Kenyatta's trial suspended

ICC prosecutor Fatou Bensouda said on Friday (05.09.2014) lack of evidence is what made her request the indefinite suspension of the trial of Kenyan President Uhuru Kenyatta. Kenyatta is accused of inciting inter-ethnic violence after the 2007 election. The fighting killed more than 1,000 people.

DW: Mark Ellis, tell us briefly what this new development means in the ICC case against Uhuru Kenyatta.

Mark Ellis: This has been an ongoing problem that is based primarily on two issues. One, the case seems not to be as strong as originally thought and that is based primarily on the fact that witnesses that were key to the original indictment have either been found to be dubious or they are simply fearful of testifying and so they have said that they will not testify. That weakened the prosecutor's case. The second issue is that the Kenyan government is clearly not being cooperative with the court. It has not provided the type of information requested by the court and so the prosecutor has no alternative than to continue to delay because she simply doesn't have sufficient evidence to move forward with the case.

Do you see any chance that the ICC could still put pressure on the Kenyan government to cooperate?

The ICC, and especially the prosecutor, doesn't have the type of mechanism to force the Kenyan government to cooperate. It is really dependent on the international community to assist the court and the prosecutor in forcing the Kenyan government to cooperate. So far, the international community and the UN Security Council have failed to do that.

What if the international community remains silent and Kenya does not cooperate? Is that the end of the matter?

It will be the end of the matter. We have a bit of a stalemate here. There are two ways to go, either the international community and the Security Council permit the Kenyan government to continue to obstruct these proceedings or the international community and specifically the UN Security Council alter their position and put greater pressure on the Kenyan government to cooperate with the court. This is a fundamental decision that has to be made, because this really goes to the heart of justice and the validity of the court.

How much of a setback is this for Chief Prosecutor Fatou Bensouda personally?

Because I think that this not something that happened over night, this has been an ongoing issue, I think it should not be perceived as a defeat against her. It should be viewed more as an indictment against the international community and the Security Council for failing to put pressure on the Kenyan government to cooperate with the court.

As an international lawyer, do you see this case or this trial ever taking place or this is the end of it?

I think it ends right now. It is very difficult to see this case going forward unless there is a significant change within the international community and particularly the Security Council.

Mark Ellis is the executive director at the International Bar Association in London.

Interview: Isaac Mugabi