Could Bashir and the Kenyan 6 bring the ICC down?

By Dr. Godfrey M Musila

Ripples have recently been caused by the a section of the Kenyan government seeking a deferral of the process of the International Criminal Court (ICC) – that has cited 6 Kenyans for alleged crimes against humanity (dating from the 2007/08 post-election violence). Similarly, a statement attributed to President Al Bashir of Sudan to the effect that the ICC arrest warrant against him should be lifted following the referendum in Southern Sudan raises interesting questions. I will briefly consider the law and politics of the deferral process as well as possible outcomes of the process, including the implications for the ICC.

Article 16 of the Rome Statute is the basis for deferral. The main criterion for its granting is that continued investigations and /or prosecutions would constitute a threat to international peace and security. This determination is made by the United Nations Security Council (UNSC) under its Chapter VII powers.

As the debate in Sudan and Kenya attests, article 16 is a major site for contestation. It animates some of the more controversial debates in international criminal justice and the ICC in particular: the role of politics in the situation countries; the peace v justice debate; and geo-political power dimensions.

In Sudan, the AU had sought deferral in order to provide breathing space for a negotiated settlement to the conflict in Darfur, although the AU’s Mbeki Panel Report broadened the geography by framing the pursuit of peace in Sudan as a national project. Although in my view article 16 criteria were met – 2 million Sudanese refugees in Chad, a generalized state of insecurity and exportation of violence to neighbouring states – politics within the UNSC ensured that the matter would never be placed on its agenda.

As we know, the AU was naturally not amused, and proceeded to pass resolutions urging non-cooperation with the ICC, and threatened withdrawal of African States parties from the Court. President Obama’s policy on Sudan – one that excludes any mention of the ICC – and America’s accommodation of and engagement with Al Bashir’s government, has provided a needed valve to calm tensions and eased pressure on Khartoum.

For its part, the proponents of the deferral in Kenya are creating an artificial link between the deferral and local prosecutions. This is an objective that can be achieved through an admissibility challenge (an application to Pre-Trial judges to cede jurisdiction) once the judges have ruled on summons. Coming out of an historic constitutional referendum, and institutional reforms largely on course, the situation in Kenya does not meet article 16 criteria. In spite of a persistent IDP problem, contested reform agenda and unanswered questions on reconciliation, Kenya is peaceful and the laying the foundations for a new republic. Ironically, it is precisely these reasons – renewed hope and the ongoing reform agenda – that are cited by those pushing for deferral.

While the competence of Kenya’s application is questionable – and it is worth noting that the US and UK ambassadors have announced publicly that their countries would veto a deferral – its timing and the previous AU rancor with the ICC over Sudan may just tip the balance in favour of deferral. This however remains a remote prospect.

It is obvious that pro-deferral forces in Kenya are tapping into previous rancor between the AU and ICC. For its part, knowing that Kenya is an important country in the region and the outcome of the current process has direct impact on its own desires, Sudan actively supported the Kenyan courtship of the AU on this deferral. Put simply, whatever excuse may be given by Kenya to refuse cooperation or withdraw from the ICC, it (Kenya) would be great company for Sudan.

It is unfortunate that Sudan is now stating publicly that the ICC process against Sudan should be stopped permanently. It is noteworthy that the Obama policy on Sudan is quiet on ICC, but identifies preservation of Comprehensive Peace Accord (CPA) between North and South as one of the three national strategic interests for the US in the country. The agreement (tacit or express) with Sudan appears to have been:  open up democratic space within the ruling party, play ball on CPA and we will go easy on ICC. For delivering a successful referendum in the South, Al Bashir now wants to cash in. His recent announcement that he will not run for office when his term expires is a further sign of his goodwill.

It is obvious that the Kenyan and Sudan situations are linked by more than just geography and time: by history, in view of Kenya’s role in securing the CPA; by politics, in view of AU’s united position on both (deferral); and destiny, that of the ICC itself.

On legal merits alone, the UNSC cannot act in respect of Kenya by deferring the situation and not do so for Sudan. If UNSC allows the Kenyan deferral, it will not be because article 16 legal criteria are met: it will be to save the ICC. Some have speculated that the Kenyan request – and there could be merit in this – is a trap for the ICC. If UNSC turns Kenya down, it will almost definitely trigger non-cooperation or mass withdrawal of African states from the ICC. I don’t know how the referral of Libya to the ICC is being viewed in African capitals, but it is likely to provide fodder for those who criticize the UNSC for acting only when the interests of the P5 allow it.

It is noteworthy that there are significant developments towards the establishment of an African Court of Criminal Justice. Whether you agree with this move or not, only die-hard optimists and decidedly pro-ICC actors would deny that the ICC will be dead if this happens: all six situations before the ICC are African (including Libya!), and non-cooperation or withdrawal from a Court that relies almost entirely on African states produces obvious results. Whatever happens, the ICC is unlikely to re-emerge from the ongoing saga unscathed.

Godrey Musila is Senior lecturer, Kenyatta University School of Law and Director, African Center for International Legal and Policy Research, CILPRA.

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Richard Dowden – Kenya: Raila’s Perfect Storm

The US, EU and several human rights organisations have condemned Kenya for welcoming a fugitive from international justice. They may have valid political and human rights arguments for their position, just like Kenya has political reasons for inviting the President of its biggest neighbour.

ICC judges, however, may take only those decisions for which the ICC Statute provides a legal basis. This blog has already pointed out that it is questionable whether the ICC judges were allowed to circulate an arrest warrant for a President of a non-state party, whose immunity had not been lifted by the Security Council, to ICC States Parties (see the earlier discussion on this blog). However, it is even more questionable whether the ICC judges had a legal basis for this “Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya”.

It is remarkable that the judges do not point to a legal basis for their decision. The only reference to an article in the Statute is to article 87, which is on cooperation. The only paragraph in this article on the Court’s informing the Assembly of States Parties (ASP) and the Security Council (SC) is article 87(7), which reads:

“7. Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.”

Article 87(7) thus allows the Court to inform the ASP and SC of a state party’s failure to comply with a cooperation request, but only after a finding to that effect. The Court made no such finding in this decision. (Had it been such a finding, it should have heard Kenya first pursuant to regulation 109(3), which provides: “Before making a finding in accordance with article 87, paragraph 7, the Chamber shall hear from the requested State”).

What is the role of article 87(7), which provides a procedure for informing the SC and ASP in explicitly provided circumstances, if the judges had the implied powers, as they seem to arrograte in this decision, to inform the ASP and SC of whatever they like to inform these organs?

The purpose of this “decision informing” the SC and the ASP is not generously to share information that only the judges had access to – the ASP and SC were well (or better) informed about Bashir’s possible visit to Kenya. Rather than a decision to inform, it is a decision to encourage the ASP and SC to “take any measure they may deem appropriate”. Without a legal basis, such encouragement comes down to political activism. The US, EU and human rights organizations may be in a better position to conduct such activism than a court that is already under fire for using the law for political purposes.

Ocampo won the ultimate price, the indictment of a head of state and government in office for genocide, the modern equivalent of being outlawed and wanted ‘dead or alive’, after only on 9 July ‘Ocambo’ had been booked by the referee and his team had concede a goal after judges at the ICC suspended the trial of the DRC warlord Thomas Lubanga because “the prosecutor has elected to act unilaterally in the present circumstances and he declines to be ‘checked’ by the (trial) chamber,” according to the judges.

They added that in these overall circumstances the court had to stay the proceedings of Ocampo’s first and so far only trial he brought to court since he took office in 2002 as “an abuse of the process of the court’ because a fair trial of the accused was “no longer possible and justice cannot be done”.

Ocampo’s only response was the usual one of going to appeal and why not because so far he has succeeded by his usual bullying every time when he appealed whenever he did not want to accept any guidance or instruction he had been given ever since after the UN Security Council referred the allegations war crimes and crimes against humanity in Darfur against named, though not published, individuals based on report of specialists appointed by the investigate these allegations to the ICC prosecutor though they had dismissed the allegation of genocide, but Ocampo proceeded to add genocide charges and when he the ICC’s Pre Trial Chamber rejected it, he appealed ultimately with success.

So ended with the ultimate price for ‘Ocambo’ a series of matches that began with a series of home games in Kampala in early June to mark the 8th anniversary of the Rome Statute under which terms the International (‘international’ as in African) Criminal Court was established and that turned the review of the Rome Statute and the ACC, sorry ICC, in a two week long love fest for ‘Ocambo’.

The location was very appropriate as it was exactly in Uganda that the process began that turned the ICC, meant to be building on and developing further the single case experiences of the ad hoc tribunals for he former Yugoslavia, Cambodia, Rwanda, Liberia and Sierra Leone etc., into an international court judging alleged crimes against humanity in UN member states, into a sort of international war crimes court for Africa, when President Museveni, then still basking in the adoration of the mythical ‘International Community’ for having ousted Milton Obote by violent means, decided to use the ICC as another tool in his stalling counter insurgency against Joseph Kony and the LRA in northern Uganda.

