What about the others? What to think when ICC hearings implicate “non-suspects”

Dear readers – the following article is written by Thomas Obel Hansen, who holds a PhD in transitional justice and is an Assistant Professor with the United States International University in Nairobi, Kenya.  The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

The soon to commence International Criminal Court (ICC) confirmation of charges hearings concern the question of whether there is sufficient evidence for the six named suspects to stand trial. Yet, the proceedings will inevitably raise questions as to whether others too are responsible, politically or criminally, for what happened in Kenya in the early months of 2008.

While ICC prosecutor Luis Moreno-Ocampo has so far stated that he is not in possession of evidence that points to criminal responsibility of the two principals, there are already indications that the government may become more involved in the hearings than State House had hoped for.

The recently released document containing the charges against the three Party of National Unity (PNU) suspects suggests that Mungiki members were transported to Naivasha in the “backs of military trucks by men wearing Kenyan army uniforms.” The implication that the army – or at least elements of it – might have been involved in preparing the post-election violence has been understood to challenge the widely held assumption that the Kenyan army contributed to stopping the violence, rather than being part of the problem. 

Moreno-Ocampo also claims to be in possession of evidence that Mungiki members were requested to “report at specific locations in Nairobi from where they were picked up by Citi Hoppa buses and transported through secret routes to the State House in Nairobi,” where they were allegedly “addressed by a Mungiki leader in the presence of senior government officials.” Whether fair or not, President Mwai Kibaki, who hopes that history will remember him for his commitment to the reform agenda, might now face an increasingly difficult task convincing Kenyans that he was not aware of the plan to utilize the Mungiki gang in an effort to violently attack Orange Democratic Movement (ODM) supporters. It is therefore not surprising that State House reacted by swiftly issuing a press statement saying that the prosecutor’s allegations are “far fetched and a blatant lie.”

Let alone the impact the presentation of such evidence might have on Kibaki’s legacy, the question arises as to whether evidence released in connection to the confirmation of charges hearings should lead us to conclude that Kibaki, or other high-ranking government officials, ought to be in the dock as well.

The very nature of international crimes dictates that such crimes are committed by the numerous, not by a few. At the same time, institutions of international justice have never been geared to prosecute the masses, nor are they usually capable of bringing to justice all or even most of those responsible for planning or organizing these atrocities. International justice thus concerns crimes to which many are responsible but only few will be brought to account. Whether we like it or not, international justice is highly selective.

As a result, it is not a reasonable expectation that all of those involved in planning the post-election violence will be prosecuted in The Hague. However, it is understandable that some ask whether the ICC is focusing on the right individuals.

The Rome Statute provides little guidance concerning who should be targeted by the court, but the prosecutor has developed a strategy of so-called “focused investigations and prosecutions.” This strategy commits the prosecutor to focus on “those who bear the greatest responsibility for the most serious crimes, based on the evidence that emerges in the course of an investigation.” In practice this means that the prosecutor should concentrate on those “situated at the highest echelons of responsibility, including those who ordered, financed, or otherwise organized the alleged crimes.”

With this in mind, one can speculate – as many have already done – whether Moreno-Ocampo is focusing on the right persons in connection to Kenya’s post-election violence.

It can hardly be argued that the prosecutor has failed to target high-ranking Kenyans because among the suspects are current and former cabinet ministers and the country’s top civil servant. Nonetheless, some have implied that Moreno-Ocampo ought to have focused on the very top; that he should have “gone for the two principals.” After all, it is argued, it was the electoral dispute between Kibaki and Odinga that sparked off the violence. That Moreno-Ocampo refrained from prosecuting the two principals, these critics suggest, has to do with a deal they made with the prosecutor, or that it would be politically inconvenient for a court, which ultimately relies on state cooperation, to prosecute the president and the prime minister.  

In principle, concerns about the prosecutor’s selection of cases and suspects are not entirely unmerited. The court is dependent on state cooperation, and the prosecutor does at times appear to be influenced by pragmatic or political considerations.

Yet, speculating whether the prosecutor had reason to pursue other named Kenyans for now remain speculations only. It is a discussion that lacks a basis; a discussion where the arguments are based on assumptions or guesses. Any conclusion that Moreno-Ocampo is focusing on the wrong individuals is premature as it fails to acknowledge that we simply do not know if the prosecutor has obtained evidence which, according to his own strategy, should have led him to prosecute other leaders.

Even if the evidence presented during the confirmation of charges hearings may seem to implicate other leaders, this does not necessarily mean that they ought to be prosecuted by The Hague court. The job of the three judges in the Pre-Trial Chamber is to decide whether there are “substantial grounds” to believe that each of the six suspects committed the crime alleged by the prosecutor, and should thus stand trial. This means that the evidence presented during the hearings serves the sole purpose of supporting or discouraging that such a decision be made. Consequently, the hearings do not allow that “non-suspects” present their own evidence that could possibly counter a perception that they were involved in the violence, nor will it necessarily be revealed if the prosecutor is in position of other material which points to the innocence of these individuals.

We should therefore be very careful making any conclusions on the basis of the forthcoming hearings that other leaders “look guilty,” though of course the evidence presented during the hearings may incriminate others to such an extent that Moreno-Ocampo will find compelling reasons to add them to the list of suspects.

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