ong>Theong> ong>ICCong> ong>andong> ong>Morenoong>-ong>Ocampoong> ong>areong> ong>Alsoong> on TrialGabriel Dolan9 October 2009I don’t envy Louis ong>Morenoong>-ong>Ocampoong> in his position as chief prosecutor of the International CriminalCourt (ong>ICCong>). However, that is not to suggest that I will be either sympathetic or forgiving if hebotches the investigations of Kenya’s high-profile suspects. This article argues that Kenyans mustmonitor the approach ong>andong> performance of the ong>ICCong> in the country.When the Rome Statute was enacted in 1998, human rights advocates everywhere enthusiasticallygloated over the prospect of a World Court that would finally confront the demon of impunity. Webegan to believe that leading perpetrators might run but they could no longer hide. Indeed, we thoughtthat prosecuting ‘those bearing the greatest responsibility’ for war crimes, genocide ong>andong> crimesagainst humanity, meant that never again would the world witness atrocities on the scale of thetwentieth century.However, seven years after the ong>ICCong>’s establishment, there is much more scepticism than delight overits capabilities ong>andong> performance. For most of that time, the Court has lacked staff, resources ong>andong>international support. Paper pledges ong>andong> political indifference have characterised most of its tenure.Beginnings ong>areong> always difficult ong>andong> admittedly, much time ong>andong> effort have gone into establishing theCourt ong>andong> enlisting member states. Currently, 110 states have ratified the Rome Statute. Missing inthat list, however, ong>areong> such superpowers as India, China, Russia ong>andong> the United States. No wonderthen that US Ambassador to Kenya, Michael Ranneberger, could issue only puerile threats about thereform agenda, ong>andong> have nothing of substance to say about impunity ong>andong> support for the ong>ICCong>.Regrettably, this point was missed by most commentators in their debate on the letters sent by the USto blacklisted Kenyan politicians.Lacking support from the major powers, ong>Morenoong>-ong>Ocampoong> has spent most of his time acting more likea diplomat than a criminal prosecutor. His strategy has focused on persuasion ong>andong> co-operation ratherthan enforcement of the Rome Statute. In fairness, he has had little option as the ong>ICCong> mong>andong>ate maywell be clear ong>andong> precise but it lacks enforcement powers. In other words without its own police force,the Court is totally dependent on international co-operation to apprehend suspects.As a result, he has been reduced to going about his work by trial ong>andong> error. However, we havewitnessed more errors of judgment than court trials in the last seven years. Indeed the only trialcurrently proceeding in ong>Theong> Hague is that of little known Thomas Lubanga of the DemocraticRepublic of Congo (DRC), ong>andong> that case is moving at a snail’s pace.ong>Morenoong>-ong>Ocampoong> hardly got off to a dream start in 2004 with his hong>andong>ling of the conflict inneighbouring Ugong>andong>a. Instead of using his prerogative powers, he sought an invitation from theUgong>andong>a government to investigate atrocities in northern Ugong>andong>a. President Museveni gladly acceptedthe opportunity to co-operate, since he believed the ong>ICCong> would focus only on atrocities committed byJoseph Kony’s Lord’s Resistance Army (LRA) with no investigations of atrocities committed by theUgong>andong>an army. To date, the ong>ICCong>’s prosecutorial strategy has mirrored Museveni’s expectations. ong>Theong>ong>ICCong> got its first state referral case ong>andong> Museveni got another weapon to attack the LRA. ong>Morenoong>-ong>Ocampoong> was thereafter widely accused of reluctance to prosecute government officials.However, in fairness, the indictments against Kony ong>andong> four of his rebel leaders did have an impact onthe war in the region. ong>Theong> LRA became increasingly isolated as Sudan could no longer grant it a safehaven, ong>andong> with the signing of the Comprehensive Peace Agreement in 2005, Khartoum was obligedto disarm all militias ong>andong> maintain peace. Consequently, Kony ong>andong> company were forced to thenegotiating table. ong>Theong>ir arrests have remained elusive but the atrocities have considerably reduced.
