On December 5, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, withdrew the charges against Uhuru Kenyatta, the current President of Kenya, who is accused of having committed crimes against humanity committed during Kenya’s 2007-2008 election violence. The newly-withdrawn charges alleged that Kenyatta was criminally responsible as an indirect co-perpetrator of crimes against humanity, including murder, deportation or forcible transfer, rape, persecution, and other inhumane acts. [ICC Press Release: Kenyatta Case]
The withdrawal of the charges came after Trial Chamber V(b), on December 3, declined to further adjourn the trial against Kenyatta, instead directing Prosecutor Bensouda to inform the Court whether the charges would be withdrawn or if there was enough evidence to justify proceeding to trial. [ICC Press Release: Kenyatta Case] Although the Chamber agreed that Kenya had not fulfilled its obligation to cooperate with the Court in good faith, it rejected the prosecution’s request that the Chamber find Kenya in non-compliance and refer the issue to the Assembly of States Parties. [ICC Press Release: Kenyatta Case]
Citing insufficient evidence to support a “reasonable prospect of conviction at trial,” Prosecutor Bensouda observed that it was her “professional responsibility as Prosecutor” to withdraw the charges against the accused. Nevertheless, Prosecutor Bensouda warned that the withdrawal of charges against Kenyatta was made “without prejudice to the possibility of bringing a new case should additional evidence become available.” [ICC: Statement of the Prosecutor]
In a public statement about her decision, Prosecutor Bensouda observed:
Today is a dark day for international criminal justice. Be that as it may, it is my firm belief that today’s decision is not the last word on justice and accountability for the crimes that were inflicted on the people of Kenya in 2007 and 2008; crimes that are still crying out for justice.
Facts about the Case
The case against Kenyatta stems from a series of widespread and systematic attacks allegedly inflicted by the Mungiki criminal organization against the non-Kikuyu population, which was perceived at the time as supporting the Orange Democratic Movement (ODM). The attacks resulted in over 1,000 killings, the displacement of approximately 600,000 people, rape, severe physical injury, mental suffering, and the destruction of property in Nakuru and Naivasha in January 2008. [BBC] Kenyatta and members of the Mungiki are alleged to have planned these attacks in order to keep the Party of National Unity (PNU) in power. ICC, Case Information Sheet: The Prosecutor v. Uhuru Muigai Kenyatta (2014).
Proceedings in the Case against President Kenyatta
On March 31, 2010, the ICC’s Pre-Trial Chamber II granted a request by the Office of the Prosecutor to open an investigation into the alleged crimes against humanity committed in Kenya between June 1, 2002 and November 26, 2009. Despite Kenya’s challenge to the admissibility of the case before the ICC, the Pre-Trial Chamber summoned Kenyatta to appear before the Court. On January 23, 2012, the Pre-Trial Chamber confirmed the charges against Kenyatta and committed him to trial before an ICC Trial Chamber. ICC, Case Information Sheet: The Prosecutor v. Uhuru Muigai Kenyatta (2014).
In December 2013, Prosecutor Bensouda requested that the trial date be adjourned because she did not consider the evidence available to her to be sufficient to prove Kenyatta’s criminal responsibility beyond a reasonable doubt, the standard of proof required at trial. Trial Chamber V(b) acquiesced to her request and vacated the trial commencement date of February 5, 2014. [ICC: Statement of the Prosecutor]
Then, on September 5, 2014, Prosecutor Bensouda again requested the Trial Chamber to adjourn the October 7, 2014 trial date until the Kenyan government had fully complied with the Prosecution’s April 2014 request for specific records. [ICC: Statement of the Prosecutor] The Trial Chamber granted her request. ICC, Case Information Sheet: The Prosecutor v. Uhuru Muigai Kenyatta (2014).
Addressing a third request for adjournment, Trial Chamber V(b) decided not to further adjourn the case, finding that:
- Prosecutor Bensouda had admitted that there was an insufficient evidentiary basis to support a conviction, and it remained uncertain whether the information sought from the government of Kenya would, if obtained, be sufficient to support the charges;
- as with any other criminal defendant, President Kenyatta has a right to be presumed innocent and to be tried without undue delay;
- further adjournment would be “contrary to the interests of justice under the circumstances”; and
- it would not be in the victims’ legitimate interests to allow the proceedings to be further adjourned.
