Conclusion

Abstract

Between 2008 and 2013, there is little evidence that the OTP’s strategy of positive complementarity made any significant contribution to its stated objective of ending impunity. The OTP’s own interpretation of a ‘major success’ (‘the absence of trials before [the ICC] as a consequence of the regular functioning of national institutions’) was obviously not realised. Although the governments figures are incomplete and in some cases unreliable, it would seem that less than 3 % of reported post-election violence crimes resulted in conviction. These convictions were mainly for property and public order offences, with trials for serious crimes such as murders, sexual violence and offences against the person going almost entirely unpunished. Further, convictions were almost exclusively limited to lower-level perpetrators, with politicians, police officers, business persons and tribal elders escaping accountability for their role in organising, funding and inciting the post-election violence. The passage of time since the post-election violence means that the prospect of further convictions remains bleak. In February 2014 the Director of Public Prosecutions was forced to concede that there was insufficient evidence to sustain a prosecution at the domestic level for any of the 5,000 pending post-election violence cases.

When one looks beyond merely criminal prosecutions and adopts a broader understanding of ending impunity, again there is little cause for celebration for the OTP. Although the OTP’s strategy of positive complementarity coincided with the most sustained period of legal reforms in the country’s history, there is little or no evidence linking the two. Indeed, if anything, the ICC’s intervention in Kenya appears to have served as a distraction from, and obstacle to, the country’s much-needed rule of law reforms. Similarly, with respect to the culture of impunity in Kenya, the ICC’s involvement seems to have had little impact on restoring faith in the criminal justice system and has perhaps even contributed to the undermining of public confidence in state institutions.

Despite the apparent lack of success at ending impunity in Kenya, Bensouda’s OTP remains committed to the strategy of positive complementarity. Bensouda has described the strategy as ‘a proactive policy of cooperation and consultation, aimed at promoting national proceedings and at positioning itself as a sword of Damocles, ready to intervene in the event of unwillingness or inability by national authorities’. In its first policy paper published after Bensouda’s appointment as Prosecutor, the OTP affirmed its commitment to the strategy. Given this commitment, it is important that lessons be learned in applying the situation in future situations. It is too easy, and almost certainly incorrect, for Moreno-Ocampo to suggest that the OTP did all that it could in Kenya and that any failure in the implementation of its strategy was because of a lack of local leadership. So what lessons can the OTP learn from its Kenyan experience?

Between 2008 and 2013, there is little evidence that the OTP’s strategy of positive complementarity made any significant contribution to its stated objective of ending impunity. The OTP’s own interpretation of a ‘major success’ (‘the absence of trials before [the ICC] as a consequence of the regular functioning of national institutions’) was clearly not realised.¹ Although the government’s figures are incomplete and in some cases unreliable, it would seem that less than 3 % of reported post-election violence crimes resulted in conviction. These convictions were mainly for property and public order offences, with trials for serious crimes such as murders, sexual violence and offences against the person going almost entirely unpunished. Further, convictions were almost exclusively limited to lower-level perpetrators, with politicians, police officers, business persons and tribal elders escaping accountability for their role in organising, funding and inciting the post-election violence. The passage of time since the post-election violence means that the prospect of further convictions remains bleak. In February 2014 the Director of Public Prosecutions was forced to concede that there was insufficient evidence to sustain a prosecution at the domestic level for any of the 5,000 pending post-election violence cases.²

It therefore seems that the trials in The Hague are Kenya’s last remaining hope for accountability. Certainly the symbolism of seeing the Ocampo Six sitting in court for their initial appearances and confirmation of charges hearings should not be underestimated. For the first time in the country’s long history of impunity, its leaders appeared in a court of law to answer serious charges, with proceedings broadcast live on Kenyan television. Civil society proclaimed this as being a ‘strong step towards ending impunity in this country’.³

Subsequent developments, however, tempered this enthusiasm. The two most senior members of the Ocampo Six, Uhuru Kenyatta and William Ruto, were elected President and Vice President, respectively. Upon their return to Kenya following the confirmation of charges hearing, each were greeted as heroes by thousands of supporters at a prayer rally in Nairobi’s Uhuru Park.⁴ According to KNDR, citizens had returned to the belief that those involved in the post-election violence and were allied to politicians ‘tended to be untouchable’.⁵ Such sentiments could only have been strengthened following the Prosecutor’s decision in December 2014 to withdraw the charges against Kenyatta. In September 2013, Annan stated that he continued to closely follow the Kenyan situation and that he was of the opinion that ‘impunity [remained] one of the greatest sources of underlying tensions’.⁶

