FRIDAY JUNE 17 2016
International Criminal Court Prosecutor Fatou Bensouda. She says court will not shy away from duty of prosecuting crimes in Kenya. FILE PHOTO | NATION MEDIA GROUP.
The International Criminal Court is closely watching Kenya and will not hesitate to pounce if crimes are committed in the run-up or after the next election, its Chief Prosecutor Fatou Bensouda has warned.
Speaking for the first time since the last of the Kenya crimes against humanity cases at the ICC collapsed in April, Ms Bensouda said the court had learnt important lessons and would seek to do things differently.
She said just because the Prosecutor had “a bad experience” in Kenya, the court will not turn the other way in case of new crimes against humanity.
“I am not praying for bad things to happen, but if ICC crimes are committed, and Kenya does not attempt to try those cases, the court will do its duty and discharge its obligation under the Rome Statute,” she said.
The warning comes against the backdrop of heightened political tension in the country, a situation which many fear, if unchecked, could be the precursor of another episode of election-related violence.
Some 1,133 Kenyans were killed and another 500,000 others displaced after the disputed 2007 election. The 2013 contest was peaceful largely because of what observers termed as the deterrent factor of the ICC cases which at the time were facing Uhuru Kenyatta, William Ruto, Francis Muthaura and Joshua arap Sang.
The court set out to make Kenya a world example on how to manage violence but instead ended up taking lessons on how not to investigate or prosecute a case.
The Office of the Prosecutor is now working to be as trial-ready as possible before starting cases, looking for alternative forms of evidence instead of relying entirely on witnesses, and starting prosecution of mid-level perpetrators before moving up higher the chain.
For now Ms Bensouda has decided to lay off any fresh investigations into Kenya’s post-election violence because the problems around witness interference and politicisation are not going away soon.
Ms Bensouda’s interview was granted ahead of the 20th ICC roundtable meeting with NGOs at The Hague meant to review lessons learnt in the past year.
Excerpts:
Q: All the Kenya cases at the ICC have collapsed. What do you think went wrong?
I don’t think you can point to a particular thing. It is a host of reasons. Some of them were within the control of the ICC, but overwhelmingly, it was outside of the control of the Office [of the Prosecutor] and of the ICC. By this, I am directly talking about the high level of witness interference and witness intimidation. Over half of the witnesses in the Ruto case, for example, have withdrawn or recanted their testimony. These are witnesses who had assisted the office to get these cases to confirmation stage, and the charges were confirmed against the accused persons.
Over time, as we got into trial, a lot of the witnesses recanted, some of them were dissuaded from coming. As the case evolved the evidence became eroded, and it was very difficult for the prosecution to sustain the case.
These are some of the things that were beyond the control of the office. We tried to do what we could to help the situation in any way that we could, including the attempt at [using] Rule 68, including getting the judges to decide that [parties] can call their witnesses to testify even after they have decided not to be part of the case any more. These are some of the things we tried to do to get the case to stay on track.
Q: You did say that getting the Ruto trial to start was a miracle. What had you gone through as the prosecution to make you say that; what were your experiences?
It was mainly the high level of witness interference that made me to make those remarks. This case, by its very nature, was highly reliant on witness information to get to a level where we could present the evidence before the judges. The level of interference with those witnesses was such that it started before; it was maintained throughout the cases; and even after.
My office was trying to find various ways to protect and preserve the evidence and bring it before the judges. This was a huge challenge, including their own protection as well as that of most of their families.
We were having to protect witnesses even against their own communities; it became very complicated in the end. Not only were the witnesses pulled away from the case, but there were even attempts at interfering with their family members. The way the protection system of the ICC is set up is mainly to protect against a group of people that will interfere with the witnesses, but if you are going to protect witnesses against the whole community they come from, that is quite a challenge.
Q: Looking back, do you think the ICC’s witness protection mechanisms were adequate?
I would say it is adequate but this is not to be taken out of context. All of a sudden, we found ourselves in a position where protecting a particular individual or preserving a particular type of evidence means that you do not just protect the individual but have to protect the whole extended system.
