"One of the principle goals in setting up the ICC was to ensure that no one, no matter how powerful, could escape justice," Kate Cronin-Furman, a lawyer and PhD candidate at Columbia University who has worked at the Hague, says in an e-mail. "In practice, that's not really how it's worked out so far. Most of the cases have involved rebel commanders rather than members of government."
Kenyatta is certainly a big target, but his appearance at the Hague is a complicated moment for the ICC. He has appeared at the court not to face trial, but to discuss the evidence (or lack thereof) against him. His lawyers are hoping to have the case against him dropped, and to some the very fact that he bothered to turn up could be a sign that he thinks it could happen. "I also don't think Kenyatta would be attending this hearing in person if he thought the prosecution had a meaningful, robust case against him," Jeffrey Smith, an Advocacy Officer at the RFK Center for Justice & Human Rights, explains.
For the ICC and the world of international law in general, the Kenyatta case represents a number of problems. The biggest problem is simple: How do you prosecute a head of state when the country they runs controls the evidence you would need to prosecute them?
The allegations against Kenyatta
The allegations against Kenyatta go back to 2007 and a disputed election that threw the usually stable Kenya into violence. Back then, Kenyatta was not president, but he supported Mwai Kibaki, the incumbent, in a heated election contest against Raila Odinga of the Orange Democratic Movement. After Kibaki proclaimed victory by a narrow margin and was hurriedly sworn into office, Odinga's supporters cried foul and took to the streets. Tensions were made worse by political splits aligning along tribal lines.
In the end, there was some of the most significant violence seen in Kenya since independence in 1963, yet it largely went unpunished. In 2011, Human Rights Watch reported that of the 1,133 or more killings committed during the violence, only two had resulted in murder convictions. Reports of rape, arson and other acts of violence were also numerous, and 600,000 people were misplaced. After internationally-mediated peace talks, Kibaki and Odinga formed a unity government. While there were fears that violence would flare up again, it has so far failed to do so.
Kenyatta, son of Kenyan founding father Jomo Kenyatta, is the American-educated heir to a large fortune and well-known in the Kenyan political world. In the aftermath of the 2007 election, however, he is accused of organizing members of his Kikuyu tribe to commit mob violence in Kenya's Rift Valley. In particular, he is alleged to have paid the now-banned ethno-religious gang called the Mungiki who committed acts of violence against the Luo ethnic group, who had supported Odinga in the election.
A Kenyan investigation named Kenyatta as one of more than 200 individuals it had received allegations about. However, after domestic courts appeared unable to prosecute the case, the ICC stepped in. Kenyatta firmly denies the charges, and he doesn't appear to have lost any support. Despite the charges, Kenyatta won a presidential election in 2013 to lead Kenya. His running mate, William Ruto, was also charged by the ICC for his alleged role in the 2007-2008 violence (remarkably, Kenyatta and Ruto are accused of being on opposing sides during the 2007-2008 violence, but appear to have been brought together by opposition to the ICC).
The court's big problem? Evidence
Over the past few years at the ICC, the court has struggled with a lack of evidence against Kenyatta. In particular, a number of witnesses have dropped out of the trial, which prosecution lawyers have said is due to serious witness intimidation – notably, a number of Mungiki leaders appear to have been killed as the trial continued, and the Guardian claims to have spoken to one witness who admitted to being bribed. Defense lawyers have countered by saying that witnesses were being coached, and at least one witness in the case against Ruto was reported to have admitted to telling lies in his testimony.
In Kenyatta's case, both the defense and prosecution admit that there is insufficient evidence, though their explanations for why differ significantly. The defense claim the evidence isn't there because it doesn't exist, while the prosecution says that the evidence is not there because Kenyan authorities are interfering. The court recognizes the bind. "In ordinary circumstances, the insufficiency of evidence would cause the Prosecution to withdraw the charges," the ICC explained at the start of December, before adding: "However, it would be inappropriate for the Prosecution to withdraw the charges at this stage in light of the Government of Kenya’s continuing failure to cooperate fully with the Court’s requests for assistance in this case and Mr Kenyatta’s position as the head of the [Government of Kenya]."
