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Kenyatta case collapse ICC's 'biggest' setback: experts

06 December 2014, 09:31

The Hague - The collapse of the International Criminal Court's crimes against humanities case against Kenyan President Uhuru Kenyatta is its biggest setback yet and highlights the difficulty in bringing top politicians to justice, legal experts said Friday.

Chief prosecutor Fatou Bensouda's decision to drop the case after a troubled investigation exposed major flaws, the experts said.

Kenyatta, 53, said he was "vindicated" after the Hague-based prosecutor on Friday dropped all charges accusing the him of allegedly masterminding Kenya's deadly post-election violence in 2007-08.

More than 1,200 people were killed 600,000 others displaced in the worst unrest in the country since independence in 1963.

"It's the court's biggest setback since its establishment at the turn of the century," said Eugene Kontorovich, international law professor at Chicago's Northwestern University.

"It's a big blow. The higher the expectations, the harder the fall," added Willem van Genugten, law professor at Tilburg University.

Following a probe riddled with allegations of witness intimidation, bribery and false testimony, prosecutors in April in a last-ditch attempt to build their case asked Nairobi to provide documentation which they said may prove Kenyatta's guilt.

The documents included company records, bank statements, records of land transfers, tax returns, phone records and foreign exchange records, which prosecutors hoped would link Kenyatta to the violence.

But Nairobi refused to cooperate and earlier this week the ICC's judges lost their patience, giving prosecutors an ultimatum to either beef up the charges of drop them.

"It was a very delicate situation," international law expert Dov Jacobs told AFP.

The prosecution's case "was nothing less than against the president of the very country from which it required cooperation," he said.

'Limited reach'

The ICC was created through the adoption of its founding Rome Statute in July 1998, and started operating in The Hague in July 2002.

To date, 122 countries have signed up, including 34 from Africa.

Read Also: Uhuru to be set free by ICC as Bensouda withdraws charges

It doesn't have its own coercive powers or agents to enforce its decisions and is dependent on states who signed up to the Rome Statute to cooperate.

Experts said the case against Kenyatta showed the limited reach of the court's powers over its member states.

"The ICC can, as it turns out, only function effectively when a country, whose leaders are being targeted, cooperate -- which is not the case here," said Northwestern law professor Kontorovich.

He added: "You can't have justice that's not integrated in a system of coercion and a system of power" to enforce it.

Judges this week lashed out at Bensouda's office saying its failure to verify the credibility and reliability of the evidence was the "direct reason" for it falling below a standard to present in court.

"Maybe we're expecting too much from the ICC," said legal expert Jacobs, adding the court "must progress step-by-step and master the basics."

Experts for instance cited the examples of the two Congolese rebel leaders against whom the ICC has got convictions.

"You have to master the basics and move forward, but you also need to take risks," added van Genugten.

"This failure is an opportunity for the prosecutor to analyse what went wrong, what worked and not to make the same mistakes again," he said.

Human Rights Watch senior international legal counsel Elizabeth Evenson said she believed the ICC "is slowly getting to the point where it is accumulating enough experience."

This included greatly strengthening its witness protection programme, which could reduce the risk of witnesses withdrawing from cases, she said.

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