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Vol 62 No 4

Published 18th February 2021


Kenya

The prosecutor rests his case

Kenya's determined support for Britain's candidate to head the Court raises questions about its political direction

The election of British lawyer Karim Ahmad Khan on 12 February as the new prosecutor of the International Criminal Court comes as it is still struggling to establish its credibility, two decades after its foundation and having chalked up just five successful prosecutions.

The stock criticism of the ICC is that it is a highly politicised body, teleguided by the geopolitical interests of its most powerful members. There is little in the twists and turns behind Khan's election that is likely to persuade the critics that he will preside over the Court's renaissance. The term of the Court's current Prosecutor, Gambia's Fatou Bensouda, expires in June.

Khan's supporters say that it was his ability to win backing from sundry Western governments, including most members of the North Atlantic Treaty Organisation (NATO), that will bring more resources and international cooperation for the court.

Apart from his reputation as a ferocious and effective advocate, he benefited from Britain's diplomatic networking in soundings ahead of the vote in New York. Khan is well-regarded by Britain's Foreign Secretary Dominic Raab, who was posted as a lawyer to the Hague with the Foreign & Commonwealth Office shortly after the ICC was established. Khan's grandfather, a former justice minister in Pakistan, was also President of the International Court of Justice in the Hague.

Khan defeated Fergal Gaynor, an Irishman, and two other contenders from Spain and Italy. His most recent cases at the ICC, were as defence counsel for Kenya's Deputy President, William Ruto, and before that, former civil service head, Francis Muthaura, when they faced charges of crimes against humanity related to Kenya's 2007-08 violent post-election meltdown (AC Vol 57 No 11, ICC down but not out). Muthaura was acquitted but Ruto was freed after the Court declared a mistrial after three Kenyans were charged with 'witness tampering'. 

Warm relations
The Court did not accuse Khan of any wrongdoing in the case. But it is Khan's conduct as Ruto's defence lawyer and subsequent warm relations with Kenya's political establishment that has earned him the suspicion of human rights lawyers and activists in the country. Khan also represented Kenya's government at the International Court of Justice in its politically charged maritime dispute with Somalia.

Most critical, say Kenyan human rights lawyers, are what they see as the unresolved issues around the ICC's failed prosecution, launched in 2012, of President Uhuru Kenyatta and his deputy Ruto on charges of orchestrating the clashes after the 2007 elections in which 1,200 people were killed and over 300,000 chased from their homes.

Kenyatta and Ruto have since fallen out badly. This month, Kenyatta suggested that Ruto should leave the government and told a rally that he would not hand over power to a thief, a pointed reference to Ruto who is campaigning for the Presidency in 2022.

Amid this political fight, Ruto has said he was told by Intelligence Chief Philip Wachira Kameru that there is a plot to re-open the case against him at the ICC. Under the court's rules, that would be possible because his case ended in a mistrial, not an acquittal. 

Part of the case sprung back into life in November when Kenyan lawyer Paul Gicheru, one of the men charged by the ICC with witness tampering on behalf of Ruto, handed himself in to the Court. Until then Gicheru had the backing of Kenya's government, and local judges, to defy the ICC's arrest warrant and he was given a sinecure, to chair a public procurement review body (AC Vol 61 No 24, The Hague’s unexpected guest).

Why Gicheru chose to hand himself into the ICC last year and what he intends to say about Ruto and his allies is unclear for now. What is certain is that Gicheru, a Kikuyu from Eldoret who knows Ruto well, believes he has information of great relevance to the ICC case against the Deputy President. Although he insists that no officials influenced his decision to hand himself into the ICC, Gicheru seems confident of support from the Kenyatta government.

As Ruto's defence lawyer, Khan would be expected to recuse himself from the Gicheru case and any other proceedings associated with Ruto when he takes over as the ICC's new prosecutor in June. Yet Kenyan rights activists say this murky affair will haunt the Court's new leadership and weaken its ability to address its past failings.

Until the election, Khan was the UN Assistant Secretary-General in charge of investigating Islamic State (IS or Da'ish) crimes in Iraq. Gaynor had worked for numerous criminal tribunals, involving Afghan and Palestinian victims and witnesses, and was the outspoken advocate of Kenyan victims in the ICC's case against Kenyatta. 

Tortuous process
After a tortuous nomination process, members of the ICC, known as the Assembly of State Parties, could not reach a consensus on the initial shortlist. Then the ASP, led by Kenya, pushed to reopen the long-list, which allowed all 14 candidates, including Khan, who originally had not made it, to reapply. 

After a public vetting process, lengthy discussions, and failed votes over many months, the ASP resorted to a secret ballot where states renominated Khan, Gaynor, together with Carlos Castresandra, a respected international prosecutor from Spain, and Francesco Lo Voi, a successful anti-Mafia judge from Palermo, Italy. 

