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.

This is the second of three essays on misconceptions in debates over transitional justice in Kenya. The first essay considered complementarity and the Truth, Justice and Reconciliation Commission (TJRC), and argued that, if Kenya’s situation was otherwise admissible to the International Criminal Court (ICC), the TJRC in its current form is unlikely to satisfy the Court’s complementarity test. This essay considers the discussion on domestic prosecutions in Kenya. It points to some challenges in the proposed relationship between the Imanyara Bill for the Special Tribunal for Kenya (STK) and the ICC, and argues that the Bill envisions a relationship with the ICC which is both outside the Rome Statute and the current, narrow practice of complementarity. Kenyan victims and anti-impunity advocates depending on the ICC to give the STK teeth are likely to be disappointed unless the Court embraces a broader, more politically-conscious engagement with Kenya. The next essay in the series will make the case for such an engagement.

The Waki Report recommended the STK as the institutional response required to prevent the ICC’s involvement in Kenya. That initial coercive tactic failed to catalyse domestic prosecutions when the Kenyan Parliament rejected a constitutional amendment Bill brought by former Justice Minister Martha Karua in February 2009. Subsequently, in what appeared to be “promises as usual”, the government agreed by the end of September to give the ICC Office of the Prosecutor (OTP) a summary of progress towards investigations and proceedings conducted “through a special tribunal or other judicial mechanism adopted by the Kenyan Parliament”. In the event of a failure to institute domestic proceedings, the Kenyan government would refer the situation to the Court in accordance with Article 14 of the Rome Statute.

If the initial failure of the Waki envelope to trigger a domestic judicial response resulted in part from the fact that domestic actors perceived the ICC to be a remote threat, that perception was expected to change when the Waki list of suspects was given to the ICC. The ICC’s opening of the Waki envelope became the second (bigger) “stick” in the hands of prosecutions advocates. This stick served to frame all political struggles in the language of “impunity” v “justice”, as NGO statements cautioned that Kenya’s failure to institute “genuine” proceedings that meet “international standards”- terms whose meanings were assumed to be objectively understood – meant that the ICC would now “step in” and “take over”. Nonetheless, the coercive force of the Court receiving the list (and the accompanying headline photographs of the Prosecutor scrutinizing the names of suspects on the list) turned out to be overestimated, and the Cabinet resolved to reject the STK, cooperate with the ICC, strengthen the domestic judiciary, and revisit the mandate of the TJRC.

But the direct involvement of the OTP was not without effect. It provided the background against which the use of the apolitical discourse of “genuine” proceedings in accordance with “international best practices” by the Minister of Justice in his push for his vision of the STK within Cabinet meetings resonated. This, combined with the unrelenting international focus on the desirability of domestic trials, contributed to shifting domestic anti-impunity advocates from a perspective which primarily endorsed ICC-only action, to one which included the possibility of robust domestic prosecutions. This is how Imanyara explained his personal change in preference from “The Hague option” to the STK: an independent domestic process obviated the need for an ICC-only position. Accordingly, the Imanyara Bill (of 24 August 2009) proposed a two-tiered structure where the ICC and the STK would operate concurrently in a division of labour: the ICC would prosecute authors of crimes, and a domestic process would take charge of lower perpetrators. When asked about the Bill in an interview with The Nation, Imanyara summarised the relationship as follows: “In our revised Bill, we have introduced a clause to leverage on the International Crimes Act, which domesticates the ICC, to have the ICC try the masterminds while the tribunal goes for the small fish.” In this innovative partnership, Imanyara concluded, “Serious crimes will just have to go to The Hague.” This does not intend to give an historically efficient reading of the process– at the governmental level, a cynic might represent what happened as simply a case where sections of a fractured elite who were politically unhappy about domestic prosecutions for a number of reasons unrelated to “international standards” suddenly found in the ICC and subsequently the STK a justificatory framework for their uncompromising political positions and a possibility of refashioning themselves as reformists. Instead, it sketches one version of how the ICC was eagerly woven into the narrative of what accountability in Kenya must look like, and how it found its way into Imanyara’s STK and into civil society discourse (see the Law Society of Kenya here and Nobel Laureate Wangari Maathai here).
Leaving aside the discussion about the accuracy of the analogies upon which Imanyara’s team draw in structuring the STK (“Remember, the Sierra Leone government worked with the United Nations to set up their tribunal. The Rwanda tribunal was set up by a resolution of the UN Security Council. We’ll work with the ICC”), this proposed relationship is captured in two sections of the Bill. Section 3(a)(2) of the Constitutional Amendment Bill provides that the ICC will maintain

concurrent jurisdiction to investigate, indict and prosecute persons bearing the greatest responsibility and the Tribunal may at any stage, make a referral to the International Criminal Court as set out in Article 14 of the Rome Statute… if it deems it expedient….

