Saving the ICC: A Proposal for a Witness Protection Program

Alemayehu G Mariam

 Justice delayed, again?

In late January of this year, I wrote a commentary entitled, “Kenyatta at the ICC: Is Justice Deferred, Justice Denied?” In that commentary I openly expressed my angst over the endless delays, postponements and backpedalling talk about “false evidence” and “lying witnesses” surrounding the Uhuru Kenyatta trial at The Hague. I felt  there was perhaps some monkey business going on.  “I don’t want to say I smell a rat but I feel like I am getting a whiff. Is the stage being set to let Kenyatta off the ICC hook?”, I rhetorically asked. I am even more jittery now that Kenyatta’s trial is postponed once again.

Last week, the International Criminal Court (ICC) postponed the trial of Kenyan President Uhuru Kenyatta to October 7.  According to a  Statement of the ICC Trial Chamber, “The purpose of the adjournment is to provide the Government of Kenya with a further, time-limited opportunity to provide certain records, which the Prosecution had previously requested on the basis that the records are relevant to a central allegation to the case.” Kenyatta, along with other co-defendants including his deputy president William Ruto, faces multiple charges of crimes against humanity for his alleged role in masterminding the post-election violence in Kenya in late 2007 and early 2008. Over 1,100 people are believed to have died in that violence and 600 thousand displaced. In January, the ICC Prosecutor was given a three-month postponement to reassess evidence against Kenyatta after “a witness withdrew and another admitted giving false evidence.”

Is the case against Kenyatta going anywhere? I hate to be the bearer of bad news, folks. It is time for all of us justice junkies to face facts. It’s all over, baby! Uhuru Kenyatta will never see the inside of the ICC courtroom in The Hague. It’s a done deal. He’s gotten away with murder and a medley of other crimes against humanity. Forget about it! Let’s move on…

Deny, delay, defend and disappear the case

I am throwing in the towel in the fight to bring Uhuru Muigai Kenyatta to trial at The Hague. I sympathize with the ICC Prosecutor and the ICC itself. They have been feeling a lot of heat from the powers that be behind the scenes. After all, Kenyatta is a “sitting president” (which in Africa means “above the laws of man and God). He is untouchable. The ICC, the ICC Prosecutor, the U.N. Security Council and the West in general have received  second degree burns from the backdraft of the bogus but inflammatory “race hunting” charges leveled against them by some African “leaders”. Since the middle of 2013, a number of African “leaders” have been beating the drums of racism to divert attention from Kenyatta’s crimes against humanity. Hailemariam Desalegn, the ceremonial prime minister of Ethiopia and rotational chairman of the African Union, went on the warpath scandalizing the ICC and the ICC Prosecutor for organizing an African safari to “race hunt” black African leaders. Hailemariam and his “foreign minister” even tried to orchestrate a mass walkout on the Rome Statute at a special summit of the African Union in October 2013 by sticking the race card in ICC’s face. It was an iconic moment of shame for Africa. The African Union “leaders” gathered in Addis Ababa in a pathetic spectacle like panicked prey fleeing a stalking predator (race hunter) seeking safety in numbers. They huffed and puffed, ranted and raved against the ICC’s racism, but the threatened “mass treaty-cide” brinksmanship flopped in the end. The Sturm und Drang of a mass walkout on the Rome Statute proved to be nothing more than a tempest in a teapot.

Kenyatta is a “playa” in the global anti-terrorism campaign in the Horn of Africa. Kenya has been victimized by cold-blooded and barbarous terrorists on numerous occasions. The law of unintended consequences has come to the aid of Kenyatta. The powers that be will not allow one of their “partners” in the “war on terrorism”  (I did not say partner in crimes against humanity) to be brought to justice for crimes against humanity while he is fighting terrorists who are committing crimes against humanity. To paraphrase President Franklin Roosevelt, there are all sorts of criminals against humanity who are S.O.B.s but Uhuru is our S.O.B. Kenyatta’s ICC trial begs unsettling questions: Who could be next? Omar al Bashir of Sudan? (Al-Bashir sneered at the ICC indictment in 2009: “Tell them all, the ICC prosecutor, the members of the court and everyone who supports this court that they are under my shoes.” He did not say that to mean, “put yourself in my shoes”.) Yoweri Museveni of Uganda? Paul Kagame of Rwanda? Robert Mugabe of Zimbabwe? Paul Biya of the Cameroons? Teodoro Obiang Nguema Mbasogo of Equatorial Guinea? How about THE SYNDICATE running Ethiopia (into the ground)?

