Earlier this week, the Trial Chamber in the Kenyatta case at that ICC told the Prosecutor to either bring new evidence or drop the charges. I predicted without to much doubt that the charges would indeed be dropped. Just this morning, the OTP promptly confirmed this in a press release and in a notice of withdrawal filed with the Trial Chamber.
As I said, this was the only possible outcome, given that the Prosecutor herself had acknowledged that, as things stood, there was not enough evidence to prove the case beyond a reasonable doubt. I will not repeat here what I think are the consequences of this turn of events for Kenyatta, the Court and the OTP. I just want to add three extra points.
First of all, while the Prosecutor, on some level certainly needs to be commended for her honesty about the content of the case file and for withdrawing the charges, and while the general difficulty of investigating these situations without extensive state cooperation is without doubt a major obstacle for the ICC, it does seem to me that her press release is somewhat disingenuous. Indeed, while the Chamber did note that Kenya’s “failure [to cooperate] has reached the threshold of non-compliance required under the first part of Article 87(7) of the Statute” (§78), it ultimately considered that the OTP could have done more to ensure compliance and that the buck, as they say, stops with the Prosecutor, not states. There is no sense that the OTP acknowledges any failure on its part in the current process, which is at odds both with what the Trial Chamber has said in this case and more generally with what judges have been telling the OTP for years in other cases in relation to their investigation practices. Let’s hope this is just unsurprising damage-control PR rather than a real indication of denial at the OTP.
Second of all, the Prosecutor more generally lists a number of obstacles she faced in her investigations which raise some questions. One, I do not see exactly how “a steady and relentless stream of false media reports about the Kenya cases” impedes an investigation? As my colleague Jens Iverson just told me: is it because of the risk that the jury would be influenced?… Two, if the OTP’s allegations of “an unprecedented campaign on social media to expose the identity of protected witnesses in the Kenya cases” and “concerted and wide-ranging efforts to harass, intimidate and threaten individuals who would wish to be witnesses” are true, then why weren’t contempt proceedings initiated under Article 70? As noted in my previous post, this is exactly what the Chamber said about Kenyatta’s alleged impeding of the investigation: if you make the allegation, you need to back it up and initiate formal proceedings to that effect. If not, it’s just defamation…
Third of all, as I mentioned briefly yesterday, this decision does not, in my view trigger the ne bis in idem principle. As noted by the Trial Chamber, and picked up by the Prosecutor in her notice: “this withdrawal is without prejudice to the possibilty of bringing new charges against Mr Kenyatta “at a later date, based on the same or similar factual circumstances, should [the Prosecution] obtain suficient evidence to support such a course of action”” (§3). While this could be seen as unfair for the defendant who always has the Damoclès sword of possible prosecution against him over his head, it is the right conclusion in the context of the Rome Statute. Article 20 makes it quite clear that ne bis in idem is triggered when a person has been “convicted or acquitted”, which is definitely not the case here, as the trial has not even commenced yet (there is some debate as to when the “trial” begins, either when the Trial Chamber is designated or when the actual opening statements are made, but I think I convincingly proved here that it is the latter option that is the correct approach).
Whether this case is likely to ever restart, only time will tell. But it is difficult to actually say with certainty that it will not. Indeed, the political context in Kenya, which is one of the obstacles to the work of the Prosecutor today, could very well change in the future. Who knows if in the context of hypothetical future electoral problems, Kenyatta will not end up on the wrong side of power, with his opponents glad to help out the ICC? Let’s hope, if that happens, that the OTP will have acted on its promise to clean up its investigative practice… As I mentioned before, only when the ICC as a whole acts professionally and competently, will it gain credibility and legitimacy among the states it is trying to nudge forward in the prosecution of international crimes.