The ICC in Kenya: Institutional Promises and Limitations

There is no question that the International Criminal Court prosecutions of Kenyan officials for crimes committed during the post-election violence of 2007-2008 have been extraordinarily difficult (and even that is an understatement). How the ICC has tried to meet these challenges demonstrates both the power and limitations of the law. The Court has used and adapted its legal procedures to counter rampant witness interference and lack of cooperation with its cases, but has also confronted the reality that sometimes the law will not be enough, and that diplomacy, persuasion — or even the intervention of influential third-parties — will be required instead.

The defense teams in the Kenya cases claim that the prosecutions were not strong to begin with, while the prosecution alleges that its witnesses have been systematically intimidated and bribed and that the Kenyan government has failed to cooperate with the Court, despite its legal obligation to do so under the Rome Statute. In recent weeks, the judges at the ICC have lent credence to the prosecution’s claims: A Trial Chamber found that because witnesses had in fact been interfered with, their prior incriminating statements could be admitted into evidence, and the Appeals Chamber reversed a Trial Chamber’s decision not to refer Kenya’s failure to cooperate to the Assembly of States Parties (ASP). The United States follows developments in the cases closely because of its interest in the ICC, its ties to Kenya — including a dramatic increase in counterterrorism assistance this year — and the prominence of the accused, including until recently Uhuru Kenyatta, the President of Kenya, and still today William Ruto, the Deputy President.

The Kenya prosecutions arose out of the post-election violence in December 2007 and January 2008 following the contested election of President Mwai Kibaki. The ensuing political and tribal violence left over 1,100 people dead and more than 660,000 people internally displaced, and also included numerous cases of rape and sexual assault. After some considerable back and forth about whether Kenya would prosecute the PEV cases itself, the ICC opened an investigation and in December 2010 brought cases against six individuals, including Kenyatta and Ruto who, at that time, held no government positions and in fact belonged to opposing political parties.

It has not been an easy road. The cases have been hotly contested in court and politicized within Kenya. The Kenyan government tried to stop the cases both at the ICC (by belatedly arguing that it would prosecute the cases itself) and at the UN. Security Council, where it sought a one-year deferral of the prosecutions (which could be renewed continuously) pursuant to Article 16 of the Rome Statute. In 2012, Kenyatta and Ruto joined political forces and successfully ran for President and Deputy President, in part based on an anti-ICC platform. Two of the cases were dismissed by the pre-trial judges at the confirmation phase, which occurs between initial charging of the accused and the trial, and two of the cases were dismissed by the Prosecutor herself before trial. The trial of Ruto and his co-accused, Joshua Sang, began in September 2013 and should enter the defense phase later this year.

Witness interference, in the form of bribes and threats, have plagued both the Kenyatta and the Ruto/Sang cases (though it should be noted that the accused themselves have not been directly implicated in the interference, even if they have directly benefitted from the loss of witnesses). When the Prosecutor finally dropped the Kenyatta prosecution, she cited witness interference as one of the primary reasons for the collapse of the case. And it is a problem that exists across cases at the ICC, as it did at the so-called “ad-hoc tribunals,” the courts established for particular conflicts, such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.

The ICC has adapted its procedures and strategies to counter this threat. In 2013, the ASP amended Rule 68 of the Rules of Procedure and Evidence to allow for the admission into evidence of prior statements of witnesses who subsequently fail to provide evidence as the result of interference. Although the trial judges may give such statements less weight than if the witnesses came to court to testify, this rule change represents a significant step in the fight against witness intimidation, which is less likely to occur in the investigation phase than after charges are brought and the prosecution’s witnesses are publicly identified.

