By Mariana Pena*
The Statute of the International Criminal Court (ICC or Court) applies to all persons equally without any distinction based on official capacity. When it comes to serious violations such as genocide, crimes against humanity and war crimes, no-one is exempted from prosecution. Sadly, history has shown that heads of state and other members of government have been involved in the commission of very serious crimes. Prosecution of those holding an official capacity has not been without trouble.
The first attempt to prosecute a former head of state for international crimes concerned the former Chilean president Augusto Pinochet, who was accused of crimes committed in Chile during the dictatorship in the 1970’s and 1980’s. In 1998, Pinochet was arrested in the United Kingdom following an order for extradition made by a Spanish judge. That order had been issued in proceedings instituted under extra-territorial jurisdiction principles. It was the first time in history that the former president of a country was arrested for crimes committed during this tenure. However, the extradition request was not executed as Pinochet was sent back to Chile after claiming illness. Several attempts were made to prosecute him once back in Chile. He died, however in 2006 before the conclusion of any those proceedings, and a final judgment on his liability could not be reached.
Former presidents have also been called to respond for international crimes before international tribunals. Slodoban Milosevic, President of Serbia, was indicted by the International Tribunal for the Former Yugoslavia (ICTY) in 1999. He was the first-ever president to be charged by an international tribunal. He was arrested and handed over to the ICTY in 2001 (when he was no longer president), but died in 2006 before his trial had been completed and a verdict had been given. Charles Taylor, President of Liberia, was charged by the Special Court for Sierra Leone (Special Court) in 2003 for his alleged involvement in the 1991-2002 Sierra Leonean war. His trial was completed in 2011. He has been found guilty of war crimes and crimes against humanity. The case is currently before the Appeals Chamber of that Special Court.
At the ICC, the world’s permanent international criminal court, Jean-Pierre Bemba, former vice-president of the DRC is currently undergoing trial for crimes committed in neighboring Central African Republic. His trial will soon come to an end and a judgment could be expected several months thereafter. In addition, Omar Al-Bashir, President of Sudan, was the first-ever acting president to be charged with international crimes by the ICC. Al-Bashir has been sought since 2009 for his role regarding the commission of serious crimes Sudan’s Darfur region. He remains a fugitive and has repeatedly defied the Court. He has made official visit to the territory of African countries, including ICC States Parties like Kenya and Chad, who have failed to arrest him. Al-Bashir was re-elected in 2010 in a contested election involving fraud allegations, becoming the first head of state to be re-elected while facing charges at the ICC.
More recently, the ICC issued an arrest warrant for Laurent Gbagbo, former president of Côte d’Ivoire, who is suspected of having committed crimes during the post-election violence in Côte d’Ivoire between December 2010 and April 2011. He has been arrested and handed over to the Court. A confirmation of charges hearing was held in February 2013 and judges will decide in the coming months whether he must stand trial.
Although some of those mentioned above were indicted while they were still in office, those who have stood trial or otherwise faced proceedings have done so after stepping down. Indictment, particularly when a warrant for arrest is also issued, have often helped increase pressure, prompting resignation of those holding an official capacity, and contributing to galvanizing efforts for arrest and surrender.
The Kenya situation presents a somehow different, very unusual and unique situation. Uhuru Kenyatta and William Ruto are both charged with crimes against humanity committed during the 2007/2008 post-election violence in Kenya. Their trials are set to start in May and July 2013 respectively. During the March 4, 2013 elections, they were elected president and deputy president respectively. Following petitions which contested the elections process, the Kenya’s Supreme Court concluded end of March that the elections had been conducted in a fair manner. That paved the way for Kenyatta and Ruto’s swearing-in on April 9, 2013.
It is worth recalling that Kenyatta and Ruto stood on different sides during the 2007 elections. While Kenyatta had then supported Mwai Kibaki’s Party for National Union (PNU), Ruto had instead backed Raila Odinga’s Orange Democratic Movement (ODM). Kenyatta and Ruto have been called to respond before the ICC for allegedly mobilizing men within their ethnic groups to attack perceive supporters of the opposing party. Despite having been indicted by the ICC, Kenyatta and Ruto continued to play a prominent role in Kenya politics over the past five years. Both were seen as likely presidential candidates in 2011-2012. In a political move to win votes and beat another strong candidate, Raila Odinga, Kenyatta and Ruto came together in a coalition (the Jubilee Coalition).