The fatal consequences were two fold, not only it departed from the established practice of setting up war crimes tribunals until after the conflict in question had ended rather than when it was still ongoing following the example of the Nuremberg and Tokyo tribunals, which example all the later tribunals try to emulate, but also more seriously it meant that the ICC still in its infancy had lost already its judicial neutrality and impartiality becoming instead an active partisan party in live domestic conflicts.

In a way Kony was and is an easy target as it would be impossible to turn him into the cuddly freedom fighter, so beloved by western intellectuals from the left or the right, depending which sides they take and which slant they want to apply, but it has also become clear ever since that even a ‘madman in the jungle’ represents a constituency of some sort, how incomprehensible the situation may appear to the outsider and how monstrous Kony and his henchmen do appear.

The ICC’s intervention in Uganda accepting Museveni’s invitation meant first of all that Musevni’s own counterinsurgency could not be longer independently investigated, while secondly with the ICC indictments hanging over Kony and his henchmen scuppered effectively the peace negotiations as the latter had no longer any incentive to end their insurgency; not unlike in reverse the Darfur rebel factions have felt emboldened enough following Ocampo’s actions not to engage meaningful in peace negotiations, while Khartoum wonders what the ‘International Community’s’ reward will be for engaging meaningful in the peace process.

The negative regional consequences of Ocampo’s actions are already there to be seen with the LRA remaining undefeated as it spread out and entrenched itself in neighbouring southern Sudan, DRC and CAR.

Other examples of such Ocampo interventions in the region are the arrest and indictment of former DRC vice president Jean-Pierre Bemba after he lost the presidential election while the conflict in eastern DRC continues to rage unabated, while the outcome of Ocampo’s intervention in Kenya remains unclear and neither is his attempt to get in involved in West Africa after dipping his toe in Guinea (Conakry).

Consequently ‘Ocambo’s’ involvement in Africa’s problems has meant that he and as a result the ICC have become part of the problem and not part of the solution, but there has not been any real sign of criticism from their supporters among the ‘International Community’ and the activist and ‘advocacy’ world, tough very carefully the Institute for War & Peace Reporting (IWPR) seem question the ICC’s infallibility and impartiality by expressing the demands of people of northern Uganda that the activities of the Uganda People’s Defence Force (UPDF) should be investigated (‘Uganda victims question ICC’s Balance’, 14 June 2010).

However, that has not deterred Human Right Watch (HRW) to continue to lead from the front of the hardcore groupies of ‘Ocambo’ and his ICC team. It, however, criticised severely in a statement on 11 June the prospect that following the Kampala review the ICC may get by 2017 the power and jurisdiction regarding international crimes of aggression, though the model tribunals of Nuremberg and Tokyo were specifically set up to judge whether the aggressive wars started by the German Third Reich and Imperial Japan were crimes of aggression.

It may be worthwhile to remember in this context and in the lead up to the 65th anniversary of the end of WWII in Asia-Pacific on 15 August 1945 that the Tokyo Tribunal did not indict war time emperor Hirohito, closing a major part of investigations into Japan’s actions between 1931 and 1941, on the instruction of the US occupation power of Japan which even did not accept for the same political reasons Hirohito’s offer of abdication.

It is therefore interesting to note HRW’s international justice programme director Richard Dicker’s words in the HRW 11 June statement that giving the ICC the power to investigate wars of aggression not only may undermine the ICC’s “effectiveness” by creating certain expectations but also undermine the ICC’s judicial independence by involvement of external bodies such as the UN Security Council; in others words HRW prefers the ICC and its chief prosecutor to remain as unaccountable as they are now.

But Dicker continues: “HRW had also expressed concerns that an agreement making the crime of aggression operational could link the ICC to highly politicized disputes between states, posing a danger to perceptions of the court’s role as an impartial judicial arbiter of international criminal law.” Come again, could you run that past me again?

While an attorney making the case against the ICC and ‘Ocambo’ could say ‘I rest my case Milord’, this is not debating gimmick in a courtroom, but it exposes the fact that the way the chief prosecutor and his office has been set up under the Rome Statue there is apparently no real mechanism to direct, control, sanction, let alone impeach and remove the chief prosecutor.

Ocampo’s reply has always been to define his role and of his office as if they enjoy the same position as the independent judiciary, but this is a fallacy because in every democracy the chief prosecutor and his or her office, whether he or she is called the minister for justice, attorney general or director of public prosecutions etc, is a political officer and his or her office is part of the executive, and not part of the independent judiciary, and their actions are not only tested in the courts, but they are also held accountable in parliament that can criticise and even dismissing them.

Should this not have been the real issue that the folks assembled in Kampala should have been discussing? But the ‘advocacy’ obviously prefers to continue with the easy sloganeering that depicted Darfur 2004 as a repeat of Rwanda 1994 and has demonised the ‘Arab’ in Darfur as much as the ‘Hutu’ with the fatal consequences lasting to this day in respectively the Sudan and in the Rift and Great Lakes region.

‘Ocambo’s’ tenure as the ICC’s chief prosecutor is as fatally flawed as the ‘International Community’s’ policy in the wider region resulting amongst other in al Shabab’s bloody bomb attacks in Kampala on 11 July. Are these combined not the real crimes against humanity in Africa?

Admin adds: The two AU statements are available here:

On the Chairperson’s “readiness to explore the possibility of establishing an ICC Liaison Office in Addis Ababa”: Presse CommuniqueICC Bilateral 16-07-10

On the AU’s concern over the genocide decision: communique concern over decision ICC Eng

David Backer, Joseph Lahouchuc, James Long*

The necessity of transitional justice in Kenya and the merits of certain institutional mechanisms in particular have been vigorously debated in this forum, as well as within the country itself.  In both of these contexts, the perspectives of victims of past violence have received only modest attention.[1] Of course, their voices hardly rate as the only ones that matter; politicians, officials, activists and scholars are also vital to transitional justice processes, not to mention non-victims in the general population, whose participation as defendants, witnesses and observers is typically required for such processes to prove constructive.  That being said, whether or not victims are satisfied with the approach taken and experience some degree of restoration and healing as a result represent clear benchmarks to measure the acceptability and efficacy of transitional justice measures.

To help understand how victims of the 2007-08 episode of post-election violence and other past political abuses in Kenya view transitional justice and what they might be willing to contribute to its execution, we conducted a series of focus group discussions around the country in the Summer 2009.  The time was ripe for gauging the opinions of victims, since key actors within and outside the country were considering whether to try suspects of post-election violence locally or at the International Criminal Court, while simultaneously Kenya’s Truth, Justice, and Reconciliation Commission (TJRC) moved toward implementation.

We selected areas of Kenya most affected by post-election violence, and an experienced moderator conducted pairs of focus groups using a mixture of Swahili and local languages in seven different locations: Nairobi’s Mathare and Kibera slums; Kitale, Eldoret, Nakuru, and Naivasha in Rift Valley province; and Kisumu in Nyanza province.  In each location, we split the two groups either between men and women or between youths and the middle-aged/elderly.  The locations resulted in groups of mixed ethnicity and political affiliation.  The groups ranged in size from five to 10 participants, with an average of six.  To recruit these individuals, we relied on a network of grassroots-level non-governmental organizations that work with victims in the various locations.  All of the participants had been affected by post-election violence via harm to their own or their family members’ physical well-being and/or damage to their property.

We believe our approach, though limited in scope and lacking a representative random sample, affords certain advantages over a national public opinion survey.  First, we concentrated the research on those most affected by violence and proposed transitional justice mechanisms.  Second, victims are a distinct, small sub-population whose perspectives are difficult to capture—unless the concentration or overall prevalence of violations is very high—via the conventional sampling procedures that are typically employed for public opinion surveys.  Purposefully targeting this sub-population, including by restricting ourselves to select locations, was therefore an efficient approach to highlight an important constituency.  Third, the relatively open format of focus groups enables participants to express their attitudes, beliefs and desires in their own words and thus elicits answers that provide a richer understanding of how they view complex concepts and difficult issues.

The main subjects of the discussions included various aspects of the disputed elections and resulting violence; the current political climate; and relevant dimensions of transitional justice.  Here, we present insights concerning the participants’ attitudes about justice and amnesty; preferences for specific institutional options; views about the ostensible tradeoff between peace and justice; and perspectives on the extent of and potential for reconciliation.  Our hope is that this study, by injecting the vital perspective of victims based on recent original primary empirical research, informs not only the policy debates and institutional processes that are underway in Kenya, but also the public education programs that civil society has initiated to foster transitional justice.

