US prosecutor condemns Hague trials of Kenyan leaders
David Crane says international criminal court prosecutors have ignored political realities and created a lose-lose situation
David Crane, the former chief prosecutor of the special court for Sierra Leone. Photograph: Ben Curtis/AFP/Getty Images
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 law".
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 state.
"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 westAfrica 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 alternative.
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 throwback.
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 never support.
"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."
NAIROBI - African leaders have been accused of putting roadblocks on the International Criminal Court’s path to justice for victims of Kenya’s Post election summit.
Human Rights activist in Nairobi, reacting to a weekend meeting that termed the court as imperialist and racist, says the demand for immunity for sitting Heads of State would lead to impunity across the continent.
The weekend summit argued that sitting Heads of State should not be tried. The African Union leaders warned that if Kenyan President Uhuru Kenyatta’s case, due to start in November, is not postponed they would support his no show at the Hague-based court.
Ethiopia’s Prime Minister HaileMariam Desalgen says, "To safeguard the constitutional order, stability and integrity of member states, we have resolved that no serving AU Head of State or government acting or entitled to act in such capacity shall be required to appear before any international court or tribunal during his term of office. If our request for referral does not get a response, until then, we have agreed to request postponement of the trial."
Human Rights lawyers, however, say there is no immunity for crimes against humanity.
Human Rights Lawyer Njonjo Mue says, "What and who is the ICC not about? Even if the UN Security Council would exercise its mandate to defer the cases by a year, they will not do so because sitting Heads of States should not be prosecuted. They can only do so where continuing of the cases will be a threat to international peace and security."
The weekend summit argued that sitting Heads of State should not be tried. The African Union leaders warned that if Kenyan President Uhuru Kenyatta’s case, due to start in November, is not postponed they would support his no show at the Hague-based court.
Ethiopia’s Prime Minister HaileMariam Desalgen says, "To safeguard the constitutional order, stability and integrity of member states, we have resolved that no serving AU Head of State or government acting or entitled to act in such capacity shall be required to appear before any international court or tribunal during his term of office. If our request for referral does not get a response, until then, we have agreed to request postponement of the trial."
Human Rights lawyers, however, say there is no immunity for crimes against humanity.
Human Rights Lawyer Njonjo Mue says, "What and who is the ICC not about? Even if the UN Security Council would exercise its mandate to defer the cases by a year, they will not do so because sitting Heads of States should not be prosecuted. They can only do so where continuing of the cases will be a threat to international peace and security."
You’ll always have people who are given a little money to go harass their neighbours, to go and kill and harass their neighbours for political purposes
During the summit, Kenyatta scoffed at the court. He said it had failed in its bid to secure justice. He told African leaders that the court was a tool for bias and race hunting.
Kenyatta, his deputy William Ruto, as well as radio journalist Joshua Sang are facing crimes against humanity charges at the Hague over the 2007 Post Election Violence.
In Kenya, the Director of Public reported that by March 2011, 94 Post Election Violence related cases had been convicted. That, Human Rights lawyers say falls short.
Mue says, "When crimes of international nature have happened, you do not look at the foot soldiers who raped; who burnt the house and so on - you look at who gave the orders to do so, because these crimes were committed for political purposes and you can go and jail all the foot soldiers if you do not deal with the warlords and the masterminds. Then what happens is you are going to have more fodder next time particularly in a country that has so much unemployment. You’ll always have people who are given a little money to go harass their neighbours, to go and kill and harass their neighbours for political purposes."
Kenyatta and Ruto were voted on a platform of national reconciliation this year. They argue that the cases are against Kenya’s sovereignty. They also argue that attending court for their trials is and will hinder them from running the country.
Kenyatta, his deputy William Ruto, as well as radio journalist Joshua Sang are facing crimes against humanity charges at the Hague over the 2007 Post Election Violence.
In Kenya, the Director of Public reported that by March 2011, 94 Post Election Violence related cases had been convicted. That, Human Rights lawyers say falls short.
Mue says, "When crimes of international nature have happened, you do not look at the foot soldiers who raped; who burnt the house and so on - you look at who gave the orders to do so, because these crimes were committed for political purposes and you can go and jail all the foot soldiers if you do not deal with the warlords and the masterminds. Then what happens is you are going to have more fodder next time particularly in a country that has so much unemployment. You’ll always have people who are given a little money to go harass their neighbours, to go and kill and harass their neighbours for political purposes."
Kenyatta and Ruto were voted on a platform of national reconciliation this year. They argue that the cases are against Kenya’s sovereignty. They also argue that attending court for their trials is and will hinder them from running the country.
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