After two rounds of balloting by 122 states, Khan won on 12 February with 72 votes, followed by Gaynor with 42, Cassandra with 5, and La Voi with 3. Supporters of Gaynor said his perceived independence from Western interests cost him support and influence. Gaynor's candidacy had also prompted the active hostility of Kenya's government which leads the Africa group at the ICC, including Côte d'Ivoire, the Gambia, Ghana, Senegal and Uganda.

Wary West
NATO states are wary of the Court's investigations in Israel-Palestine and the conduct of Western troops and their adversaries in Afghanistan, after a recent decision reaffirming its jurisdiction in Palestine. Those dossiers are of vital interest to the United States although, like China, Russia and Israel, it is not a member of Court. 

The Times of Israel reported that Benjamin Netanyahu's government supported Khan as a 'pragmatist', suggesting confidence in how he would manage the ICC's investigations into charges of abuses by Israeli Defence Force soldiers.

Some European diplomats see a chance under President Joe Biden's administration to end US hostility towards the Court. Currently Prosecutor Bensouda faces US sanctions for presiding over a body that seeks to investigate US military personnel. If the US was brought around, the argument goes, its kneejerk hostility to the Court at the UN Security Council might be tempered.

Kenya also played a key role in Khan's election due to its energetic lobbying, and its ability to deliver many if not most of Africa's votes.

It was a memo from Kenya's ambassador to the Netherlands, Lawrence Lenayapa, that re-opened the original long-list. Kenya, which had the backing of the 33-member African caucus within the ASP, argued that neither Gaynor or Morris Anyah had sufficient experience. We hear that Nairobi was nervous about Gaynor's history with the Kenyatta case – although he had declared that he had no interest in re-opening it. 

Under an informal rule of regional rotation for the Prosecutor's job, this was meant to be Europe's turn. So the re-opening of the long-list favoured the Belgian prosecutor, Serge Brammertz. A respected former Chief Prosecutor of the International Criminal Tribunal for Yugoslavia (ICTY), Brammertz's other claim to fame was his successful hunt for Félicien Kabuga, the Rwandan businessman now facing genocide charges in Brussels. Brammertz abandoned his bid after a civic activist group started campaigning against him.

With Brammertz out of it, Khan's reputation as one of the ICC's toughest defence lawyers and his popularity among the Court's affiliated counsel, a former elected chair of the ICC Bar Association and then its honorary president, boosted his standing around the court. He argued he knew
the Court's weaknesses better than anyone and was best placed to fix them (AC Vol 57 No 14, Gadaffi's desperate bid). 

Khan has allies on both sides of Kenya's fractious ruling party, having successfully defended first Muthaura, a Mount Kenya man, and then Ruto. His fiercest critics during the vetting process came from Kenya's civil society.

In a 7 January memo addressed to the Bureau of the Assembly of State Parties, a coalition of Kenyan, Ugandan and Tanzanian civic activists questioned Khan's conduct of Ruto's defence and his relations with top politicians in the country.

They focused on Khan's handling of reports of the disappearance and murder of Meshack Yebei, a defence witness for Ruto. A year before he was abducted and his dismembered body was discovered in March 2015, Yebei had told journalists that he was breaking with Ruto and had things to tell the ICC prosecutors. He said his life had been threatened and had only agreed to testify for Ruto in return for financial reward.

Bensouda noted that Yebei was deeply involved in attempts to bribe and interfere with witnesses in the Court's case against Ruto. To date, Yebei's murder remains an unsolved crime.

'Hostile' climate
Beyond the controversy raging over Yebei's role, the East African activists' memo criticised Khan's advocacy for Ruto for crossing a line: 'Mr Khan was not just an ordinary defence counsel. He was a spokesman for the country's second most powerful man.'

This, they argued could have implications for the ICC: 'Mr Khan's positions, came to be viewed as an extension of the anger of his powerful client and the political establishment against the ICC, and may well have contributed, wittingly or unwittingly, to the deliberately fomented climate of “political hostility” against the court… Mr Khan embraced the view that the cases (against Ruto) were only an attempt to remove his client from power.'

The other strike against Khan, say the activists, was Khan's enthusiastic attendance at a 'thanksgiving' political rally held by President Kenyatta and Deputy President Ruto to mark the end of their cases at the ICC. 'Khan addressed the crowd where President Kenyatta made the following statement: “I will not allow any other Kenyan to be tried in a foreign court. As a country we have closed the ICC chapter.” Kenyatta's statement was made despite three pending ICC warrants of arrests for individuals suspected of witness interference in the two cases.'

