The author is an independent expert in international justice. This article is based exclusively on open sources. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

The International Criminal Court (ICC) prosecutor has repeatedly emphasized that her work is for the benefit of the victims of the 2007-2008 post-election violence. This could be a way to stress that her decisions are not guided by political considerations, a statement worth making in a country like Kenya where actions ruled by corruption, bribery, and political interest are the norm rather than the exception.  The fact that the ICC prosecution’s decisions are not politically motivated is not put into question. Yet, it is difficult to assert that victims’ interests have been a major consideration in the investigations and have been at the heart of decisions made in the cases.

At the ICC, victims have a right to participate in proceedings. According to the court’s jurisprudence, in order for victims to participate in a case, they must show that the harm they suffered bears a direct causal link to the crimes for which an accused is to be tried. This means, for example, that if the accused person in one case were to be tried for murder and murder only, victims of other crimes allegedly committed by the same person such as torture, rape, or displacement, would not be able to participate even if those crimes were committed during the same attack or otherwise within the same framework. In addition to the relationship with the charges, victims must show that they suffered crimes as a result of one or more of the specific incidents that the ICC prosecutor has selected for prosecution. For example, if crimes were committed in village X and village Y but the prosecution decided to only prosecute the accused for crimes committed in village Y, then only those who suffered crimes in village Y would be able to participate and would be, in principle, entitled to receive reparations. Victims from village X would be excluded from the proceedings.

This is problematic because the ICC prosecutor has adopted a policy of ‘focused investigations and prosecutions.’ This means that instead of presenting exhaustive cases covering all of the crimes allegedly committed by the accused persons, only a few incidents that serve as a ‘sample’ of the overall scope of criminality are selected. While cost-effectiveness makes this a reasonable policy, it has an adverse impact on victims. Although the prosecution is committed to presenting cases that are representative of the most important forms of victimization, such representative nature has at times been absent in the selection of cases for prosecution and identification of sufficient evidence to back that up.

At different stages of the proceedings, the scope of the Kenya cases has been reduced. Initially, during the pre-trial stage of the case, prior to the issuance of the summons to appear, the prosecutor had wanted to include incidents that took place in Kisumu and Kibera during the post-election violence (Kenya Case II). The prosecution had also submitted that crimes related to that case had been committed from  December 27, 2007 through February 29, 2008. However, Pre-Trial Chamber II found that the prosecution did not provide sufficient evidence to support that; in Case II, the incidents in Kisumu and Kibera were excluded and the temporal scope of the case was reduced to a few days in January. The focus of the cases from the issuance of summons to appear until the confirmation of charges was the following: from December 30, 2007 and the end of January 2008 in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town, in the Uasin Gishu and Nandi Districts in Kenya Case I, and from on or about January 27 to 31, 2008 in Nakuru and Naivasha in  Case II.

The geographical and temporal limits of the case were determined on the basis of the evidence provided by the prosecution and in accordance with the standard of evidence required at the stage of issuance of arrest warrants or summons to appear, i.e. ‘reasonable grounds to believe.’ However, that scope was further significantly reduced by the Decision on the Confirmation of Charges. Based on the evidence that the prosecution put forward and the pre-trial chamber’s assessment in application of a higher threshold, i.e. ‘substantial grounds to believe,’ the factual basis of the case was reduced even further. According to the pre-trial chamber, the evidence provided by the prosecution was only sufficient to establish that there were substantial grounds to believe that crimes were committed in Turbo town on  December 31, 2007, the greater Eldoret area from January 1 to 4, 2008, Kapsabet town from December 30, 2007 to January 16, 2008, and Nandi Hills Town from December 30, 2007 to January 2, 2008 in Case I, and in Nakuru from January 24 to 27, 2008 and Naivasha from January 27 to 28, 2008 in Case II. In sum, two months of violence in the Rift Valley were reduced to a few spread incidents in some villages on specific dates.