Further, Section 7(5) of the proposed STK statute outlines the jurisdiction of the Court, and states that the

Tribunal may invoke Article 14 of the Rome Statute if deemed necessary and for avoidance of doubt it is declared that the person or persons on the list submitted to the International Criminal Court by the Chair of the Panel of Eminent African Personalities shall be deemed to have been referred to the International Criminal Court.

While some commentators hail this proposed relationship as one that “cleverly marries the ICC and the tribunal routes to justice” and “leaves opponents of justice without any credible arguments against it” (see Human Rights Watch), both these sections articulate a relationship with the Court that goes beyond the confines of the Rome Statute. Article 14(1) of the Statute provides that “a State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed….” The referral provided for by the Statute is from a “State Party”, not an independent institution such as the STK (not even if the STK is mandated by the Kenyan Parliament). It is such an official state referral that the minutes of the ICC Prosecutor’s meeting with the Kenyan Ministers envisioned, in which they stated that Kenya will demonstrate its progress towards ending impunity and “in the alternative…the Government of Kenya will refer the situation to the Prosecutor” (emphasis added). The head of the Jurisdiction, Complementarity and Cooperation Division of the ICC was also quoted in the Sunday Nation stating that the OTP expected to meet with the government at the end of September over the referral. It is because of developments such as these that Adam Branch has labelled the Court “anti-democratic” because, he argues, in Uganda, the Court served the unilaterally expressed interests of President Museveni against the wishes of the Ugandan people and their Parliament.

Further, contrary to what the Bill suggests, the submission of the Waki list cannot constitute a referral, but rather is a transmission of “communications” to the Prosecutor; the list constitutes one more piece of information to be consulted (alongside the reports from NGOs, etc) in the Prosecutor’s determination regarding whether there exists a reasonable basis to open an investigation. These procedures are explained in great detail in the ICC paper, ‘Annex to the “Paper on some policy issues before the Office of the Prosecutor”: Referrals and Communications’.
A further challenge to the STK’s proposed structure is that it pays little attention to the contingent nature of the ICC’s involvement in a situation. Even in instances of sufficient gravity, the determination of whether as a state is “unable” or “unwilling” to conduct “genuine” investigations can only be made by the Court. In Kenya, “gravity” will also have to be determined (see here for an assessment of the likely challenges in proving gravity in Kenya). Given the nebulous nature of all the definitional terms and the conditions under which they are sufficiently satisfied to give the Prosecutor reasonable basis to proceed, there is an arguable risk that Kenyan civil society and other pro-prosecutions forces that rely on the ICC for the prosecution of those most responsible will be disappointed. In a 2007 policy address in Nuremberg, the Prosecutor clarified the role of the Court:

My duty is to apply the law without political considerations. I will present evidence to the Judges and they will decide on the merits of such evidence. And yet, for each situation in which the ICC is exercising jurisdiction, we can hear voices challenging judicial decisions, their timing, their timeliness, asking the Prosecution to use its discretionary powers to adjust to the situations on the ground, to indict or withdraw indictments according to short term political goals. …These proposals are not consistent with the Rome Statute.