Things would have been different if Kenyatta had been an ex-president like Charles Taylor of Liberia, Laurent Gbagbo of Cote d’Ivoire or Hissien Habre of Chad. These ex-presidents-cum-criminals against humanity are fair game. They are washed out. They serve no useful purpose like Kenyatta.  They are cooling their heels in ICC jails now.

So the “Lady Justice of the ICC” with a scale in one hand and sword in the other blindly walks around Africa asking, “How does one prosecute ‘sitting African presidents and prime ministers’ suspected of crimes against humanity? (BTW: Is Lady Justice actually blind or just blindfolded?) My answer is simple. Prosecute sitting African presidents sitting in their palaces the same way you prosecute ex-African presidents sitting in ICC jail cells  today. Take off your blindfold and behold, Lady Justice of the ICC. The office of president is being worn by African criminal thugs who come to power by stealing elections or shooting their way into office like ballistic armor of prosecutorial immunity. To be an African “president or prime minister” today is to be licensed to kill, torture, jail and commit crimes against humanity with impunity. If Kenyatta could be brought to trial at the ICC by some miraculous act (even if there is no conviction), that would set the greatest precedent for the principle of the rule of law in the modern history of Africa. Every African dictator alive today and dictator-to-be in the future would think twice, thrice before he sending out his goons to kill, torture and jail his opponents and innocent citizens.

In passing, let me note that the ongoing ICC trial of Kenyatta’s deputy, William Ruto, is becoming a judicial circus of sorts. Ruto is supposedly in trial, but he rarely attends or shows up in court. He must think it is a big joke. His absence makes a mockery of the ICC. As of last week, ICC Prosecutor Fatou Bensouda has not been able to compel his regular attendance. Ruto seems confident his case is not going anywhere because if he goes down, he is going to take a whole lot of people with him including Kenyatta. The trial is a waste of time for Ruto. For him the International Criminal Court is the International Criminal Circus.

I complement and congratulate Uhuru’s defense team out of professional courtesy. They have done a hell of a job stonewalling and sandbagging the ICC Prosecutor. In fact, they have updated the age-old proverbial “Handbook of Criminal Defense” which prescribes three rules for the criminal defense lawyer: 1) deny (the charges), 2) delay (the trial) and defend (by hiding the evidence and paying off witnesses). Kenyatta’s defense lawyers have added a fourth rule: Disappear the case into thin air by applying rules 1-3. They have played their discovery games (hiding the ball) well making it extraordinarily difficult for the ICC Prosecutor to obtain invaluable documentary evidence. Kenyatta’s lawyers and Kenya’s Attorney General, Githu Muigai, have successfully fought to prevent disclosure of Kenyatta’s financial transaction and bank records which are necessary for the ICC Prosecutor to prove whether Kenyata directly or through intermediaries paid or offered to pay hush money to potential witnesses in exchange for their recantation or “loss of memory”.

I want to be the first to “congratulate” Kenyatta and Ruto for walking over (I meant out of) the ICC scot-free and making a travesty of the Rome Statute. They managed to do what the lame leadership of the entire African Union was unable to do. They managed to slip away as the “ICC Lady Justice” stood blindfolded and handcuffed.

