The Cable

The ICC's Prosecution of Kenya's President Runs Aground

The effort to prosecute Kenyan President Uhuru Kenyatta for allegedly fueling deadly ethnic clashes six years ago suffered a potentially lethal blow Thursday after the International Criminal Court's chief prosecutor, Fatou Bensouda, called for a postponement of the planned trial because of the defection of key witnesses.

The move came after African governments mounted a major diplomatic campaign to persuade the ICC to delay the trials of Kenyatta and deputy president William Ruto. African leaders argued that proceeding with the cases would complicate their effort to fight Islamist militants and prevent terrorists from mounting strikes like the bloody September 21 attack on the upscale Westgate Mall in Nairobi. *The Africans had already won one key concession. The governments that are party to the treaty establishing the court agreed to amend the court's charter to allow defendants to participate in their trial via video link rather than attending each courtroom session.

Bensouda sought to assure Kenyans that her decision was not made as a result of political pressure. She insisted that she acted on purely judicial grounds, not on "extraneous considerations."

"In the last two months, one of the prosecution's key witnesses in the case against Mr. Kenyatta has indicated that he is no longer willing to testify," Bensouda said in a statement explaining her decision. "More recently, on 4 December 2013, a key second witness in the case confessed to giving false evidence regarding a critical event in the prosecution's case."

Bensouda said the defections weakened her case so much that she couldn't "satisfy the high evidentiary standard required at trial." She said she would take time to obtain additional evidence and determine whether it was enough to restart the judicial process. It remained unclear what impact, if any, today's decision would have on the trial of Ruto.

The International Criminal Court first launched an investigation into alleged crimes during Kenya's bloody 2007 election, charging several Kenyans, including Kenyatta and Ruto, who was then out of power, of taking steps that fueled an outbreak of ethnic and sectarian violence that killed more than 1,200 people and wounded thousands more. Their trial marked the first prosecution of a sitting head of state after the court charged Sudanese President Omar Hassan al-Bashir with crimes against humanity and genocide against African tribes in Darfur. Bashir has refused to cooperate with the court.

So far, both of Kenya's leaders have proclaimed their innocence and agreed to work with the court. The United States and other key Western powers thwarted appeals by the African Union, acting on behalf of Kenya, to seek a delay in the trial under the Article 16 provision of the Rome Statue, which established the International Criminal Court.

The prosecution of Kenya's leaders poses a "threat to the peace ... in light of the prevailing and continuing terrorist threat existing in the Horn [of Africa] and East Africa," Kenya's U.N. ambassador Macharia Kamau wrote to the U.N. Security Council back in November. Kenya, he said, "seeks a decision that no investigation or prosecution shall be commenced or proceeded" against Kenya's leaders.

Court advocates cited an ongoing campaign within Kenya to intimidate witnesses capable of fingering the Kenyan leaders. "This is the right, professional thing to do, but it must have been a wrenching decision," said David Kaye, a former State Department expert on the ICC and professor of international law at the University of California, Irvine Law School. Kaye said that today's decision showed that "witness intimidation by the defense, or people associated with the defense, has taken its toll,"and that he believed the prosecutor may be setting the stage for" withdrawing the charges altogether."

*An earlier version of this article incorrectly stated that the ICC court ruled last month that defendants could participate in the trial via a video link. It was the states parties to the treaty establishing the court that decided to permit defendants to participate via a video link.

Follow me on Twitter @columlynch.

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The Cable

Can Samantha Power Wage a War on Atrocities in Central African Republic?

Samantha Power, the U.S. ambassador to the United Nations, is making an unannounced visit to the killing fields of the Central African Republic (CAR) today to drive home the point that the United States has a moral obligation to use a portion of its power and financial resources to help stem mass atrocities in a distant land with no U.S. embassy and few clear national security interests.

In telephone remarks from Abuja, Nigeria, Power told reporters that President Barack Obama and U.S. Secretary of State John F. Kerry were "deeply disturbed by ongoing reports of brutality in the Central African Republic in recent weeks." She said that mobs have been going door-to-door killing civilians, targeting aid workers and looting shops. The killing, she noted, is being "directed almost entirely against civilians."

