The former Prosecutor at the International Criminal Court, Luis Moreno Ocampo, has rejected criticisms of his handling of the cases relating to post-election violence in Kenya, which collapsed.

The ICC had to withdraw charges of crimes against humanity against the Kenyan President, Uhuru Kenyatta, the Vice-President, William Ruto, and two others for lack of evidence and witness interference.
Another did not have his charge confirmed.

The men were accused of being responsible for the 2007-2008 violence that erupted in the country after disputed elections.

Fatou Bensouda, who succeeded Mr Moreno Ocampo as Prosecutor in 2012, commissioned an independent review of the Kenya cases by a three-member panel of experts.

They presented their report in February 2018 but it was only on Tuesday that Mrs Bensouda released it because she first wanted “to adequately consult and engage with my senior management and staff members involved in the Kenya situation about the outcome of the exercise, and to conduct a careful review of the recommendations…”

She added in a statement: “I am maintaining the confidentiality of the main body of the experts’ report, which, including the Executive Summary is 95 pages long, because of its detailed treatment of matters of an operational nature.

“Nonetheless, the Executive Summary does provide a succinct, yet clear and comprehensive, exposition of the experts’ findings and their recommendations…”

The Executive Summary took Mr Moreno Ocampo to task for his leadership failures that the experts said led to the collapse of the cases.

The report said Mr Moreno Ocampo’s leadership in the Office of the Prosecutor (OTP) was “a major contributing factor to the problems encountered in the Kenya cases”.

The experts said Mr Moreno Ocampo’s “leadership could best be categorised as autocratic, not open to contrary assessments or viewpoints, too often marginalising those who disagreed with him or reacting angrily and threateningly”.

“This leadership style discouraged candid, contrary assessments and viewpoints to the detriment of the cases.”

Mr Moreno Ocampo, the report said, “instilled an attitude that the Office must go forward with the Kenya cases, must save the cases, regardless of the evidentiary insufficiencies, and that any other view was disloyal”.

The former Prosecutor, responding to claims said in a statement added to the Executive Summary: “The experts arrived at such conclusion using an autocratic intervention: they did not interview me or allow me to provide explanations to their concerns.”

The experts spoke of witness interference, to which Mr Moreno Ocampo said: “I understand that the experts were not informed that during my tenure the Office requested to arrest individuals allegedly involved in witness interference.

“I cannot make a judgement on what happened after the end of my tenure in June 2012 and the reasons not to initiate proceedings…during the trial time.”

Mr Moreno Ocampo wondered how he should be held responsible for “the tampering of witnesses in 2013”.

The experts noted: “It may be that the Kenya cases simply reflected the inability of the ICC to adequately respond to the challenges presented in cases against powerful, high level accused willing to engage in concerted propaganda campaigns and pervasive witness interference.

“Certainly, it would appear the OTP, under [Mr Moreno Ocampo], underestimated the ability of the powerful suspects/accused in these cases to undermine the integrity of Prosecution evidence, and overestimated the ability of the OTP to effectively address the challenges presented by such conduct.”

Mr Moreno Ocampo said that instead of the experts focusing on the Kenyan authorities interfering with witnesses, the panel “challenged the policy to prosecute ‘those most responsible’ (or ‘high-level accused’) in accordance with the evidence collected”.

He said this was adopted by the OTP and made public in September 2003.

Mr Moreno Ocampo also took offence to suggestions by the experts that members of his staff were not up to the job.

He said, “I don’t understand how the experts reached such a conclusion that goes beyond the scope of their mandate…”

Instead, the experts took it upon themselves “to evaluate individuals with long carriers inside the ICC, in other international and national institutions, all of them appointed after a competitive selection process supervised by the heads of divisions, sections and units”.

Mrs Bensouda welcomed the report, saying: “The purpose of this initiative was not to lay blame or to criticise anyone, but rather to learn from experience, particularly in relation to the early handling of the Kenya situation by the Office of the Prosecutor of the ICC, in order to understand how to improve the way we operate.”

The expert panel was made up of Brenda J. Hollis, Prosecutor for the Residual Mechanism for the Special Court for Sierra Leone, Robert Reid, Chief of Operations at the UN International Criminal Tribunal for the former Yugoslavia and Dior Fall, former Senior Trial Attorney and Senior Appeals Counsel at the UN International Criminal Tribunal for Rwanda, now an independent consultant based in Dakar.

Mrs Bensouda said of the experts: “While one may not accept, without qualification, all their observations, they conducted the exercise in an independent and conscientious manner, giving generously with their time and commitment to the task.“This was greatly appreciated.”

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