ong>Theong> ong>ICCong> has also been accused of targeting African states. However, the cases of Ugong>andong>a, DRC ong>andong>Central African Republic have all been state referral cases. ong>Theong> case of Sudan, however, represents aserious change in approach. ong>Theong> Sudanese indictments came as a result of a 2005 UN SecurityCouncil Resolution, as Sudan has not ratified the Rome Statute. A UN resolution ostensibly has worldbacking ong>andong> ong>Morenoong>-ong>Ocampoong> used that leverage to remove his kid gloves ong>andong> openly indict currentstate officials for the first time in the ong>ICCong>’s history.ong>Theong> first warrants of arrest for Sudan were issued for Minister Ahmed Haroun ong>andong> Janjaweed leaderAli Kushayb in 2007. On 4 March 2009, the Pre-Trial Chamber granted ong>Morenoong>-ong>Ocampoong>’s request toissue a warrant of arrest for President Bashir. That marked the most significant achievement of theong>ICCong> to date as a sitting head of state was indicted for the first time. It sent shock waves across thecontinent ong>andong> brought world attention to the ong>ICCong> ong>andong> ong>Morenoong>-ong>Ocampoong>, who had accused Bashir of‘exterminating his own people’.At the African Union (AU) summit in Libya in July, continental leaders said they would not cooperatein the arrest of Bashir. In reality the political leaders wanted to protect their allies ong>andong> worriedthey could be the next ones arrested.So the Kenyan case comes at a very significant moment in the ong>ICCong>’s development. ong>Theong> ChiefProsecutor appears to have grown in confidence ong>andong> is anxious to have a high profile case to garnerinternational support for the Court. ong>Theong> question is whether he can perform ong>andong> deliver. ong>Theong> Kenyancase has the potential to make or break the ong>ICCong> ong>andong> ong>Morenoong>-ong>Ocampoong> knows that.To date, the ong>ICCong> has at best operated as a deterrent. ong>Theong> stigmatisation of naming ong>andong> shaming sittinggovernment officials has spread trepidation everywhere. Arrest warrants have considerably reducedthe likelihoods of atrocities ong>andong> that is a considerable achievement. Yet, the Court was established toprosecute ong>andong> punish ong>andong> in that respect it has failed to do justice to victims. ong>Morenoong>-ong>Ocampoong> himselfhas stated that ‘arrests ong>areong> essential for the ultimate efficiency ong>andong> credibility of the court’.ong>Theong> ong>ICCong> cannot be allowed to fail in Kenya. More investigators ong>andong> professional staff need to beemployed while a regional office must be established as a matter of urgency. ong>Theong> InternationalCriminal Tribunal for Rwong>andong>a (ICTR) is scheduled to wind up its hearings in Arusha at the end of thisyear. Would the Tanzanian city not be an excellent venue for ong>ICCong> regional offices ong>andong> local tribunalchambers? Elaborate plans for witness protection ong>areong> also essential if we recall that after acommission of inquiry into the assassination of Dr Robert Ouko, 42 witnesses ‘died’ in a few years.Kenyans have great faith in the ong>ICCong>’s ability to prosecute the principal perpetrators of the postelectionviolence. Those who suffered ong>andong> survived, the internally displaced persons (IDPs) ong>andong> thefamilies who lost lives ong>andong> livelihoods deserve the best justice the world can offer. However, whenthe ong>ICCong> begins its work, we must not let the virtual court of the world’s political powers allowpolitical expediency to take over at a critical stage in the proceedings. That is why we must treat withsuspicion European, American ong>andong> UN pledges to end impunity. This case is about Kenya, ong>andong>Kenyans must not sit back passively ong>andong> wait for the ong>ICCong> to set the pace for investigations ong>andong>prosecutions. ong>Theong>y must be pro-active on every front to ensure that we have a satisfactory outcome.Kenyan civil society must monitor ong>Morenoong>-ong>Ocampoong>’s performance from the outset ong>andong> remind himong>andong> the ong>ICCong> that they ong>areong> also on trial in this country.Gabriel Dolan has worked in Kenya since 1982, mostly with Catholic Justice ong>andong> Peace Commissionon issues of human rights. Currently, he works on the rights of slumdwellers’ rights in Mombasa.email@example.com