Justice

In principle, a successful transitional justice process is predicated on a shared conception of justice and what specific mechanisms may yield in terms of benefits for victims.  Therefore, the initial question posed to each of the focus groups was: “What does justice mean to you?”  Rather than mentioning abstract notions like fairness, rightness or even legality, the responses generally fell into two broad categories: punishment and compensation.  Both conceptions are fully intuitive and relate directly the concrete consequences of post-election violence.  Lasting fears of living in proximity to perpetrators within communities are common.  In addition, many of the participants were forced to flee their homes and jobs and face continued difficulties in subsisting as a result of injuries and the inability to find employment.  Meanwhile, only a few of the participants linked justice to reconciliation, specifically dialogue and civil engagement.  Thus, the dominant conceptions of justice emphasized official actions to prosecute those responsible for post-election violence, as well as material assistance.

An overwhelming majority of the participants, however, were dubious about prospects of justice actually materializing in Kenya.  This skepticism is unsurprising given the country’s weak judicial system, a political class that is widely perceived to be indifferent to the plight of victims of violence, and past abrogated attempts at investigations, prosecutions and reform.  According to the participants, the main impediment to the implementation of justice is Kenya’s leaders, who are seen as venal, dishonest and likely to manipulate any commissions and tribunals.  An elder in Kitale sums up these feelings best: “Justice is devilish.  I have to bribe to get justice.”  Likewise, a male respondent in Eldoret captured the pessimism about the current state of politics: “It’s hard for Kenyans to get justice with our current crop of leaders.”  A youth participant in Dandora even argued that the current situation is worse than before: “Politics has really gone down.  It is becoming dirtier.”

Amnesty

The amnesty clause in the act establishing the TJRC, which allows perpetrators of certain rights violations to avoid prosecution if they come forward and confess to the Commission, has been controversial.  Public support for amnesty might wane in the face of ICC prosecutions, especially since many of the alleged perpetrators include present or former cabinet members, other members of parliament, local government officials, and prominent business leaders.

Likewise, the focus group participants were rarely inclined to unconditionally forgive and forget the offenses committed by those involved in the post-election violence.  At the same time, the participants drew a sharp distinction between the organizers and the actual perpetrators of the violence, exhibiting a far greater willingness to grant amnesty to the latter rather than the former, albeit with caveats on both fronts.  With respect to the perpetrators, many of the participants suggested a potential willingness to approve of amnesty as long as perpetrators acknowledged their wrongs, confessed in person, and expressed a sincere and meaningful desire for forgiveness. A frequent sentiment was that such steps would provide sufficient closure for individual victims to move on with their lives.  As one man in Eldoret suggested, “the only way for amnesty is for them to acknowledge their wrongs. We can forgive.”

Yet not all of the focus group participants were prepared to feel consoled if perpetrators admit guilt.  Some fervently rejected amnesty, expressing residual anger and resentment that is best summed up by a woman from Nakuru: “They can talk of amnesty, but we, the real victims, cannot forgive.”  Another man in Nakuru echoed the fears of many respondents about amnesty promoting impunity, in making the case for accountability as a means to prevent future violence: “If they [perpetrators] killed and are released, that will motivate others to the same atrocities.  There has to be punishment to deter others.”  Likewise, a male participant in Naivasha argued, “they [perpetrators] should be jailed for life so that they be a lesson to others.”

Institutional Mechanisms

Criminal Prosecution

The discussion of the possibility of trying individuals complicit in the post-election violence generated differing levels of support for three options: the ICC, a special tribunal in Kenya, and a hybrid system involving both international and domestic elements.  At the time, all of these options were receiving serious consideration in policy debates.  Subsequently, the ICC decided to proceed with formal investigations, which are likely to result in indictments of various perpetrators.  While these steps appeared to diminish the prospects for instituting a domestic tribunal, this option is still advocated periodically.

A large majority of the focus group participants preferred to send those involved in the violence—especially the organizers—to The Hague for trial.  The inclination to eschew local accountability, in favor of an international alternative, was based on several factors.  For one, participants commonly expressed confidence in the ICC’s ability to achieve important outcomes.  A young woman in Mathare indicated, “Let The Hague take ten years, but we will know the truth and at the end we will have results.”  A second woman said, “Politics is accompanied with violence.  Hague could change that and impunity will cease.  They will be punished well there.”  Others cited corruption in the Kenyan courts, the ability of politicians and other powerful individuals to subvert the legal process, and the potential for sparking further conflict.  As a woman in Kibera noted, “I think they [perpetrators] should go to The Hague because you might find these politicians may know the judges and even bribe them to have their way.  If they go to The Hague, truth will rule.”  A man from Eldoret agreed: “Local courts don’t have justice. The organizers are rich and therefore they will interfere.  They should go to The Hague so that at least justice will be served.”

A smaller number of participants advocated a process in Kenya.  Some made this case on the basis that the trials would then be more accessible and enable closer observation as well as direct participation.  As one participant from Kisumu stated quite succinctly, “We would like to witness.”  Similarly, an elder in Kitale argued: “I prefer here so that everyone can have their say.  We have to witness in those trials. We can’t all go to The Hague; we will have a more effective trial locally.”  Others reasoned that far more people could be tried locally, whereas relatively few could reasonably taken to The Hague.  Certain participants also worried that conducting trials in The Hague would mean only the organizers of violence would be prosecuted, allowing the actual perpetrators to go free.  The few participants who advocated a hybrid system saw the potential for complementary functions, with organizers being sent to The Hague, while a domestic tribunal would try the perpetrators.

Truth, Justice, and Reconciliation Commission

Meanwhile, the participants’ attitudes about the TJRC were almost universally negative.  Many seemed skeptical of its utility and suggested this process would be a waste of resources that could instead be going directly to victims, if not a further venue of corruption, rather than serving as a useful vehicle for rapprochement.  For example, a male respondent from Nakuru stated: “These commissions are just for making money.  They are just using them for the wrong purposes.”  A young woman in Mathare echoed his sentiments: “That is just scheme to use public money.”  Others indicated that the TJRC would be a political stunt above all else, doubting the extent to which it would engage and be responsive to the victim community.  As one participant noted, the process “won’t be ours,” but rather a top-level political process.  A woman in Eldoret underscored this skepticism by arguing, “That commission is just theirs.  We don’t have any say.  In fact, for anything that happens in Nairobi, we face the repercussions.”  Furthermore, multiple participants referenced a conspicuous history of failures by previous commissions to follow up on formal inquiries and effect change: “Commissions have been formed and are fake.  They never act on their reports” [young woman in Mathare].  “They never implement what they report” [male respondent from Nakuru].

A minority of the participants expressed cautious support for the Commission, but still questioned its fairness, the legitimacy of its leadership and its potential impact.  In addition, the few participants who did say they wanted the commission conditioned their support on the delivery of financial assistance, the creation of jobs or the punishment of offenders.  These stipulations echo the observations we made earlier that victims seem especially interested in substantive outcomes.  A process alone is seen as largely inadequate, not least because victims lack confidence in Kenyan institutions and officials operating with integrity and acting in the public interest, let alone conscientiously addressing the needs of victims.  In fact, the TJRC has commenced operation and begun to hear evidence, but continues to be plagued by the controversy over Chairman Bethuel Kiplagat’s past association with former President Daniel arap Moi’s regime, itself a violator of human rights.

Peace or Justice?

Earlier, we mentioned the participants’ fears that any efforts to prosecute individuals implicated in the post-election violence could incite further violence and threaten the security of populations that have already been victimized—a standard concern in countries that have undergone a transition from a period of conflict.  These anxieties may be based on only the theoretical risk of a backlash, without a clearly quantifiable threat.  That being said, comparative examples of such violence do exist, including instances where victims have been specifically targeted, e.g., the killings of dozens of witnesses in Rwanda’s gacaca proceedings.  Along similar lines, the absence of legislation and institutions to safeguard witnesses in Kenya has recently come to light as the ICC has begun its investigations.

These and other sorts of vulnerabilities and apprehensions presumably contribute to the fact that the focus group participants were split on whether they support legal accountability for those involved in the post-election violence, or peace and stability.  Those in the latter category expressed a desire to co-exist harmoniously and to live free from fear.  A woman in Naivasha advanced this point, making reference to the dire consequences of conflict, “If we had peace then we would not be wearing donated clothes.”  Those desiring justice argued that justice itself is most likely to produce peace and stability in the long run.  One man in Naivasha related the metaphor, “Justice is the table that carries peace.”  Another said likewise, “If you have justice you get everything else.”  A young participant argued, “You must have justice in order to be free.”  Not everyone drew a direct link between justice and peace, but rather some participants observed that peace can be a tenuous state of affairs and mask underlying grievances that implicitly could simmer and hold the potential to become disruptive.  As one woman in Kibera noted, “we are living peacefully yet we live grudgingly because some of us were violated and undermined.”