While what was most relevant at the time of this address was the peace process between the Lord’s Resistance Army(LRA) rebels and the government of Uganda (where many advocates argued that the LRA would not sign the peace agreement unless the ICC arrest warrants were deferred, and the ICC Prosecutor reminded them that his mandate did not extend to such ‘political’ considerations), the spirit of the assertion remains the same for Kenya: it is the sufficiency of the evidence, not the special political situation of Kenya nor the role scripted for the Court in the STK that will determine whether and how the Prosecutor will proceed.
Whereas the legal issues raised above (see more criticism here) can be amended in a future version of the Bill, the STK’s broader challenge of proposing a relationship outside the current (narrow) practice of complementarity remains. To date, the Court’s practice of complementarity has involved attempts to catalyse domestic prosecutions through threatening judicial intervention using the proprio motu powers of the Prosecutor; setting standards for “genuine” domestic proceedings whose disregard can trigger a judicial intervention by the Court; and acting as the platform of last resort in cases where the national authorities are unable or unwilling to prosecute (Perrin 2006). Given this practice, what the Imanyara Bill calls “concurrent jurisdiction” requires a much wider interpretation of complementarity.
To be sure, the Bill derives its strength mainly from the proposed changes in domestic power structures that are not addressed in this paper: among other things, it seeks to remove the potential influence of the executive on the judiciary, makes the STK independent of the Kenyan High Court, and requires the resignation of officials who are under investigation. However, critical aspects of its performance – such as the prosecution of the “big fish” – appear to depend on a collaborative relationship with an unpredictable ICC. Given the current practice of complementarity, this proposed structure may be mistaken. This is not to advocate for a particular prosecutorial platform, nor to suggest that prosecutions secure particular social outcomes; such assertions would require an analysis that goes beyond the technical processes that are the focus of this paper. Rather, it is to point out that, if domestic prosecutions through the STK are thought to require external coercive force in order to be successful (in themselves, quite apart from the social impact they may or may not have), the current practices of the Court make it an unpredictable source of such coercive force.

The STK Bill – with the ICC written into it – constitutes another attempt at coercing the Kenyan government to institute domestic proceedings. This time, the OTP (and the ICC by extension) is directly implicated in the Kenyan narrative, and is likely to be affected by both the success and failure of Kenya’s anti-impunity project. Consider one likely scenario: if Kenya fails to establish “genuine” domestic proceedings by the end of September, it has agreed to refer the situation to the ICC in accordance with Article 14 of the Rome Statute. If the government makes the referral (rather than trying to prove the complementary nature of any measures that may be underway by that point, including the TJRC), paradoxically, such a referral would signal a failure of the Court in catalyzing complementarity, and would allow the government to outsource to the Court the financial and political costs of domestic prosecutions (Burke-White, 2008). Further, if, following such a referral, the Prosecutor analyses the Kenyan evidence, finds no reasonable basis to proceed, and communicates such a finding back to the state, the Prosecutor can find himself in a moral hazard of potentially emboldening domestic perpetrators. Such a determination is also likely to reduce the probability of successful domestic prosecutions. Consequently, the Court could lose further legitimacy in the eyes of victims and civil society (even despite the fact that the Prosecutor can always revise his decision not to proceed in light of new information), who may question, as victims elsewhere have, whether the Court serves their interests (see Odinkalu’s argument here). Under these circumstances, and against the background where important constituencies of the Court are increasingly engaged in public demonstrations withdrawals of consent to the institution, the ICC must engage in Kenya in a politically conscious manner. In this spirit, the Imanyara Bill may offer the beginnings of a model for operationalising a broader understanding of complementarity, or perhaps revisiting the ICC’s neglected vision of “positive” complementarity. It is such a politically-aware engagement that will be the focus of my third essay.

Further Reading

Burke-White, W. W. (2008). Proactive complementarity: The International Criminal Court and national courts in the Rome system of international justice. Harvard International Law Journal.

Perrin, B. (2006). Making Sense of Complementarity: The Relationship between the International Criminal Court and National Jurisdictions. Sri Lanka J. Int’l L., 18, 301.

Stahn, C. (2005). Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court. J Int Criminal Justice, 3(3), 695-720.

*Lydiah Kemunto Bosire is reading for her doctorate in politics at the University of Oxford, with a research focus on transitional justice in Kenya and Uganda. She is also the co-founder of Oxford Transitional Jusitice Research (OTJR). Previously, she worked at the International Center for Transitional Justice, the WHO and the UN

From the standpoint of constitutional law, the handing over of the Waki envelope to the prosecutor of the International Criminal Court (ICC) represents the ceding of judicial autonomy of the state to an ‘exceptional court’. The establishment of a domestic special tribunal which supplants the supervisory jurisdiction of the High Court and strips the president and attorney general of constitutional powers and immunities has a similar effect. What would motivate a country like Kenya – by all indicators an authoritarian regime – to delegate judicial powers? This essay reviews some of the key literature on why states delegate judicial processes to auxiliary courts, interrogates some of the constraints, and provides possible pointers to successful trials in the Kenyan context.

