H.E. Mr. Liu Jieyi President of the Security Council 3 November 2013 Nairobi, Kenya Dear Mr.

President I attach a letter expressing the opposition of the victims in the Kenyatta case at the International Criminal Court to any resolution by the Security Council to suspend the prosecution of that case. On behalf of those victims, I would be grateful if you could bring this letter urgently to the attention of the members of the Security Council. Please accept, Mr. President, the assurances of my highest consideration.

Fergal Gaynor Legal Representative of Victims The Prosecutor v. Uhuru Muigai Kenyatta, International Criminal Court

3 November 2013 Nairobi, Kenya To the Honourable Members of the United Nations Security Council: Introduction 1. I write on behalf of the thousands of victims of the crimes charged in the International Criminal Court (ICC) case against Uhuru Kenyatta1 to express the opposition of those victims to the suspension of the prosecution of the case by the Security Council pursuant to Article 16 of the Statute of the International Criminal Court (Statute). 2. If the Kenyatta trial is delayed until Mr. Kenyatta finishes his term of office 2018, or, if re-elected, in 2023, there is a real risk that the interests of the victims will be totally extinguished. The voice of the victims must be heard on this issue. They were not invited to address the recent AU summit in Addis Ababa, nor to address the Security Council. In meetings in Kenya with hundreds of victims of the crimes charged in the Kenyatta case over the past few months, victims have told me of the appallingly brutal treatment which they suffered during the post-election violence in January 2008, of the Kenyan Governments ongoing failure to help them, and of their great distress at efforts by Mr. Kenyatta to avoid trial. 3. Despite numerous promises, the victims have been denied true justice in Kenya. They see no sign in Kenya of any genuine effort to devote resources to prosecute others responsible for the crimes committed against them, nor to provide them with just compensation for all that they have lost. They have instead seen Mr. Kenyatta deploying huge state resources at the highest international levels to bring his trial their only hope of justice to an end. It is imperative for the Security Council to permit the process of justice at the Court to proceed without further delay, and for the truth to be heard. Deferral would undermine the core purpose of the UN 4. You will have received a letter from the Republic of Kenya to the Security Council dated 21 October 2013 (Kenyan letter of 21 October 2013), to which is attached a letter from the African Union (AU) dated 12 October 2013 (AU letter), to which is attached a copy of the AU Assemblys Decision on Africas relationship with the International Criminal Court (ICC) (AU Decision).2 I refer below to certain assertions contained in those
1

On 20 November 2012, acting pursuant to Article 68(3) of the Rome Statute, Rule 90 of the ICCs Rules of Procedure and Evidence, Regulations 67 and 80 of the Regulations of the Court and Article 17(l)(c) of the Code of Professional Conduct for Counsel, Trial Chamber V of the ICC appointed Fergal Gaynor to represent the interests of all the victims in the case. (Decision appointing a common legal representative of victims, ICC-01/09-02/11-537, 20 November 2012). The Chamber has accepted that there are thousands of victims of the crimes alleged in the case. (Decision on victims' representation and participation, ICC-01/09-02/11-498, 3 October 2012). 2 S/2013/624. The following AU member states declined to sign the AU letter: Republic of Cameroon, Republic of Cape Verde, Republic of Cote dIvoire, Republic of Equatorial Guinea, Republic of Gabon, Republic of The Gambia, Republic of Liberia and Republic of Tunisia.

