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ICC drops charges against Kenyatta; prosecutor says she was 'undermined'

President Uhuru Kenyatta of Kenya, who had faced charges of 'crimes against humanity' at the ICC, was accused of murder, rape, and other inhumane acts as an 'indirect co-perpetrator.'

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    In this Nov. 27, 2013 file photo, Prosecutor Fatou Bensouda waits for the start of a trial at the International Criminal Court (ICC) in The Hague, Netherlands.
    Peter Dejong/AP/File
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The International Criminal Court's chief prosecutor dropped all "crimes against humanity" charges against Kenya's president on Friday for lack of evidence, highlighting the court's problems in bringing to justice the high-ranking officials it has accused of atrocities.

Prosecutor Fatou Bensouda filed a terse, three-paragraph notice withdrawing the charges against President Uhuru Kenyatta, but adding that she reserved the right to file charges again should she get more evidence.

Kenyatta had been charged with murder, rape, persecution, deportation, and other inhumane acts as an "indirect co-perpetrator" in violence that flared after Kenya's 2007 elections and left more than 1,000 people dead.

He blasted the court in a written response to the announcement, saying it had failed him and the victims.

"The prosecutor opted to selectively pursue cases in a blatantly biased manner that served vested interests and undermined justice," Kenyatta said.
"It has always been my position that the Kenyan cases at the ICC were rushed there without proper investigation or preparation, and sustained by a strong interest to stigmatize accused persons," he added.

Prosecutors have repeatedly complained that Kenya has stymied their case by not cooperating in their investigation. Judges at the court this week also said Kenya's cooperation "falls short of the standard of good faith cooperation."

In a written statement, Bensouda said the lack of cooperation had a "severe impact" on the case.

"It has deprived the victims of their right to know the full account of what transpired in 2007-2008," she said. "It has further undermined my ability to carry out a full investigation. And finally, it has prevented the judges from carrying out their critical functions of assessing the evidence and determining the truth."

The collapse of the case is a new blow to the credibility of the court's prosecution office. The office has launched nine full investigations since its establishment in 2002 – all of them in Africa – and has just seven suspects in custody.

A further 13 suspects remain at large despite arrest warrants, including Sudanese President Omar al-Bashir, warlord Joseph Kony, and Seif al-Islam Qaddafi, son of slain Libyan dictator Muammar Qaddafi.

Kenyatta's British lawyer, Steven Kay, said in an email to the AP that the court and its prosecutors "owe (Kenyatta) an apology for bringing proceedings based upon false witnesses and impugning his integrity in such circumstances."

Quest for justice 'frustrated'

Fergal Gaynor, a lawyer for victims of the post-election violence, accused Kenyatta's administration of blocking the court and disappointing thousands of people who suffered in the ethnic bloodletting of late 2007 and early 2008.

"The victims' quest for justice has been cruelly frustrated, both in Kenya and at the ICC," Gaynor said. "The victims believe that the prosecutor can do much more to bring at least some perpetrators to book."

Kenyatta's trial was postponed twice this year while prosecutors attempted to shore up their case after a key prosecution witness refused to testify and another admitted giving false evidence. Earlier this week, judges gave prosecutors a week to announce if their case was strong enough or to drop the charges.

Kenyatta was indicted in 2011 but went on to become the president of Kenya in the 2013 election, using his indictment at the Hague-based court as a rallying issue. His government lobbied hard to have the case against him deferred by the UN Security Council, arguing that the delay was essential because Kenya needed its leader to help fight al-Shabab terrorists in neighboring Somalia and at home.

Kenyatta was one of six suspects originally charged by the ICC in the post-election violence. Only two of them, including Kenyatta's deputy, William Ruto, made it to trial. Charges against the other four have been scrapped.

Limitations of the court

The collapse of the case against Kenyatta underscores some of the limitations of the international court, which has no police force and must rely on help from governments that may only wish to cooperate when it suits their political purposes.

The court's mission is to prosecute perpetrators of atrocities when a country is unwilling or unable to prosecute them itself.

Rights groups lamented the decision to drop the charges.

"It's clear that a long tradition of impunity in Kenya and pressure on witnesses have been serious obstacles to a fair process before the ICC," said Liz Evenson of Human Rights Watch. "But the roadblocks in the Kenyatta trial make it all the more important for the ICC to figure out how it can move ahead with high-profile cases."

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