In practice, for victims that means, for example, that those who were victimized in Nandi Hills Town on January 2, 2008 late at night can participate in the case and may benefit from reparations in the event of a conviction, while their neighbors who suffered harm as a result of acts committed by the same attackers in the early morning of January 3 will neither participate in the case nor receive reparations. That limitation appears shocking and arbitrary, especially considering that most public reports on the post-election violence refer to acts of violence that took place over longer periods of time.

A question that has arisen is whether the decision to withdraw charges against one of the accused, Francis Kirimi Muthaura, or the earlier decision of the pre-trial chamber not to confirm charges against two suspects, Henry KipronoKosgei in Case I and Muhammed Hussein Ali in the  Case II, has an impact on the possibility for victims to exercise their rights. According to well-established human rights principles, “a person is a victim […] regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted.” This is to say that the victims’ status is linked to the factual basis rather than to those who are accused. As long as the factual basis does not change and regardless of whom the victims think has committed the crimes, their status of victims of the case does not change. However, a change in the factual base has a determining impact on the victims’ status vis-à-vis the case. For example, over 500 victims participated in the pre-trial phase of the case. However, not all of those victims will continue to participate at the trial phase, given that they have been ‘left out’ as a consequence of lacking evidence which led the pre-trial chamber to narrow down the scope of the case. Victims have expressed dissatisfaction about the narrow scope of the cases and the fact that many have been excluded.

While being mindful of the allegedly significant obstacles that the prosecution has encountered in conducting investigations, including in relation to witness protection and witness tampering, an analysis of the history of the cases shows that the cases have evolved to the detriment of the interest of victims. The pre-trial chamber, which had an the power, specifically at the confirmation of charges stage, to request the prosecution to supplement evidence that would have allowed the scope of the case not to be reduced so drastically,  chose instead to only confirm charges for a narrower factual basis.

Consideration of the interests of victims during the pre-trial phase of the cases was therefore far from optimal. The situation does not seem to have improved at the trial stage of the case, specifically in relation to the Trial Chamber V’s approach to the issue of victim participation. A decision implementing major changes to the victim participation regime was taken in October 2012 (October 3, 2012 Decision on Victims’ Representation and Participation; see Case I decision here and Case II here). That decision touches not only upon the system for victims to access the court but also on their legal representation in the proceedings.

Regardless of whether those changes are fair or unfair, the process leading up to that decision does not seem to have conformed to the highest standards of justice when it comes to the genuine involvement of victims. It is relevant to recall that the reason for the introduction of victim participation was to allow victims to give their views on the proceedings and how they are conducted. Strikingly, however, neither the parties nor the victims were consulted before the October 3, 2012 decisions were issued in the cases, yet, the decisions make extensive reference to the interest of victims. Presumably, those references were drawn from an understanding or belief of what could be in the interest of victims and not their actual stated interest.

Judges have a responsibility to manage the proceedings and, as a consequence, may make decisions to ensure that the proceedings run smoothly and effectively. However, on an issue that goes to the core of the rights of one of the main actors in the proceedings and the way to exercise them, it is natural to expect that those actors be given a chance to be heard. Decisions of this nature can also affect the rights of the accused and fair trial standards both for the accused and for the victims. Finally, it is submitted that the trial chamber, whose members do not often travel to the field, could have benefitted from information on how victim participation operates in practice. Often, the most important aspects of victim participation unfold in the situation country where the victims are located and not only or necessarily before the court in The Hague.

The October 3, 2012 decisions also contain some inconsistencies in its analysis and findings. For example, on the one hand, the trial chamber stressed that the reasons for a change of the application process were the security and protection concerns in the Kenya situation. However, the very same decision orders that the victims’ legal representative be based in Kenya. Given those very same security concerns, it could be unsafe for a legal representative to be based in the country. While the reasons for a legal representative to be based close to the victimized communities are not put into question, it is noted though that the decision does not explore very relevant security concerns in that regard nor discusses significant protection measures.

The situation described above shows that despite general statements on the part of both the prosecution and the chambers about the importance of victims and the need to uphold their interests, the manner the investigations and proceedings have been conducted show that those statements are often not translated into practically ensuring that the interest of the victims is always safeguarded.