Cheating justice is by no means unique to Kenyatta and Ruto. It happens in the U.S. For instance, the famous American mobster John Gotti, in a little over a year, was prosecuted on multiple counts of racketeering, murder, obstruction of justice, hijacking, loan sharking, gambling, extortion, jury tampering and witness intimidation. He beat the rap three times.  He once paid a juror $60,000 to produce a “hung jury” (deadlocked jury). Gotti’s defense attorneys consistently denied the existence of a Gambino Crime Family and caricatured the government’s case as a personal vendetta. Gotti was finally convicted with the testimony of the his underboss Salvatore “Sammy the Bull” Gravano, who broke the Omerta, or the gangsters’ code of silence, and testified resulting in Gotti’s conviction on multiple felony counts. That brings me to the crux of my commentary this week…

The need for an integrated ICC Witness Protection Program

In light of Kenyatta’s case, the need for an integrated ICC witness protection program is immediate and compelling. Kenyatta is alleged to have conspired with the Munguki  (“Kenya’s mafia”), which like the infamous Mafia, is a racketeering organization with a record of extreme criminality. Kenyatta denied having any connection to the Munguki  (if such an organization in fact existed). He and his African Union brethren claimed the whole ICC prosecution was a racial vendetta of sorts.  According to the Los Angeles Times, the Munguki “may be the biggest and most dangerous gang in the world, a thuggish army terrorizing Kenya with extortion rackets and gruesome punishments.” The ICC Prosecutor alleged that “Kenyatta met Mungiki leaders multiple times, sometimes at State House, Kenya’s White House, to plan the attacks in the Rift Valley towns. At one meeting, Kenyatta distributed 3.3 million Kenyan shillings — about $36,000 — to people he charged with carrying out the attacks.”

There is substantial evidence to believe that there has been significant witness tampering  and intimidation in the Kenyatta case.  On December 19, 2013, ICC Chief Prosecutor Fatou Bensouda publicly stated, “On December 4, a key second witness in the case confessed to giving false evidence regarding a critical event in the Prosecution’s case. This witness has now been withdrawn from the Prosecution witness list… Having carefully considered my evidence and the impact of the two withdrawals, I have come to the conclusion that currently the case against Mr Kenyatta does not satisfy the high evidentiary standards required at trial… I therefore need time to complete efforts to obtain additional evidence and to consider whether such evidence will enable my office to fully meet the evidentiary threshold required at trial.” It is not at all clear from Bensouda’s statement why the two witnesses gave false testimony in the first place and how the ICC Prosecutor’s office failed to vet them or further corroborate their testimony before filing charges.

It is, however, an undeniable fact that witnesses against Kenyatta have been threatened and bribed. In February 2013, Prosecutor Bensouda asserted that persons associated with Kenyatta had bribed and/or attempted to pay off a witness to withdraw his testimony and not to testify in the case. Bensouda stated,  “Witness 4 revealed in May 2012 interview that he had been offered, and accepted, money from individuals holding themselves out as representatives of the accused to withdraw his testimony against Uhuru… The witness provided emails and bank records that confirmed the bribery scheme. In light of these cumulative revelations, the prosecution considers it is not useful to call him as a witness.”  In a brazen act of witness intimidation, Kenyatta’s defense team demanded the ICC turn over to Kenyan authorities witnesses who had given evidence so that the “self-confessed criminals so they can face the full force of the law.” Prosecutor Bensouda was so concerned about witness intimidation and tampering, she asked the Court to grant witnesses courtroom protective measures, including voice and image distortion, use of pseudonyms and in camera sessions for identifying evidence.

The apparent recantation of the Kenyatta witnesses raises unsettling and puzzling questions. It seems they withdrew their testimonies not because they actually gave “false testimony” but because they feared certain and swift retaliation if they appeared at trial and testified. Their recantations should not be taken as genuine but as the product of reasonable fear of imminent persecution and prosecution by Kenyan authorities. Should it come as a surprise to anyone that witnesses who face massive retaliatory actions by the Kenyan Government suddenly declare they have given false testimony to save their lives?