Interestingly, the participants in each focus group tend to share similar attitudes about this issue, but there were not consistent patterns by gender and location.  For example, the female participants in Kibera wanted justice first and foremost, whereas their male counterparts preferred peace and stability.  In Naivasha, by contrast, the female participants prioritized peace and stability, while the male participants desired legal accountability.  A natural explanation for the intra-group similarities could be participants following the lead of the first one or two peers to speak.  Yet the other questions did not yield this sort of consistency in responses, as might be expected if certain participants in each group were influencing their peers.  In so far as we can rule out that sort of phenomenon, it appears that attitudes concerning the choice between justice and peace and stability are highly contextual in terms of geography and personal traits.

Reconciliation

Definitions of reconciliation varied considerably among the focus group participants.  The most common understandings were forgiveness, acceptance of others, and acknowledgement of wrongs committed.

When asked whether reconciliation was occurring in their area, or in Kenya more generally, virtually all of the participants believed that progress had been modest at best.  They pointed to many pieces of evidence, most notably their continuing fear of returning home, the fact that stolen properties have not yet been returned, and the failure of perpetrators to apologize or be punished for their transgressions.

The participants were equally cynical about the prospect of reconciliation down the road, even questioning the basic readiness of Kenyans to pursue and achieve this outcome.  A Nakuru woman asked, “How can there be reconciliation when I am still feeling the pain for my murdered son?”  This visceral reaction is evidently widespread, with another participant observing that many victims “still feel the pain.”  Some also cited the ongoing presence of perpetrators in their communities and were resistant to the notion that under these circumstances reconciliation could be achieved through policy pronouncements alone.  As a Kitale elder explained, “If you killed my father, [even] if the government says we should live together, I can’t live with you.  I still have anger.”  Others blamed inter-party wrangling within the Coalition government, which was viewed as a persistent problem.  A further source of worry was the strong ethnic elements to the post-election violence, which have not dissipated and were even exacerbated in some areas by the flight of people and the development of enclave communities.

Conclusion

This brief article represents a first installment of insights from victims of post-election violence concerning their preferences about and expectations for transitional justice in Kenya.  The series of 14 focus group discussions we conducted around the country reveal urgent desires for redress of past harms and losses and for fundamental changes in politics and society, so that people can have the basic necessities of life and not face constant fears of renewed conflict.  The focus group participants were supportive of and otherwise open to a variety of transitional justice options, typically with a bottom-line focus on what is required to achieve meaningful and lasting results.  On this count, the strongest sentiment favored compensation to victims as well as prosecution of those responsible for organizing the violence, a task that most preferred to assign to international authorities.  Progress in these respects was viewed as essential for stability and reconciliation.  Yet there was considerable skepticism among the participants that these challenges would be taken up promptly and effectively and have a lasting, positive impact on the lives of victims and peace in Kenya.

* David Backer is an Assistant Professor of Government at the College of William & Mary (Virginia, USA) and a Visiting Fellow of the Kroc Institute for International Peace Studies at the University of Notre Dame (Indiana, USA).

Joseph Lahouchuc recently graduated from the College of William & Mary with a BA in International Relations.

James Long is a PhD candidate in Political Science at the University of California, San Diego (USA) and a Jennings Randolph Peace Scholar at the United States Institute of Peace

Download the Pdf version of this paper here.

[1] Notable exceptions include civil society campaigns and surveys conducted by South Consulting for the Panel of Eminent African Personalities to measure progress on the Kenyan National Accord and Reconciliation Act.  For the findings of the latter, see http://www.dialoguekenya.org.

I turn first to jurisprudential matters. Although international criminal law strives to borrow from and legitimate itself via a plurality of legal systems, the fact remains that its basic doctrines are Western in origin. This can cause problems when the jurisprudence has a poor sociological fit with the non-Western societies to which it is applied. Take for instance the doctrine of ‘superior responsibility’, one of the modes of liability under which international criminal suspects are commonly tried. Although the case law on superior responsibility is increasingly sophisticated, and the doctrine has been applied with sensitivity and intelligence by some judges, it remains the case that it evolved in the context of well-drilled Western-style bureaucratic and military organisations, in which it made sense to think that a superior could be held responsible for the actions of his subordinates, no matter how far physically removed (Knoops 2007).

In Africa, however, well-drilled hierarchies of this nature are a rarity. Over the past forty years many African governments, armies and guerilla movements have found it tremendously difficult to create stable organisations, and authority relations tend to be informal and fluid instead (for introductions to a vast literature see Chabal and Daloz 1999; Clapham 1985; Jackson and Rosberg 1982; Médard 1982; Migdal 1988; Murphy 2007). This was certainly the case in Sierra Leone, where authority in at least one of the fighting factions – the Civil Defence Forces – was based on patron-client or neo-patrimonial ties, and was more akin to a ‘militarised social movement’ than a conventional army (Hoffman 2007; Kelsall 2009).

While it is not impossible that superiors in such networks should have the ‘material ability to prevent or punish’ the crimes of their subordinates, as the superior responsibility doctrine demands, it is much less likely than in a Western context. Nevertheless, some international prosecutors have sought, rather unthinkingly, to gain convictions under this doctrine even when the evidence for it was flimsy. This, in my opinion, has led to a waste of time and resources and, in the worst cases, some highly questionable judicial decisions (Kelsall 2009, 71-104).

A related problem, although I lack space to address it here, is that the superior responsibility doctrine as currently conceived is ill-equipped to deal with the exercise of charismatic authority, which is rather more common in Africa than it is in the West (see for example Ellis 1995, 2001; Ellis and ter Haar 2004, 90-113). In Sierra Leone it played a part in the trial of Allieu Kondewa, alleged by the Prosecution to have authority over his subordinates by virtue of the ‘mystical powers’ he possessed, and it is arguable that it would also be significant were Joseph Kony ever brought to trial (Kelsall 2009, 105-145).

The next issue I would like to raise is procedural. Just as most of the jurisprudence used in international criminal trials is Western in origin, so is the procedure. Legal anthropologists have long pointed to the more informal and inquisitorial style of African customary courts as compared with Western ones, especially in adversarial, common law contexts (Gibbs 1963; Gluckman 1964). It is difficult for most of us to imagine how unnerving international trials must be for many African witnesses, who find themselves miles from home, in a courtroom of extraordinary grandeur, confronted with robed judges and lawyers who speak a foreign language, and who subject them to highly unusual communicative practices including frequently hostile cross-examination. It is no wonder that getting clear testimony in such circumstances has often proved difficult (Cryer 2007), a problem compounded in contexts, not uncommon in Africa, where secrecy is prized as a high social ideal, and in which there have developed a repertoire of dissembling rhetorical techniques (Ellis and ter Haar 2004, 70-89; Ferme 2001; Murphy 1980; Shaw 2000).

Things are made worse where local conceptions of space and time are at variance with Western coordinates, as they are in many rural African contexts, such as in Sierra Leone. Existing attempts to put witnesses at ease by concealing their identities, paying them allowances, and proofing them before testifying, create their own problems. In my analysis these communicative troubles, in addition to making trials, slow, laborious, and expensive, can seriously call into question the quality of the evidence on which judicial decisions are based (Kelsall 2009, 171-224).

Finally, I turn to normative issues. While some of the crimes adumbrated under the Rome Statute are doubtless regarded abhorrent by all but the most deviant sub-cultural groups or individuals, the same cannot be said for all of them. The issue here turns on the relation between the international ‘community’ that makes international law – comprised of activists, academics, statesmen and lawyers, at the pinnacle of which are the States Parties themselves – and the less cosmopolitan communities existing on their periphery. Take for instance the crime of enlisting children under a certain age (the age has varied over time) into an armed force. Anthropologists and historians have shown that the very conception of what it is to be a child varies cross-culturally, as do the expectations of what a ‘child’ can legitimately be expected or forced to do (Archard 1993; Boli-Bennett and Meyer 1978; Hoffman 2003; James and James 2005; Rosen 2007). Such appeared to be the case in rural Sierra Leone where, in the case of the Civil Defence Forces, commanders enlisted and communities volunteered young fighters, apparently not knowing that this was a morally or legally wrong act. By prosecuting individuals for this crime, the Special Court arguably held those concerned to an alien standard of justice of which they knew nothing, imposing international norms and law on people, raised in a different culture, with contrasting moral ideas. Rather similar points could be made in respect of the crime of ‘forced marriage’ (Kelsall 2009, 146-170, 243-254).

