Mixed blessings: How Kenya can strengthen or weaken the ICC

Saturday April 09 2011

A screen shot of the Pre-Trial Chamber judge Ekaterina Trendafilova during the initial appearance of three post election violence suspects, Eldoret North MP William Ruto, his Tinderet counterpart Henry Kosgey and radio presenter Joshua arap Sang at The Hague April 7, 2011. Photo/WILLIAM OERI

On January 26, 2005, the Prosecutor of the International Criminal Court was quoted on Reuters news agency as stating that he would bring the Ugandan Lord’s Resistance Army case to trial (and the conflict to an end) in six months.

In those early, optimistic days, the Court’s supporters were full of conviction about the virtuous cycle where ICC action would engender deterrence, bring peace, strengthen human rights and the rule of law, and in the process, strengthen the Court itself.

This ambition was not realised. Uganda became harder than was initially thought.

Many Ugandan victims who were supposed to embrace the court did not do so. Subsequent cases in the Democratic Republic of Congo, Central African Republic and Sudan came with their share of challenges.

The Prosecutor scaled down his aspirations. He became relatively more modest, more legal with his goals and ambitious.

But fast forward to April 2011, where another seemingly ambitious threat to make Kenya “an example” on how to manage violence has resulted in six mostly notable Kenyans going before the Court, and ICC supporters can be forgiven for re-imagining a new virtuous cycle with Kenya at the centre. 


Will the Kenyan case deliver the ambitions the Ugandan case failed to deliver? 

There are at least two main views on how Kenya’s case has already had a positive impact on the Court.

The first is that Kenya has provided an opportunity for the Court to cast itself as being on the side of African citizens, not just African heads of states and other wielders of power who have used the Court through self-referrals.

The strengthening chorus of voices arguing that the Court was biased in its case selection meant that on many occasions, the Prosecutor and other Court officials had to pull out the ICC’s African credentials as talking points — that the Court has x number of African judges, that y number of African states have ratified the Statute, that it was arrogant for people to think that Africans did not want justice — in order to demonstrate that the institution had the consent of Africans.

In a context where the Court was facing resistance from a number of African governments, and where some vocal victims in Uganda had rejected its promise of justice, Kenya was widely thought to be useful: The strong voice of its ICC advocates and its media highlighted the support of the Court, filling that gap of consent.

Misinformation about what it could deliver for Kenyans notwithstanding, the case countered anyone who might suggest that there is such a thing as a solid African, anti-ICC position.

It provides much needed evidence to international non-governmental organisations in their effort to disaggregate African citizens from their leaders in their preferences for international justice.

The second view on how Kenya has strengthened the Court is that it presented the Prosecutor with an opportunity to put flesh on the bones of the “deterrence” goal of international justice.

Kenya is politically outside the complex system of conflict that links Uganda, Sudan, the Democratic Republic of Congo and the Central African Republic.

Observers point out that, by the time a full-blown war is underway, violence takes on its own logic, and threats — or even action — by a far-away Prosecutor may not have a significant effect on the devolved dynamics of the violence.

In these complex, longstanding conflicts, the sceptics further argue, the benefits of rebellion (and its associated crimes) far outweigh the possibility of arrest and its potential cost.

By contrast, if the Court can find a role in low-intensity conflicts, in situations where the conflict is not chronic, as in Kenya (at least not yet), the idea of deterrence may yet be rescued.

This is where Kenya comes in handy, as a lone data-point in weaving a fresh narrative about the ICC.

It is impossible to open a newspaper where the Court’s intervention is not linked to a positive outcome in the 2012 elections.

The Prosecutor himself has linked his action in Kenya to both the transformation of political processes (making violence costlier in the face of a credible threat from the ICC) and political outcomes (eliminating violent actors).

Indeed, for many in this camp, deterrence experienced its resurrection as soon as the Pre-Trial Chamber of the ICC issued an authorisation for investigation in Kenya.

So far, this reads like Kenya has been a good story for the Court.

But what are the downsides for the ICC of the Kenyan case?

Critics have made observations about the relatively weak evidence base of the case, and the tenacity of the well-lawyered Kenyan politicians.

They have pointed out the distracting political theatre at the African Union, whose possible impact, depending on whose views you believe, ranges from unhelpful noise to a catastrophic exodus of African countries from the Rome Statute.

They have even suggested that the deterrence supporters are celebrating too early, for many different factors have to align for the story to have a happy ending where the named actors do not eventually return to society as heroes wronged by international justice.

An important downside for the ICC is that it may suffer from the inflated expectations created by its Kenyan supporters.

A quick read of any paper will lead any newcomer to the debate to believe that the Court is about to deliver the Kenyan revolution.

In my research interviews with actors at different levels of government, many have demonstrated incredible optimism about what the Court will do: It will not just “end” impunity, it will also entrench a human-rights culture, help institute the rule of law, and of course, end violent politics and deliver a clean election.

To be sure, some of the expectations stem from the ICC Prosecutor himself.

One can understand why the Prosecutor chooses to brim with optimism about the prospects of Kenya — he interprets his job to include making threats to countries, even when those threats may amount to overstatements about whether, how quickly, and to what effect he can act. He has little room to sound uncertain.

One can also understand why activists mirror the Prosecutor’s confidence about the imminence of a perfect justice.

However, activists must realise that exaggerating the impact of the Court is not necessarily consistent with supporting the Court.

The lesson of Uganda was that exaggerating what the Court could do was unhelpful, even counterproductive.

In Kenya, it may well be possible that, all else remaining equal, actors will be more careful about how they attempt to reduce electoral uncertainty in the future.

Overt use of violence may well be affected, or, more plausibly, different, less overt measures of repression deployed.

But many of these outcomes are speculative. It is too early to assert with any level of confidence what the outcomes will be; we simply do not know.

Yet, many actors have presented the possibilities as realities.

In the process, they have demobilised or delegitimised other process that could be used to reduce visible injustices, while holding out for the perfect justice through the Court.

They have tasked the Court with making Kenyan politics right.

This does not help the Court. The task of activists should be to paint a clear picture of what the Court can do. 

Court supporters must start to scale back the ambitions they have created in society, and in their place cultivate modest expectations.

Legitimacy has a reciprocal relationship with effectiveness, and the failure of the Court to meet the enormous expectations can only serve to weaken it in the eyes of its constituents.

Lydiah Kemunto Bosire is a doctoral candidate in the department of Politics and International Relations at the University of Oxford, and the co-founder of Oxford Transitional Justice Research