In the Ruto/Sang case, the prosecution availed itself of this rule change and moved for the admission of the prior, incriminating statements of five witnesses who changed their stories at trial. The Trial Chamber admitted four of the statements, concluding that the witnesses had recanted as the result of witness interference. The defense claimed that the decision constituted a retroactive application of a rule change, but there was nothing retroactive about it: It did not change a prior decision in the case and did not infringe on any fundamental right. The accused cannot claim to have detrimentally and unfairly relied on witnesses dropping out of the case due to interference. The accused are appealing the Trial Chamber’s decision, but are unlikely to succeed. In the end, it is difficult to know if the admission of the statements will affect the outcome of this very challenging case, but the rule change and this precedent are a signal to future opponents of accountability that witness intimidation may not succeed as it has too often in the past. In addition, in a further effort to combat witness interference, the prosecution announced last week that two Kenyans were arrested in Nairobi pursuant to an ICC warrant charging them with witness interference in the Ruto/Sang case.

The prosecution has also alleged that Kenya’s failure to cooperate in the ICC investigation, as required by the Rome Statute, undermined its investigations and prosecutions and contributed to the collapse of the Kenyatta case. In late 2013, frustrated by the Kenyan government’s specific failure over a 19-month period to comply with a request for financial records in the Kenyatta case, the Prosecutor asked the Trial Chamber for a finding to be transmitted to the ASP that Kenya had not fulfilled its legal obligation to cooperate with the Court. The Trial Chamber found that Kenya’s “non-compliance has not only compromised the Prosecut[or]’s ability to thoroughly investigate the charges, but has ultimately impinged upon the Chamber’s ability to fulfill its mandate.” Nonetheless, exercising its discretion, the Trial Chamber elected not to transmit a finding of non-compliance to the ASP. The Appeals Chamber reversed this decision, finding that in exercising its discretion the Trial Chamber made findings that contradicted its earlier conclusion that Kenya had failed to cooperate to the detriment of the Court. The Trial Chamber must now reconsider whether to refer Kenya to the ASP, relying on factors consistent with its earlier findings.

The finding of the Trial and Appeals Chambers that Kenya failed to fulfill its obligations under the Rome Statute is no doubt a diplomatic and political embarrassment to Kenya, but this process also underscores the limitations of the ICC’s powers. In a domestic system, courts will ordinarily compel compliance through contempt or arrest. Not so at the ICC. When States-Parties fail to fulfill their legal obligations, the recourse is a referral to the ASP, a body of 123 States-Parties not particularly well-suited to undertake enforcement actions. While in a domestic system enforcement actions are the beginning of a process to obtain compliance, at the ICC a referral to the ASP is more likely to represent the end of failed efforts to obtain cooperation. The Appeals Chamber underscored this very point in its decision reversing the Trial Chamber, emphasizing that in deciding whether to refer a State-Party to the ASP, the Trial Chamber should consider whether there exist alternative ways to obtain compliance by the State-Party, including by persuasion or by mobilizing the assistance of actors outside the Court:

Since the ultimate goal is to obtain cooperation, a Chamber has discretion to consider all factors that may be relevant in the circumstances of the case, including whether external actors could indeed provide concrete assistance to obtain the cooperation requested taking into account the form and content of the cooperation; whether the referral would provide an incentive for cooperation by the requested State; whether it would instead be beneficial to engage in further consultations with the requested State; and whether more effective external actions may be taken by actors other than the ASP or the UNSC, such as third States or international or regional organisations. In conclusion, the Appeals Chamber considers that it is clear that, in determining whether a referral is appropriate, a Chamber will often need to take into account considerations that are distinct from the factual assessment of whether the State has failed to comply with a request to cooperate.

Thus while in the case of witness intimidation the ICC has sought new, adaptive legal solutions, the Court has been forced to confront the law’s limitations in the case of cooperation.

In sum, in trying to overcome the enormous challenges in the Kenya cases — including witness interference and Kenya’s failure to cooperate with the Court — the ICC has shown that law is important but that it is also not enough. The Court must continue to develop, adapt and refine the law to surmount the many obstacles it confronts, but it must also contend with the law’s limitations in this sphere, as well as its own institutional limitations, and continue to seek creative solutions to achieve accountability in spite of them. 

About the Author(s)

Alex Whiting

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).