The International Criminal Court (ICC) established by the Rome Statute, is the world’s first permanent treaty based international criminal court established for the purpose of ending impunity for the perpetrators of the most serious crimes of concern to the international community. H.E. Dr. Kofi Annan accurately observed that prior to the establishment of the ICC, powerful men committed crimes against humanity knowing all too well that as long as they remained powerful
no earthly court could judge them.
no earthly court could judge them.
In March 2010 when the ICC Prosecutor applied to the Pre-Trail Chamber II to open investigations proprio motu into what he believed were massive crimes against humanity, the political class in Kenya scoffed at the idea. Apparently, they had an extremely low opinion on the efficiency and effectiveness of the ICC process and the competence of the Prosecutor. It is from this point of view that the slogan ‘let us not be vague; let us go The Hague’ was coined and the unprecedented effort by Raila and Kibaki, and Gitobu Imanyara’s relentless effort to establish a local tribunal to deal with the Post-Election Violence was thwarted.
Buoyed with an authorization by the Pre-Trial Chamber, the Prosecutor immediately commenced his investigations and before long in December 2010, he unexpectedly submitted to Pre-Trial Chamber II two applications requesting the issuance of summonses to appear for William Samoei Ruto, Henry Kiprono Kosgey, Joshua Arap Sang (case one) and Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohamed Hussein Ali (case two) for their alleged responsibility in the commission of crimes against humanity.
Being charged with crimes against humanity is an extremely weighty matter guaranteed to destroy lives, families, and careers. However, the reality of that development was met with denial, then contempt and empty bravado in quick succession. The bravado however has since faded out and the gravity of the indictment has sunk in and now the need to mount a proper defense has become the all consuming preoccupation of the suspects.
The confirmation hearings are currently underway and the well-heeled suspects have assembled top notch lawyers to defend them. However, my study of the ICC procedure vis-à-vis the defense strategy being employed reveals at least two fundamental mistakes the first of which is compounding the other and both will guarantee the confirmation of those charges:
1. Mistaking a judicial process for a political process
After Prosecutor Ocampo unexpectedly concluded his investigations and submitted to Pre-Trial Chamber II two applications requesting the issuance of summonses to appear for the six unsuspecting suspects, who like most everybody else had hitherto thought that Ocampo was on a wild goose chase, the suspects mistook the international judicial process for a local political process. They expectedly rallied their bases and whipped up emotions across the country alleging that the Prosecutor’s proprio motu initiative and subsequent findings were politically motivated conveniently forgetting that the crimes were themselves politically motivated.
Their predictable response would certainly have been appropriate had the process been a local judicial process in the context of the fast-fading culture of impunity. Needless to say, what they were involved in was neither a local judicial process nor political brinkmanship; they were the subject of an international judicial process which could not be politicized away. If anything, their audacity to politicize the ICC process has successfully reproduced that ugly pattern of powerful men committing crimes against humanity knowing all too well that as long as they remained powerful no earthly court could judge them and it has also served to justify the need for an international criminal court established for the purpose of ending impunity for the perpetrators of crimes against humanity.
Be that as it may, the confirmation hearings are under way and for a considerable part of the hearings the Pre-Trial Chamber II has been turned into a political theatre. Whereas all the suspects concur that crimes against humanity occurred they are absolving of all responsibility by deflecting the blame to the Prime Minister and claiming shoddy investigations. The fact is there are no political scores that can ever be settled at The Hague only legal scores. Assigning the blame to Raila is to unwittingly admit complicity and culpability in the crimes. Attacking the integrity of the Prosecutor by alleging witch-hunt only demonstrates ignorance on the ICC procedure and it cannot pass for a legal defence.
2. A poor defence strategy
The mandate of the Pre-Trial Chamber at the confirmation hearings is simply to ascertain that there is sufficient evidence to establish substantial grounds to believe that the suspects could have committed the charges preferred against them before committing them to a full trial. The prosecution has masterfully provided just enough evidence for each of the charges to satisfy the standard of substantial grounds to believe that the suspects committed each of the crimes preferred against them.
The suspects’ legal defence at the confirmation hearings should comprise of procedural and substantive obstacles to their being prosecuted. It is strange but procedural obstacles are the main obstacles the defence teams have relied on. The most conspicuous one is that the Prosecutor did not properly investigate the situation in Kenya. Whereas the Rome Statute empowers the Prosecutor to investigate situations, neither the Statute nor the ICC Rules of Procedure and Evidence (RPE) actually define what an investigation is which effectively makes this procedural obstacle baseless. The drive to discredit the Prosecutor has always been political motivated although for lawyer Karim Khan, Muthatura’s counsel, it was clearly personal something which severely undermined his credibility and argument.
The other significant procedural obstacle put up is the lack of live prosecution witnesses and the amount evidence the prosecution has adduced. The defence teams’ endless bemoaning of the lack of live witnesses and amount of evidence is baseless and conveniently ignores the RPE and fact that the standard of proof at the confirmation hearing is not beyond reasonable doubt but rather substantial grounds to believe the suspects committed each of the crimes preferred.
Adducing exculpatory evidence and discrediting the prosecution witnesses is the only significant substantive obstacle raised by the defence but it has been lacklustre being unstructured and lacking focus especially in case 1. I think most all those foreign defence lawyers except one or two do not add value and Karim Khan in particular is a liability. They should just be relieved of duty once these hearings are dispensed with.