At one end of the spectrum, Tamir Moustafa’s research on judiciaries in transitional contexts suggests that even though courts are often transformed into spaces for reinforcing the role of legal norms in mediating politics, authoritarian regimes generally use courts for at least five reasons: social control, legitimation, controlling administrative agents, creating credible commitments in the economic sphere and delegation of controversial reforms (Mustafa & Ginsburg 2008:1). While some of these reasons may not hold in the Kenyan context, some could. For instance, it is possible to imagine that ‘disciplining’ political elites otherwise untouchable by the political system could secure elite cohesion. Similarly punishing the perpetrators of the violence would reinforce commitment to the rule of law; an important ingredient in the stability of property rights and an incentive to economic investments. This position seems to find support from transitional justice scholars such as Bronwyn Anne Leebaw, who argues that law (and by extension, courts) can be ‘utilized to obfuscate and legitimate abuses of power’ (Leebaw 2008:97). The offshoot of this position is that it is possible to have trials of suspects of the post electoral violence without any corresponding attainment of their transformative intent. Consequently, Kenyan civil society should be alive to this possibility.

A view opposite to Mustafa’s would be that Kenya is genuinely keen on meeting its international obligations under both the Rome Statute and the Genocide Convention as evidenced by its willingness, albeit unsuccessful, to establish a national mechanism for the trial of post-electoral violence perpetrators. In this sense, Kenya can be said to be committed to ensuring adherence to international criminal law. Kenya’s attempted judicialization of political differences through an international criminal process can be seen as compliance with such norms (Downs et al. 1996: 389).This argument is however unconvincing given the glib manner with which proposals at the cabinet level have been made to the effect that Kenya should withdraw from the Rome Statute in order to deny the ICC jurisdiction over the Kenyan situation. A country buoyed by aspirations to comply with international standards would be unlikely to propose such actions. Instead, what emerges from this position is that the Kenyan state will not pursue normative compliance if the associated political and social cost is, in the short term, onerous. Any cost-benefit analysis is likely to centre around the succession of President Kibaki: the cabinet’s latest decision to abandon the pursuit of a local special tribunal stems largely from the perceived impact of any such trials on the strategic and vote-rich Rift Valley province. Indeed, Prime Minister Raila Odinga appears to have lost the support of Rift Valley political barons due to his enthusiastic support for such trials.

The most common justification currently advanced in support of international trials for Kenya’s war crimes suspects is based on the desire to end impunity. What this means, among other things, is that by punishing perpetrators, retributive justice is effected for the victims, and an increase in likelihood of punishment of political elites will ensure that such crimes do not recur. Deterrence theory in criminology, on which this proposition is based, does not anticipate that officials who have already committed human rights violations will be stopped from committing further violations. Rather, the concern is how sanctions will affect the future behaviour of other actors. Of particular relevance is the finding that beliefs about the likelihood or probability of arrest and punishment in human rights cases, rather than the severity of punishment, have a greater deterrent effect (Bueno de Mesquita 1995: 485). Deterrence research also suggests that deterrence is more effective for individuals who have higher stakes in society (Nagin 1998), which would seem to include the kinds of state officials complicit in Kenya’s killings. Sikkink’s latest research on the effects of human rights trials at the domestic level provides quantitative support in favour of the deterrence effect of such trials. One of her hypotheses is that countries that have held human rights trials will see greater improvements in human rights practices than those countries that have not held human rights trials. Her research, based on a survey of 192 countries, including a good number of African states, suggests that those states with more accumulated years of trials after transition are less repressive than countries with fewer accumulated years of trials, and that truth commissions are associated with improvements in human rights practices, but that trials have a stronger effect than truth commission (Sikkink & Kim 2009). Similarly, Roht-Arriaza (2005) argues that human rights trials, either domestic or international, are both legally and ethically desirable and practically useful in deterring future human rights violations.

