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. 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”. Uluru 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.” –

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