Some come to a programme saying you protect me but also 15 other members of my family. Even where we managed to relocate witnesses outside Kenya, the possibility of getting to those witnesses through the family members was very high because they knew. It is just the nature of how we live, this extended family system. It is not nucleus that someone can go missing and nobody says anything.
Having to deal with that massive number of people and also the intricate work one has to do towards preserving and protecting the witnesses is really something very daunting for the court, I must say. Perhaps it is not the system that was envisaged to be able to fully protect, instead of one person or two persons, within the same context, protect between 15 or 20 people.
Q: You have claimed that 17 witnesses withdrew from the Ruto case and others were killed or bribed in the (Uhuru) Kenyatta case. What do you plan to do about that?
You see, we have already tried to do something about it. The issue of witness interference and tampering was a huge concern for me, for the case and for the Office. This started before the case, it went on throughout, and even afterwards, resulting in what we see today. During the course of the case, I had managed – with respect to three Kenyans the judges agreed were engaged in a plan and a scheme to interfere with the witnesses to bribe them –we tried to bring cases against them: (Walter) Barasa, (Paul) Gicheru and (Philip) Bett.
The judges made a determination and individual arrest warrants issued to say they were involved. As we have seen, again, until now, nothing has been done to arrest and surrender them to the ICC for them to be tried. At the time a decision was made to apply for the arrest warrants to issue, it was because interference with the witnesses had become critical to the success of the case.
One should not have the feeling that you just commit these acts and you get away with it, nothing happens to you. This is what we see in the Statute … to send the message that one cannot continue to interfere with these witnesses and nothing happens. Until now, the surrender of those persons has still not been done. I continue to urge the Kenyan authorities to surrender these individuals to the ICC for trial.
Q: Two years have elapsed since the Barasa warrant of arrest was issued and a year since the ones for Gicheru and Bett were released. The Attorney General says these crimes should be tried in Kenya. Do you think they will be surrendered or are you going to hand over the case to Kenya?
We continue to ask them… I do not know how in the first instance they did not try the cases themselves; why they had to wait for my office to do the investigations and then ask for them… In any event, these are matters that are before the court. These are matters that my Office has requested for these individuals surrendered to the court. The right thing, the legal thing that the Government of Kenya can do is to have these people arrested and surrendered to the court for trial.
Q: Defence lawyers have accused the prosecution of bribing witnesses. What incentives does the Prosecution or the Court offer to people coming forward to testify?
I think in the first instance, it has to be clear there is nothing personal for these cases for the court – whether it is for the office of the prosecutor or the judges. We have been mandated to try these cases when our jurisdiction allows us to do so. Firstly, there is no incentive for the Office of the Prosecutor to be desperately looking for witnesses to the extent that we offer them anything abnormal. By abnormal, I mean beyond the cost of transporting them from one place to another to meet with investigators.
There is no other kind of payment. Logistical payments can be made to facilitate the witness to be in a position to speak to the investigators. That is what we have in our budget. Anything outside it, we do not have it. The budget is closely linked to the operations of our core business.
We have no money to bribe witnesses. Giving them money to serve as incentives does not happen at all. When we meet witnesses and we need to talk to them, we look for how that can happen. It can include moving a witness from one place to another, for example. But this accusation that OTP is giving witnesses incentives to talk to them is just a false accusation; it does not happen.
Q: Did the promise of relocation encourage people to lie to investigators?
We do have an obligation to protect people when we speak to them. We cannot expose witnesses and then leave them on their own, especially after we have interacted with them. The obligation to protect them arises, especially in the case of the Prosecutor, once we interact with them. There is a section in the Registry that deals with the protection of a witness. A whole assessment is made with respect to what type of protection a witness should be given.
It does not always mean that we need to relocate the witness. There are simple steps we can take to ensure the witness is protected.
This idea of relocating the witness is one of the last things we will think about. Relocation is not easy for the person or the family … may be the breadwinner or a very important person is relocated to a different country. It is not that we will offer this relocation to everybody. It depends on the assessment made, it depends on the security concerns that have been raised – which are not just objective but real… all that assessment is made before any decision is made to say a person needs to be relocated.
It is not the only thing that the Court will offer. The court should not be accused of using that to incentivise people to talk to my Office.
Q: Your predecessor provided judges with a list of 20 names he was interested in, which was whittled down to six, then four and then two. What happened to the rest?
