Former ICC Prosecutor Condemns Kenyan Cases As Weak
A former chief prosecutor of the international
criminal court has condemned its cases against
Kenya's president and vice-president, warning that
the indictments could damage the fledgling
international justice system.
David Crane, the US lawyer who built the case
against Liberia's former president Charles Taylor,
said his successors at The Hague had ignored
political realities in pursuing the Kenyan
prosecution, which he said "could be the beginning
of a long slide into irrelevance for international
Uhuru Kenyatta, Kenya's president, is due to stand
trial next month at the ICC, the first time a sitting
head of state will have done so. Along with his
deputy, William Ruto, whose separate but related
trial has already begun, Kenyatta is accused of
masterminding the violence that killed at least
1,300 people in the wake of a disputed election at
the turn of 2007-08.
Last week the African Union passed a resolution
calling for immunity for all serving African heads of
"I would never have indicted or gotten involved in
justice for the Kenyan tragedy," said Crane, a
former chief prosecutor of the special court for
Sierra Leone, a precursor to the ICC. "It's placed
them in a situation where they are damned if they
do or damned if they don't."
The African Union has called on the Kenyan leaders
not to attend hearings at The Hague until the UN
security council, which oversees the ICC, has
responded to its recent demands.
France is working on a UN resolution that would
defer the Kenyan cases for 12 months, according to
a senior diplomat in the Kenyan capital, Nairobi.
Human rights groups have said giving in to AU
demands for immunity would set a terrible
precedent that would encourage heads of state to
trample constitutional term limits, cling to power
and rig elections. "It's become a lose-lose
situation," said Crane.
Crane said the cases he built during three years of
investigations in west Africa from 2002-05 had
taken into account local politics as well as the law.
"Politics is the bright red thread of modern
international law, a successful prosecution must
factor in the international stage."
After ad hoc tribunals dealt with the fallout from
civil wars in the Balkans and west Africa, as well as
the genocide in Rwanda, the ICC got a permanent
home in the Netherlands and issued its first arrest
warrants in 2005.
Under the Argentinian lawyer Luis Moreno-Ocampo,
the prosecutor's office pursued high-profile African
leaders, including Sudan's Omar al-Bashir – who
has ignored the warrant – and a number of alleged
warlords in the Democratic Republic of the Congo.
Crane said Moreno-Ocampo had a "political tin ear"
and had been overly ambitious in his indictments.
When Kenya came close to a civil war and as many
as 400,000 people lost their homes after a
contested election result in 2007, mediators
brokered a deal under which a national tribunal
was meant to be set up to try the guilty. The ICC
stepped in as a court of last resort when the
Kenyan parliament could not agree on a local
Moreno-Ocampo became a celebrity in Kenya, with
minibus taxis named after him, but his initial
popularity waned, and this was exacerbated by his
decision to name Kenyatta and Ruto, political rivals
whose supporters had fought during the violence,
among the indictees. The pair united in a "coalition
of the accused" and won elections this year in a
campaign that portrayed the ICC as a colonial
Moreno-Ocampo was replaced last year as chief
prosecutor by Gambia's Fatou Bensouda.
Crane said the ICC should have used the threat of
its intervention to nudge for reform rather than
launching prosecutions that the Kenyan elite would
"It's a question of some justice versus no justice,"
he said. "If it's perceived that Kenyatta and Ruto
have won then we're thrown back to the pre-Taylor
era in Africa."