Last July, the International Bar Association International Criminal Court Programme (IBA) issued a report entitled, “Witnesses before the International Criminal Court”, documenting the  challenges facing the ICC in “protecting, supporting and ensuring the rights of witnesses” before that tribunal. The report pointed out significant deficiencies in the ICC’s witness protection efforts and services. These included deficiencies in “obtaining state cooperation, supporting witnesses’ practical and psychosocial needs, organising logistics, securing their safe passage to The Hague, and protecting persons from potential threats or interference during investigations and trials.” The report specifically found

the legal status of ICC witnesses  who have already testified is unclear and should be clarified. While the ICC’s legal texts provide for witness protection measures throughout the proceedings, little attention has been given to the question of what should happen to these individuals once their testimonies are complete. The same can be said for acquitted persons, even those who testify as ‘witnesses’ on their own behalf. The IBA considers that the detention of ICC witnesses for several years after they have finished testifying pending the final resolution of protracted legal arguments to determine their status, is not the model the ICC or the Netherlands should follow in future cases. Likewise the status of acquitted persons (whether they were witnesses or not) who cannot return to their country for security reasons must be clarified. The IBA recommends that the ICC, States Parties and the Host State work together and develop a joint policy on the eventual placement for witnesses and acquitted persons with asylum claims, based on their respective human rights obligations.

Some witness have  faced jurisdictional nightmares when they sought asylum following their testimonies in the ICC. According to the IBA report, in 2011, defense witnesses in the Thomas Lubanga Dyilo, Germain Katanga and Mathieu Ngudjolo Chui cases “applied for asylum in the Netherlands, raising difficult questions about the legal status of witnesses who testify before the ICC.” The report concluded: “These [asylum] claims have proven to be a litigious conundrum in terms of the overlapping jurisdictions of domestic, regional and international courts, and raise questions about who owes human rights obligations to these witnesses and the scope of these obligations.”

The ICC maintains a Registry for the protection of witnesses. However, that program also suffers from significant deficiencies. According to the IBA report, the “operational structure of the Victims and Witnesses Unit needs to be reinforced. The Registry is not providing sufficient operational support for the protection of defence witnesses… [and there is a need to]… increase capacity for witness relocation…” The IBA report recommends, “The Registry should explore opportunities with non-States Parties to increase capacity for witness relocation. Many non-States Parties with effective national protection programmes would be keen to cooperate with the ICC on witness relocation matters. The IBA encourages the Registry to continue pursuing ways to engage with these non-States Parties, which could be done through ad hoc agreements as provided in the Rome Statute’s cooperation provisions.”

A Proposal for “International Criminal Court Witness Protection Program” (ICC-WITSEC)

The principal problem in prosecuting incumbent African leaders suspected of crimes against humanity is ( and will be) finding and securing the cooperation of credible witnesses inside the countries of the accused African leaders. As the Kenyatta case has shown, it may be easier to find a snowball in hell than finding credible witnesses willing to come forward to testify against “sitting African presidents, prime misters” and the like suspected of crimes against humanity. The absence of an effective and robust witness protection program is and will continue to be the Achilles heel of the ICC. The ICC Prosecutor and the Court itself must find effective ways of preventing witness intimidation, witness tampering, witness payoffs and subornation of perjury if the Rome Statute is to remain a credible deterrent to crimes against humanity for African leaders-cum-thugs and others.

Here is where the John Gotti and Uhuru Kenyatta cases intersect. The U.S. Government was able to convict Gotti (despite three spectacular prior failures) because Sammy (“the Bull”)  Gravano, Gotti’s underboss, testified against him.  In return for a reduced sentence and placement into the Witness Protection Program, Gravano sang like a canary.  Since Gravano’s testimony, dozens of notorious mobsters have cut deals with the U.S. Government and  testified against their mob bosses, resulting in dozens of convictions and hundreds of arrests of the most notorious mobsters.

The allegations and the proffered evidence in the Kenyatta case shows that the co-conspirators involved include not only other high level Kenyan officials but also low levels ones and members of the criminal underground. Compelling and convincing testimony is likely to come from the underbosses who often do the dirty work for their African “leaders” (capos/ capodecina/caporegime) in committing crimes against humanity. If there are to be successful prosecutions of incumbent high level African “leaders”, the most compelling testimony and evidence is likely to come from their disgruntled lieutenants and underbosses and those paid off to do their dirty work, including police and security thugs and other criminals preying on the community. The ICC Prosecutor should target not only the capo di tutti capi (boss of all bosses) of the African leadership but also the street enforcers and foot soldiers.

