The tables are turning at the International Criminal Court (ICC) with victims’ lawyer in President Uhuru Kenyatta’s collapsed case going for the neck of ICC Chief Prosecutor Fatou Bensouda over alleged botched investigations. In an unprecedented charge which has sent shockwaves in ICC corridors, lawyer Fergal Gaynor meticulously listed the failings of Office of the Prosecutor (OTP) under the leadership of Bensouda and her predecessor Louis Moreno Ocampo.
In the 49-page document supported by three annexures, Gaynor paints a picture of a highly ineffective and strategy-less prosecution and almost accuses the prosecutor of conspiracy to kill the case. He also calls for “abuse of power” charges against the Prosecutor for taking Kenyan victims for a ride.
This is the first time Gaynor has closed ranks with the defense and other OTP critics - among them Ugandan David Matsanga, to tear up the prosecutor. Previously, Gaynor - as is the tendency of victim lawyers - sided with the prosecutor. “Thousands of victims of crimes against humanity were led to a justice process at the court for over five years, to endure three failed prosecutions without a single day of trial, and to then face the further anguish of learning that the prosecutor has decided to cease to actively investigate,” Gaynor charged in his Tuesday filing.
In the documents now at the study of judges, Gaynor says Bensouda and Ocampo before her raised legitimate expectations of the victims through the constant assurances and public pronouncements which have amounted to naught.
He says Bensouda failed to undertake “effective” investigation in line with her obligations under the Rome Statute. Gaynor says in his application that the term “effective” necessarily presupposes success. Gaynor accused Bensouda of failing to exhaust all avenues under Articles 54, 56, 57, 64, 69, 70, 72, 87, 93 of the Rome Statute and rules 104 and 114 of the court in investigating the case. Among others, the cited articles and rules allow the prosecutor to procure cooperation of states and organisations, charge people with offences against administration of justice and initiate censure of uncooperative states. The remedy for systematic obstruction of access to evidence - the kind Bensouda has been accusing Kenya of, is not simply to walk away in despair, Gaynor tells the judges. He says to do so “profoundly undermines the Court’s deterrent effect in respect of grave crimes.”
Gaynor says analysis of case law from European Court of Human Rights (ECtHR) and Inter-America Court of Human Rights shows Bensouda herself can be accused of violation of internationally recognised human rights where she has failed to adequately and effectively prosecute criminal conduct. “For example, the ECtHR has found that a prosecuting or investigating body’s failure to provide an adequate investigation into an alleged crime is in itself a violation of the European Convention on Human Rights,” he said. Gaynor’s argument is that the Rome Statute does not accord the prosecutor an avenue of indefinitely suspending investigations. Where a State has obstructed, he also argues, the prosecutor should be emboldened and not cowed into surrender. He says the “most poignant and unacceptable” prosecution failure in course of the case has been failure to prosecute sexual and gender-based crimes which took place in Kenya over PEV. He said Besnouda’s failings aside, victims had missed out on ICC’s Trust Fund for Victims general assistance. Gaynor’s complaints are buoyed by victims own outbursts against the court also attached to the filing.
“The next time there is ethnic bloodshed in Kenya, the ICC should not even bother showing up. We do not understand why there is an ICC office in Nairobi. What are they doing there? They too should pack up and leave us alone,” one victim says. “It is so sad that this case has been terminated. Bensouda has greatly betrayed us. God will judge her,” another one identified as a/ 9295/11 cursed.
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