documents. You will also have received a draft Chapter VII resolution circulated on 1 November 2013 (Draft Resolution). 5. As the Honorable Members of the Council will be aware, a Chapter VII resolution may be adopted only if the Security Council had determined the existence of any threat to the peace, breach of the peace, or act of aggression.3 6. Mr. Kenyattas presidential term is for five years, and expires in 2018. Article 16 of the Rome Statute allows the Security Council to suspend an ongoing prosecution for a maximum of 12 months. 7. It follows that, if the Council accepts that Mr. Kenyatta should be excused from trial while he is President of Kenya, it will have to issue a minimum of five annual resolutions under Chapter VII. Mr. Kenyatta is constitutionally entitled to run for a second term as president. If successfully re-elected, his term of office will expire in 2023. That will require the Security Council to issue a further five Chapter VII resolutions. 8. Each time the Security Council wishes to adopt a Chapter VII resolution, Kenya will be obliged to argue, and the Security Council will be obliged to accept, that there is a threat to international peace, in order to provide a valid legal basis for acting under Chapter VII. 9. To adopt a Chapter VII resolution each year for the next five or ten years in order to permit two men to avoid trial would run counter to the exceptional nature of Chapter VII action. It is also unwise for the Security Council to commit itself to a course of action which might require it to declare the existence of a threat to international peace every year for the next decade. 10. It would also be highly regrettable to take action which would require the Kenyan Government to summon together evidence in order for it to be able to convincingly argue, each year for the next decade, that there exists a threat to international peace in the Horn of and Eastern Africa. 4 This would be antithetical to the core purpose of the United Nations, which is to encourage Member States to strive for peace, rather than to encourage Member States to argue that a threat to the peace exists. Adopting a resolution would send forth a message of impunity 11. To protect the powerful and delay or deny justice to the powerless should not become the role of the Security Council. But the suggestion that serving heads of state and government should be immune from international justice was recently approved by the AUs heads of state and government,5 despite the fact that one of the AUs founding principles is the condemnation and rejection of impunity. 6 The issuance each year of a Security Council resolution exempting Mr. Kenyatta from trial will send forth an even stronger message of impunity.

3 4

Article 39 of the Charter of the United Nations. Kenyan letter of 21 October 2013, page 1. 5 AU Decision, para 10(i) 6 Constitutive Act of the African Union, Article 4(o)

12. Given that the United Nations was established in the aftermath of horrific crimes against millions of children, women and men across the world, directed and approved by serving heads of state and government, this would be a tragic development. A message of impunity for serving heads of state would also be highly inappropriate at this time, given widespread concerns about recent atrocities in Syria. 13. An annual grant of immunity in this case will encourage Mr. Kenyatta to seek re-election in order to avoid trial for as long as possible. It will also encourage other heads of state and government to hang on to power at all cost in order to avoid international prosecution. This has negative implications for the growth of democracy. It is unconscionable to further delay justice for the victims 14. It is unconscionable to require the thousands of victims in the Kenyatta case to wait longer for justice. Nearly six years have passed since the horrors of the post-election violence. Over three and a half years have passed since the ICC Prosecutor was authorized to open an investigation in Kenya. Over two and a half years have passed since Mr. Kenyatta was first summoned to appear at The Hague. And over 21 months have passed since he was committed for trial. 15. In meetings in Kenya over the past few months, many victims have repeatedly and forcefully communicated to me their total opposition to any further delay. The victims, many of whom are elderly or infirm, fear that they will die before they see justice. Some of the victims formally accepted by the Court to participate at the pre-trial stage have died. A delay of five or ten more years means that many more victims, including rape victims who contracted HIV from their rapists, will die before they see justice. 16. For all victims, any further delay in the commencement of trial would delay the realization of rights recognised by the ICCs own jurisprudence: the right to know the truth of the crimes committed against them; to have those responsible for those crimes held accountable; and to receive just reparation for the harm they have suffered.7 Deferral of the trial until 2018 or 2023 carries serious risk of witness withdrawal 17. Further, if the Council votes to defer the Kenyatta case for a year, the risk of witness withdrawal is significant. The ICC Prosecutor has referred to unprecedented levels of anti-witness activity in the two Kenya cases.8 The ICC has recently begun its first prosecution for interference with witnesses, which arose in the Ruto & Sang case. 18. Witnesses will be aware of recent expressions of hostility to the Court by the Kenyan authorities. In a speech to the African Union on 12 October 2013, Mr. Kenyatta described the Court as [a] painfully farcical pantomime and as the
7

Cf. ICC-01/04-01/06-1119, 18 January 2008, para. 98; ICC-01/04-01/07-474, 13 May 2008, para. 32; ICC-01/04-503 OA4 OA5 OA6, 30 June 2008, para. 97. 8 ICC-01/09-02/11-708-Red, 28 March 2013, para 38.