Those were not the persons against whom we wanted summons to appear to issue against. Maybe in the grand scheme of things, they are there in the Pre-Trial Brief. And that was perhaps to show the connection between and how the crimes eventually got to be committed, maybe their participation of lack of. The request was originally against six individuals and not more.
Q: With the benefit of hindsight, did the OTP make a mistake in charging the (Ocampo) six?
I do not think so. When we go before the judges, we collect the evidence, we preserve the evidence, we compile the evidence and present it to the judges. Once you appear before the judges, the threshold is relatively high. When you are looking for a summons to appear or warrant of arrest, you have to convince the judges that those warrants have to be issued against these individuals for these very serious crimes.
It is not a small thing. When you go for the confirmation of those charges, you have to convince the judges that the evidence is enough for you to call this case to come to trial. When you go to trial, the threshold is much higher – you have to prove that beyond reasonable doubt …that the crimes I am accusing this individual of have been committed beyond reasonable doubt. The threshold is really very high.
I have already spoken about the evolution of the evidence and what happened in between. You cannot discount that because it has played a big part in the way the cases ended the way that they did through recantation and this politicisation. It has played a big part in the way the cases ended. The judges in the Ruto-Sang trial have vindicated the Office.
It is interesting that the cases are no longer there because Mr Ruto and Mr Sang have been discharged. But if you look at the case and the way they ended, I believe the judges of the ICC are sending a very important message: That message is this - Ideally, the defence would have wanted a complete acquittal and discharge, which they asked for.
The judges, on the other hand, are saying: ‘We are not going to reward you for this high level of meddling with the witnesses … and politicising this process to the extent that the evidence is destroyed and the case is completely undermined.
By acquitting and discharging, we would be rewarding you. We will declare the case a mistrial, but we will declare the case a mistrial because of the peculiar circumstances of the case’. This is a strong message the judges are sending: that you cannot do that and be rewarded with an acquittal and discharge. This is a very important message that the judges have sent.
Q: Did you charge the wrong people in the Kenya situation?
It is always the case. For the ICC, every step that we take, every legal decision that we make is always made to look like a political decision. If you are to go before the judges of the ICC, you cannot go based on any other reason apart from your evidence and the law. If you present to judges any case, you have to back that case with the evidence in your possession.
This is exactly what we did in the situation in Kenya. It was after a careful assessment of the evidence that we collected that we made the determination that we had reached a threshold to ask for summons to be issued. We presented these cases, and the judges issued the summonses for persons against whom evidence was presented.
When his matter proceeded to confirmation of charges, based on the evidence presented, the judges determined these particular individuals should stand trial. It is not a case of the prosecutor acting alone and charging people. Our evidence is always presented to the judges, and the judges make a determination. We need to allow the judicial process to take its course.
Q: Why did you not appeal the decision by Trial Chamber V(a) to discharge Ruto and Sang?
This was after a very careful assessment of the decision, taking into consideration, the victims; taking into consideration also the prospects of a conviction at trial. The assessment we made was that at this stage, the prospects of going forward with the case were very slim; the prospects were very slim, with all the challenges the case was confronted with, we made a decision that we shall not appeal this decision.
Also, as you know, appealing is not the only way to bring the case back -- with the judges deciding that the case is discharged without prejudice to the innocence of the accused, but also with the prosecution to come back with the case in a different form or in a different way.
Q: In all the cases, the judges have handed the prosecution an open cheque to reopen investigations. How realistic is possibility of reopening these cases?
You cannot discount the level of challenges and difficulties that has been put in the way of the prosecution to continue with the investigation and to bring the evidence before the judges.
Under the circumstances, it would be extremely difficult for the Office to continue with these investigations and most likely come up with the results that we want. The issue of witness interference and politicising this case it is not going to go away. It would be very difficult to continue with investigations under the circumstances.
Of course, that does not mean that we do not remain firmly committed to international justice. But we have to be realistic the circumstances will allow themselves in the future for this to happen.
Q: There are people who feel that the Office of the Prosecutor is too powerful, and is being challenged by Sudan and Kenya, among other states. Where do you see that going?
