Referring Kenya to the ICC Assembly of States Parties, Part 3: Implications for the Ongoing Kenya Cases at the ICC

This following is the third post in a three-part series in which Thomas Obel Hansen explores the recent referral of Kenya to the International Criminal Court’s Assembly of States Parties. The referral followed a finding by ICC Judges that the government of Kenya failed to cooperate in the case against President Uhuru Kenyatta. The previous two installations in this series can be found here and here.

Walter Barasa is among those charged by the ICC with interfering with witnesses in the case against Uhuru Kenyatta (Photo: Standard Media)

Walter Barasa is among those charged by the ICC with interfering with witnesses in the case against Uhuru Kenyatta (Photo: Standard Media)

Following the two previous posts on the recent decision of ICC judges to refer the Government of Kenya to the Assembly of State Parties (ASP) for its failure to comply with its obligations under the Rome Statute in the Kenyatta case, this final comment addresses the implications the decision may have for the ongoing cases involving witness corruption and obstruction of justice that have been brought in the Kenyan situation.

The second post in this series concluded that, other than re-opening the debate of what went wrong in the Kenyan ICC cases, the Trial Chamber’s referral of Kenya to the ASP is unlikely to result in Kenya being seriously sanctioned for its failure to comply with the ICC’s Rome Statute. Therefore, in by itself, the Court’s decision is unlikely to make Nairobi fundamentally change its policy towards the ICC. However, this conclusion may be subject to an important qualification, namely that Kenya will likely take seriously the referral’s potential impact on the cases relating to corruptly influencing ICC witnesses in the Kenyan situation. The cases, involving three Kenyan nationals, Walter Barasa, Paul Gicheru and Kipkoech Bett, are based on allegations that their crimes were part of a broader and systematic scheme aimed at bribing Prosecution witnesses to change or recant their testimony.

Kenyan officials have earlier indicated that they are not willing to hand over Barasa, Gicheru and Kipkoech to the ICC. In April this year, Kenya’s Attorney General, Githu Muigai, stated that it is the government’s “position that the charges against the three suspects are for crimes that fall within Kenya’s normal criminal justice jurisdiction and can thus be effectively prosecuted and adjudicated domestically.” Around the same time, President Kenyatta made similar comments, though in less explicit terms, noting: “We have our own courts, we will sort out our own issues. I don’t want to see any Kenyan going out there again, we are not going back there…that chapter is closed…”.

ICC spokesperson, Fadi El Abdallah, responded soon after that the Court “is aware of the news reporting an alleged statement by the President of Kenya declaring that Kenya will not cooperate with the ICC in the future with relation to the implementation of three pending arrest warrants for Mr Barasa, Mr Gicheru and Mr Bett.” He also noted that the Court had not received any official information from the Kenyan government indicating its intention to stop cooperating in these cases, but it had also not received any challenge to the admissibility of the cases, which would be necessary if Kenya was to “take over” prosecution of the three suspects.

Little information is available concerning measures taken by the ICC since then to facilitate handing these suspects over to the Court, although Chief Prosecutor Bensouda stated in a June 2016 interview that she continues “to urge the Kenyan authorities to surrender these individuals to the ICC for trial”.

It appears there has been an impasse on these cases for some time. The Trial Chamber’s 19 September decision may just change that. The decision concludes that the “ASP would be best placed to address the lack of cooperation, in order to provide an incentive for the Kenyan Government to cooperate with the Court, in relation both to the Revised Request and more generally”. The emphasized part of that sentence is significant, and should be read in light of para 35 of the decision:

While the Chamber’s [earlier] acknowledgement of the relevance of the requested materials was solely with regard to the already terminated case against Mr. Kenyatta, the Chamber has no reason to deny its relevance for any of the ongoing and/or future investigations in the Kenyan situation. Indeed, considering the relevance of the materials sought in the Revised Request to the case against Mr. Kenyatta, it is likely that such request would also be relevant for current or future investigation in the cases arising from the same situation. In any case, the Chamber finds that, in general, the lack of bona fide cooperation by the Government of a situation country, as shown by the Kenyan Government in this instance, may have a serious impact on the functioning of the Court in future proceedings. Therefore, notwithstanding the passage of time, and having regard to the nature of the non-cooperation at issue, the Chamber finds it appropriate for the lack of cooperation in this case to be further addressed.

Whereas no one really believes the GoK will provide the requested evidence relating to the Kenyatta case, the above hints that the main goal of the ASP referral is to facilitate cooperation in other cases, perhaps the Article 70 cases in particular. The dialogue with Kenya within the ASP framework that will follow the referral could, at least in principle, work to add pressure on Nairobi to cooperate with respect to the Article 70 cases.