"The world has been witness to great atrocities before" but "direct comparisons with other past crises are inevitably flawed," she said.

Still, Power said that Somalia taught the United States about the dangers of allowing a state to fail while Rwanda's bloodshed showed what could happen when a country divided itself along ethnic or religious lines. The people of the CAR, she said, were facing "profound danger, and we all have a responsibility to help them move away from the abyss."

Power's trip comes on the heels of Obama's pledge to help France, which has already deployed more than 1,600 of its troops to the former French colony, and other African countries restore order and protect civilians. The Obama administration has authorized $100 million in military assistance to transport Burundian troops into the central African country in the hopes of reducing the violence that a top U.N. official warned could escalate into full-blown genocide.

"Immediate action is required to avert a humanitarian and human rights catastrophe in the Central African Republic," Pentagon spokesman Carl Woog said earlier this month.

For an administration that has been reluctant to exercise its military muscle to halt atrocities in Syria, the chaos in the Central African Republic has presented a fresh test of Obama's commitment to place the protection of civilians at the center of his foreign policy.

"Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States," the administration said in an August 2011 directive establishing a White House Atrocities Prevention Board. "America's reputation suffers, and our ability to bring about change is constrained, when we are perceived as idle in the face of mass atrocities and genocide."

Power, a Pulitzer Prize-winning author who has devoted much of her career to promoting the use of American power to halt mass atrocities, sits on that board. The deterioration of the CAR offers her a chance to put her words into action, even if only in support of France.

A human rights hawk, Power has previously championed U.S. military intervention in Libya and the quiet U.S. military effort to hunt down Joseph Kony, the leader of the Lord's Resistance Army, a brutal Ugandan-based insurgency which has used the Central African Republic as a base of operations.

Human rights advocates say that Washington was slow to act after bloodshed erupted following a March coup, but credit the administration for quickly taking action to help stop a swift escalation in violence between Muslim and Christian militias.

"Unfortunately, the Obama administration didn't take the preventative steps that could have mitigated this violence," said Cameron Hudson, who has monitored the U.S. response to the unfolding violence in the CAR for the Holocaust Museum's Center for the Prevention of Genocide. "But now that it has set in...they are well positioned to help turn this back, to roll back the tide of violence."

The latest crisis in this former French colony of 4.6 million began in December 2012, when insurgents attacked forces loyal to the government of President Francois Bozize. In March, the rebel coalition, known as Seleka, and comprised largely of fighters from the country's minority Muslim population, toppled Bozize, triggering a spree of murder, rape and looting. In response, former military elements loyal to Bozize and mostly Christian "anti-balaka" militias have carried out a series of bloody reprisals against the country's Muslim communities. 

"Seleka factions, who are mostly Muslim, have overseen seemingly systematic attacks targeting Christian communities, leading to the mobilization of largely Christian militias that have, in turn, brutally attacked Muslims," Alexis Arieff, an analyst at the Congressional Research Service, said at a Senate Foreign Relations Committee hearing Tuesday. "The pace of violence accelerated in early December 2013 with at least 500 killings reported in the capital, Bangui."

While there are no reliable estimates of the number of dead in the CAR's year of turmoil, the U.N. reported that several hundred were killed in recent clashes in Bangui; more than 600,000 people have fled their homes since the beginning of the year. The airport at Bangui is swelling with more than 38,000 displaced civilians, who lack access to clean water, latrines or shelter, according to the U.N.'s refugee agency.

The United States, Britain and Germany have ruled out sending ground forces into the CAR, and are instead providing logistical support for French and African forces. On Tuesday, Power made her second call in weeks to the CAR's transitional leader, Michel Djotodia, a former Seleka leader that American officials fear is trying to consolidate power, to press him to curtail the violence and warn that those linked to the killing will be held accountable.