toy of declining imperial powers. The Accused also asserted that we only get bias and race-hunting at the ICC. 9 The ruling Jubilee coalition has approved parliamentary motions to withdraw Kenya from the Rome Statute. However, it is important to note that large sections of Kenyas population continue to support the ICC. The parliamentary motions to withdraw Kenya from the ICC were not supported by the opposition Coalition for Reforms and Democracy (CORD), nor does CORD support the present effort to secure a suspension of the trials from the Security Council. 19. Witnesses who will be called to give evidence at trial against Mr. Kenyatta, and who inevitably have family members in Kenya, nevertheless will be aware of his Governments hostility towards the ICC. They also know that Mr. Kenyatta is the person ultimately in control of the army, the police, and the state intelligence services. 20. Furthermore, the Kenyan media, while ignoring many aspects of the present proceedings (such as the plight of the surviving victims), has widely publicised, and indeed emphasized, the withdrawal of prosecution witnesses in the Kenyatta case10and in the Ruto & Sang case.11 In the Ruto & Sang trial, there have been widely-publicised efforts to reveal the identity of a protected witness. 21. In this environment, the risk of withdrawal of other witnesses who are willing to give evidence against the President of Kenya if the trial is deferred for a year is high. If the trial is deferred for five or ten years, there will be an even more enhanced risk that witnesses will be intimidated or bribed, or might simply elect not to testify. Mr. Kenyatta assumed office in full knowledge of his obligation to attend trial 22. In most legal systems, an accused person cannot ask for his trial to be suspended by relying on circumstances that he has knowingly, voluntarily and deliberately created after being ordered to stand trial. Yet that is what Mr. Kenyatta asks the Council to do. Since the promulgation of the Constitution in 2010, he knew the extent of the duties of the President and that the Deputy President was to deputise for the President in the execution of the Presidents functions.12

Uhuru blasts US, UK in AU speech, New Vision, 12 October 2013, http://bit.ly/19I8QJC [25 October 2013] 10 Among the dozens of news stories in the Kenyan media emphasising the withdrawal of witnesses in this case are: Three Witnesses Pull Out of Kenyattas ICC Case, Citizen News, 18 July 2013, http://bit.ly/1blh877 [25 October 2013]; and Two International Criminal Court witnesses withdraw from Uhuru Kenyattas case, Standard Digital, 18 July 2013, http://bit.ly/13lNuNw [25 October 2013]. 11 E.g. Another ICC Ruto witness withdraws, The Star, 5 September 2013, http://bit.ly/15C0cvH [25 October 2013]; Four more witnesses against Ruto withdraw, East Africa Standard, 16 September 2013, http://bit.ly/1fZAhkN [25 October 2013]; Two more witnesses withdraw from Ruto Hague case, Capital News, 1 September 2013, http://bit.ly/1frP4A3 [25 October 2013]; How witnesses exit hit Bensouda case, Daily Nation, 14 September 2013, http://bit.ly/191ityW [25 October 2013]. 12 Article 147 (1), Constitution of Kenya 2010.

23. From 23 January 2012, Mr. Kenyatta and Mr. Ruto knew that they would have to stand trial at the ICC, and that they would have to spend a considerable portion of the current presidential term of office (2013-2018) on trial and in person in The Hague. In full knowledge of his duty to attend trial, Mr. Kenyatta decided to run as a candidate in the 2013 presidential election, and chose Mr. Ruto as his candidate for Deputy President. 24. Further, prior to assuming office, Mr. Kenyatta made repeated assurances that he would be ability to attend trial and to discharge his obligations as president at the same time. For example, in an interview with Al Jazeera in March 2013, Mr. Kenyatta forcefully denied that he and Mr. Ruto, if elected, would not be able simultaneously to stand trial in The Hague and to run Kenya. He said that Kenya is a country that actually has very firm and clear institutions in place that would allow the country to run, and that the system and the State would continue to run.13 Tools exist within the ICCs structure to address concerns raised 25. In a recent decision in the Ruto and Sang case, the ICCs Appeals Chamber unanimously affirmed that the presence of the accused in the courtroom must remain the general rule.14 However, the Appeals Chamber left the door open to applications by an accused to be absent from trial in exceptional circumstances, which it has left undefined. It also emphasized that absences can be accommodated by changes to the trial schedule or short adjournments of the trial. Those absences must be limited to what is strictly necessary, said the Appeals Chamber, but it has left it up to the Trial Chamber to decide in the first instance what is strictly necessary. 26. This pragmatic and flexible approach has already been applied in the Ruto & Sang case to permit Mr. Ruto to be absent for certain days of his trial, including some days during the coming week. This shows that the Courts structure can accommodate requests by an accused person to be absent to deal with, for example, a major terrorist atrocity. The ongoing failure to investigate and prosecute PEV cases in Kenya 27. The AU letter states that Kenya has put in place bold measures aimed at promoting national reconcilation and healing.15 However, Kenya has failed to properly investigate and prosecute post-election violence (PEV) cases. There is total impunity for those most responsible for the crimes. A suspension by the Security Council of the widely-publicized ICC proceedings would only reinforce that climate of impunity. In would also deprive the victims of the post-election violence of their only hope of justice. 28. In submissions earlier this year to the ICC, the Government of Kenya referred to the formation of a Multi-Agency Task Force (Task Force), whose mandate requires it to recommend on how all the post election violence cases
13