Challenges in Bringing the Case before the ICC
Prosecutor Bensouda noted several challenges that the Office of the Prosecutor faced in investigating the crimes allegedly committed by Kenyatta. First, a number of individuals with valuable information about Kenyatta’s actions either died or were too frightened to testify against Kenyatta. Second, several key witnesses who had provided evidence later withdrew their statements or changed their stories, with some alleging that they had lied to the Office of the Prosecutor about being present at specific meetings. These two challenges emerged alongside false media reports about the Kenya cases, social media campaigns to expose the identities of witnesses, and “concerted and wide-ranging efforts to harass, intimidate and threaten” potential witnesses. [ICC: Statement on Kenya’s Cooperation]
Third, the Kenyan government’s refusal to cooperate with the Prosecution “compromised [its] ability to thoroughly investigate the charges.” With respect to this last challenge, Prosecutor Bensouda specified that the government’s failure to respond to “a significant portion” of the Revised Request for Records, despite the Revised Request having been found valid by the ICC judges, played a large role in “collectively and cumulatively, delay[ing] and frustrat[ing] the course of justice for the victims in this case.” [ICC: Statement of the Prosecutor]
The judges of Trial Chamber V(B) also found that the Kenyan government had failed to adequately cooperate with the Office of the Prosecutor, stating that “‘the approach of the Kenyan Government fall short of the standard of good faith cooperation’ and ‘that this failure has reached the threshold of non-compliance’” that is required under the Rome Statute of the ICC (Rome Statute). The Trial Chamber’s ruling thus confirms that Kenya has “breached its treaty obligations under the Rome Statute by failing to cooperate with [Bensouda’s] investigation.” [ICC: Statement on Kenya’s Cooperation]
Implications of the Charges Having Been Withdrawn
Bensouda stressed that the withdrawal of charges against Kenyatta “does not mean that the case has been permanently terminated.” Rather, the investigation and prosecution of Kenyatta is simply not possible “at this time” with the given evidence available. Bensouda assured that “if new evidence establishing the crimes and his responsibility for them is discovered,” the case could be re-opened or “brought in a different form.” [ICC: Statement of the Prosecutor]
While many victims and human rights advocates may see the withdrawal of the charges against Kenyatta as a loss, some may welcome a possible lessening in tensions between African States and the ICC. In the context of the ICC’s focus on situations and cases in Africa, the relationship between the ICC and African States parties to the Rome Statute has become strained, with calls being made for States parties to withdraw their acceptance of the ICC’s jurisdiction. For more information about the tensions between African States and the ICC, see IJRC’s October 16, 2013 news post.
Jeffrey Smith, an advocacy officer at the RFK Center for Justice & Human Rights, forewarned, “[T]he Kenyan government has given other would-be human rights abusers the world over a blueprint to avoid ICC prosecution by intimidating and disappearing witnesses and refusing to cooperate in good faith with the prosecutor.” [Washington Post]
The Case of Prosecutor v. Thomas Lubanga Dyilo
Also this month, the Appeals Chamber of the ICC issued its judgment on the appeal of Thomas Lubanga Dyilo, a Congolese national who was convicted on March 14, 2012 for being a co-perpetrator of war crimes by enlisting, conscripting, and using children under the age of 15 in hostilities. He was sentenced to 14 years of imprisonment. By a majority vote, the Appeals Chamber upheld the verdict against Lubanga and the sentence to be imposed. [ICC: Appeals Chamber confirms verdict]
The International Criminal Court
Situated in The Hague, Netherlands, the International Criminal Court is a permanent international criminal court with competence to try individuals for the crime of genocide, war crimes, and crimes against humanity. Upon ratification by 30 States of the Amendments to the Rome Statute of the International Criminal Court on the crime of aggression (Kampala Amendments) and a decision by the Assembly of States Parties (after January 1, 2017), the ICC will also have jurisdiction over the crime of aggression. Currently, there are 122 States parties to the ICC’s establishing treaty, the Rome Statute of the International Criminal Court, and 20 States parties to the Kampala Amendments. To date, the ICC has investigated situations in eight countries, all located in Africa: Central African Republic, Côte d’Ivoire, Democratic Republic of the Congo, Kenya, Libya, Mali, Sudan, and Uganda. The Office of the Prosecutor is also pursuing preliminary examinations at least seven situations, including in Afghanistan, Georgia, Guinea, Colombia, Honduras, Nigeria, and Ukraine.