Meanwhile the trials themselves, particularly Kenyatta’s, continued to encounter obstacles and delays. In the words of the victims’ legal representative Fergal Gaynor, ‘after thousands of hours of work by prosecution investigators and lawyers and the expenditure of untold millions of Euros, the ICC’s most high profile case has suffered such a devastating series of setbacks’.⁷ After five postponements in the Kenyatta trial, the OTP ultimately decided to withdraw the charges against the Kenyan President. The OTP’s hopes now rest on securing convictions against Vice President Ruto and radio broadcaster Sang.

A major cause of these delays is that the government continues to engage in a foreign affairs façade whereby it promises cooperation with the Court while simultaneously frustrating the progress of the trials.⁸ According to Human Rights Watch, Kenyatta and Ruto have used their electoral victory to ‘deploy all the resources of the state toward stopping their prosecution by the International Criminal Court’.⁹ First, in May 2013, the government requested the UN Security Council to exercise its powers to ‘terminate’ the proceedings ‘as soon as possible’.¹⁰ Once again, however, the Security Council rejected the government’s proposal.¹¹ Then, in September 2013, just five days before the commencement of Ruto’s trial, the National Assembly passed a motion calling upon the executive to withdraw from the Rome Statute, not unlike the motion passed in December 2010.¹² Next, in November 2013, the government proposed an amendment to the Rome Statute which would permit heads of state such as Kenyatta to be exempt from prosecution during their term of office.¹³ Meanwhile, the accused’s defence teams continued to submit legal motions, including a request for a one-week adjournment so that Ruto could return to Kenya following the Westgate terrorist attacks¹⁴; a request that Kenyatta be permitted to participate in his trial via video link¹⁵ and a request for Kenyatta be granted permission to be absent from a large proportion of his trial.¹⁶ Further, throughout this period, the government continued to withhold documents from the OTP and did little if anything to address the climate of fear that discouraged witnesses from testifying before the Court. This prompted the Prosecutor to make a formal application to the Trial Chamber for a finding of non-cooperation under Article 87(7) of the Rome Statute.¹⁷ On 19 December 2013, the Prosecutor requested a three-month adjournment of the Kenyatta trial following the withdrawal of two witnesses.¹⁸ Kenyatta’s defence team responded by inviting the Court to terminate the proceedings.¹⁹

Even if Ruto and Sang are convicted of all charges, significant impunity gaps will nevertheless remain. No member of the security forces will be tried in The Hague, spontaneous acts of violence in Kibera and Kisumu have been omitted from the indictments, property crimes have not been charged and accountability for sexual and gender-based violence is totally absent from proceedings in The Hague.

When one looks beyond merely criminal prosecutions and adopts a broader understanding of ending impunity, again there is little cause for celebration for the OTP. Although the OTP’s strategy of positive complementarity coincided with the most sustained period of legal reforms in the country’s history, there is little or no evidence linking the two. Indeed, if anything, the ICC’s intervention in Kenya appears to have served as a distraction from, and obstacle to, the country’s much-needed rule of law reforms. Similarly, with respect to the culture of impunity in Kenya, the ICC’s involvement seems to have had little impact on restoring faith in the criminal justice system and has perhaps even contributed to the undermining of public confidence in state institutions.

It might be of course that the OTP’s strategy of positive complementarity contributed to the ending of impunity in a manner that is beyond the scope of this project, such as by deterring persons from committing crimes during the holding of the 2013 elections. Moreno-Ocampo, for example, has suggested that the ICC contributed to the holding of a peaceful election.²⁰ Given Kenya’s history of violence during the holding of presidential elections, if the ICC’s intervention contributed to peaceful polls this impact ought not to be discounted. For the reasons explained in the first chapter, methodological challenges associated with studying deterrence make it extremely difficult to demonstrate any significant impact that the OTP may have had in this regard. It would, however, seem to be premature and perhaps a little simplistic to conclude that it was the ICC’s presence which ensured no repeat of the 2007/2008 post-election violence. Although it is true that relatively peaceful elections were held at a time when Kenyatta and Ruto were about to commence their trials, other explanations for a reduction in violence also exist. Long, Karnyinga, Ferree and Gibson, for example, point to factors such as Kenyans’ desire for peace, the visible presence of a well-prepared security force and the creation of a Supreme Court with new-found legitimacy as all contributing to the absence of violence.²¹ Indeed, Cheeseman, Lynch and Willis suggest that to the extent that the ICC contributed to peace, it was by accidentally bringing together two former rivals in Kenyatta and Ruto, which reduced the prospect of violence between their respective Kikuyu and Kalenjin communities.²² Aside from the holding of peaceful elections in 2013, there appears to be little evidence of the ICC serving as a deterrent. It is true that in 2008 the Attorney General admitted that the Rome Statute was a deterrent to himself and anyone else in a leadership position.²³ Likewise, one month after the Pre-Trial Chamber warned suspects that it would issue arrest warrants should they engage in dangerous speeches, Ruto told youths at a prayer rally to shun politicians who were attempting to incite violence.²⁴ Such limited evidence, however, does little to assist one in concluding with any degree of confidence that the ICC had a deterrent effect and in this way contributed to the ending of impunity.