On Wednesday, Kenyatta's defense lawyer had again suggested that the case should be dropped. “This case has failed and it has failed in a way that means there is no prospect of it going further,” Steven Kay told the court. The prosecution's lawyer Benjamin Gumpert refuted that, and argued that “the court saying that if a country sticks out for long enough obstructing proper inquiries being made by the prosecution ... then the case ... will go away.”
For Kenyatta's supporters, the lack of evidence is evidence enough. When Kenyatta arrived at court on Wednesday, he was greeted by cheering crowds of fans. They held signs supporting the Kenyan president, and danced and shook his hand as he arrived.
The video shows the remarkable extent to which Kenyatta has been able to portray himself as a victim in the case. Kenyatta and Ruto have campaigned on the idea that the ICC's charges against him are false, and that the court is unfairly targeting African leaders (of the eight cases and 21 defendants so far, all are from Africa). In September, the Kenyan parliament voted to withdraw from ICC jurisdiction.
"I was in Rift Valley and traveled through Kenya, including in Mombasa, after the 2008 post-election violence and people everywhere were clamoring for accountability and justice," the RFK Center's Smith says. "Now, we've seen a huge shift where Kenyans, by and large according to recent polls, seem to view the court and the proceedings against their leaders with suspicion and often times downright hostility."
That hostility isn't restricted to Kenya, either. Sudanese President Omar Hassan al-Bashir, also charged by the ICC, has denied numerous requests to visit the court, declaring it "a tool to terrorize countries that the West thinks are disobedient." The African Union has also repeatedly criticized the ICC, and has threatened to pull out en masse, or at the very least want rules changed so that serving world leaders cannot be prosecuted.
"The court has transformed itself into a political instrument targeting Africa and Africans," Tedros Adhanom Ghebreyesus, the Ethiopian foreign minister, said at an AU summit last year. "This unfair and unjust treatment is totally unacceptable."
It could have wider repercussions
If the case against Kenyatta does fall apart, it could bring wider repercussions for other cases that come before the ICC. "It's rather disappointing for people like me," John Hagan, an expert in international law at Northwestern University, said of the problems with the Kenyatta case. "[The ICC] could do a world of good on cases like the Darfur genocide."
One problem is the perception. "The ICC has, unfortunately, become a toxic brand in much of Africa," John Ryle, of the Rift Valley Institute think tank, told Foreign Policy recently, adding: "The vulnerability of the ICC to this backlash has been a blow for African civil society activists who seek justice and accountability from their leaders."
Kenyatta's case also shows how difficult it can be to collect evidence in cases involving crimes against humanity – especially when the person accused is in power. Hagan points out that similar international justice systems, such as the International Criminal Tribunal for the former Yugoslavia, have targeted leaders after they are out of power and often already in custody.
The former Yugoslavia tribunal also has another major benefit – much of the cost of the investigations and trial was bankrolled by the United States, which is not a participant to the court (Under President Bill Clinton, the U.S. signed the Rome Treaty to create the ICC, but under George W. Bush it subsequently backed out, citing fears that American citizens could be unfairly targeted by the court). To get a sense of the budget needed, consider that one group currently collecting evidence in Syria that may one day be used in war crimes tribunals has a budget of $6 million for 2014, according to a New York Times report from earlier this week.
Without clear evidence, things get messy. Kenya's status as a regional economic power means its stability is of direct importance for many of its neighbors, and its position in the fight against terrorism in neighboring Somalia gives it many allies in the Western world. If the ICC decides that Kenya has hidden evidence, it may force some uncomfortable decisions for ICC signatories, who will be bound to undertake political and diplomatic efforts to get Kenya to release the evidence.
Ultimately, the ICC may well end up abandoning the case, which will frustrate many people. However, it may be better than going ahead without adequate evidence. "Declining to proceed in cases where the evidence is insufficient is what we want courts to do," Cronin-Furman says. "So even though it will be another blow to the court's batting average, it's a good sign about the legitimacy of its processes. "