But in other ways, the Obama administration has moved cautiously. U.N.-based diplomats and human rights advocates say the White House had early on expressed misgivings about the financial costs of funding a foreign intervention through costly U.N. assessment. For instance, the United States resisted an early French proposal to have the United Nations underwrite the costs of training, equipping, transporting and supplying the intervention force, a plan that would have required the United States to cover more than 27 percent of the costs of the operation. The United States also reacted coolly to a U.N. plan to establish a full-fledged U.N. peacekeeping mission for the Central African Republic, expressing concern that Congress would not support another costly operation.

"Their main concern was a financial one; they said a peacekeeping mission is very expensive. We don't want to go that way," said a senior U.N.-based official, who added that American officials expressed skepticism about the risks of mass atrocities until November, after U.N. officials and human rights organizations sounded the alarm bell. "They said we believe the French will be able to stabilize the situation there. They didn't believe it was that bad."

As reports of large-scale killings began appearing in the press last month, the Obama administration established a crisis cell to manage the U.S. response, according to diplomats. "They worked day and night; they were on the phone all the time," the official said, noting that Washington's understanding of what was happening in the CAR had been diminished by a lack of presence in the country. "I think they were embarrassed; they got very, very nervous about the perception that the whole thing, that they hadn't been reacting."

Administration officials said the White House reacted quickly to reports about the violence in the CAR and worked hard to reduce it. In September, they say, the United States pressed the U.N. Human Rights Council to appoint an independent expert to focus on the CAR. Top White House staff also discussed the violence in both October and November.

Linda Thomas Greenfield, assistant secretary of State for African Affairs, outlined a range of steps the United States had taken in partnership with the U.N., the European Union, and the United Nations to stem the violence, including publicly condemning the use of violence by both sides, supporting a U.N. resolution authorizing a French-led intervention and providing airlift to African peacekeepers.

"Senior officials from the State Department and our ambassadors in the region have engaged with the leaders of African troop contributing countries to urge them to encourage their troops to be proactive in protecting civilians in the CAR," she said Tuesday in a Senate Foreign Relations hearing. "To give these forces their best chance of success on the ground, we are providing them equipment, strategic airlift and pre-deployment training."

Another U.S. official admitted that the financial burden of funding a peacekeeping mission was "a consideration."

"We live in a fiscal environment where our pots of money are not getting bigger," the official said. "But it's not dispositive. The United States has put substantial skin in the game on CAR."

The official said that the argument in favor of a U.N. peacekeeping mission is a false argument, because the United States has in fact backed a U.N. Security Council resolution that calls on Secretary General Ban Ki-moon to produce a report on the viability of a peacekeeping mission in three months. "We are not opposed to a peacekeeping mission," said one U.S. official. The official added that the current plan -- which provides for the immediate deployment of French and African troops -- offered the most effective means of getting troops on the ground immediately. A U.N. peacekeeping force, the official noted, could take months to stand up.

In her briefing, Power did not take questions from reporters. But she provided a contrary account depicting an energetic multifaceted U.S. response. The United States, she said, "has allocated $100 million for security support equipment and assistance. We are also providing airlift; U.S. military aircraft are moving troops into CAR as we speak."

Power said she intends to meet with the CAR's transitional president and other national and religious leaders to drive home the urgency to "change the calculus" of the combatants on the ground. Power said she would press the CAR president to ensure that his government and combatants cooperate with the French-led force, voluntarily disarm, and abide by commitment to move toward national elections by 2015. She also put the onus on the transitional president "to establish accountability for abuses" in CAR and to help heal the wounds and rebuild a country devastated by violence.

For now, worried diplomats can only watch from a distance and hope that the new intervention, limited and slow to arrive as it was, can help quell the violence.

"Some call this a forgotten crisis. The world is haunted by the horrors of crises spiraling into atrocities," Jan Eliasson, the U.N. deputy secretary general told the U.N. Security Council last month. "We have watched from a distance."

The challenges of addressing that crisis, he subsequently told reporters, "is not as much a problem of early warning; we have had this warning for a long time."

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