The extent to which such pressure will actually be exercised, and if so whether Kenya will give in to such pressure, remains to be seen. The latter will depend on how seriously Kenya views these cases compared to a potential stand-off with the ASP. Although Barasa, Gicheru and Bett are “small fish”, one reason for the GoK’s unwillingness to surrender them to the ICC is likely that their prosecution could confirm the Prosecutor’s version of events, namely that interference with witnesses is a key reason for the collapse of the PEV cases. More importantly, public hearings in these cases could potentially point to the involvement of Kenyatta and Ruto’s aides in the alleged scheme of witness interference, though such allegations have not yet been specifically made by Court officials. As summarized here by one the legal representative of victims in the Kenyan cases, judges have however noted “a coordinated effort to bribe witnesses, in order to prevent them from appearing in court”; “the interference and political meddling” in the cases; and “the unseen hands that had engaged in witness interference, the obvious aim of which is to frustrate the trial of the accused”. If the Article 70 cases are taken forward, this could not only be an embarrassment to Nairobi, but could also lead to debate about whether new Article 70 cases should be brought against more senior government figures.

Whereas the ICC has already “lost” to Kenya in terms of ensuring accountability for the post-election violence, we are yet to see who will ultimately come out victorious in the new “battleground” created by the ASP referral. If nothing else, as I argued in the first post on the Trial Chamber’s decision, the ASP referral will generate new debate about what went wrong in the post-election violence cases, and as pointed to in this post, add a new dimension to Kenya’s cost-benefit analysis of cooperation in the Article 70 cases. The big question is whether such strategic thinking within the Court is helpful for international justice as a whole if, as I speculated in the second post, it comes at the price of clear and swift sanctioning of States that fail to cooperate with the Court.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Assembly of States Parties, Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Kenya, Kenya and the ICC and tagged , . Bookmark the permalink.

6 Responses to Referring Kenya to the ICC Assembly of States Parties, Part 3: Implications for the Ongoing Kenya Cases at the ICC

  1. Thanks, Thomas. Very interesting posts – I agree with most of your analysis and just wanted to share some brief thoughts on the last paragraph. The question is, as you say, whether these art. 70 cases are relevant enough for international justice. I honestly don’t know what to think about this. On the one hand, it seems unacceptable for people get away with witness interference. On the other, can the ICC really justify spending precious resources/time/energy on these cases? It seems especially problematic in the Kenya trials, where the main cases have already fallen apart and these art. 70 cases serve no larger purpose, i.e. they are not helping the ICC to fulfill its core mandate in any way. In Bemba one can argue that this was somehow part of the bigger picture, but here? Even if these guys end up in The Hague and get sentenced to five years – can this really change the narrative?

  2. obelhansen says:

    Patryk- I very much hear your sentiments and interesting topic for sure! My basic take on it is: Yes, accountability should in principle be pursued for people who bribe or in other ways interfere with ICC witnesses, but there is a big difference between prosecuting those responsible for CAH and other international crimes and prosecuting those who work to obstruct that by way of witness interference, etc. And I agree with you, going after the latter may be problematic in that it easily appears to be a “waste” of the Court’s limited resources, especially when, as in this case, all charges relating to core international crimes have been withdrawn. But if looking at it from where we are now and given the choices available to the Court at this stage, wouldn’t it have been problematic had the OTP simply “given up” on the Art 70 cases on the basis that pursuing them won’t help bring whoever was most responsible for the PEV to justice? Somehow, I therefore understand the thinking that (I suppose) is going on within the Court, that it, if nothing else, lets try to see if we can hold accountable those who allegedly obstructed the PEV cases, even if this may be primarily aimed at sending a message and gaining some ground on the “battlefield” (and I do think that if successfully prosecuted it could have some impact on the narrative of what happened in the Kenyan cases). I don’t think any supporters of international justice would like a situation where most of those prosecuted by the ICC are persons who obstruct the cases as opposed to those who actually commit international crimes. But as the PEV cases have already fallen apart, it seems to me the big question in this particular situation now is whether the institutinal interests of the Court might have been better served by doing everything possible to hold the Government to account for its failure to cooperate with the Court, rather than – as it appears – using the ASP referral to add pressure on the Government to cooperate with the Court on the Art 70 cases? As you noticed, I don’t have any clear answer to that (but I hope you read this post on the Art 70 cases in light of my earlier comment on the implications of these proceedings on the Court’s cooperation regime and my critique of the time it has taken for the Chambers to deal with this issue in the Kenyan cases.) Complex questions for sure, and would love to hear any other thoughts you and other readers of the blog have on the topic….

  3. el roam says:

    Thomas , the issue can and should be very complicated , as hell , yet :

    One should not forget , that this article ( 70 ) should be implied equally on the court staff , there is no way it can be avoided . In the following case , you can read on the request , and actually the response , of the prosecutor , for appointment of ” amicus prosecutor ” from the part of the defense , after suspicion raised , concerning offences against administration of justice . Here in the case of : Ruto and sung ( Kenya , rejected among others , since not during pending trial submitted ) :

    Click to access CR2016_03637.PDF

    And thanks again for that interesting series ….

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