Re: Snoop: The ambassador was appointed by the previous administration of recently retired President Kibaki. In January 2013 prior to the elections, parliament (the equivalent of the US congress) recommended the Ambassador’s removal from his post as matter of national interest: http://www.nation.co.ke/News/politics/MPs-want-Kenyan-envoy-to-UN-recalled-/-/1064/1661508/-/aydl5e/-/index.html Kenyatta’s government has only just concluded the appointment of the cabinet, next to be appointed will be the ambassadors and high commissioners, the foreign secretary having been appointed on May 20 – http://www.capitalfm.co.ke/news/2013/05/kenyas-foreign-secretary-sworn-into-office The Daily Nation of May 21 notes “Once the President has forwarded the names of the principal secretaries to Parliament, he will proceed to nominate ambassadors.” Contradictions between Presidents and Ambassadors are hardly new or unique to Kenya, US Assistant Secretary of State (a much higher position than an ambassador) Johnny Carson who interestingly ‘retired’ immediately after the Kenyan election warned Kenyans of consequences, http://www.voanews.com/content/us-official-says-kenya-elections-have-consequences/1599063.html this was after President Obama had given a message that it was up to the Kenyan people to elect leaders of their choice http://www.youtube.com/watch?v=fgmVLJXS2x4 Wikipedia does note: “He resigned in 2013 following some comments on the Kenyan elections that differed from Obama’s stance.” The fact that was this was a key reason for his resignation is underscored by this signed joint statement from the United States and Western ambassadors to Kenya further contradicting Carson’s comments: http://elections.nation.co.ke/Blogs/Kenyas-partners-working-to-support-polls/-/1632026/1698778/-/icvys1/-/index.html yet Carson resigned more than a month after his comments. The current UN ambassador has already been admonished by the immediate prior parliament, it is unnecessary for President Kenyatta to take additional action when the action he will take is already public knowledge and that will be the appointment to or reshuffling of diplomatic posts. So he will be no doubt be replaced but nonetheless he has been given the opportunity by the Security Council to expound on his letter.

When the UN ambassador is replaced, it is doubtful that the naysayers will stop at their pronouncement of guilt before trial at every turn and opportunity. Indeed does the definition of international justice change when the potential accused persons are westerners by origin?

Actions do speak louder than words and there is no indication or evidence that William Ruto or Uhuru Kenyatta have ceased to cooperate with the court but if a sham of a case exists alongside misconduct on the part of the prosecutor and there is credible evidence to show that it does, such matters should be freely discussed and not swept under the carpet. The ICC like any other institution founded and funded by members of the international community is not beyond reproach or accountability. Secondly the Government and People of Kenya are not indictees or on trial at the ICC. President Kenyatta is not Kenya, he represents over 40 million Kenyans, 40 million Kenyans have a right to address the assembly of nations and that is the UN ambassador’s position as explained in his Op-Ed, right, wrong or unconvincing: http://www.nation.co.ke/oped/Opinion/ICC-cases-against-Kenya-leadership-should-be-dropped/-/440808/1858012/-/ii85p7/-/index.html

Moving on to Alexander, its noteworthy in the post above that there has been no mention of the Government’s filings and complaints to the ICC prior to Bensouda’s latest side show. The Prosecutor’s word is not gospel, neither it is final, it will be up to the court to adjudicate. Notably the Government of Kenya as mentioned previously is not an indictee, has not been an indictee and is not on trial. If the OTP indeed has proof that the indictees have tampered with the witnesses why have they not immediately applied for arrest warrants? The witnesses have been dropping off the cases and others have gone public with their recantations. Others have reported being harassed by ICC officials. Anyone who has read the former witnesses confessions and recantations can quickly see that the witnesses admit to having been coached, paid, and promised a better life in nations with higher standards of living. An article 87 (7) application will no doubt wind up at the security council where the Government has already been already been given an opportunity to expound on its letter which will no doubt touch on the OTP’s conduct. One way or another the Government will be heard by the security council. The prosecutor took her complaints about the government to the court of public opinion, the government responded with a complaint to the ICC president and to the court: http://www.the-star.co.ke/news/article-116158/kenya-files-complaint-bensouda http://www.icc-cpi.int/iccdocs/doc/doc1577522.pdf

As for the snowballs chance in hell, its not only about the one sided view that the security council will fail to take action. To understand other possibilities regarding the thrust of this approach, one needs to consider that the security council is being given the opportunity to address the issue of the Kenya cases, it is essentially setting a political stage. The outcome as predicted will unlikely to be no change in the status quo, but it may set the impetus for a series of actions that have political and credibility consequences for the ICC. One only needs to look at all the ICC situations and cases to understand that they virtually all involve African nations: http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx

Other circumstances connected to the security council request include among others 1) A request has been made to have the cases heard in Arusha, Tanzania: http://www.standardmedia.co.ke/?articleID=2000076471 2) An International Court to handle cases in Africa is already set up in Arusha and there is a general consensus amongst African countries that the cases should be moved there http://www.eac.int/index.php?option=com_content&view=article&id=989:transfer-icc-case-to-the-eacj&catid=146:press-releases&Itemid=194 http://www.standardmedia.co.ke/?articleID=2000061185 http://www.coalitionfortheicc.org/documents/Letter_on_African_Court_May_2012_FINAL.pdf 3) A mass withdrawal of African states from the ICC is a card still in hand (it is not the first time this has been brandished) and the possibility is indeed real if an organization such as Human Rights Watch is writing about it: http://www.hrw.org/news/2013/05/13/african-union-don-t-let-them

On the withdrawing witnesses, the recantations tell a tale that implicates the prosecutor and other third parties on the same, the prosecutor is yet to demonstrate proof of bribery, the below if true would be damning for the OTPs credibility: http://www.gileshumphry.com/politics/kenya/william+rono's+evidence
http://www.gileshumphry.com/politics/kenya/the+framing+of+william+samoei+ruto%3A+how+martha+karua+made+an+ass+out+of+international+law
http://www.gileshumphry.com/politics/kenya/john+busii%27s+evidence/
http://www.scribd.com/doc/131962650/Main-Statement-by-WITNESS-Number-8
http://marsgroupkenya.org/pdfs/2013/03/Kimeli%20Kosgei%20affidavits%20&%20correspondence%20-%20disavowal%20of%20testimony%20to%20ICC%201%20-%20Feb-March%202013.pdf
http://www.standardmedia.co.ke/?articleID=2000083332&story_title=another-icc-witness-against-ruto-steps-down
http://www.capitalfm.co.ke/news/2013/03/icc-witness-who-recanted-ruto-evidence-speaks-out

Other issues afflicting the cases minus the legalese involved i.e. lay persons perspective:
- Indirect co-perpetration as a theory under the Rome statute was rejected per the Ngudjolo Chui Acquittal
- The Kenya cases are founded on indirect co-perpetration
- All would be state actors or enablers are no longer part of the case (Muthaura – Former Secretary to the Cabinet, Ali – Former Commissioner of Police)
- 50% of those charged in the Kenya cases 3/6 have had their charges dropped

Uhuru’s plan seems to be that he will continue to mumble about “cooperation” while his minions attack the court. Just what this is actually expected to achieve at the ICC is not clear. Much of this may be targeted at the Kenyan people, by way of preparing them for the non-cooperation with the ICC. That too is misguided business.

All in all, I don’t see any of this really achieving anything, and, Mark has indicated above, it just makes Uhuru look desperate and foolish. No doubt he is desperate, and desperation can lead to foolish actions.

Mark: That was a very nice write-up. I look forward to reading more from you.

Whereas financial constraints are clearly a huge challenge for outreach (which is defined as aimed at affected communities, not scholars, etc.) it’s not so clear that this is the same for the web site (except maybe when it comes to the issue of having the capacity to support streaming video on busy days). A lot of time and money was invested in the web site (this is version 2.0), but it’s difficult to assess exactly how much of the constraint is financial for two reasons: 1. the ICC budgeting process is annual making it harder to assess multi-year costs like developing a web site. 2. many of the costs may be distributed throughout the Court (PIDS, ICT, CMS, etc.) making it hard to get a project cost. The recent report of the CBF indicates PIDS submitted a Zero Based Budget which partly addresses issue 1 (Hopefully this will be made public as the lack of publicity of CBF documents is another concern). The CBF has also been working on issue 2 but this is at an early stage. For the latest on both, see paras 39-45 of the new CBF report.

That said, I would venture that some of the basic problems with the web site are more related to issues of management (both process and culture) than finance. 2 illustrations: First, there is a clear duplication between the ICC Court Records and the OTP Legal Tools project. The Legal Tools project has a much handier search capability, showing what could be done, than the web-based Court records (although something similar exists internally), but the OTP Legal Tools project as an externally-managed project which requires the documents to come from the Court is even less up-to-date. Second, when you look at the menu on the web site, the first choice after “About the Court” is “Structure of the Court” (and then if you look at the bottom of the web site you see something similar with boxes for OTP and Registry). This reflects an unfortunate institutionalist and territorial way of thinking about the Court which pervades the web site (and many other aspects of the Court’s functioning). Getting the Court to view its communications from the viewpoint of the target audience rather than from the institutional roles and functions of its components is necessary before the web site can be made effective.

It’s easier to spot these sorts of problems of course than to fix them. Technically, the solutions are easy (and some such as putting the documents up earlier should be fixed quickly), but effecting the necessary changes in management processes and culture are much more difficult. Strong leadership will be key. The new Registrar has big challenges facing him. Hopefully he will be able to rally the necessary support within the Registry and from the other organs.