To conclude, at the same time as the States Parties reflect on some of ICJ’s recent achievements, they might also consider some of its difficulties, including those problems that are not prominent on the agenda but become apparent when we dig deep into international trials. These difficulties concern the appropriateness of international criminal jurisprudence, procedure, and norms to African and other non-Western contexts. Is it within the power of the States Parties to recommend a more sociologically attuned use of the existing jurisprudence? Can they, by addressing the entire ecology of the courtroom, make international criminal procedure as friendly and productive as possible for witnesses unfamiliar with a Western courtroom setting? And can they advise a more sensitive enforcement of those laws which, although regarded as universally abhorrent by the ‘international community’, have yet to penetrate the consciousness of communities on its fringe? In short, is a more genuinely international, multicultural type of justice attainable than the kind we have now?

REFERENCES

Allen, Tim. 2006. Trial Justice: The International Criminal Court and the Lord’s Resistance Army. London: Zed Books.

———. 2008. Ritual (Ab)use? Problems with tradtional justice in Northern Uganda. In Courting Conflict? Justice, Peace and the ICC in Africa, edited by N. Waddell and P. Clark. London: The Royal African Society.

Archard, David. 1993. Children: Rights and childhood. London and New York: Routledge.

Baines, Erin K. 2007. The haunting of Alice: local approaches to justice and reconciliation in
Northern Uganda. International Journal of Transitional Justice 1 (1):91-114.

Boli-Bennett, John, and John W. Meyer. 1978. The ideology of childhood and the state: rules distinguishing children in national constitutions, 1870-1970. American Sociological Review 43 (6):797-812.

Branch, Adam. 2004. International justice, local injustice. Dissent (Summer):22-28.

Chabal, Patrick, and Jean-Pascal Daloz. 1999. Africa Works: disorder as political instrument. Oxford: James Currey.

Clapham, Christopher. 1985. Third World Politics: An introduction. Madison: University of Wisconsin Press.

Cryer, Robert. 2007. A long way from home: witnesses before international criminal tribunals. International Commentary on Evidence 4 (1):1-4.

Edozie, Rita Kiki. 2009. Globa citizens and Sudanese subjects: reading Mamdani’s Saviours. African Affairs 108 (433):661-668.

Ellis, Stephen. 1995. Liberia 1989-1994: a study of ethnic and spiritual violence. African Affairs 94 (375):165-198.

———. 2001. Mystical weapons: some evidence from the Liberian war. Journal of Religion in Africa 31 (2):222-236.

Ellis, Stephen, and Gerrie ter Haar. 2004. Worlds of Power: Religious thought and political practice in Africa. London: Hurst.

Ferme, Mariane. 2001. The Underneath of Things: Violence, history and the everyday in Sierra Leone. Berkeley: University of California Press.

Gibbs, James L. Jr. 1963. The Kpelle Moot. In Law and Warfare: Studies in the anthropology of conflict, edited by P. Bohannan. Austin and London: University of Texas Press.

Gluckman, Max. 1964. The judicial process among the Barotse. In Law and Warfare: Studies in the anthropology of conflict, edited by P. Bohannan. Austin and London: University of Texas Press.

Hoffman, Daniel J. 2007. The meaning of a militia: understanding the Civil Defence Forces of Sierra Leone. African Affairs 106 (425):639-662.

———. 2003. Like beasts in the bush: synonyms of childhood and youth in Sierra Leone. Postcolonial Studies 6 (3):295-308.

Huyse, Luc, and Mark Salter, eds. 2007. Traditional Justice and Reconciliation After Violent Conflict: Learning from African examples. Stockholm: Institute for Democracy and Electoral Assistance.

Jackson, Robert H., and Carl G. Rosberg. 1982. Personal Rule in Black Africa: Prince, autocrat, prophet, tyrant. Berkeley: University of California Press.

James, Allison, and Adrian James. 2005. Introduction: the politics of childhood – an overview. In The Politics of Childhood, edited by J. Goddard, S. McNamee, A. James and A. James. Basingstoke: Palgrave.

Johnson, Douglas H. 2009. Mamdani’s ‘settlers’, ‘natives’, and the War on Terror. African Affairs 108 (433):655-660.
Kelsall, Tim. 2009. Culture Under Cross-examination: International justice and the Special Court for Sierra Leone. Cambridge: Cambridge University Press.

Knoops, Geert-Jan Alexander. 2007. The transposition of superior responsibility onto guerilla warfare under the laws of the international criminal tribunals. International Criminal Law Review 7:505-529.

Mamdani, Mahmood. 2008. The new humanitarian order. The Nation, September 29.

Médard, J-F. 1982. The underdeveloped state in Tropical Africa: political clientelism or neo-patrimonialism. In Private Patronage and Public Power: Political clientelism in the modern state, edited by C. Clapham. London: Pinter.

Migdal, Joel S. 1988. Strong Societies and Weak States: State-society relations and state capabilities in the Third World. Princeton NJ: Princeton University Press.

Murphy, William P. 1980. Secret knowledge as property and power in Kpelle society: elders versus youth. Africa 50 (2):193-207.

———. 2007. The powerful presence of the past: historical dimensions of integration and conflict in the Upper Guinea Coast. Conference paper. Max Plancke Institute for Social Anthropology, Halle/Saale, Germany.

Otim, Michael, and Marieke Wierde. 2008. Justice at Juba: international obligations and local demands in Northern Uganda. In Courting Conflict? Justice, peace and the ICC in Africa, edited by N. Waddell and P. Clark. London: The Royal African Society.

Rosen, David. 2007. Child soldiers, international humanitarian law, and the globalization of childhood. American Anthropologist 109 (2):296-306.

Shaw, Rosalind. 2000. “Tok Af, Lef Af”: a political economy of Temne techniques of secrecy and self. In African Philosophy as Cultural Inquiry, edited by I. Karp and D. A. Masolo. Bloomington: IA.

* Tim Kelsall has taught politics at the Universities of Oxford and Newcastle, is a former editor of the journal African Affairs, and is the author of Culture Under Cross-Examination: International Justice and the Special Court for Sierra Leone (Cambridge University Press, 2009) (http://www.cambridge.org/9780521767781). He is currently living in Phnom Penh, Cambodia, working freelance as an Associate of the Africa, Power and Politics Programme (http://www.institutions-africa.org/) and as a Visiting Fellow of the War Crimes Studies Center, University of California at Berkeley (http://socrates.berkeley.edu/~warcrime/).

Notwithstanding the general recognition that international law obliges countries to prosecute genocide, crimes against humanity, and war crimes, some diplomats tasked with negotiating peace agreements have argued that the prospect of prosecution by the ICC has made achieving their objectives more difficult.[1] Those negotiating peace have tended to view the possibility of prosecution as a dangerous and unfortunate obstacle to their work. Some fear that merely raising the spectre of prosecution will bring an end to fragile peace talks. The temptation to suspend justice in exchange for promises to end a conflict has already arisen with respect to the ICC’s work in Darfur and Uganda, and threatens to recur in coming years as parties and mediators struggle to negotiate peace deals.

In the short term, it is easy to understand the temptation to forego justice in an effort to end armed conflict. However, Human Rights Watch’s (HRW) research demonstrates that a decision to ignore atrocities and to reinforce a culture of impunity may carry a high price. Indeed, instead of impeding negotiations or stalling a peaceful transition, remaining firm on the importance of justice — or at least leaving the possibility for justice open, whether meted out by national or international prosecutions — can yield short- and long-term benefits. HRW findings about the relationship between peace and justice are discussed at length in a July 2009 report “Selling Justice Short: Why Accountability Matters for Peace.” While there are many factors that influence the resumption of armed conflict, and we do not assert that impunity is the sole causal factor, a review of HRW experience shows that the impact of justice is too often undervalued when weighing objectives in resolving a conflict.

Case studies in the HRW 2009 report are drawn from 20 years of research in as many countries. The ICC’s reach has understandably been more limited to date. Six years after the court’s operations began, its prosecutor is carrying out investigations in four situations (Uganda; Democratic Republic of Congo; Central African Republic; and Darfur, Sudan) and the ICC’s first trial began in January 2009. The prosecutor’s request to open a fifth investigation—in Kenya—is pending before a pre-trial chamber at the time of  writing.

Thus far, however, the ICC’s engagement in these countries lends support to the themes identified in HRW’s broader review of the impact of national and international justice processes on — and, critically, their absence from — peace processes.  Drawing on the findings of “Selling Justice Short”, we illustrate below three of these themes with examples drawn from the ICC’s experience to date.

