC in June, 2003. His term ended in June of 2012 when he left to head the new FIFA’s ethics committee. There is only a Prosecutor serving the court at one time at the ICC. He/she serves for nine consecutive years and cannot be re-elected to this position.
On June 11, 2011, according to ICC court records Moreno – Ocampo was admonished by court officials for missing the deadline that would have ensured that all 59 victims of the Kenyan election violence who had applied to appear before the ICC were given the opportunity to testify in court. This was after he arrived in Nairobi swearing to the media that he would not quit until he saw that justice had been done on behalf of these victims.
And that was not his only blunder. In 2008 he tried to fire a subordinate in his office after the man accused Moreno-Ocampo of sexual misconduct. Moreno-Ocampo was eventually cleared of this charge but then had the man fired for unprofessional conduct. The staff member appealed to the internal disciplinary board at the ICC and won his case. The court found that Moreno had served on the committee that had fired the man and that had been a definite conflict of interest on Moreno- Ocampo’s part. The media spokesman was reinstated to his former position plus received a monetary settlement from the court of $181,362 (US).
Then unexpectedly on January 22, 2014 during an interview with Radio Netherlands Worldwide (RNW) Mr. Moreno-Ocampo completely changed his story stating that” the Kenyan indictments brought by him in the name of the ICC were trumped -up charges engineered by Western diplomats who asked him to bring these indictments against Kenyatta, and Ruto to keep them from running in the 2013 Presidential elections. And as a result of this admission Ocampo revealed for the first time that despite statements to the contrary, he’d never intended to seek justice for the victims of the 2007 election violence after all but was just one more puppet working for the west that’d freely allowed the USA and Great Britain to pull his strings.
What a movie this story would make! Are Kenyatta and Ruto really guilty? We may never know. But what we do know as fact makes a certain sense when you view it as a mystery novel. Kenyan Justice Philip Waki is appointed Chair of the Commission of Inquiry into the Post- Election Violence of 2007. No one expects too much from the man or his committee. They will take their lead from President Kibaki and will not uncover any more or any less than he wishes them to discover. Eventually the commission releases a public report stating for the record that it found there was not enough evidence to support any legal indictments in this matter at this time but if more information is discovered at a later date the commission will re-convene to consider it. And it seems like the issue has finally been “put to bed” like the good citizens of Kenya had expected it would. But then something unusual happens Justice Waki surprises everyone by personally handing a sealed envelope to Kofi Annan, former United Nations Secretary General in October 2008 during one of Amman’s visits to Nairobi. Inside this envelope rested a paper on which six names have been written- the names of the men who were behind the 2007/2008 Presidential election violence: Uhuru Kenyatta, William Ruto, General Mohammed Hussein Ali, Francis Muthaura, Henry Kosgey, and Joshua Sang.
By July 2009 Annan hands the contents of this envelope, the names of those six men over to Prosecutor Moreno-Ocampo. Ocampo declares that he will right this injustice by making an example of these six Kenyans and by December 2010 he releases the names to the media and prepares to serve each man with an indictment. After he leaves his position as prosecutor in 2012, Ms. Bensouda takes over the individual cases and all of the evidence supposedly gathered by Moreno- Ocampo. Ms. Bensouda forges ahead with her investigations and actually serves the indictments.
Then five years later Ocampo goes public once again -only this time he tells a much different story. In this second version he was never a superhero after all, and that despite all his bragging and bravado he was merely a pawn pushed around by diplomats from the USA and the UK whose only objective was to frame Kenyatta and Ruto for crimes they did not commit in order to keep them from running in the 2013 election so Raila Odinga would win. So why this change of heart- you ask? Didn’t Annan personally hand him those six names? He could claim the envelope never existed but too many people working at the ICC and living around Nairobi at that time knew that it did- including Kofi Annan. And what leverage could those diplomats possibly have had over him to make him do their bidding- he’s a citizen of Argentina? And why would an ICC prosecutor bend to their demands so easily? But I’m sure you can write the ending to this particular story. Who stands to gain the most now that Mr. Moreno- Ocampo has conveniently changed his mind? And what could he possibly stand to lose or gain by doing so? And how does Mr. Moreno-Ocampo currently spend his time?
And what about the six names on that list? Did Justice Waki make them up? I think not. I think he risked his life and those of his family when he gave those names to Annan knowing full well that his role in this matter would eventually come to light. So why did he do it?
Well, I’m praying he’s the true hero in this story, not the narcissistic Mr. Moreno-Ocampo who already admitted he was more than willing to bring false charges against innocent men. Just maybe Judge Waki is a man of real integrity who had no choice but to see that justice prevailed and that one day, no matter how far into the future, those six men would be held accountable for their criminal actions- but maybe not…..
As of January 2015 the ICC has withdrawn the indictment against Uhuru Kenyatta. The charges against Henry Kosgey and Mohammed Hussein Ali had already been dismissed in 2012 but the trials of Joshua Sang, a journalist and William Ruto, Deputy President of Kenya did begin as expected on September 9th, 2013 and continue.
And one more setback! Omar al- Bashir, President of the Republic of the Sudan proudly claimed victory over the ICC after Prosecutor Bensouda revealed in December 2014 that she was “shelving the investigation into his crimes in Darfur because of a lack of support from the United Nation Security Council.” Omar al- Bashir had been previously indicted by the court on five counts of Crimes against Humanity, three counts of Genocide, and two counts of War Crimes as a direct result of his actions in Darfur. This region of the Republic of Sudan has been decimated by violence beginning in February, 2003 when over 300,000 residents were systematically killed and another 2 million displaced from their homes then forced into refugee camps. The Republic of Sudan, especially al- Bashir, have been continuously supported by China who occupies a permanent seat on the UN’s Security Council and has blocked all attempts to bring al- Bashir to justice.
According to al- Bashir, “The Sudanese people have defeated the ICC by refusing to hand over any Sudanese to the colonial courts.”
Because of withdrawals such as these the ICC’s reputation has suffered greatly among the people of Africa who question the real motive behind its formation. Is The International Criminal Court truly a global forum where victims of a cruel world can come to be heard and evil men punished for their inhumane actions or is it merely a ruse, a kangaroo court invented by the first and second world in order to placate the third?
The story continues….
Kat Nickerson Kingston, Rhode Island