The risk of witness interference 'is nothing new' at the ICC
Since judges threw out the case against Kenyan vice-president William Ruto and broadcaster Joshua arap Sang at the International Criminal Court (ICC) earlier this month there has been a lot of discussion that the case could somehow provide a script for other defendants on how to evade justice. In the Ruto Sang case the judges by majority agreed there was not enough evidence to continue with the trial but refused to acquit instead vacating the charges, leaving the possibility for the prosecutor to come back to the case if they find additional evidence. The decision to discontinue the case amid prosecution complaints of witness interference, follows the withdrawal of charges against Kenyan president Uhuru Kenyatta in March this year where similar accusations were made [IJT-172-176].
IJT spoke to Dov Jacobs, associate professor at Leiden University and a longstanding ICC observer who also works as a legal consultant before the court, about the ruling and its implications.
There has been a lot of comment to the effect that the Ruto Sang decision to vacate the charges because of alleged witness interference has provided a new way for defendants to avoid prosecution in ICC cases. Do you agree?
Dov Jacobs (DJ): The risk of witness interference is not new, and there have been many allegations of such conduct, as well as convictions for contempt at the International Criminal Tribunal for the former Yugoslavia (ICTY). Before the ICC there is already the Bemba et al [IJT- 187] case which focuses on alleged witness intimidation.
The whole Kenya case is a very particular situation because the defendants, Kenyatta and Ruto, are in power and this is the only ICC situation where that is the case. That states whose leaders are being prosecuted are unlikely to cooperate with the ICC is not a very original observation. Statistically you are more likely to be prosecuted if you lost the war and are no longer in power. In fact, I think it is unlikely that you will have many Kenya situations: and for that reason alone it cannot be a model.