First, arrest warrants do not necessarily hinder, and have at times benefited, peace processes through the marginalization of leaders suspected of serious crimes. Justice is an important objective in its own right and this marginalization effect should not motivate the commencement of justice processes. At the same time it has been a side effect of the issuance of arrest warrants in some cases. In the Uganda situation before the ICC, arrest warrants for leaders of the rebel Lord’s Resistance Army (LRA) appear to have played a role in marginalizing the LRA by isolating it from its base of support in Khartoum. This, as well as an interest in seeing the ICC arrest warrants lifted, appears to have increased the LRA’s interest in participating in peace talks held in Juba, Sudan between 2006-2008. While the Juba talks did not ultimately lead to a final peace agreement, interim agreements —including on the issue of justice for crimes committed during the conflict — were successfully concluded over the course of the talks, suggesting that peace processes can be conducted in the shadow of ICC arrest warrants.

Second, foregoing accountability does not always bring hoped-for benefits. In the Democratic Republic of Congo (DRC), the inclusion of alleged perpetrators in government —granting de facto amnesties, including to Bosco Ntaganda, a former rebel commander wanted by the ICC but integrated into the Congolese army in early 2009 — has had far-reaching negative consequences. Successive attempts to buy compliance with post-conflict transition processes by rewarding criminal suspects with positions of power and authority have only allowed these individuals to continue committing crimes or encouraged others to engage in criminal activity in the hope of receiving similar treatment. Far from bringing peace, this has instead allowed lawlessness and human rights violations to persist.

Third, pursuing international justice can have long-term benefits necessary to sustainable peace, including the reinstatement of the rule of law through domestic prosecutions.  ICC investigations in the Central African Republic, for example, have placed pressure on national authorities to take at least nominal steps toward enforcing international humanitarian law. While this has not yet yielded domestic prosecutions, it seems to have at least raised awareness of serious international crimes and the rule of law, which may be the first step toward preventing future crimes. These three themes and examples are dealt with one by one in the paper below.

To read the full paper click here.

* Sara Darehshori is senior counsel and Elizabeth Evenson is counsel in the International Justice Program of Human Rights Watch.

The first of these inherent problems stems from the fact that the ICC, like any international mechanism intended to promote or protect human rights, faces the impossible task of acting morally in a political world rent by power inequalities, domination, and violence.  Thus, because it lacks a coercive capacity of its own, the ICC, in its quest for efficacy, must accommodate itself to political power, which it has done through two routes.  First, the ICC has prosecuted only Africans.  This decision has been a function of international power relations which make Africa the only region weak enough so that Western intervention and experimentation can take place there without accountability, and unimportant enough so that the West will allow the ICC to act as its sub-contractor there in place of more direct forms of intervention.  Second, the ICC has accommodated itself to political power within Africa—this is very clear in Uganda, where the ICC eagerly became an instrument of the Ugandan government’s counterinsurgency so as to ensure Uganda’s cooperation with its prosecution of the LRA.  In doing so the ICC also further proves its willingness to cooperate with US military interests in the region.

The ICC and its supporters have had to respond to these accusations of politicization.  They have done so—when not resorting to ad hominem attacks—through a rhetorical strategy of shifting back and forth between declarations of outright denial and invocations of pragmatic exigency, between denying that ICC decisions have anything to do with political considerations and instead derive from legal reasoning alone, and admitting that the ICC goes after accessible targets in order to ensure its own survival.  The denial side of this rhetorical strategy is evident when ICC supporters contend that the Court’s exclusive focus on Africa stems from the continent’s being the site of the most cases of extreme violence which require international legal intervention, and from the fact that African states have voluntarily referred these cases to the ICC.  Thus, the ICC’s accommodation to political power is denied, the focus on Africa is cast as a purely legal decision, and the Court’s prosecution of certain parties to the exclusion of others is explained through reference to an obscure calculus of the gravity of crime.

But that is a hard line to maintain when the ICC is pressed on its decision to get involved in violence in Guinea and not in Iraq, Afghanistan, or Israel, or on its decision to ignore mass violence against civilians in Somalia by Ethiopian and US forces, or to dismiss violence by the Ugandan government against its own or neighboring peoples.  Faced with such evidence of the ICC’s accommodation to power, the Court’s supporters tend to shift their argument from outright denial to an admission of the necessity of pragmatism on the ICC’s part in order for it to get any cases tried, but justify that pragmatism on the basis that it will result in some justice being done, which is better than no justice at all.

This rhetorical strategy of alternation between denying that pragmatic considerations influence ICC decisions and admitting that the Court must conform to political exigencies in order to get anything done, between dismissing its critics with self-righteous declarations of the ICC’s role as the instrument of global justice and dismissing its critics with the demand that they be realistic—this strategy must itself be dismissed.  We need an honest assessment of the ICC’s capacity to be an instrument of universal and impartial justice, a need that cannot be avoided, as some ICC supporters attempt to do, by translating the gap between the ICC’s current—partial—practice and impartial justice into a temporal gap between the imperfect present and an inevitable future in which the ICC will overcome the political interests of weak and strong states alike. This untenable evolutionary narrative lacks empirical grounding, and those focused on bringing justice to the world they live in now cannot afford such an ill-conceived faith.

Instead, we need to throw light on the consequences that result from the ICC’s very real need to abide by these strict political limitations in order to ensure its own efficacy and survival.  For those who argue that some justice is better than no justice, the ICC’s accommodation to power is not a bad thing but rather simply the constitutive condition for the partial but genuine justice of the ICC. In the same way, according to those espousing the evolutionary narrative, Allied victory in WWII provided the constitutive condition for the partial but genuine justice of the Nuremburg trials.

The argument that some justice is better than no justice, however, does not hold.  First, from the perspective of the survivors of conflict, criminal prosecutions of one side and not the other can appear a travesty of justice instead of its partial realization—”some justice” may not be justice at all. More generally, the problem is that the assertion that some justice is better than no justice proclaims legitimate any politicization of justice, any instrumentalization of legal institutions to political interests, however unjust those interests are. From this point of view, it simply does not matter that justice conforms completely to repressive, violent political power locally or globally; as long as cases are tried and “some justice” is done, everything is fine. This is problematic morally, but also very dangerous politically since it declares international justice available as a mantle to be draped at will over political interests by those with the power to do so. As a result, the doctrine that some justice is better than no justice can end up not only making justice conform unapologetically to power, but also making justice an unaccountable tool of further violence and injustice.

The second inherent problem is that the ICC and its supporters have defined “global justice” for Africa as a goal that is to be pursued exclusively through the ICC and other formal legal mechanisms, thus restricting those issues that can be addressed and those actors who can be held accountable.  In monopolizing the discourse of global justice in Africa, the ICC has placed certain fundamental issues outside the scope of what can be defined as unjust and thus subject to challenge and contestation through the pursuit of global justice.

This becomes obvious in terms of the ICC’s subject matter jurisdiction: the forms of violence, repression, and inequality that can be challenged as “unjust” are restricted to the most spectacular forms of overt violence.  Less spectacular forms of domination, repression, and violence—such as economic exploitation, Western sponsorship of violent and anti-democratic political forces, internationally-enforced disparities in access to medicines, trade regimes that undermine development and food security—none of these can be challenged through the pursuit of global justice when global justice is defined by the ICC.  Global justice is exclusively associated with punishing the “most serious crimes of concern to the international community as a whole,” conceived of as mass atrocities, while those crimes that serve the interests of the “international community” are conveniently outside the ICC’s scope.  Mass atrocity is naturalized as the most pressing form of global injustice, and its prevention and punishment are naturalized as the most pressing issue for the pursuit of global justice, trumping all other concerns.

Personal jurisdiction under the ICC is similarly restricted, focusing as it does on placing the entire blame for violence on a few particularly “savage” Africans—whether Omar al-Bashir or the LRA—by misrepresenting situations and reducing the wide set of actors and structures involved in violence to one or two individuals.  By focusing on those (Africans) with “greatest responsibility,” the ICC simply ignores the criminal responsibility of Western states, donors, aid agencies, and corporations even in those episodes of violent atrocity that the Court is willing to investigate.  And finally, the ICC’s limited temporal jurisdiction excludes centuries of injustice, an entire history of Western violence in Africa.

Now, if the ICC were conceived as simply a technical mechanism for use in specific circumstances, there would be less of a problem.  The problem, however, results from the ICC’s effective monopolization of the language of global justice in Africa.  Thus, there is a vast regime of institutions and organizations engaged in a massive pedagogical project trying to build support for the ICC as the exclusive arbiter of global justice.  It is precisely through the ICC’s mechanisms for victims’ “participation” and “empowerment” that the Court restricts people’s concepts of injustice and justice to those provided by the ICC and thus to put entire forms of domination, violence, and inequality beyond the scope of justice.  This pedagogical “empowering” project thus furthers the management of Africa in the service of Western political and economic domination through the very discourse of global justice.  The irony is that the discourse of global justice is uniquely positioned to challenge those forms of Western domination and international inequality, and so the ICC ends up impoverishing what should be the radical and emancipatory language of global justice.

