Kenya’s president Uhuru Kenyatta (right) and deputy president William Ruto in Nairobi, Kenya. Both are charged with crimes against humanity for violence that took place in the 2007 Kenyan elections. Photograph: Daniel Irungu/EPA
By MG Zimeta for the Guardian.com
On Thursday, after an emergency debate, the arliament of Kenya voted to withdraw the country from the international criminal court (ICC). The implications of this move are surprising, and reach well beyond Kenya.
Kenya’s new deputy president, William Ruto, elected in March 2013, is due to face trial at the Hague on 10 September. Kenya’s new president, Uhuru Kenyatta, follows in November. Both are charged with crimes against humanity for violence that took place in the 2007 Kenyan elections. Will yesterday’s Kenyan parliamentary emergency vote prevent these trials from going ahead? Almost certainly not: “A withdrawal has an effect only for the future and never for the past,” said ICC spokesman Fadi El Abdallah. What will be crucial, however, is how these trials are conducted by the ICC, how they compare to Kenyatta’s and Ruto’s national measures and domestic stance, and the international response to both.
The motion for Kenya to leave the ICC was put forward by majority leader Alan Duale. “Let us defend the sovereignty of the nation of Kenya”, he said. It won’t be the first time national sovereignty has been pitted against the ICC in Kenya. When Ruto and Kenyatta stood for election in 2013, despite being named as suspects by the ICC in 2010, other countries expressed dismay and discouragement at their political ambitions: “choices have consequences,” said Johnnie Carson, US assistant secretary of state for African Affairs, apparently warning the Kenyan electorate not to select Ruto and Kenyatta.
This perception of foreign intervention in Kenyan affairs may have actually contributed to Ruto’s and Kenyatta’s election success. If Kenya successfully leaves the ICC then an international trial of Ruto and Kenyatta that appears to be politically motivated or ineffectively conducted will simply affirm the decision to reject the jurisdiction of the court in Kenya’s future.
This will also have consequences for Kenya’s domestic future and international positioning. It may be harder for Ruto’s and Kenyatta’s domestic opponents, like the former prime minister, Raila Odinga, to campaign successfully against them in national elections, or to propose that Kenya rejoins the ICC in the future. Yesterday Odinga’s opposition party effectively boycotted the parliamentary vote: but an unfair or ineffective ICC trial will make it easy for Kenyatta’s and Ruto’s domestic opponents to be portrayed as puppets of foreign powers.
The ICC has frequently come under fire for being politically motivated in the past. This is why several countries have signed but not ratified the Rome statute â€“ the founding treaty that established the ICC in 2002. These countries include Israel, Jamaica, Monaco, Russia, and Thailand. The US refused to ratify the treaty because of concerns that it would interfere with American national sovereignty, and that it would put American citizens and soldiers at the risk of frivolous or political persecution from other countries through the ICC.
The momentum of diplomatic efforts has so far been to encourage more countries to sign and ratify the treaty. If Kenya, a member state, leaves, and subsequently seems justified in doing so, the tide could turn against these diplomatic efforts, with other countries following suit.
The ICC is supposed to be a court of last resort. When the 2007 election violence was referred to the ICC, it was because Kenya did not have the internal capacity to resolve and address the situation. The 2007 election violence brought Kenya to the brink of civil war, and in post-conflict states prosecution of perpetrators, and rehabilitation of victims and perpetrators, is important for national reconciliation and rebuilding.
But it is questionable whether a high-profile trial at the ICC, prosecuting alleged leaders of violence, will do much to bring accountability to perpetrators lower down the chain of command. This runs the risk of perpetuating a local culture of impunity, fear, and corruption, even if Ruto and Kenyatta are found guilty and sentenced by the ICC.
In Rwanda after the genocide, the sheer number of genocidaire cases, and the inability of the justice system to process them, led to the creation of community gacaca courts â€“ absent of lawyers, and not adhering to international legal standards, but nonetheless believed by some to have delivered benefits in terms of justice, truth, reconciliation, and democratic participation. “What the [Kenyan] government couldn’t do was to pass a law establishing a local mechanism that would have been able to facilitate investigations locally under best international practice,” Mutula Kilonzo, the justice minister, told the BBC in 2010 as the ICC investigation opened.
But if Kenya demonstrates ability and willingness to pursue the perpetrators of the election violence, across the political spectrum, and to confront perpetrators and restore victims across communities, then this might be more advantageous for the country than an ICC trial of Kenya’s political leaders.
There is one more unexpected consequence of Kenya’s vote to withdraw from the ICC. The ICC was established in 2002 for the major “crimes against peace”: war crimes, genocide, crimes against humanity, and crimes of aggression. There have been attempts, led by British lawyer Polly Higgins, to add to this list of crimes against peace, “ecocide” â€“ crimes against the environment, and to place ecocide and crimes against the environment under the jurisdiction of the ICC.
If the ICC fails to be seen to addressing established crimes against peace, and to effectively prosecute visceral violence against humans, it will make it harder for the ICC to extend its reach.