On October 6, Prof. Meyer posted an article “Kenya’s dubious day in Court”, where he describes President Kenyatta’s case before the International Criminal Court as an “outright farce” and also the Court as a dispenser of “white man’s justice”. Meyer concludes that the “World needs an International Criminal Court, not just this one”. However, Meyer’s main points are not supported by the procedural history of the case and ignores its future impact for African domestic justice systems and for the international community.
In particular, Meyer’s analysis doesn’t mention the hundreds of thousands of African victims who died in the systematic attack during the Kenyan elections in January 2008. The violence left 1,200 people dead and displaced tens of thousands more, becoming the worst violence in Kenya since its independence. As a result, 233 persons have been granted the status of victims to participate in the Kenyatta trial. This is a remarkable result that the ICC has achieved and fits perfectly with Kenya’s historical relationship with the Court and its mandate. As Meyer states in his article, Kenya was a strong supporter of the Court and of its mandate to end impunity for perpetrators of the mot heinous crimes. The public opinion in Kenya will not forget the likelihood that their President was behind the widespread and systematic attack against the non-Kikuyu population.
First, Meyer underlines that the Court’s reputation has fallen due to the Prosecutorial decision to postpone first and then to suspend the beginning of the Trial. These factors, according to Meyer, will support the charge that “American and European neocolonialists are conspiring to bring the President and his Deputy down”. Instead, this decision respects and complies fully with a basic criminal law principle of fair trial contained in Art.64 of the Statute:” It is in the interest of both defendants and victims that the trial will be fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witness”.
Meyer argues that the ICC is serving the interest of “white people”. However, the Court is serving instead the interest of Kenyan victims putting an end to sitting Heads of States’ impunity. In fact, the legal representatives’ team clearly states that “it’s in the interest of the victims that the accused appear in person at the Court”. The Trial Chamber has ruled that “the Common Legal Representative may file responses to documents but must first demonstrate that the subject matter at issue is directly related to the interests of victims”.
In meetings between this Unit and victims in Kenya from late January 2013 until September 2014, the issue of the ‘presence’ by video link of the accused at trial has been overwhelmingly opposed. They are aware that persons accused of far less serious crimes than Mr Kenyatta are required to be physically present in the courtroom in Kenya”. Therefore, the Court is serving the interest of Kenyan people, not of anybody else.
Furthermore, if the Court was politicized as Meyers argues, then it would be difficult to understand why most of African situations have been brought to the Court by States referrals. Uganda, the Democratic Republic of the Congo, the Central African Republic and Mali – have referred situations occurring on their territories to the Court. In addition, the Security Council has referred the situation in Darfur, Sudan, and the situation in Libya – both non-States Parties. On 31 March 2010, Pre-Trial Chamber II granted the Prosecution authorization to open an investigation on her own initiative in the situation of Kenya. Therefore, the ICC’s Prosecutor has never tried to target Africa inappropriately for political reasons, nor ever has conspired against its citizens pushed by a neocolonialist idea.
The parallel drawn by Meyer between Uhuru Kenyatta’s trial and the 1952 trial of his father Jomo Kenyatta when Britain colonial authorities trumped up charges against him and created false witnesses is very anachronistic. It certainly does not apply to an independent and impartial trial whose only goal is to establish justice and to prosecute whoever was responsible for these most heinous crimes in Kenya.
The lack of evidence which caused the Prosecutor to adjourn the trial on 19 December 2013 and then the Trial Chamber to suspend it on 19 September 2014 only results from a lack of cooperation between the Government of Kenya and the Court. The Kenyan government has not complied with the outstanding cooperation request made on 8 April 2014. This circumstance shows the unique nature of the ICC: a Court of last resort on one hand and a catalyst for domestic implementation of International criminal law. If the Kenyan criminal system had been able to prosecute these crimes, then the ICC would not have had jurisdiction over any of its nationals.
Moreover, the ICC’s insistence that Kenyatta attend the status conference, as Meyer claims, is not an action of a “colonial star chamber, with the judges less concerned about administering justice than affirming the court’s own standing in the face of eroding support”. Instead, it is a clear example of the impartiality of the law, establishing that no one is above the law and enforcing the right of victims to justice.
Paraphrasing Meyer, “the World needs an international criminal court”, the ICC is it.
Written for AMICC by Miriam Morfino on 10/07/2014