In response to the Yebei allegations, Khan said that he had referred him to the ICC witness protection scheme. 'I am not able to disclose the source of alleged threats against Mr Yebei that grounded my request for his protection, save to say that I did everything ethically within my power to ensure Mr Yebei and his family were safe. The responsibility to physically protect, relocate or support witnesses does not fall upon an individual counsel under the Rome Statute regime.'

After the discovery of Yebei's body, Khan said he requested the Kenyan authorities to undertake a thorough investigation and made a confidential statement to the director of the local CID on the case. Subsequently leaked, it said that Khan regarded Yebei as 'a critical witness' for Ruto's defence case. That carries the implication that, in Khan's view, whoever killed Yebei was not trying to help Ruto.

Civil distrust
Khan's riposte to his civil society critics failed to convince George Kegoro, executive director of the independent Kenya Human Rights Commission, who strongly opposed his candidacy. 

It was Khan's disparaging attitude to civil society in events around and after the Ruto trial that have alienated precisely the people that the ICC needs to work with, Kegoro said. The civil society submission to the ICC, which Kegoro signed, said that during the Ruto case

Khan had talked about “so-called legal experts and victims lawyers” in reference to some of these parties.' At a public lecture in the Netherlands on the ICC, Khan directed other dismissive comments towards a group of civic activists at the meeting.

This mutual distrust, says Kegoro, could have grave implications for the effectiveness of the Court in Africa and beyond. The most immediate one would be the reluctance of independent civic groups from Kenya and the wider region, to join cases at the Court while Khan is the prosecutor.



HANDS ACROSS THE OCEAN

A quiet cooperation between the Kenyan and British governments appears to have shaped the outcome of the elections for the new prosecutor of the International Criminal Court. 

Africa Confidential has seen correspondence detailing Nairobi's hostility to the candidacy of Ireland's Fergal Gaynor, who was runner-up to Karim Ahmad Khan in the final round of voting in New York on 12 February.  

Khan's victory is being held up in London as an important win for Britain when the country is widely seen as losing diplomatic influence following its exit from the European Union. Yet the victory of a British candidate at the ICC would have been unthinkable five years ago when Western and African states, especially Kenya, were at loggerheads over the Court's prosecution of President Uhuru Kenyatta and his Deputy William Ruto for crimes against humanity in the post-election violence in 2007. 

What Britain and Kenya were able to agree on was a candidate for the prosecutor's job who had won the trust of both Britain's prime minister Boris Johnson and Kenyatta. This was made easier by the warm relations between the two men evident at the UK-Africa Investment summit a year ago. That triggered negotiations for a new bilateral, post-Brexit UK-Kenya trade agreement (albeit one that seems to break the rules of the East African Community). 

As part of the improved relations, London and Nairobi have also signed a new military cooperation agreement, allowing British forces greater scope for arms supplies, training and other operations. Kenya had broken off most cooperation with Britain in protest of its support, and cooperation with the ICC's prosecution of Kenyatta, Ruto and four other prominent Kenyans.  

Now Britain has mended fences with Kenya, the prosecutor for the court, with executive control over the cases pursued and resources allocated to them, will be a Briton, as is the registrar for the Court, and one of its Judges. 

After the ICC released its first shortlist for the prosecutor's job on 13 July, Kenya sent a secret memo to the ASP's president O-Gon Kwon, seen by Africa Confidential. It questioned whether any of the original shortlisted candidates (Morris Anyah of Nigeria; Fergal Gaynor, Ireland; Susan Okaluny, Uganda; and Richard Roy, Canada) had adequate credentials or sufficient gravitas to be the ICC's next Chief Prosecutor.  

A related memo, spearheaded by Kenya from the ASP's Africa Group, went after Gaynor more directly. It called him an 'activist', 'a candidate of choice of civil society', who 'had not been a senior prosecutor' also noting 'his political advocacy during the Kenyatta case', his work as 'counsel for victims in the Afghanistan and Palestine case', while raising questions about his 'independence and impartiality' and his 'limited management experience'. We understand these sentiments were shared by some officials in Britain and other Western powers. The reference to the Afghanistan and Palestine cases sends a clear message to those United States' diplomats who would have had access to the memo. 

On behalf of the Africa Group, the memo called on the Court to go back to the 'full long list of 14' so that states could nominate qualified candidates, which is exactly what later happened.  Should the Court fail to reopen the long-list, the memo says that the Africa Group will nominate its own candidates, with the potential to reopen the rift in the Court that almost paralysed it a decade earlier. 

Kenya's memo followed its election in June as a non-permanent member of the UN Security Council, where there can be a brisk trade in diplomatic and commercial favours between members. No diplomats were willing to discuss the possibility of quid pro quos around the ICC election. But a veteran legal expert told us: 'In a highly politicised climate, why should you expect anything other than a highly politicised outcome'.



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