Although deterrence and compliance theories may converge at the level of impact, the latter looks more at state conduct in the international sphere while the former considers social transformations engendered at the domestic level by targeted criminal proceedings. Both deterrence and compliance theories are further consistent with rational choice thinking on this issue which suggests that state officials and politicians choose impunity and repression because the benefits of such action exceed the cost (Poe et al. 1999).

Realizing deterrence in the Kenyan context, however, will be problematic if the current collectivization of culpability or victimhood is not halted through both coercive and persuasive means. By ascribing blanket guilt or innocence to ethnic groupings, it is likely that collective mobilization of communities will dull the anticipated deterrent effect of such trials. Instead, the outcomes of such trials will be rationalized away from justice and towards vindictiveness. Deterrence can be nurtured, however, if prosecutions are seen to apply across ethnic cleavages so that the sting of victors’ justice is stayed. Nonetheless, this approach may not be practical, especially if aggression continues in a particular community more than in others, a most likely scenario in the Kenyan case.

In contrast to deterrence and compliance supporters, realist scholars problematize trials as a vehicle for attaining social cohesion. For instance, some scholars of this persuasion argue that trials or threats thereof could destabilize new democracies and lead to coups. They hold that ‘fragile states’ that undertake such trials could ‘commit suicide’ by dramatizing high profile persons’ arrests and incarcerations. They further argue that the threat of prosecution could cause powerful dictators or insurgents to entrench themselves in power rather than negotiate a transition from authoritarian regimes and/or civil war (Goldsmith & Krasner 2003:49). Snyder and Vinjamuri posit that ‘Policies and institutions of humanitarian justice are destined to fail’ and that ‘recent international criminal tribunals have utterly failed to deter subsequent abuses in the former Yugoslavia and in Central Africa’ (Snyder & Vinjamuri 2003:40). In the same line of thinking, Mahmood Mamdani has disputed the efficacy of indicting Sudan’s President Omar Al Bashir on the grounds that such attempts will neither secure stability in Sudan nor halt the blood letting in Darfur. In this regard, he called for the subordination of criminal accountability to the larger pursuit of political reforms. While no coup is likely to happen in Kenya, the salience of this theory is obvious, and could explain the cabinet’s decision to shelve the pursuit of a local tribunal. Indeed, many calling for justice to be tempered with reconciliation have argued that the pursuit of justice should not come at the expense of the survival of the state. However, proponents of this view have failed to show how such trials will imperil the Kenyan state. Unlike Iraq, Sudan, the Democratic Republic of Congo or even the former Yugoslavia, Kenya has stronger institutions, notably an independent military, that can provide relatively apolitical- even if sometimes heavy- handed- security arrangements. The assumption here is that pressure emerging from high profile international criminal trials could re-ignite ethnic bloodletting and trigger a military intervention. Be this as it may, what is certain is that without the political commitment to the impartial use of such institutions, it is possible for state action to be misjudged as serving partisan interests.

This paper has presented a diverse body of knowledge that could be deployed in the assessment of Kenya’s decision whether or not to try the lead perpetrators of the post electoral violence. Such an assessment must be alive to emerging empirical evidence in favour of the deterrence effect of trials. The success of the Kenyan trials will depend largely on the extent to which ethnic mobilization is checked ex ante. A comprehensive and sophisticated outreach strategy is an important coefficient to this, as is a framework for prosecutions or other forms of transitional justice that is consultative, accountable and above reproach. Kenya’s fractured politics would undoubtedly be tested most severely by a local tribunal whose proceedings Kenyan and international media cover extensively. Consequently, a responsive media able to provide balanced and sensitive reporting that would give dignity to the victims of violence and hate will be important. In the end, Mamdani’s assertion that deterrence may result from prosecution only when the same rules apply for all war criminals, regardless of national origin or political orientation, is appropriate for the Kenyan cases as in Sudan’s Darfur.

Further Reading

De Mesquita, B. B., & Cohen, L. E. (1995). Self-interest, equity, and crime control: A game-theoretic analysis of criminal decision making. Criminology, 33, 483.

Downs, G. W., Rocke, D. M., & Barsoom, P. N. (1996). Is the good news about compliance good news about cooperation? International Organization, 379-406.

Goldsmith, J., & Krasner, S. D. (2003). The Limits of Idealism. Daedalus, 132(1), 47-64.

