The victims of the 2017 ethnic clashes now want ICC member states to issue travel bans and asset freeze against senior Kenyan leadership.
The victims lawyer Fergal Gaynor, in the collapsed ICC case against President Uhuru Kenyatta says the Kenyan state and its leadership must be held responsible for the collapse of the cases and ICC prosecution should not despair in light of their harrowing experience with the Kenyan cases.
Gaynor said this in an article co-published with Anushka Sehmi, a lawyer who worked for the Victims Participation and Reparation Section of the ICC at the time of the case. Apart from Kenyatta, Deputy President William Ruto, former Head of Public Service Francis Muthaura, former Police Commissioner Hussein Ali, former Minister Henry Kosgey and journalist Joshua Sang also faced charges at the court.
The article, titled The Perfect Storm: Obstruction, Intimidation and Inaction in the Kenyan Situation was published in an International Federation for Human Rights publication publication issued this week.
The lawyers blame the Assembly of State Parties (ASP), the political wing of the Rome Statute and which comprises of states that have ratified the statute of looking the other way in the face of Kenyan state non-cooperation in the cases.
“In the absence of action by the ASP, robust measures by willing blocs of States Parties, in the form of asset freezes and travel bans against the senior leadership of non-cooperating States Parties, must be considered,” they say.
The pair says the court’s experience in Kenya no doubt “damaged the court’s reputation and its deterrent effect.” And although the court has “moved on” to other cases, adjusted its procedures and picked up its lessons, the experience for victims remains worse.
They complain that the ICC’s Trust Fund for Victims failed Kenyan victims alongside the prosecution and the ASP.
“Hopes were raised and dashed. Hundreds put themselves at considerable risk by attending meetings with their lawyers in Kenya–including the authors of this article–and emerged with next to nothing. They have nowhere else to turn,” they say in the article.
In the proposal, the lawyers say where the prosecutor elects not to prosecute or pursue a case, like they did in the Kenyatta case, they should face the victims and explain themselves. They are categorical in their article that the cases collapsed “in the midst of state and individual obstruction of justice.”
They talk of a multi-pronged strategy which entailed unfulfilled promises of cooperation, multi-faceted diplomatic offensives against the court at the UN Security Council, African Union and ASP and witness interference.
“After two of the accused – Uhuru Kenyatta and William Ruto – became president and deputy president of Kenya in 2013, they unleashed a high-level diplomatic campaign to vilify and discredit the ICC, in tandem with a practice of obstruction of access to evidence relevant to the charges.
The lawyers say simultaneously, efforts to bribe and intimidate key witnesses were underway.
From the victims’ perspective, they say, the Prosecutor’s ongoing inaction in Kenya is regrettable.
The lawyers argue that four years since the withdrawal of charges against Kenyatta, and two years since Kenya was referred to the ASP for failure to deliver evidence, nothing much has changed.