The trial against Uhuru Kenyatta at the International Criminal Court (ICC) came to an abrupt halt with the withdrawal of charges. This is a recent case and it may be difficult to disentangle initial emotional reactions from clear and rational assessment of the legitimacy of the decision. However, the Court’s initial case against Thomas Lubanga raised similar concerns following two stays of proceedings, and can better assist in an assessment of the legal and perceived legitimacy of the Court. Arguably, there is a need for a broader balancing method and the implementation of an interdisciplinary approach throughout the organs of the ICC.
The Stay of Proceedings
Per Whiting (2009): “One of the most remarkable aspects of this story was its inevitability” (p. 209), as the contention culminating in the stay of proceedings arose from the governing documents of the Court itself. For this reason, it is important to outline the relevant legislation, namely the Rome Statute and the Relationship Agreement, 2004. Article 18(3) of the Relationship Agreement states: "The [UN] and the Prosecutor may agree that the [UN] provide documents or information to the Prosecutor on condition of confidentiality and solely for the purpose of generating new evidence and that such documents or information shall not be disclosed to other organs of the Court or to third parties, at any stage of the proceedings or thereafter, without the consent of the [UN]". Similarly, Article 54(3)(e) of the Rome Statute stipulates that the Prosecutor may “agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality”. However, under Article 67(2) of the Rome Statute, the Prosecutor must, as soon as practicable, disclose exculpatory evidence in their possession or control. Evidently, these conditions have the potential to cause serious conflict, one that became evident during the Lubanga Trial.
Both stays of proceedings were ordered upon consideration that the accused’s right to a fair trial had been jeopardised. The first stay of proceedings followed the failure of the Prosecution to disclose exculpatory evidence to the Defence. The Prosecution found itself in a catch-22 scenario, as it had obtained this evidence under confidentiality agreements. The unconditional release of Lubanga was also ordered, but was subsequently overturned by the Appeals Chamber. The second stay of proceedings resulted from the non-implementation of the Court’s orders by the Prosecution to confidentially disclose identifying information to the Defence. This time, the Appeals Chamber overturned the order, holding that the Trial Chamber had erred in immediately resorting to the stay of proceedings.
Legal Absolutism and the Balancing Method
From a legal perspective, the defiant nature of the Court greatly increased its legitimacy. Both stays of proceedings emphasised the Court’s commitment to due process and the accused’s right to a fair trial. Anoushirvani (2010) dispels criticisms that the Court opted for an accused-centred approach by pointing out: “while protecting victims and granting victims a voice in judicial proceedings are extremely important, they cannot be afforded at the expense of justice ... To protect its legitimacy, the ICC should not value expedience over rules of procedure established to ensure a fair trial” (p. 223-226). By ensuring the right to a fair trial, the Court effectively legitimised its role as an unbiased international criminal tribunal. The Legitimacy of the Court is further augmented by their adherence to the international principles of procedural fairness laid down by the European Court of Human Rights and the International Criminal Tribunal for the Former Yugoslavia. Had it not adhered to such well-recognised and reasoned jurisprudence, the legal legitimacy of the court would surely have been damaged.
Nevertheless, the absolutist approach could potentially jeopardise the Court’s perceived legitimacy (Sunshine & Tyler, 2007), as the risk of effectively ending the trial cannot be denied. Iontcheva-Turner (2012-2013) lists the serious risks inherent in the absolutist approach: “The Chamber ordered the stay and release in full awareness of the significant costs - to victims, who would not receive a remedy for the wrongs they suffered; to the international community, which created the ICC to punish and deter international crimes; and to the Court's own goal of uncovering the truth” (p. 179). She advocates the balancing method – an approach partly implemented by the Appeals Chamber by upholding the stay of proceedings but reversing the order of release. Although similar to the legal appraisal of interests and rights, this balancing method takes wider society – beyond the courtroom – into account, especially the international community and victims. Neither is this an exclusively sociological idea. Anoushirvani (2010), who passionately affirms the legal legitimacy of the Court also mentions: “World opinion, including the opinions of victims, is essential for legitimacy. If victims of war crimes do not feel as if the Tribunal is working in the interest of justice, the Tribunal cannot attain legitimacy” (p. 236). Clearly the importance of perceived legitimacy has been recognised by legal and sociological scholars alike, and there is ample evidence that the balancing method would be beneficial for the legitimacy of the Court.
This multifaceted view of legitimacy enhances the need for an interdisciplinary approach at the ICC. The legitimacy of the Office of the Prosecutor (OTP) would be bolstered by investment in independent research to ensure less reliance on UN and NGO evidence more likely to be subject to confidentiality restrictions. Similarly the employment of researchers with training in both law and sociological methodologies would ensure that information is collected efficiently and fairly. The Court, in turn, would be furnished with more reliable evidence, which has also been collected in accordance with the law. The ICC itself would also benefit from internal evidence-based research on the effectiveness of its policies and practices so that the balancing method could be implemented in a fair and just manner, further ensuring legitimacy.
The withdrawal of charges against President Kenyatta illustrates the conflict between legal absolutism and perceived legitimacy. From a legal perspective, Prosecutor Fatou Bensouda was correct to withdraw the charges until a time when more evidence becomes available. This decision mirrors the commitment to fair procedures in the Lubanga case. On the other hand, Fergal Gaynor, counsel for the victims, highlights the detrimental impact such a decision will have on the legitimacy of the Court from the perspective of those who “have received almost nothing from the entire ICC process”. The withdrawal of charges will require its own individual assessment in time. Nevertheless, parallels can be drawn between the two cases with regards to the legitimacy of the ICC. The introduction of a balancing method as described above could mitigate the harshness of the current absolutist approach.
Thus, the legitimacy of the Court is kaleidoscopic, necessitating the implementation of an interdisciplinary strategy. In light of Kenyatta, it is crucial now more than ever that the Court reassesses the impact of a strict absolutist approach on its legitimacy. Moreover, one must keep in mind that no international organisation of this magnitude can immediately be flawless, but the ICC is still a young and dynamic institution. Should it choose to reassess its policies, it has the potential to learn from its mistakes. Consequently, society should not lose hope so quickly, especially when we consider how far we have already come.