Talk to Al Jazeera : Uhuru Kenyatta: 'Not a banana republic', available at: http://www.youtube.com/watch?v=x2CSdLSVfwU&noredirect=1. 14 ICC-01/09-01/11-1066, 25 October 2013. 15 AU letter, page 2.

can be expeditiously disposed of; Advice and supervise and guide any investigations and prosecutions being undertaken in relation to the PostElection Violence.16 29. The Task Force has not yet provided any public recommendations for prosecution or any public report of its work. Concerns expressed by human rights groups upon the Task Forces creation that it could serve as a smokescreen for continuing inaction17 remain valid. Press reports of public statements made by the Head of the Task Force, who is also the Deputy Director of Public Prosecutions, suggest that the Task Force was provided with 6,081 files to review. She has provided reasons, mainly based on the absence of evidence, to explain why she believes that only a fraction of the cases will result in prosecution. 18 30. In its submissions earlier this year to the ICC regarding complementarity, it is striking that the Government did not repeat its 2011 undertaking to the Court to investigate those at the highest levels of responsibility for PEV crimes. That undertaking has come to nothing. 31. On 31 March 2011, in an application to have the Kenya cases deemed inadmissible by the ICC,19 the Government repeatedly assured the Court that there would be prosecutions in Kenya for the post-election violence in respect of persons at the highest levels of authority and for the most serious crimes.20 The expression to the highest levels was repeated several times in its submissions,21 and Kenya promised to file periodic reports on the issue. 32. On 4 July 2011, the Government filed one six-page report22 in which the Director of Criminal Investigations reported, in essence, that he had found no incriminatory evidence against the six suspects then before the ICC, but that investigations were ongoing. Significantly, he did not refer to any investigations against any other high-level accused, and made no attempt to report on how [investigations] extend up to the highest levels and to all cases, as earlier promised by the Government. 33. Since then, as far as I am aware, the Government has not publicly indicated that there have been any impartial and thorough investigations to the highest levels by the Kenyan authorities in respect of PEV crimes. 34. The unfortunate reality, over two years after the Government assured the ICCs Pre-Trial Chamber that Kenyan national investigative processes do
16

Terms of Reference of Task Force on Post-Election Violence. (http://www.odpp.go.ke/index.php/vacancies/128-task-force-on-post-election-violence-cases) 17 IWPR, New Kenyan Justice Effort Meets Scepticism, 4 April 2012 (http://iwpr.net/report-news/newkenyan-justice-effort-meets-scepticism) 18 5,000 post election suspects to go scot-free, The Star, 18 August 2012 (http://ads.thestar.co.ke/news/article-5656/5000-post-election-suspects-go-scot-free). See also http://www.icckenya.org/2012/10/kenyan-prosecutor-insufficient-evidence-has-made-prosecuting-postelection-violence-cases-hard/ 19 ICC-01/09-02/11-26, Application on behalf of the Government of the Republic of Kenya pursuant to Article 19 of the ICC Statute, 31 March 2011 (Government submissions of 31 March 2011). 20 Government submissions of 31 March 2011, para. 5. 21 Government submissions of 31 March 2011, paras. 5, 71 and 79. 22 Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the PreTrial Chambers Decision on Admissibility, Annex 1, 4 July 2011, ICC-01/09-02/11-153-Anx1.

