The ICC and the Ocampo Six: Understanding the Court’s possibilities and limitations

In response to the expected decision from the International Criminal Court on the confirmation of charges against the “Ocampo Six” this week, the International Crisis Group recently released a report on the implications of the ICC decision for the Kenyan electoral process.

The report urges the government to strengthen domestic accountability; advises the international community to “use all their leverage” to deter violence, and calls on the Court and its supporters in NGOs and elsewhere to guard against the exploitation of information asymmetries by politicians.

The ICG report offers different scenarios that may result from the confirmation of charges: If all charges are confirmed, the Court would signal an end to impunity, and bring deterrence (and presumably peaceful elections).

Conversely, if all charges are dropped, it will be a setback for the fight against impunity, and the suspects would be stronger politically. They are also likely to stoke tensions against their political enemies, an outcome which would “not be promising for peaceful elections.” The former outcome would have the downside of giving fodder to the ICC-is-only-for-Africans debate, while the latter would have the upside of having the Court appear impartial and independent.

The middle scenario — where only some suspects have charges confirmed — is thought by the ICG to have good outcomes for Court credibility and deterrence, but can also bring tensions.

In other words, unless the charges are confirmed against all six, the outcome is likely to increase tension.

The report urges the anti-impunity community to increase their awareness-raising about the limits and possibilities of the ICC, in order to reduce the tensions that may result in the event of an outcome that seems to favour one political (and therefore ethnic) side over another. In my research interviews, a number of cautious respondents at the Court and elsewhere have regretted the role of Court supporters themselves in exaggerating the possibilities of the ICC and understating its limitations.

In their view, this recommendation would be asking Court supporters to undo the potentially damaging expectations they set in the course of their advocacy, expectations they had no business setting in the first place.

Court supporters have made claims about imminence, even-handedness, or reach of Court action for a variety of reasons: To coerce targeted political elites to behave in particular desirable ways “or else,” to increase victim mobilisation, or to make a headline.

Whatever the intention, when Court supporters act like they know something that even the judges looking at evidence may not know, they do a disservice to the Court, setting expectations that it may not (and should not have to) meet. It is the certainty (or exaggeration) with which a range of Court supporters have wielded the ICC threat in Kenya that now needs rolling back, in order to raise awareness about the “nature and limits” of the Court, in case the threatened action does not quite materialise.

After all, an impartial Court is also likely to be an unpredictable Court, and therefore an unreliable tool for making political threats.
The ICG report further recommends that judges orchestrate their announcement with awareness about the political consequences of their actions, and cautions against “differentiated treatment of suspects.”

While such a political awareness is considered desirable by many on the ground, other observers would suggest that the calculation of political consequences should not be the job of judges; that judges should not get into a complex political guessing game of who will benefit from their verdict and how the person will subsequently choose their alliances and how those alliances could bring about tension and violence.

Indeed, in Uganda during the Juba peace talks, the anti-impunity community argued that neither preferences of victims nor impact on peace should stand in the way of a judicial process. In this view, judges should be able to do what the evidence tells them: If there is no evidence, it simply is not there, whatever tensions that finding might provoke.

For those who hold this view, the business of the Court is not about desirable consequences; it is to dispense the most impartial justice, even if the world perish. The Court might not simultaneously lead to an objectively better world (from the perspective, say, of the victims), but that is not the job with which it is tasked.

The apolitical view cautions Court supporters about making threats about Court action lest they harm both their reputation and the legitimacy of the Court.

It also suggests that supporters cannot promise their constituencies that the Court can lead to desirable political consequences.

So what can Court supporters do that is game-changing, without deploying the staple of threats and promises?

One option is to focus on an area where they control a powerful tool that ultimately determines the outcome of prosecutions, both national and local: Information and documentation.

In a perfect world, the Prosecutor decides the cases to pursue based upon assessment of all available evidence in a situation. In the world of limited resources where the Court is expected to deliver quick results, and where the collection of evidence by the Court itself can only start once an investigation is open, the Court relies significantly on information obtained from others in preliminary stages.

This means available information (provided by parties with a range of interests, both good and bad) determines where targeted investigations begin their effort.

Understanding this limitation of the Court should focus Court supporters on documentation of information that the Court can use, rather than making claims about matters of Court action and consequences that are and should be unknown.

Documentation would be useful beyond the ICC; it would provide essential information for future use when domestic prosecution in Kenya is eventually possible.

Lydiah Kemunto Bosire is a doctoral researcher at the Department of Politics and International Relations at the University of Oxford (New College). She is the co-founder of Oxford Transitional Justice Research, and consults for the UN