As the Office of the Prosecutor at the International Criminal Court engages in legal battles with the defence, it holds the hopes of the victims in its hands.
It is quite unfortunate therefore, that after the carefully orchestrated campaign by the African Union on behalf of Kenya’s and other African heads of state, the spotlight has shifted from justice for the victims of crimes against humanity to walking around on egg-shells due to the arguments posed about racial bias and sovereignty.
The fact that the Assembly of State Parties (ASP) responded to this campaign by changing the rules of attendance to trial at the ICC in favor of the suspects has left the victims in the Kenyan cases disillusioned by the ICC in general and the Office of the Prosecutor specifically.
READ: Victims Response to the Prosecution’s Application for An Adjournment of The Provisional Trial Date ( ICC Website)
WATCH: What about the Victims?
In a Google+ hangout hosted by Journalists for Justice, Mr. Fergal Gaynor, Common Legal Representative for the victims in Kenya Case 2, elaborated the sentiments of the victims in this regard:
“The accused was able to send his representatives to argue in his favor in closed door meetings at the ASP which was unusual and a matter that has never occurred in any criminal court anywhere in the world. The victims’ representatives were not allowed to attend these sessions so as to bring responses to the submissions by the accused’s representatives at all. The victims were left with no alternative but to rely on the efforts of NGOs that champion the rights of victims and human rights to argue on their behalf and it certainly wasn’t easy. In future, we are going to have to look closely at the appropriateness of allowing the accused to send forth a huge state contingent to argue for rule changes in a situation where the victims are not allowed to present a response to whatever arguments are being presented.”
The impact of such amendments that are favorable to accused persons at the ICC, persons who indeed are in positions of power or high office in government will certainly affect the course of justice for the victims of international crimes. It leaves the victims feeling helpless and dejected in a matter that has gravely affected them for years.
“Within the court, we have to trust the judges of the ICC who are well experienced and are fully aware of the depth of human suffering experienced in such cases. I am confident that they will take into account the suffering as well as the legal arguments presented by both the prosecution and the defense teams,” said Gaynor.
REFUSAL TO SIGN TREATY
It serves little to no comfort for future potential victims, though. Already, the reports streaming in from the crisis in South Sudan implicate both government and rebel forces in atrocities of an unprecedented nature given the short time span of the conflict. The question must be asked: what hope or faith can these victims have in getting justice given the abject refusal of their government to even sign the Rome Treaty?
How the rule changes allowed at the ASP will affect the prosecution and evidence collection in such cases by the ICC remains to be seen. Already, the several postponements and further application for adjournment in Kenya Case 2 has left the victims concerned with that particular case completely skeptical.
“The whole reason the court exists is to declare an era of an end to the impunity and to hold those accountable for massive crimes regardless of the office they held or hold,” says Fergal Gaynor. “I have made it clear in a petition to support the adjournment that should the cases collapse it would have a devastating effect on the deterrent nature of the court. We have seen credible reports of tremendous atrocities being committed in South Sudan and the Central African Republic. It’s more important than ever that the court should be a strong deterrent warning that those responsible for these crimes will be held accountable.”
As Chief Prosecutor Fatou Bensouda elaborated her reasons for requesting an adjournment of the trial in case 2 as a lack of evidence to meet the evidentiary threshold required, she also indicated that she needed more time to collect evidence for the case.
It is possible to view the adjournment of the trial as favorable to the victims, because more evidence may strengthen the case so that justice for the victims is served. However, the challenges faced by the prosecution in collecting adequate evidence or witnesses from Kenya thus far leave a lot to be desired.
“I am really concerned about the fact that the government of Kenya has obstructed access to the right witnesses and to documentary evidence and it hasn’t been held accountable to its own obligations by the prosecution. The question is – why not?” says Gaynor.
Even as the case against President Uhuru Kenyatta seems to have stalled, some supporters have taken the adjournment to indicate the innocence of the accused. But if the accused is not guilty or rather if there is not enough evidence thus far against him, then who is to be held most responsible for the atrocities committed in Naivasha and Nakuru during the post-election violence of 2008?
Mr. Fergal Gaynor has directly posed this question to the court in his submission:
“Some victims’ reactions were: “what have we done to make the Prosecutor mess with us like this?”; “They have forgotten the suffering that we faced during the Post-Election Violence. They do not care for us”; “we are crying for justice. Who will now hear us?”
Indeed, who will listen to the pleas for justice by victims, in a situation where both the AU and ASP failed to recognize them? This haunting question remains unanswered for now