IJCentral: International Justice Central

The tenth anniversary of the International Criminal Court (ICC) this month is a time to reflect on the work that the ICC has done, and to look forward to what the ICC will hopefully achieve.

The ICC continues to strive toward its mandate as an international court aimed at ending impunity and bringing justice to victims of international crimes. Despite criticism from some of the political elite in Africa who argue that the ICC ‘unfairly targets Africans’, it is reassuring to know that the ICC actually has a wider approach. It has or is currently examining situations around the world for possible investigation, in places like Afghanistan, Colombia, Honduras, South Korea, Georgia, and even Palestine. It is also important to recall that when the ICC allegedly ‘targets’ Africa, it is actually serving African victims.

The goal of prosecuting those most responsible for crimes against humanity, war crimes, and genocide is a highly noble cause and an ambitious endeavor, especially given that the perpetrators of international crimes often are individuals who enjoy a high legal, diplomatic, or social status.

The ICC involvement in Kenya provides good lessons on the ICC’s success and the challenges that need to be addressed.

Kenya became a state party to the ICC when it ratified the Rome Statute on 15 March 2005. In 2007, amidst contested presidential elections, violence erupted on a massive scale, leading to 1,200 deaths, thousands of victims of rape, torture, or other injuries , and over half a million people forced from their homes.
Following the failure of the Kenyan Government to investigate and prosecute the crimes, then ICC Prosecutor Luis Moreno Ocampo used his authority to open an investigation in Kenya on his own initiative. This was the first time a case was requested under the prosecutor’s authority, and not referred by a State Party (such as with Uganda), or referred by the UN Security Council (as for Darfur).

Ocampo identified six individuals allegedly responsible for crimes against humanity. On 23 January 2012, the ICC confirmed charges against four of these: Uhuru Kenyatta, William Ruto, Joshua arap Sang, and Francis Muthaura. They are set to stand trial in April 2013.

The investigation has resonated in Kenya and the region. Throughout the proceedings, the ICC has maintained a high level of public support (around 60%, from polls conducted by Ipsos-Synovate and South Consulting), thanks in large part to the independence, impartiality, and overall legitimacy of the ICC, which is confronting individuals who are normally considered ‘untouchable’.  Kenyan media certainly plays a part, as citizens are kept up to date about ICC developments.

In its own way, the political elite has also paid tribute to the success of the ICC, thanks to the scrutiny the ICC case is placing on its members. President Kibaki, who initially pledged to support the ICC process, has called for the cases to be ‘brought back to Kenya’, as the political class seeks to protect its own. Similar sentiment appears to fuel the proposed expansion of both the East African Court of Justice and the African Court on Human Rights and Justice to include criminal jurisdiction over ICC crimes.

The Kenyan cases have also exposed some of the challenges that the ICC faces. It was considered a major failure that charges were not confirmed against Hussein Ali, the former police commissioner. These criticisms mirror some of the concerns expressed in other ICC cases concerning the collection and presentation of evidence.

While victim engagement is one of the most progressive and positive features of the ICC system, involving victims in the Kenya case has been problematic. Owing to a lack of guidance and support, only a fraction of victims of the crimes in Kenya were able to submit successful applications to participate. Lack of resources and logistical difficulties with information dissemination has also meant support services for these victims are inadequate.

And, the ICC process continues to face the challenge of politicization. The case is now running parallel to the upcoming Kenyan elections in 2013 and two of the accused, Uhuru Kenyatta and William Ruto, have expressed their intention to run for President. While the ICC has maintained its impartial status and attempted to distance itself from Kenyan politics, that has not stopped some of the suspects from using the ICC as a campaign platform. While the ICC is an independent body, it does not exist in a vacuum, and it is quickly becoming a central topic of the 2013 Kenyan elections.

The challenges are not insurmountable, and the swearing in of the new ICC Prosecutor, Fatou Bensouda, brings renewed optimism that they will be addressed.

Ultimately, the overall success of the ICC will be measured on its ability to change behaviour.  In Kenya, there is a tangible sense that the ICC cases are having an effect on the culture of impunity. Taking the ICC cases together with Kenya’s new Constitution and the ongoing, comprehensive institutional reforms, there is cause for hope that the landscape in Kenya is progressing in the right direction.

written by Joshua Lam
Assistant Programme Manager of the International Cooperation Programme at the International Commission of Jurists in Kenya
CICC member