extend to the highest levels for all possible crimes,23 is that not one person at a high or mid-level of responsibility for PEV crimes has been prosecuted in Kenya. 35. None of the state entities involved in the investigation and prosecution of crimes (the Director of Public Prosecutions, the Multi Agency Task Force, the police, the Attorney General), appears willing to squarely accept responsiblity for the non-investigation and non-prosecution of PEV cases. Explanations offered so far have concerned the absence of evidence or the lack of resources. 36. However, the real problem appears to be an absence of a will to prosecute. There has been no expression of support by Mr. Kenyatta or Mr. Ruto for the investigation and prosecution of those most responsible for PEV crimes. Mr. Kenyatta referred in his 12 October 2013 speech to the African Union to the fact that the power-sharing coalition instituted after the PEV had a mandate which included securing justice for the victims of the post-election violence. He did not refer to the fact that there have been no prosecutions in Kenya against mid- or high-level suspects, and only a handful of prosecutions of direct perpetrators. Neither the Kenyan letter of 21 October 2013 nor the AU letter make any reference to the total impunity enjoyed in Kenya by those most responsible for the post-election violence, nor to any intention to prosecute them. Police reform has yet to change attitudes on the ground 37. In the AU letter, the signatories claim that: Progress had been made in transforming [Kenyas] police and restoring the independence and credibility of its judiciary. However, as Amnesty International noted earlier this year, there has as yet been no discernible change in the impunity enjoyed by Kenyas police forces: police have not yet changed their behaviour, the organizational ethos is still left unaddressed, and the corruption and human rights violations that occurred in the past are still not effectively being addressed by the new institutions.24 The new prosecution service shows no intention to prosecute PEV cases 38. The AU letters reference to efforts to restore the independence and credibility of the Kenyan judiciary25 is of little relevance. Under the Kenyan legal system, it is not the judiciary which prosecutes. Rather, this is the role of the Office of the Director of Public Prosecutions (ODPP). However, there is a serious question as to whether the ODPP will allocate sufficient personnel and resources, and will receive the political support necessary, to genuinely investigate and prosecute those most responsible for the PEV cases. 39. The purpose of the new ODPP is, in its own words, to ensure more accountability and transparency in the functions of the state in handling

23 24

Government submissions of 31 March 2011, para. 32. Amnesty International: Police Reform in Kenya: A Drop in the Ocean, 2013, p. 20. 25 AU letter, page 2.

criminal matters. 26 Nevertheless, the 82-page Strategic Plan for the Independent Office of the Director of Public Prosecutions, released in March 2012 and covering the period until 2015, is not encouraging. It makes a single reference to [t]he expectation on the ODPP to prosecute cases including high level corruption and PEV,27 but no reference whatsoever to any intention, let alone a comprehensive plan, to prosecute PEV cases, at any level. This is a striking omission, and belies the Government of Kenyas assertion to the ICC that the new ODPP will go a long way in addressing impunity in Kenya.28 The International Crimes Division of the High Court is not operational 40. The Government has told the ICC that: the Judiciary has created an international crimes division within the High court [...] for purposes of both dealing with the pending 2007/2008 PEV cases that are being pursued by the Director of Public Prosecutions (DPP) and in order to prepare in the unlikely event that there are similar cases in the future.29 41. The International Crimes Division (ICD) was formally inaugurated on 30 April 2013, and is not yet operational. A press report of the Attorney Generals comments upon its inauguration on 30 April 2013 suggest that he does not conceive it principally as a forum in which to clear the thousands of PEV cases.30 The Chief Justice has expressed concern regarding the ICDs funding and the impact this might have on its ability to commence operations.31 So far, it remains to be seen whether the ICD will have any impact on the backlog of PEV cases awaiting proper investigation and prosecution, and, in particular, on the total impunity currently enjoyed in Kenya by those at middle and high levels of responsibility for PEV crimes. Kenyan Government support to IDPs has been inadequate and discriminatory 42. The AU letters reference to measures taken in Kenya to ensure the return of refugees and the resettlement and compensation of the victims of the tragic events of 200732 requires careful scrutiny. Many thousands of post-election violence victims were forced to flee their homes and have not returned. Thousands live in abject poverty, particularly in the Nyanza and Western
26