It seems clear that neither of these two inherent problems—the ICC’s counterproductive accommodation to power and its impoverishment of the discourse and practice of global justice—can be dealt with through reform of the ICC’s Statute, let alone through a new Chief Prosecutor.  Instead, these are problems fundamental to the ICC as an international legal institution, and they may in some form undermine any effort at finding global justice through law.  Thus, the ICC’s interventions need to be restricted to those cases where African citizenries themselves request that it play a role so that its politicization is minimized, and its self-serving claims need to be brought under control so that it does not monopolize the discourse of global justice.  At the same time, these problems point to the need for alternative, democratic projects of justice to be articulated and developed, projects within which the ICC, perhaps, will play a part.

*Adam Branch is assistant professor of political science at San Diego State University and has a Ph.D. in political science from Columbia University.  His work has examined the politics of humanitarian and human rights intervention into civil war in Africa.  He has published widely in political science and international studies journals and recently finished a book manuscript on the civil war and Western intervention in northern Uganda. In addition to his academic work, he has also worked extensively with local human rights organizations in Uganda.  More information can be found at his webpage: http://www-rohan.sdsu.edu/~abranch/

There is an ambiguity in article 7 of the ICC’s Statute that is glossed over by the Pre-Trial Chamber II. Article 7(1) states:

For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against a population…

And then 7(2) states:

For the purpose of paragraph 1:

(a) “Attack directed against a population” means a course of conduct involving the multiple commissions of acts referred to in paragraph 1 against any civilian population pursuant to or in furtherance of a State or organizational policy to commit such an attack;

The ambiguity concerns whether the State policy requirement means the same thing for both the condition of “widespreadness” and for “systematicity,” or whether different things are meant. An attack can be widespread without being based in a State or organizational policy, whereas it is very difficult to conceive an attack being systematic that was not based in a State or organizational policy.

For an attack on a population to be widespread it is conceptually sufficient that many people be affected. In the pre-ICC debates about crimes against humanity it seemed that the “or” in “widespread or systematic” could be interpreted to mean that State policy was not required to prove a crime against humanity, since only in a systematic attack on a population was the State policy required, not in widespread attacks. The wording of the ICC Statute takes away that ambiguity. But it is replaced with a concern about what the “or” now means. If the Statute drafters wanted to eliminate the distinction between widespreadness due to State policy and systematicity due to State policy it would have been easy to do by substituting “and” for the “or” that was used in “widespread or systematic”.

The kind of State policy that is widespread but not systematic is not easy to conceptualize, but the language of the Statute as well as the history of how crimes against humanity have been defined calls for such a conceptualization. And this in turn suggests that there could be two different understandings of the requirement of State policy: one for widespread attacks and one for systematic attacks.

It might be that the State policy requirement of crimes against humanity that is associated with widespreadness is considerably easier to meet than that for systematicity. If there is police involvement or the involvement of various politicians, this might be sufficient in and of itself to establish the weak State involvement associated with widespread attacks, whereas such involvement by police or politicians would have to be linked to a specific policy of the State to satisfy the more stringent State involvement associated with systematic attacks. Yet, the Pre-Trial Chamber II Decision seems not to accept the weaker State policy requirement since it appears that evidence supporting this has already been offered by the Prosecutor and acknowledged but rejected as insufficient by the Chamber in paragraph 13 of the Decision.

There is a considerable amount at stake here since State policies do not often manifest themselves in ways other than the behavior of politicians and police. Similar worries can be expressed about this issue as have been expressed about the debate about whether “or” or “and” should occur in the crimes against humanity definition. As I have argued in my book, Crimes Against Humanity: A Normative Account (Cambridge University Press, 2005), it is generally preferable that the attack be shown to be both widespread and systematic, but such a requirement is extremely hard to meet, and so it might be advisable to allow some cases to go forward where only one of the conditions is proven.

It might be thought that this issue can be resolved by looking to Article 17 of the Statute of the ICC that has been interpreted to require an addition element, gravity. On 10 February 2006 the ICC’s Pre-Trial Chamber I issued a Decision on the Prosecutor’s Application for Warrants of Arrest in the Situation in the Democratic Republic of Congo.  Paragraph 51 of that Decision states:

The Chamber considers that the additional gravity threshold provided for in Article 17(1)(d) of the Statute is intended to ensure that the Court initiates cases only against the most senior leaders suspected of being responsible for the crimes within the jurisdiction of the Court allegedly committed in any given situation under investigation.

And paragraph 51 suggests that this heightened gravity standard applies to both systematic and widespread crimes.

Yet, the issue that remains unresolved is whether the State policy requirement is always strong or sometimes weak. The gravity threshold concerns who should be prosecuted not the character of the larger crime that the defendant participated in. State leaders can participate in, and be prosecuted for, crimes that have both a strong and a weak State policy. Gravity seems to go to the type of defendant, not the type of crime.

Regardless of how one comes down on the interpretive questions addressed above, defendants and prosecutors are owed some clarity on exactly what the Pre-Trial Chambers will expect concerning the stringency of the State policy requirement for establishing crimes against humanity.  It remains unclear how to understand the State policy requirement given paragraphs 12 and 13 of the 2010 Pre-Trial Chamber II Decision.

*Larry May is W. Alton Jones Professor of Philosophy, and Professor Law, Vanderbilt University, and Professorial Fellow, Centre for Applied Philosophy and Public Ethics, Charles Sturt and Australian National Universities.

( For a PDF file of this essay, please click here)

Background

Following the disputed presidential and parliamentary elections in Kenya in 2007, the country experienced two months of brutal violence. According to the Commission of Inquiry on Post Election Violence (Waki Commission), 1,113 people were killed, many hundreds were raped, and 650,000 were left homeless. On 28 February 2008, a power-sharing government was formed; and on October 15, 2008, the Waki Commission report recommended that a Special Tribunal for Kenya be established to try those responsible for the post-electoral violence. It further stated that if the Grand Coalition Government failed to establish a Special Tribunal, a list of the names of suspected perpetrators would be forwarded to the ICC Prosecutor. Since no Special Tribunal was established, on 9 July 2009, Ocampo received the list. Four months later, Ocampo for the first time elected to use his own powers under Article 15 of the Rome Statute to initiate proceedings proprio motu. On 18 February 2010, however, the Pre-Trial Chamber used its powers under Rule 50(4) and Regulation 28(1) to request clarification and additional information from the Prosecutor. The Prosecutor submitted the requested information on 3 March 2010, thereby inviting the Pre-Trial Chamber to provide some important guidance on the most fundamental aspects of the Rome Statute.

Applicable Procedure

Article 15(1) provides that the Prosecutor may initiate investigations proprio motu on crimes that fall within the jurisdiction of the Court. Article 15(3) provides that “if the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorisation of an investigation, together with any supporting material collected.” Once such a request has been made, the Pre-Trial Chamber shall, in accordance with Article 15(4), authorise the investigation if it is satisfied that there is a “reasonable basis to proceed with an investigation” and that the case “appears to fall within the jurisdiction of the Court.” Rule 48 of the Rules of Procedure and Evidence provides that in determining whether there is a reasonable basis to proceed with an investigation under Article 15(3), the Prosecutor is required to consider the matters set out in Article 53(1), namely:

(a)     Whether there is a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed;

(b)     Whether the case would be admissible under Article 17; and

(c)     Whether, taking into account the interests of victims and the gravity of the crime, it would be in the interests of justice to proceed with an investigation.

Within the Jurisdiction of the Court

As the alleged crimes were committed on Kenyan territory more than two years after Kenya ratified the Rome Statute, the only issue to be determined in order to satisfy Article 12 is whether the alleged crimes amounted to crimes against humanity.

Article 7 defines “crimes against humanity” to mean the commission of one of the acts in the Article “when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack.”

In Bemba, Pre-Trial Chamber III held that “widespread” referred to the “large-scale nature of the attack and the numbers of targeted persons.” According to the Waki Commission, the post-electoral violence lasted two months, occurred in six of Kenya’s eight provinces and resulted in deaths, displacement and rapes and sexual assaults. The Pre-Trial Chamber should therefore be satisfied that there was a “widespread” attack against a “civilian population.” The same Pre-Trial Chamber stated that “systematic” referred to the “organised nature of the acts of violence and the improbability of their random occurrence.” The Waki Commission identified several factors indicating that at least some of the post-electoral violence in Kenya was planned, including incitement to violence by politicians and business leaders, warnings sent to victims of the impending attacks, and the organised and orchestrated nature of the violence itself. It was therefore possible for the Pre-Trial Chamber to also conclude that the attacks were “systematic”.

