But whether the victims will receive any significant measure of justice remains a question. Several witnesses have refused to testify, allegedly because of intimidation. The ICC has dropped charges against three others, citing insufficient evidence. And Kenya’s parliament voted last week to withdraw from the ICC, a move that the human rights group Amnesty International deemed “a disturbing attempt to deny justice” for the victims and “a dangerous precedent for the future of justice in Africa.”
Many Kenyans worry that the trials could isolate their country diplomatically and trigger political and tribal upheaval in one of the continent’s most vibrant economic hubs, vital to regional stability and counterterrorism efforts in East Africa. At stake is also the ICC’s credibility. It will try for the first time a sitting elected leader, marking the court’s biggest test to date. The trial starts amid growing defiance and animosity — not only in Kenya but also in other African countries — toward the ICC, which is accused of unfairly targeting Africans.
A long wait
Ruto, 46, and Kenyatta, 51, are charged with crimes against humanity. They are accused of funding and ordering ethnic mobs to hack rivals to death, torch homes and churches, and uproot civilians after Kenya’s disputed December 2007 elections. At least 1,100 people died and 650,000 were displaced, the worst episode of violence since the country’s independence in 1963. Both men have claimed innocence and have promised to cooperate with the ICC, which was created in 2002 to address genocide, crimes against humanity and other war crimes.
But since Kenya’s post-election violence ended in early 2008, justice has proved elusive for the victims. In 2009, the country’s parliament voted against the creation of a tribunal to address the violence, and further legislative efforts have failed, prompting the ICC prosecutor to launch investigations in 2010. The following year, Kenya’s government challenged the ICC’s jurisdiction over the cases. Even after Kenyatta, Ruto and two others were implicated by the ICC in January 2012, the sense of defiance persisted.
In March, the court dropped charges against one of the alleged perpetrators. The prosecutor’s office cited insufficient evidence because of the loss of a key witness, who is suspected to have received bribes to recant his testimony; the deaths of several other witnesses; and a lack of cooperation by the Kenyan government in gathering testimony.
Kenyatta and Ruto, once rivals, teamed up to win this year’s presidential election, in part by portraying their ICC indictments as meddling by the West. In the run-up to the vote, Western nations, including the United States, publicly warned Kenyans that there would be diplomatic and political fallout if they elected Kenyatta and Ruto, but that had little effect on the voters.
Kenyatta and his advisers warned that their country would grow closer to China if the United States and other Western nations sought to isolate Kenya because of the ICC indictments. Many Kenyans viewed President Obama’s decision to bypass the country, his ancestral home land, this summer during his first extended visit to sub-Saharan Africa as a punishment for having elected Kenyatta and Ruto. It came as no surprise when Kenyatta picked China for his first official state visit outside Africa.
Last week’s parliamentary vote to pull out of the ICC, which Kenya joined in 2005, was widely seen as creating political cover for Kenyatta and Ruto. Their loyalists declared that the ICC was pursuing “a neocolonial agenda” that would weaken Kenya’s sovereignty and called the charges “politically motivated.” Opposition lawmakers from former prime minister Raila Odinga’s party stormed out of the session, declaring that the motion was “ill considered” and that Kenya could not “exist outside the realm of international law.”
“It is clear that the assembly’s vote was designed to send a political message against the ICC on the eve of the start of the trial,” said Elizabeth Evenson, a senior counsel in Human Rights Watch’s international justice program. “It is more of the same from Kenya’s political establishment. Every time the ICC inches forward to deliver justice for victims of the post-election violence, Kenya’s leaders and lawmakers scramble to throw up roadblocks.”
Despite the vote, Kenya’s government is still required to send a formal notice of withdrawal to the U.N. secretary general, a process that could take a year or longer. It’s unclear whether this will happen. In December 2010, the parliament had voted for withdrawal from the ICC, but the government did not follow through. A pullout would not stop Kenyatta’s and Ruto’s cases from going forward, said ICC officials, because the decision would not apply to ongoing trials.
But there is concern that both men could decide against cooperating with the ICC, analysts said. A recent opinion poll showed that Kenyans’ support for the court had dropped from nearly 60 percent to less than 40 percent from late 2011 to mid-2013.
“It will cause nervousness in Western capitals in terms of what it says about Kenya’s own commitment to furthering human rights,” said Tom Maliti, a trial monitor funded by the Open Society Foundations, a human rights group. “It will create nervousness because it raises questions on whether the president and deputy president will honor the trial and its obligations when they come due.”
On Sunday, Kenyatta warned that the ICC must not require him and Ruto to be at The Hague at the same time to attend hearings.
“If you want us to continue to cooperate with the ICC process, let me make it crystal clear that when Ruto is at The Hague, I will be here, and when I am at The Hague, he will be here,” the president told supporters at a prayer rally, according to the Reuters news agency.
Discontent with ICC
Kenya’s defiance speaks to a growing discontent with the ICC across Africa. In May, the African Union accused the ICC of “race hunting” and declared that the court had unfairly targeted Africans. Driving the allegations is the fact that the court has prosecuted only Africans since its inception. The African Union issued a resolution calling upon the ICC to drop its cases against Ruto, Kenyatta and a third defendant, Joshua arap Sang, a former radio personality accused of coordinating attacks through coded messages in his radio broadcasts. Sang’s trial also begins Tuesday.
“It’s a very unhappy development for the future of the International Criminal Court,” said William Schabas, a professor of international law at Middlesex University in London. “It has never happened before. I think it’s a symptom of a larger malaise within Africa regarding the court. Like any malaise, the concern is that it is going to spread and turn into a more serious disease.”
If Kenya were to formally withdraw from the ICC, the concern is that other African nations could follow, damaging the court’s credibility and its authority to prosecute war criminals. Thirty-four African countries have joined the ICC, the largest regional grouping among the court’s 122 members.
But ICC officials and human rights activists say that claims that the court is unfairly targeting African leaders are misplaced. They note that the governments of many African countries, including Mali, the Ivory Coast and Uganda, have sought the ICC’s help to investigate and prosecute crimes committed inside their borders. The court’s chief prosecutor, Fatou Bensouda, is from Gambia.
In Kenya, many are concerned that the trials could resurrect old animosities among the nation’s tribes and communities. In a statement posted Monday on its Web site, the chairman of the Law Society of Kenya, Eric Mutua, warned that “heavy political statements and debates on the ICC process may tear the country apart.” He urged “leaders and the public to exercise caution as justice takes its course.”
If Kenyatta and Ruto are convicted, they could face years behind bars. If they refuse to cooperate, they could become international pariahs like Sudanese President Omar Hassan al-Bashir, also indicted by the ICC for alleged crimes against humanity. Whatever happens could unfold slowly. The ICC has convicted only one person, Thomas Lubanga, a Congolese rebel leader. That took six years.
Loyalists for Kenyatta and Ruto are predicting that they will be acquitted. A recent cartoon in the country’s Standard newspaper depicted a concerned ICC prosecutor clutching a bucket labeled “witnesses.” It is peppered with holes, leaking water.