ODPP, Strategic Plan 2011-2015, March 2012 (http://www.odpp.go.ke/index.php/downloads/finish/8-strategic-plan/10-strategic-plan) (ODPP Strategic Plan). 27 ODPP Strategic Plan, page 8. 28 Government Submissions, para. 38. 29 Government Submissions, para. 39. 30 The Attorney General is reported to have said: But this [the post-election violence] is not the primary reason why the ICD is being set up. This is a court set up to deal with cross-border crimes like piracy, human trafficking and drug trafficking among others, but if the Director of Public Prosecutions has other cases he feels are of international magnitude they will definitely be tried here as well. IWPR, Kenyas Special Court Faces Uphill Task, 30 April 2013. ( http://iwpr.net/report-news/kenyasspecial-court-faces-uphill-task) 31 Capital FM news, Cash hinders set up of international crimes court in Kenya, 30 April 2013. (http://www.capitalfm.co.ke/news/2013/04/cash-hinders-set-up-of-international-crimes-court-inkenya/) 32 AU letter, page 2.

regions, and have received next to no assistance from the Government. Their plight has been alluded to by Kenyas own parliamentary committee on internally displaced persons, the UN Special Rapporteur on IDPs, and domestic and international human rights bodies. 43. Many victims in this case have complained that they consider that the allocation of government assistance has not taken place in an ethnically neutral fashion. That concern was echoed in a July 2011 report by the Kenya National Assemblys Select Committee on the Resettlement of Internally Displaced Persons 33 which refers to discrimination in the distribution of Government aid in favour of the Kikuyu community.34 It is also consistent with a Human Rights Watch report of January 2013 which found significantly preferential treatment for internally displaced persons (IDPs) from the Kikuyu community over other displaced people in the two counties that it researched.35 44. The highly-publicised payments recently made to IDPs by Mr. Kenyatta and Mr. Ruto have not focused on the Nyanza region (where very large numbers of PEV victims of the Luo, Kisii and Luhya communties live) or the Western region (where many Luhya victims live). Some of the recent payments have been made to evictees from the Mau forest, and are therefore wholly unrelated to the PEV. Those to PEV IDPs have been made to a very small minority of all PEV IDPs, and Mr Kenyatta has urged those receiving payments to forget about the past.36

Please accept the assurances of my highest consideration.

Fergal Gaynor Legal Representative of Victims The Prosecutor v. Uhuru Muigai Kenyatta, International Criminal Court

33

Report of the Select Committee on the Resettlement of Internally Displaced Persons, April 17, 2012. (http://www.knchr.org/Portals/0/Reports/PSC_Final_IDPs_report_2012-2.pdf). 34 Report of the Select Committee on the Resettlement of Internally Displaced Persons, pages 37, 41, 45 and 46. 35 Human Rights Watch: Kenya: Discrimination Against Rift Valley Displaced, 17 January 2013 (http://www.hrw.org/news/2013/01/17/kenya-discrimination-against-rift-valley-displaced). 36 http://www.statehousekenya.go.ke/news/sept2013/2013070903.htm

Copies of this letter have been sent to: The Security Council Azerbaijan Australia Argentina Guatemala Luxembourg Morocco Pakistan Republic of Korea Rwanda Togo France Russian Federation United Kingdom United States H.E. Dr. Agshin Mehdiyev H.E. Mr. Gary Quinlan H.E. Mrs. Maria Cristina Perceval H.E. Mr. Gert Rosenthal H.E. Ms. Sylvie Lucas H.E. Mr. Mohammed Loulichki H.E. Mr. Masood Khan H.E. Mr. Joon Oh H.E. Mr. Eugene-Richard Gasana H.E. Mr. Kodjo Menan H.E. Mr. Grard Araud H.E. Mr. Vitaly I. Churkin H.E. Sir Mark Lyall Grant H.E. Ms. Samantha Power

The International Criminal Court Trial Chamber V(b) Ms. Fatou Bensouda, Prosecutor Mr. Steven Kay QC, Counsel for Mr. Kenyatta

10