Kim, H., & Sikkink, K. (2007). Do Human Rights Trials Make A Difference? In Annual Meeting of the American Political Science Association.

Leebaw, B. (2008). The Irreconcilable Goals of Transitional Justice. Human Rights Quarterly, 30(1), 95.

Moustafa, T., & Ginsburg, T. (2008). The Functions of Courts in Authoritarian Politics. In Ginsburg, T., & Moustafa, T. (eds), Rule by Law: The Politics of Courts in Authoritarian Regimes. Cambridge University Press.

Nagin, D. S. (1998). Criminal deterrence research at the outset of the 21st century. Crime and Justice: a Review of the Research, 23, 1-42.

Roht-Arriaza, N. (2005). The Pinochet effect: transnational justice in the age of human rights. University of Pennsylvania Press.

Sikkink, K., & Walling, C. B. (2007). The impact of human rights trials in Latin America. Journal of Peace Research, 44(4), 427.

Snyder, J. L., & Vinjamuri, L. (2004). Trials and Errors: Principle and Pragmatism in Strategies of International Justice. International Security, 28(3), 5-44.

*Korir Sing’Oei is co-founder of the Centre for Minority Rights Development (CEMIRIDE) and a human rights Attorney. His current research focus is on universality, citizenship, and indigenous peoples’ rights in Africa.

The Kenyan Cabinet recently resolved to put forward the Truth, Justice and Reconciliation Commission (TJRC) as a way to address the post-election violence. In this first of three essays looking at some of the misconceptions in the transitional justice debate in Kenya (the next two contributions will consider domestic and international prosecutions respectively), I evaluate whether the establishment of the TJRC makes the Kenyan situation inadmissible before the International Criminal Court (ICC). Given the state of the debate about whether non-prosecutorial measures can demonstrate “an intent to bring the person concerned to justice”, and the increasing delegitimisation of the TJRC, the commission is unlikely to be seen as fulfilling the complementarity criteria of the ICC.

The debate about “credible” independent processes that “meet international standards” that has dominated Kenyan discussions about accountability options is in part a debate about complementarity – the idea in the Preamble of the Rome Statute of the ICC that the Court “shall be complementary to national criminal jurisdictions”. The complementarity principle preserves the primacy of domestic prosecutions for those responsible for international crimes. Assuming “sufficient gravity” (an important consideration I do not address in this essay), the Court can only act under Article 17(1)(a) if Kenya is “unwilling or unable genuinely to carry out the investigation or prosecution”. Unwillingness is defined in Article 17(2) as the initiation of proceedings created “for the purpose of shielding the person concerned from criminal responsibility”, or in a context where proceedings are unduly delayed or conducted in a manner “inconsistent with an intent to bring the person concerned to justice”. Inability is defined under Article 17(3) to include a lack of institutional capacity, as well as the “availability” of the national judicial system – in the sense of enabling legislation, for instance – to carry out proceedings.

Does the TJRC meet the complementarity criteria? Put differently, can a non-prosecutorial mechanism conduct “genuine” investigations with the “intent to bring the person concerned to justice”?

The dominant perspective is that non-criminal proceedings generally are inconsistent with the complementarity doctrine. Under Article 17(1)(a), a country can argue that a case is inadmissible before the ICC on the grounds that “the case is being investigated or prosecuted by a state which has jurisdiction over it”. As Scharf offers, because the Article “requires an investigation but does not specify a criminal investigation…a state could argue that a truth commission (especially one modeled on that of South Africa) constitutes a genuine investigation” (Scharf 1999:525). However, he proceeds to show why this could be a difficult line of argument to sustain, particularly because the Article further states that investigations should be consistent with “an intent to bring the person concerned to justice”, and this phrase can be interpreted as requiring criminal proceedings. Similarly, under Article 20 which provides that a person who has been “tried by another court” shall not appear before the ICC, a country can argue that a person who has appeared before a truth commission is ineligible to stand before the Court. However, this argument would still have to demonstrate an intention to bring a person to justice. Besides, a truth commission is not a “court” (Scharf, 1999:525-526).

