• There is a lot of rhetoric around doing justice for victims, but it’s painfully unclear what it actually means in practice.
• Justice from the ICC is a last resort for victims. Their first recourse remains with government, which unfortunately in Kenya situation; victims were abandoned abandoned while impunity prevailed.
The Kenya situation cases at the International Criminal Court were inconclusive. There was no outright verdict are there was neither conviction nor acquittal.
Kenya cooperation with court also remains an unresolved matter. The case against the Ocampo Six, among them Uhuru Kenyatta and William Ruto collapsed due to insufficient evidence. Case can be revived with further sufficient evidence. The Ruto and Joshua Sang case was vacated and can only resume from the start.
The independent panel reviewing ICC systems strongly criticised this status and made finding that withdrawing the charges while still dangling a re-charge was contrary to usual consequence that a case should be terminated, if an accused person has no case to answer or when the prosecutor withdraws the charges. Kenya situation cases wrote a manual on how to frustrate justice at the ICC and ensure impunity for those in power.
ICC Prosecutor Fatou Bensouda's response stated that her office faced “severe challenges” investigating the crimes in Kenya, which is putting it mildly. The reality is witnesses died, were too terrified to testify, or radically changed their accounts. The Kenyan government also refused to hand over key records. She added, “Those who have sought to obstruct the path of justice have, for now, deprived the people of Kenya of the accountability they deserve.”
The victims’ legal representative, Fergal Gaynor, said the biggest losers of the Kenyan cases were the victims, of whom “thousands still live in abject poverty, uncompensated for the destruction of their homes and their families. They have received almost nothing from the entire ICC process”.
International Criminal Court’s Pre-Trial Chamber II issued two arrest warrants in connection with bribery allegations involving three Kenyans and eight prosecution witnesses. Lawyer Paul Gicheru is alleged to have tampered with six prosecution witnesses.
On September 10, 2015, Pre-Trial Chamber II made public a redacted version of a second arrest warrant for witness tampering in Kenya. Judge Ekaterina Trendafilova made the decision to issue the warrant against Gicheru and Philip Bett in March 2015.
After the Kenyan authorities arrested Gicheru and Bett on July 30, 2015, Pre-Trial Chamber II decided to make redacted versions of the warrant and related decision public. The chamber determined there was no longer any reason to keep the warrant under seal.
The chamber issued its first arrest warrant on August 2, 2013 against former Kenyan journalist Walter Barasa in connection with bribery allegations involving three prosecution witnesses. The Kenyan High Court validated the arrest warrant, but Barasa has challenged it and the matter is currently before the Court of Appeal.
The March 10 decision and warrant do not specify which ICC trial the six witnesses were involved in. However, five of the pseudonyms used for them in the arrest warrant match those of five witnesses who have already testified before Trial Chamber V(a) in the trial of Ruto and journalist Sang. This suggests that they may be witnesses in that trial. Given the context of these trials, this post assumes the witnesses involved were witnesses in the Ruto and Sang trial.
The allegations against Gicheru and Bett fall under Article 70 of the ICC’s Rome Statute. This article covers offences against the administration of justice, which are distinct from the crimes against humanity and war crimes that are also covered by the Rome Statute.
The prosecution alleges that Gicheru and Bett paid or offered each of the six prosecution witnesses between Sh500,000s (at current exchange rates, $4,734) and Sh5 million ($47,344) to withdraw as witnesses. The warrant charges Gicheru with six counts of bribing or attempting to bribe a witness, and charges Bett with four counts of the same.
According to the arrest warrant, the witnesses Gicheru and Bett are alleged to have interfered with are Witness 397, Witness 495, Witness 516, Witness 536, Witness 613, and Witness 800. Five of them appear to have testified in the trial of Ruto and Sang, with Witness 397 being the only one not to testify.
Justice for victims and an end to impunity for international crimes was what the International Criminal Court was established to achieve. While the court has over 10 years of experience, it seems the prospects of justice for victims have not really improved.
There is a lot of rhetoric around doing justice for victims, but it’s painfully unclear what it actually means in practice. The Rome Statute of the ICC permits victims to participate in proceedings, testify, present evidence, avail of protection measures, and claim reparations.
The right of victims to participate in the proceedings of the ICC is the primary right granted by the Statute and its basis is found in article 68 (3). The rights of victims can be classified into three main categories: (1) the right to participation, (2) the right to protection and (3) the right to reparations.
From these rights, which we shall call “primary”, are derived “subsidiary” rights, which will be explained in the sections ahead. Nevertheless, as we have already seen, these rights are not absolute, since to assure a fair and impartial trial in which the legal rights and guarantees of the accused are respected, the Court is vested with the authority to decide how the rights of victims can be best exercised — in a way that does nothing to jeopardise a fair and impartial trial.
In other words, the exercise of these rights is conditional on the decisions of the judges, who in each case will need to ensure on the one hand that the trial is fair and impartial and on the other that the rights of the victims are exercised.
It is vital to recognise the obligation of the Court to strike this necessary balance between the rights of the accused and the rights of the victims. The Court should, therefore, permit and facilitate the exercise of victims’ rights in an effective manner or justify why restrictions have been placed on the exercise of these rights.
That means the vast majority of victims of international crimes are left to rely on domestic justice for redress. But victim-orientated complementarity would demand that states develop domestic access to justice for those most affected by international crimes. States should also ensure victims can participate and avail of protection measures in proceedings, as well as to allow them to claim reparations.
The sad fact is that many countries under investigation before the ICC, such as Uganda, the DRC and Kenya, simply have not developed comprehensive justice for victims to complement the ICC.
Justice from the ICC is a last resort for victims. Their first recourse remains with government, which unfortunately in Kenya situation; victims were abandoned abandoned while impunity prevailed.
Writer is the executive director, International Center for Policy and Conflict @NdunguWinaina