I believe the ICC Prosecutor should initiate its own “International Criminal Court Witness Protection Program” for deserving and carefully vetted witnesses patterned after the U.S. witness protection program (WITSEC). WITSEC  provides effective protection to threatened and vulnerable witnesses against organized criminals before, during, and after a trial. In the program, witnesses and their families are provided new identities and documentation and relocated. Since the program was launched in 1971, nearly ten thousand witnesses and family members have been placed in the WITSEC program. Incredibly, “95% of the witnesses in the program are criminals.” The WITSEC program was established under Title V of the Organized Crime Control Act of 1970, which enumerates the terms and conditions for the United States Attorney General to provide for the relocation and protection of a witness or potential witness in cases involving organized crime or other serious offenses.

Just as the U.S. Government offered Mafia underbosses, capos, consiglieres and soldiers prosecutorial leniency and the chance to join WITSEC, the ICC Prosecutor should be prepared to offer full protection to those credible witnesses against the African bigwigs accused of crimes against humanity, including the chance for relocation to another country with their families. Without an ICC witness protection program, the chances of securing the cooperation of credible witnesses could be extremely limited. When WITSEC was first launched, many people expressed moral outrage in “coddling” smaller criminals to catch the big ones. They criticized Congress for following the “end justifies the means” policy. Though the Mafia is not out of business, racketeering laws and the WITSEC program have made a significant dent in all forms of organized crime in the U.S. and rendered organized criminals weak and vulnerable.

One of the issues noted in the IBA report is the adverse impact of witness protection and services on the ICC budget. That is an important consideration. However, things must be seen in perspective. The long ICC trial of ex-Liberian President Charles Taylor cost a quarter of a billion U.S. dollars. “Taylor received legal assistance of $100,000 per month, which together with the location of the forum and the five-star calibre of the legal representation of both sides made the process an enormously costly affair, estimated at some $35-$40 million per year. By its conclusion, it may end up having  cost the international taxpayer close to $250 million, and probably much more than that, if and when the verdict leads to an appeal.” While justice is priceless, the ICC should not be turned into the International Cash Cow for lawyers. There are some three dozen indictees in some pre-trial stage at the ICC. Even at a fraction of the cost of the Taylor trial, the total cost to prosecute these suspects could run into several billions of dollars. There is no reason why judicious cost savings in legal fees and expenses could not be used for an integrated witness protection program.

The ICC should also work with its biggest contributors, including Germany, the UK, Italy, France and Spain to support a witness protection program including grants of asylum and relocation support services to deserving witnesses.  Participating witnesses and their families should be provided new identities and essential support,  including job training, employment assistance, housing and medical care.

A robust witness protection program is perhaps the best that could be realistically expected today in the effort to bring African leaders-cum-thugs to the bar of international justice.  If the ICC as an institution could strike a tiny tintinnabulation of fear of prosecution and accountability in the stone cold hearts of African “leaders”, their capacity and wanton desire to commit crimes against humanity could be significantly mitigated.

Few witnesses in Africa would be brave enough to pay the cost in their lives to bring the truth to light in crimes against humanity committed by African “presidents, prime ministers” and the like. If there are surviving victims, they are too traumatized to become witnesses. If they are the victimizers, they have no reason for coming forward. Yet, if there is a robust  ICC witness protection program, it is highly likely that victims and some disgruntled victimizers could come forward and testify against the mass and serial murderers and torturers occupying the highest public offices in Africa.

I believe many African criminals against humanity in power today feel confident that they will laugh their way out of the International Criminal Court certain in the knowledge that no one would dare testify against them and expect to live in their countries. The ICC should learn this fundamental lesson from the Kenyatta case. Justice is priceless but the small cost of delivering justice to the victims of injustice and crimes against humanity is an integrated witness protection program. The alternative is courtroom window dressing, playacting justice on a world stage and telling a courtroom tale of injustice “full of sound and fury, signifying nothing.”

I have no doubts that African leaders-cum-thugs looking at their Kenyan brethren are heaving a big sigh of relief. They chuckle in the thought that the ICC for them is an International Criminal Court of Chumps. That’s why we must rally to save the ICC from International Criminals and Crooks in high offices in Africa.

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