I hope it goes nowhere. What we try to achieve, as the Office of the Prosecutor that is independent and is able to take decisions -- is perhaps charging very powerful people, people who are in positions of influence, people who normally would not be charged by their domestic jurisdictions because of their influence and power. That is the kind of the Office of the Prosecutor that was envisaged by the Rome Statute. The independence of that office is crucial.
It cannot be instrumentalised to go this way or that way … At the same time, the system that has been put in place has checks and balances … The prosecutor cannot go around charging people because the prosecutor has the power. You go before the judges to ask for an arrest warrant … the judges will issue that arrest warrant after looking at my evidence and saying that this is sufficient. Also in the confirmation of charges, the prosecutor’s power is under check by three independent judges. If you look at the powers of the prosecutor… even the proprio motu power, that people fear so much, that if the prosecutor does not have a request from the state itself or a referral, even that power in the Kenya case, before the prosecutor moved to request summons to appear, he had to go to the judges to request to open investigation in Kenya and to issue summons to appear for individuals identified.
If you look at the system, the checks and balances are already there. What is being requested is to have the powers of the prosecutor reduced and to have immunity for heads of state; to make ICC subsidiary to some regional bodies … These are the reasons that were well debated before it got to the position of the establishment of the court. All the ideas that have been put in place after years of debate will be completely eroded. A toothless court is all they want.
Q: The ICC is leaving Kenya with a bloodied nose and is being harassed all over the African continent. Do you regret its involvement in the Kenya cases?
Not one bit. I believe that the role the ICC was set up to do by the international community, was when these crimes happen on the territory of a State Party, if Kenya is not investigating and prosecuting these cases themselves, the ICC should be able to come in and prosecute as a court of last resort. This is what happened. I believe that it was the responsibility of the Office. The Office has tried to achieve this, to bring accountability and justice.
Several obstacles were thrown in the way of the court. We were confronted with several challenges in trying to bring justice and accountability for the case. So far the victims have been denied justice for now, but that does not mean that the ICC should just go into a corner and ignore when these crimes are taking place.
That is not why we were set up. If the occasion will present itself again, and all the conditions meet – and I am not praying for bad things to happen -- but if we see that ICC crimes have been committed, and if we see that Kenya is not going to attempt to try these cases we will do our duty and our obligation under the Statute.
Many people talk about a bloodied nose for the ICC, but the bloodied nose is the further beating the victims have received in this case by denying them justice. We have several other cases we are working on. Some are going very well, some we have challenges with… The victims of these crimes do not have justice. For me, this is where the regret is. We are a court, we continue. For us, we are doing our work. There are victims in Kenya who have not had justice, and in all this debate, we have very few people who talk about that these are the people who have lost out.
Q: Looking back at the Kenya cases, would you have done anything differently?
We have learnt some lessons from the Kenya cases. We were all the time dealing with the cases on individual criminal responsibility; unfortunately, the reaction we were getting was that the ICC was against the Kenyan people, Kenyan communities or Kenya as a country. Because of that, there was a fight-back and pushback seen in interfering with witnesses and politicising the cases. We have learnt some lessons from there. These are things that we are implementing. Down the road, we are looking to a broader and deeper lessons learnt exercise for the Kenya situation.
The idea of being as trial-ready as possible before we approach the judicial process, how to deal with witnesses in that regard, looking for alternative forms of evidence where we can find them. Starting mid-level and moving up higher the chain for notorious perpetrators. These are things we have put in mind, these are lessons that we learnt, in order to do things differently where we can.
Q: Kenya is heading into another General Election in 2017 and there are fears of violence. Would the ICC be interested in another investigation?
Until now, Kenya is a State Party to the Rome Statute. As an Office of the Prosecutor, our mandate remains the same. We cannot ignore if crimes that fall within the jurisdiction of the court happen or we assess that it is about to happen. We will not.
We cannot say because we had a bad experience in Kenya we will turn the other away; we will not. We will continue to monitor the situation in Kenya just like in any other State Party to the Rome Statute.
If it requires again for the ICC to intervene, we will not hesitate to do that. We all have learnt our lessons. We have seen the difficulties we have been confronted with; we have learnt lessons from there and we are already trying to do things differently.
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