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Book serialisation: Hopes, triumphs and failures at the ICC

Journalists For Justice / 04 December 2017

Award-winning journalist and author Tjitske Lingsma has closely followed events at the International Criminal Court as it took on cases in Kenya, the Democratic Republic of Congo, Central African Republic, Ivory Coast and Libya. Her book, All Rise: The high ambitions of the International Criminal Court and the harsh reality, released in English in September 2017 is a searing examination of the court’s performance, and the hopes for the future as the ICC marks its 20th anniversary next year.

Journalists for Justice launches a two-part serialization of the book variously described by critics as ‘rousing’, ‘thorough’ and ‘a sobering portrait’ of the ICC.

The uproar in the Kenyan Parliament is still resonating when the big day arrives. With a sky of dark grey clouds above the ICC, the trial against Ruto and Sang starts on 10 September 2013 - half a year after the deputy president has been elected in office. Again dozens of members of parliament, representatives of human rights organisations, diplomats and other ICC watchers go up to the public gallery. The international and Kenyan media have turned out as well. 

For the first time in the history of inrernation.al criminal tribunals and courts a deputy president in active service is on trial. Ruto is not a pariah, not a defeated militia leader who is on the run or has been languishing in prison. Ruto is a popular, rich and influential government leader.

It was quite a conundrum for the host state - The Netherlands - to decide how to receive the defendant, a source disclosed. At the ministry of foreign affairs there was great reluctance to apply the full diplomatic protocols, as Ruto was not visiting the country as deputy president, but as a suspect of international crimes. The Kenyan government was however expecting nothing less than first class diplomatic treatment. Apparently some halfway solution was found, between politely handling the delegation while not providing a full official motorcade. 

Two women take the front seats on the left of the public gallery, as close as possible to the deputy president and his defence team. Rachel Ruto and daughter June have come along to support their husband and father. Next to them sits the Kenyan ambassador, who explained during a press briefing any earlier, that the trials harm Kenya and are a logistical nightmare for her embassy as well. Her staff is working night a nd day to make all the necessary arrangements for the suspects and their supporters who a re travelling with them. Sitting in the dock, dressed in a nice grey suit a nd a red tie, Ruto smiles a t his family. 

The nation's leader is the absolute eye-catcher. His co-accused, Joshua Sang, not only sits further away, but is such a short man that, while seated in a chair, he can barely see the desk. Presiding judge Chile Eboe-Osuji opens the hearing.-The Nigerian law expert, a man with a distinct heavy voice and an impressive CV with previous posts such as legal advisor to the UN High Commissioner for Human Rights, head legal affairs for the judges of the Rwanda Tribunal, counsel with the prosecution at the Special Court for Sierra Leone and a PhD from the University of Amsterdam, starts to speak. 

 With visible delight he will guide the trial, assisted by two fellow judges. (Trendafilova is a judge with the section that handles cases in the pre-trial phase; but when cases enter the trial phase another set of judges oversees these proceedings). After an introduction describing the history of the case, Eboe-Osuji addresses the Kenyan deputy president. 'Mr Ruto, please rise to take your plea. William Samoei Ruto, you have been charged in count 1 with murder, constituting a crime against humanity,' he says. 'How do you plead, guilty or not guilty?' 'Not guilty,' Ruto answers with a remarkably soft voice.' In count 2 you have been charged with deportation or forcible transfer of population,' the judge continues. 'How do you plead, guilty or not guilty?' 'Not guilty.' 'In count 3 you have been charged with persecution.' 'Not guilty.' 'Thank you very much. You may resume your seat,' says the judge, who then turns to Sang.· 

The broadcaster - facing the same charges - will also plead 'not guilty.' As the driving force behind the trial, prosecutor Bensouda is given the floor to start with her opening statement. 'It is difficult to imagine the suffering or the terror of the men and the women and children who were burned alive, hacked to death, or chased (from their homes by armed youths,' she recalls the violence that erupted after the elections of December 2007. While Bensouda describes the terrible-fate of ordinary citizens, the suspects listen carefully to her address. But when she refers to Ruto and 'his syndicate of powerful allies,' the deputy president is given a note by one of his lawyers and starts to laugh. Undisturbed the prosecutor continues her statement.

Bensouda tells how Ruto allegedly planned and organised the violence to 'satisfy his thirst for political power.' Eighteen months before the elections, he had started building a criminal organisation consisting of community  leaders, former military, businessmen and media. Ruto played the key role. He 'assigned responsibilities, he raised finance, he procured weapons and hosted meetings in furtherance of the criminal aims of the network,' Bensouda says. He used the social structure of his ethnic group and gathered 'an army of loyal Kalenjin youth to go to war for him in the event of an election loss.' The main target were the Kikuyu, as they were perceived 'the unwelcome settlers who had misappropriated what the Kalenjin considered to be their ancestral land.' 

The prosecutor accuses Ruto of stoking 'the flames of anti-Kikuyu sentiment, both personally at public rallies and indirectly through other influential speakers and through the media.' So when the election was lost, Ruto 'gave the order to attack,' Bensouda tells the court. Broadcaster Sang, who was the 'main  mouthpiece',  placed his 'prime-time radio show at the disposal of the network.'  

He not only spread the word of Ruto's rallies, but even helped to coordinate attacks through ‘coded’ messages. 'In this way, he too contributed to the violence,' the prosecutor explains. A security guard walks to the first rows of the public gallery where a Kenyan man seems to have fallen asleep. Other visitors chuckle when the guard taps the person on his shoulder and explains it is not allowed to have a nap. The man isn't impressed and remains in the same position. Surprisingly the guard leaves it at that. Usually the security personnel is strict in applying rules of order and decorum.

The names

The prosecutor points out that it wouldn't even have been necessary for the ICC to deal with this case. In fact, her office had waited a long time to see whether Kenya would take steps to prosecute the perpetrators itself. She underlines that during the violence Kofi Annan had been sent to Kenya to try to end the conflict through mediation. The former secretary­ general of the United Nations and chair of the AU's Panel of Eminent African Personalities, had managed to strike a power-sharing deal between the parties Part of the agreement was the installation of an investigative body. 

This Commission  of inquiry on Post-Election Violence (CIPEV), led by the Kenyan judge Philip Waki, made an analysis of the conflict. In its final report, published on 15 October 2008, the commission came with an urgent recommendation to the Kenyan authorities to set up a special national tribunal to prosecute those responsible for the political violence between 2007 and 2008.

The CIPEV had produced a confidential list with names of suspects {later it was revealed that Ruto's name was on it), but Waki didn’t disclose

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