It is the first time in history that the people of a country democratically elect to the highest state office two individuals who are accused of very serious acts and who are due to stand trial before an international criminal court. While acknowledging that Kenyatta and Ruto are today innocent and will remain so until proven guilty, the election of individuals against whom so serious accusations have been made nonetheless begs the inevitable question: why would the people of Kenya do that?
Traditionally, serious accusations have resulted in the isolation of political leaders. In Kenya, that has led to their election as president and deputy president. This seems at odds not only with the moral question whether those who are suspected of crimes against humanity should run a country, but also with practical matters including their capacity to do so while standing trial in The Hague. That did not seem important for those who opted to make Kenyatta and Ruto the next president and deputy president of Kenya.
An immediate and easy explanation to why Kenyatta and Ruto won the presidential election is that Kenyans vote along tribal lines, and that they did so during the March 4, 2013 elections. The message that we receive is that tribal belonging is so strong that it can override criminal accusations. It is fair to note as well that the ICC was used by Kenyatta and Ruto in their campaign to portray themselves as victims of attempts of domination and neo-colonisation by the West, an argument that resonates well with Kenyans. Kenyatta himself stated in the run-up to the elections that the elections would be “a referendum on the ICC.”
The Court, for its part, has rightly emphasized that the elections constitute a political process which is distinct from the purely judicial proceedings before the ICC. Yet, can the Court now ignore that 50.07% of the Kenya people disregarded criminal charges? What message does that send to the ICC? The Kenyan people had been very supportive of the Court when it started its investigation. A plain reading of the elections results would suggest that Kenyans may not be as supportive of the Court any longer. However, it would be unfair to jump to such a conclusion without making a more in-depth analysis, given that these are undoubtedly complex processes. Indeed, many factors, including turn-out, tribal belonging, alternative candidates, and the various parties’ and coalition’s campaigns, undoubtedly played a role in the final electoral outcome. Nevertheless, one cannot ignore the message expressed by the Kenyan people. Their choice gives us reasons to believe that Kenyans have a strange relationship with justice, possibly because in their experience justice and corruption often overlap. The election results also confirm the certainly overriding power of politics over justice in Kenya.
A range of questions inevitably arise regarding any possible impact of the election results on the trials and/or of the trials on Kenyatta’s and Ruto’s capacity to rule the country. As for the latter point, a decision as to whether the accused can participate in the trials via video-link is due to be taken soon. In principle, presence in person is required. Who is going to run the country if both the president and his deputy are in The Hague? The reality of two accused becoming president and deputy president of a country has been largely ignored in the proceedings. Will the judges now weigh that in when making their decision on presence at trial? Should they? Or should they only base their decision on a bare interpretation of the rules?
As far as the question whether the election of Kenyatta and Ruto will impact the trials, the ICC has stated that there is no reason for the proceedings to be affected. The ICC’s decision not to take a position on Kenyan politics and to maintain its neutrality and independence appears fair. Yet, holding that there is absolutely no influence, at the very least on a practical level, appears unrealistic. There is also the question as to whether the Office of the Prosecutor had prepared to prosecute the president and deputy president of Kenya. The investigation has been characterized by multiple allegations of insufficient cooperation, serious security threats, witness tampering and witnesses’ reluctance to testify. It would not be surprising if obstacles increased after the accused are sworn in president and deputy president of the country.
In sum, Kenya politics and the unfolding of the Kenya cases before the ICC raise a broad range of questions regarding the choices of the Kenyan people, and the future of the country and its leaders. Those questions go to the core of Kenyans’ notion of justice and the ICC’s capacity to try the president and deputy president of a country. As Kenyatta and Ruto are sworn president and deputy president, and as the ICC cases progress toward trial, some of those questions may be answered and many more are likely to arise.
* Mariana Pena is an independent expert on international justice. This article is based exclusively on open sources.