In addition, a further shadow side may be emerging in the form of increased African Union hostility towards the Court. Even before the OTP’s commencement of investigations in Kenya, the African Union had been critical of the ICC’s focus on Africa. Its chairperson had accused the West of using Africa as its ‘laboratory to test the new international law’, while Rwandan President Paul Kagame had described the ICC as a ‘fraudulent institution’ reminiscent of ‘colonialism’ and ‘imperialism’ which was seeking to undermine and control Africa.²⁵ The ICC’s prosecution of the Kenyan President and Vice President provided a further justification for the African Union’s resistance to the ICC. The African Union has since requested the ICC to suspend the trials, held an extraordinary summit to discuss withdrawing support for the Court, threatened to withhold cooperation with the Court unless reforms are undertaken and accused the Court of being engaged in ‘some kind of race hunting’.²⁶ It is therefore possible that by choosing to prosecute two of Africa’s most high-profile politicians, the OTP may have made it more difficult to prosecute other suspects from the continent in future. Again, this is not to suggest that this should deter the OTP from prosecuting such persons. Rather, it is suggested this may be a potential shadow to which the OTP ought to give due consideration when deciding whether to implement its strategy of positive complementarity.

Despite the apparent lack of success at ending impunity in Kenya, Bensouda’s OTP remains committed to the strategy of positive complementarity. Bensouda has described the strategy as ‘a proactive policy of cooperation and consultation, aimed at promoting national proceedings and at positioning itself as a sword of Damocles, ready to intervene in the event of unwillingness or inability by national authorities’.²⁷ In its first policy paper published after Bensouda’s appointment as Prosecutor, the OTP affirmed its commitment to the strategy.²⁸ Given this commitment, it is important that lessons be learned in applying the situation in future situations. It is too easy, and almost certainly incorrect, for Moreno-Ocampo to suggest that the OTP did all that it could in Kenya and that any failure in the implementation of its strategy was because of a lack of local leadership.²⁹

So, what lessons can the OTP learn from its Kenyan experience? This study suggests that the most important lesson is that the strategy of positive complementarity may not be appropriate for all situations. The strategy is more likely to succeed where the target state has the present ability to investigate and prosecute suspects, the domestic criminal justice system commands public confidence, suspected perpetrators do not occupy positions of power and the target state considers international prosecutions to be imminent but not inevitable. Where some or all of these precursors for positive complementarity are lacking, the strategy of positive complementarity is less likely to succeed and it is possible that the target state may engage in a foreign affairs façade.

Instead of automatically implementing the strategy of positive complementarity when a situation is referred, the OTP should first consider whether the strategy is likely to be successful. Further, before adopting the strategy, the OTP should take into account whether intervention is likely to have shadow sides. Such considerations would require the OTP consulting persons who are intimately familiar with domestic politics, the history of the conflict, the applicable national law and any relevant cultural norms.³⁰ One option might be to diversify the OTP’s staff composition so that it includes not only legal experts, but also country experts and anthropologists, to assist in this decision-making process.³¹

The OTP’s laudable objective of ending impunity should remain its primary focus and the strategy of positive complementarity would still appear to be its best hope for realising this goal. It is essential, however, that the OTP critically evaluates its impact in situations to date so that mistakes are not repeated and it can enhance its ability to persuade future domestic governments. Further in-depth empirical studies are therefore necessary in the other situation countries in which the OTP has conducted preliminary examinations. By doing so, it is possible to improve the effectiveness of the strategy of positive complementarity and increase the likelihood of the OTP making a significant contribution to ending impunity.