Another Failing Prosecution at the International Criminal Court

It seems that another one of the prosecutions at the International Criminal Court is in a meltdown mode. This is the case against Ambassador Francis Muthaura, who is charged jointly with Uhuru Kenyatta, the frontrunner in the presidential race.

Last year, the Pre-Trial Chamber confirmed charges against Muthaura and Kenyatta. Since then, the Trial Chamber has been organizing the trial itself, due to begin later this year. But when the Prosecutor disclosed evidence to the Defence, she seemed to recognize that some of the materials on which the Pre-Trial Chamber based its decision confirming the charges were not reliable or plainly untrue.

Lawyers for both Muthaura and Kenyatta have filed motions asking the Trial Chamber to refer the cases back to the Pre-Trial Chamber so that it can reassess the confirmation of the charges in light of the changed evidentiary situation.

Replying to the motions, the Prosecutor has conceded that Muthaura’s motion is well-founded. She supports the referral to the Pre-Trial Chamber, which may be authorized under article 64(4) of the Statute. Here is what she says:

The witness whose statement is at issue was essential on the issue of Mr Muthaura’s criminal responsibility and, in fact, was the only direct witness against him. Hence, the confirmation decision, if stripped of references to the witness’ evidence, might not establish substantial grounds as a matter of law. The Prosecution also acknowledges that its disclosure error limited the Defence’s ability to challenge the critical witness’ testimony, which appears to have been the principal evidence relied upon by the Pre-Trial Chamber in its decision to confirm the charges against Mr Muthaura. In the particular circumstances of Mr Muthaura’s case, and given that he has elected to waive his Article 67(1)(c) right to go to trial without undue delay, the Prosecution does not oppose new confirmation proceedings with respect to him, should the Trial Chamber determine that there is a legal basis for such relief.

If it doesn't, the Prosecutor should apply to drop the charges altogether.

The Prosecutor has not made the same concession with respect to Kenyatta.

I have noted previously that the score sheet for the Prosecutor is not very impressive. Of 14 charges that have reached the confirmation stage, four have been dismissed. If Muthaura is also rejected, that will make five. A further case that went to trial has resulted in an acquittal. That makes six cases in which the Prosecutor chose to proceed but where there simply was not enough evidence. Soon we will know whether the Appeals Chamber allows the Trial Chamber to proceed in Katanga with modified charges. If it does not, presumably Katanga will also be acquitted, bringing the total to seven.

Six out of fourteen – possibly seven if Katanga is acquitted - is a pretty high rejection rate. By comparison, a recent study published by Alette Smeulers shows that the average acquittal rate at the ad hoc tribunals is about 15% (0% at the Special Court for Sierra Leone). It is true that the ad hoc tribunals do not have a confirmation stage. But this is not a significant distinction in terms of assessing the reliability of the Prosecutor’s decision to proceed with a case. The fact is that at the ad hoc tribunals, the Prosecutor gets a conviction in about 85% of the cases where he or she elects to proceed, whereas at the International Criminal Court, the success rate to date is barely over 50%.