Notorious for Delusions and Incompetence.
The Office of the Prosecutor of the ICC is defined principally by its delusions, dogged wrongheadedness and a seemingly infinite capacity to abandon the essential principles of international justice for muddled and even perverse reasons. So notorious has this philosophy of the OTP become that State Parties, Victims’ representatives, defence representatives as well as the Pre-Trial and Trial Chambers of the ICC have found occasion to take great exception.
The scope of the OTP’s ambition in all its cases is simply delusional. Often enough, it conflates discrete incidences of crimes under ordinary municipal law to create the impression that there exist grounds to believe as well as irrefutable proof that international crimes have been committed on a large scale.
The OTP typically compounds this recklessness with a scandalous laziness and ineptitude in investigating and preparing witnesses and evidence for trial. The use of incompetent, hideously mercenary, horribly biased and interested intermediaries for that purpose only serves to worsen an already unacceptable situation. Even before pre-trial proceedings commence, OTP will usually have committed enough original sins to pollute the integrity of trials and their outcome.
The structure of the ICC is premised on the now obviously and horrifyingly mistaken assumption that the OTP would be led and manned by consummate professionals whose integrity dedication to the cause of international justice is unquestionable. This is why the OTP is an organ of the Court proper, and not an independent entity. It is also why the OTP enjoys a primacy before the Chambers that ordinarily should not exist in traditional adversarial justice systems.
This congenital defect of the ICC has led the Pre-Trial and Trial Chambers to extend accommodations to the OTP based on nothing but the benefit of the doubt and the germinal expectations which inspired the ICC’s anomalous constitution. This is not to say that the judges themselves are above reproach. Indeed, their decisions, and reasoning behind them have been baffling on many occasions. A number of judges have no legal background whatsoever. A curious, and probably scandalous fact about the judicial arm of the ICC is that some judges, rather than being experienced lawyers, are former diplomats, politicians and other professionals. The decisions of the judges are rendered in winding, excruciatingly lengthy, ambiguous if not confused style. One is tempted to conclude that the judges are paid according to the length of decisions.
In the Kenya cases, the Pre-Trial Chambers deliberately lowered the standards required to satisfy the ‘reasonable grounds to believe’ to allow defective prosecution cases to proceed. It soon became obvious that the OTP’s mission was to muddle its way into trial and gamble for a conviction. The one strong thing about the prosecution cases has been the governing hypothesis. The Prosecution theory and speculative arguments behind them are what have entranced the judges and sustained proceedings in both cases.
In the case against President Uhuru Kenyatta, confirmation was based entirely on the evidence of a character whom the OTP later determined to be a vicious criminal, hopeless liar and an unreliable witness. A case that shouldn’t have been mounted in the first instance collapsed spectacularly under the weight of perjuries and mistaken assumptions that the OTP peddled before the Court.
In the case against Deputy President William Ruto and Joshua Sang, the OTP put up an ambitious prosecution theory based entirely on the wildest of figments. 3,000 guns are supposed to have been employed in PEV, even though all non-police related fatalities and injuries were occasioned by arrows and pangas. The Network, which comprised media, politicians and financiers similarly went up in pieces. This was inevitable as soon as the allegation of Emo Community owning banks and other vast commercial concerns was established to be a big lie.The witnesses had averred that Ecobank Towers is owned by a Kalenjin Community entity known as Emo Community Bank. Moreover, all allegations that William Ruto and Henry Kosgey incited people at rallies have been shown, through clips obtained from the media, to be lies. Furthermore, no recording has been played at any stage of the proceedings showing that Joshua Sang ever aired anything suspect. The acquittal of Henry Kosgey should have been a significant indicator of the deficiency of the case, but the ICC somehow papered this problem over.
Obviously, the Prosecution case is not only weak, but also astonishingly ill-conceived. How does OTP get away with it?
Stigma is Better than Justice
First of all, one must understand the intense stigma occasioned by the Prosecutor’s allegations against the accused. Secondly, one must understand that the OTP is a sub-par forensic professional by all accounts. To the OTP, there is nothing like failure if a good excuse exists. In the Kenyatta case, OTP commenced non-cooperation proceedings against the Government of Kenya to serve as the official excuse for the failure of the case. In the William Ruto case, the Rome Statute was altered mid-proceeding and enforced retroactively. Obviously, this is a gross violation of all expectations of a justice system. The amendment to the Rome Statute’s Article 68 enabled the OTP to use what, to the rest of the world, is forensic rubbish as pure gold.
How did the ICC-OTP axis get away with these absurd stratagems? This is where stigma plays a big role. It seems that accusations of the worst crimes open the gates of prejudice, sanitises abuse of international legal systems, and justifies failures of justice. The OTP has never admitted grave failures on its part from the very commencement of the cases. But it has found implausible allegations of witness interference against the accused and non-cooperation against the Government of Kenya convenient because Uhuru Kenyatta and William Ruto run the Presidency. The stigma is simple and direct: The accused are charged with crimes against humanity, therefore, they are bad people ab initio. They wield immense political power. Therefore, they have made the cases weak.
This is the sum total of the OTP’s behavior in the proceedings: to strengthen stigma as an antidote for its weak cases. Given its notorious proclivity for unprofessional approaches and penchant for propaganda, this is not surprising. The machinery which served the circus act otherwise known as Louis Ocampo so well sees to suit Fatou Bensouda just fine. What is, is the fact that in these strategies, no consideration is made for the expectations of justice by victims, communities and accused persons in the cases. An institution created to fight impunity has become a clumsy, directionless bureaucracy without any justice-related agenda. This is nothing short of spectacular impunity. A quest for justice must begin with an inquiry into the nature and extent of prosecutorial as well as judicial incompetence, misconduct and bias in the Kenyan cases.