As readers are surely aware, it hasn’t been a good week for the International Criminal Court (ICC).
First, ICC indictee Uhuru Kenyatta won the Kenyan Presidential election while his running-mate and fellow indictee, William Ruto, is set to become Kenya’s next Vice President. But if the election of Kenyatta and Ruto weren’t enough, numerous commentators have now pointed to the possibility that the ICC contributed to their victory. For example, the widely respected scholar Mahmood Mamdani observes that:
“The ICC is the single factor with the most influence on this election. The ICC process has polarised politics in Kenya because the electoral process did not unfold on a level playing field. Led by individuals who stand charged before the ICC, one side in the electoral contest is, and so it can not contemplate defeat. The simple fact is that, if defeated, they would lose all.”
Writing in the New York Times, Michela Wrong came to a similar conclusion:
“Prosecutions are pending at the I.C.C. against the presidential candidate Uhuru Kenyatta and his running mate William Ruto for their alleged roles in a program of ethnic cleansing that traumatized Kenya’s Rift Valley after the 2007 elections. Yet those cases gave the two men’s Jubilee alliance a priceless fillip in last week’s general election.”
As observers recoiled from the reality that Kenya, a regional economic and diplomatic powerhouse, is set to join Sudan in having an ICC indictee as a sitting Head of State, ICC Chief Prosecutor Fatou Bensouda announced that she was dropping the charges against Francis Muthaura. A former civil servant, Muthaura was allied with Kenyatta and was indicted for his role in planning the 2007-08 post-election violence in Kenya. Kenyatta’s lawyers predictably responded to the charges against Muthaura being dropped by arguing that the charges against Kenyatta should likewise be discarded. For her part, Bensouda made clear that “this decision applies only to Mr Muthaura. It does not apply to any other case.”
At the same time, the international community hasn’t been particularly eager to lend its support to the ICC. On the contrary, it has failed to demand that Kenya cooperate with the ICC (which is at least part of the reason why the charges against Muthaura had to be dropped) or respond concretely to the reality that an ICC indictee will lead Kenya for the foreseeable future. In a thought-provoking post on the subject, David Bosco considers the likelihood of key ICC allies backing up the Court in the wake of Kenyatta’s victory:
The United States and some European states have warned that there would be “consequences” for the bilateral relationship if Kenyatta prevails. Those vague words suggest that the West might sever relations with a Kenyatta-led government, reduce aid, or curtail security cooperation. But if the ICC’s first decade has demonstrated anything, it is that powerful states — even those most supportive of the court — will rarely elevate international justice above their other interests. The most damaging result of having an ICC indictee elected president might be how little the world will care.
All in all, it was as rough a week as any in the ICC’s history. But there was one bright spot: the performance of ICC Prosecutor Fatou Bensouda.
It must have been incredibly difficult for Bensouda to admit that she could not proceed with her case against Muthaura, especially in the context of Kenyatta’s electoral victory. But her decision, and its timing, speaks volumes about her professionalism and character.
Importantly, this was a case that Bensouda inherited when she became Prosecutor. But she didn’t throw anyone under the bus. Instead, she took the high road and took responsibility over the case’s shortcomings and failures while pointing to the reality that the Kenyan government had been uncooperative in aiding the ICC’s investigations.
At the same time, the decision to drop the charges also bolsters the credibility of Bensouda’s claims that she puts the law above politics. A political analysis would surely have discouraged any announcement that the charges against Muthaura were to be dropped – at least in the wake of Kenyatta’s victory. However, as Bensouda stated, “While we are all aware of political developments in Kenya, these have no influence, at all, on the decisions that I make.”
There are few things more brave and courageous than admitting when you’re wrong. But that is exactly what Fatou Bensouda did – and she did so in the most difficult of circumstances. For that, she deserves our respect and praise.