In his initial Request for Authorisation, however, the Prosecutor elected not to name individual suspects or groups. This exemplified a divergence of interpretation between the Prosecutor and the Pre-Trial Chamber. The difference of opinion concerned the mens rea requirement for crimes against humanity. Article 7(2)(a) requires that the attack against a civilian population be “pursuant to or in furtherance of a State or organisational policy to commit such an attack”. The Prosecutor argues that the authorisation of an investigation pursuant to Article 15 “is not the opportunity to proceed with the identification of individual criminal liability”. (Request for Authorisation, para 102) Instead, the Prosecutor is asking the Pre-Trial Chamber to find that there is a reasonable basis for believing that some persons in Kenya committed crimes in furtherance of a State or organisational policy, even if the Prosecutor is unwilling or unable to disclose which persons in particular may have had this mental element. For the Pre-Trial Chamber, the failure of the Prosecutor to identify those who are alleged to have been responsible is unsatisfactory. The judges were likely to have been influenced by the ICC’s Explanatory Note on Elements of Crimes, which looks to the mental element of the alleged perpetrator. Further, the approach of other Pre-Trial Chambers has been to consider whether there were reasonable grounds for believing that the alleged perpetrator knew that the acts being committed were part of a widespread or systematic attack. (See, for example, Katanga; Chui; and Bemba,). Consequently, so that it could decide whether there is a “reasonable basis” for believing that crimes against humanity have been committed, in its Request for Clarification, the Pre-Trial Chamber requested that further information be provided on the identity of the local leaders, businessmen and politicians alleged to have been responsible for the violence. On 3 March 2010, the Prosecutor provided the Pre-Trial Chamber with this information, stating in its response that “senior leaders from both PNU and ODM parties” are believed to have been responsible for the violence, before providing the names of 20 persons in a confidential annex. The Pre-Trial Chamber will now consider this list of 20 persons to determine whether there is a reasonable basis for believing that attacks were made “in furtherance of a State or organisational policy”.

Admissibility under Article 17

Assuming that the Pre-Trial Chamber finds that there is a reasonable basis for concluding that crimes against humanity have been committed, it must then consider whether the case would be admissible under Article 17. This essentially requires the Pre-Trial Chamber to consider two issues:

(a)     Whether the principle of complementarity has been satisfied; and

(b)     Whether the requirement of sufficient gravity has been satisfied.

(a) The Principle of Complementarity

Pre-Trial Chamber I, in Lubanga, stated that the principle of complementarity is the “first part of the admissibility test”. Article 17(1)(a) provides that a case will be inadmissible where it is “being investigated by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”.

In Katanga, the Appeals Chamber stated that “inaction on the part of a State having jurisdiction … renders a case admissible before the Court”. In his Request for Authorisation, the Prosecutor argued that the failure of the Grand Coalition Government to establish a Special Tribunal for Kenya amounted to inaction because it has resulted in no investigations or proceedings pending against those bearing the greatest responsibility for the crimes allegedly committed.

The Pre-Trial Chamber’s first concern in relation to complementarity was revealed in its Request for Clarification where it requested the Prosecutor to provide further information on the specifics of the alleged incidents and the identity of the alleged perpetrators. The Pre-Trial Chamber appears to be of the view that it is not possible to identify whether alleged suspects have been investigated and prosecuted, without first knowing who those alleged suspects are. As mentioned above, this information was provided to the Pre-Trial Chamber on 3 March 2010.

Many other thoughts are now likely to occupy the Pre-Trial Chamber judges’ minds. First, can it be said that a State is “willing” to prosecute when leaders of its government publicly support the trial of suspected perpetrators but then fails to establish the necessary implementing legislation? Second, how long should the ICC be expected to wait for domestic investigations and prosecutions to commence? Finally, in the absence of any prosecutions, does the existence of the Truth Justice and Reconciliation Commission, which begins its work later this year, make the Kenyan cases inadmissible under Article 17?

While it has been nearly 18 months since the Waki Commission recommended the establishment of a Special Tribunal, of concern to the Pre-Trial Chamber is that discussions on how to establish a Special Tribunal are likely to continue in Cabinet meetings. Indeed, it may well be that the very process of the Prosecutor initiating a proprio motu proceeding restarts the debate on the Special Tribunal. It is therefore possible that, following the decision of the Pre-Trial Chamber to authorise formal investigations, a Special Tribunal may be established, thereby rendering the Kenyan cases inadmissible before the ICC. The Pre-Trial Chamber may therefore be reluctant to authorise official investigations while domestic investigations and prosecutions remain a possibility.

(b) The Principle of Sufficient Gravity

Article 17(1)(d) provides that a case will be inadmissible where it is “not of sufficient gravity to justify further action by the Court.” The term “gravity” is not defined in the Rome Statute, nor in the Rules of Procedure and Evidence, but in Lubanga, the Pre-Trial Chamber held that “gravity” requires two factors to be considered:

(a)     whether the situation was “systematic” or “large-scale”; and

(b)     whether the situation caused “social alarm” in the “international community”.

This approach, however, was rejected by the Appeals Chamber in a decision delivered on 13 July 2006. Despite rejecting the approach of the Pre-Trial Chamber, however, the Appeals Chamber did not hand down an alternative test, thereby leaving some uncertainty over how Article 17(1)(d) should be interpreted. In his Request for Authorisation, the Prosecutor makes no submissions on how the term “gravity” should be interpreted, merely stating in paragraph 20 that “the gravity threshold established by the statute is reached”.

As deGuzman has argued, it may be necessary to distinguish between gravity in a relative sense and gravity in a threshold sense.[1] The first involves the Court in comparing the situation and cases in question with other situations and cases to ensure that those that are selected for prosecution are the “most grave”. By contrast, the latter involves the Court in measuring the situation and cases in question against some objective criteria to determine whether a particular threshold of gravity has been met. It would appear that the use of the word “sufficient” in Article 17(1)(d) suggests that the second test of gravity is the appropriate test to adopt at the admissibility stage. The Request for Authorisation provides the Pre-Trial Chamber with an opportunity to define the threshold that must be met, and the criteria that must be considered when deciding this question.

This raises many interesting questions for the Pre-Trial Chamber. First, to whom is the situation required to be grave – the affected population, the region, or the international community? Second, what factors are relevant in determining gravity – the crimes committed, the identity and rank of the perpetrator, the number of victims, the geographical scope, the temporal scope, or a combination of each? The Pre-Trial Chamber is likely to be conscious of the need to avoid adopting any sort of rigid test to determine “gravity”. While such a test would not be binding, it may create a persuasive authority that prevents the Court from hearing certain serious cases in the future.

Interests of Justice

Once the Prosecutor has taken into account the gravity of the crime and the “interests of victims”, Article 53(1)(c) then states that the Prosecutor must consider whether there are “substantial reasons to believe that an investigation would not serve the interests of justice”. The Prosecutor is of the opinion that, where the other criteria in Article 53 have been satisfied, there is a presumption in favour of investigation. In other words, the Prosecutor believes that he is not required to establish that an investigation or prosecution is in the interests of justice, but rather he shall proceed with the investigation unless there are particular circumstances that provide substantial reasons why it is not in the interests of justice to do so.

As there is no real threat of ICC investigations further destabilising the region, it seems reasonable to assume the proceeding with investigations in Kenya would be in the interests of justice. The Request for Authorisation nevertheless provides the Pre-Trial Chamber with the opportunity to state whether its understanding of the provision is the same as the Prosecutor’s.

Conclusion – Is There a “Reasonable Basis” Upon Which to Proceed?

Ultimately, the decision of the Pre-Trial Chamber in relation to each of these issues identified in this essay will be heavily influenced by how it chooses to define “reasonable basis”. The Rome Statute provides four different standards of certainty, depending on the issue under consideration. In descending order, these are:

(1)     Conviction of the accused where his guilt is “beyond a reasonable doubt” (Article 66(3));

(2)     Confirmation of charges against the accused where there are “substantial grounds” for believing he committed the crimes charged (Article 61(7));

(3)     Issue of a warrant against the accused where there are “reasonable grounds” for believing he committed the crimes charged (Article 58(1)); and

(4)     Initiation of an investigation where there is a “reasonable basis” for believing crimes were committed.

With the Prosecutor only being required at this stage of the proceedings to satisfy the lowest of these four standards of certainty, the Pre-Trial Chamber may have concerns over whether each of the elements of Article 53 are satisfied, but may nevertheless grant the Request for Authorisation, thereby providing the Prosecutor with the benefit of any doubt. Regardless of the Pre-Trial Chamber’s conclusion, the reasoning in the decision may provide greater clarity on several crucial elements of the Rome Statute.

*Lionel Nichols is an MPhil student at the Centre for Socio-Legal Studies at the University of Oxford.

( For a PDF file of this essay, please click here)