The view that prosecution is essential to complementarity was held by many in the anti-impunity community in the situation of Northern Uganda. Here, it is worth noting the exchange between those who suggested that in a context where prosecutions were thought to have the potential to derail a critical peace process, the Court could, within its complementarity provisions, defer to alternative justice processes, and those who argued that such a deferral would amount to an abdication of the Court”s core obligation to prosecute (a similarly rich discussion continues here and here with reference to Darfur). While this discussion was mostly appealing to prosecutorial discretion under Article 53, where the Prosecutor can determine to halt proceedings if they would not serve “the interests of justice”, the views expressed against non-prosecutorial measures were general to the conduct of the Court. According to Human Rights Watch (2005):

the prosecutor may not fail to initiate an investigation…because of developments at that national level such as truth commissions, national amnesties, or the implementation of traditional reconciliation methods, or because of concerns regarding an ongoing peace process.

Leading advocacy organisations (including Amnesty International, Human Rights Watch) argued that to make determinations about the merits and legitimacy of alternatives to prosecution would amount to the Prosecutor making a political judgment, which would open the Court to potential manipulation. From this view, the complementarity language of the statute does not distinguish democratically demanded amnesties (such as those of the South African TRC) from the illegitimate amnesty of the Pinochet regime in Chile, viewing them both as unacceptable (Rodman 2009: 103). This position was also confirmed by Judge Richard Goldstone, the former prosecutor at the International Criminal Tribunal for the former Yugoslavia, who argued that if the South African TRC were implemented in this age of the ICC, it would not be acceptable. He argued that countries must prosecute, political feasibility notwithstanding.

Despite the dominance of this narrow view of complementarity, a competing view argues for a role for non-prosecutorial processes in the age of the ICC, and advocates for a broader understanding of the notion. This second view starts from the perspective that the Court was not established to overturn and contradict the decisions of democratic states where, for instance, victims may decide to set up credible non-prosecutorial processes, or, as in South Africa, pursue prosecutions only against those who do not receive amnesty. Further, this argument goes, a case can be made that the “interests of justice” pursued by the Court could be broadened to include the restorative justice pursued by institutions like TRCs by showing that such alternative mechanisms are not “just a way of protecting the guilty from prosecution” (Roche 2005:568-569), but rather valid avenues through which to address calls for truth, reparation and reconciliation. Further, given that the participation of perpetrators in TRCs is thought to be critical to the success of these mechanisms, the ICC could target those who have not received amnesty through this process, thereby providing an incentive for such perpetrators to participate in national TRCs. Another suggested approach for collaboration between the ICC and a TRC could be one in which the ICC collaborates with it to address those most responsible for violations (rather than just those who do not receive amnesty). Here, cooperation of the perpetrator with the TRC “could be a mitigating factor taken into account by the ICC Judges in sentencing” (Roche 2005: 575).

The call for collaboration between the ICC and legitimate non-prosecutorial measures positions itself as being pragmatic and principled. The argument is pragmatic in the sense that in a context of scarce resources, it would suggest that collaborative relationships with mechanisms like TRCs can be useful in ensuring as many victims as demand alternative processes can receive them. Further, in a context where scholars on the ICC are suggesting that the Court should offer assistance to states to carry out their domestic prosecutions in a policy of “proactive complementarity” (Burke-White, 2008) even where it is clear that national processes in many resource-poor countries with weak justice systems will most likely fall short of “international standards”, this broader conceptualisation of complementarity may be timely. The argument also tries to shield itself against attacks of politicisation by proposing a principled process of determining legitimate non-prosecutorial processes: those with the broadest support possible in a society, and that are inclusive, supportive of victims, and complementary to other political reforms. Further, it suggests, credible alternatives are those whose merits would be vouched for by the broadest level of civil society (Roche 2005: 574-579).

The debate between the narrow and broader interpretation of complementarity continues part of a broader ongoing discussion about politics and the ICC: while the Prosecutor remains firm that his duty is to “apply the law without political considerations”, one set of critics tell him that this position ranges from unhelpful to dangerous, and another set argue not all non-prosecution amounts to a breach of international legal obligation. But serious shortcomings remain unaddressed in both the narrow and broader view of complementarity – the former can be antidemocratic, while the latter can underestimate the agenda-setting power of international civil society in supplying empirically unproven “universal” models to local communities.

Nonetheless, even if the Court were to find a symbiotic relationship with institutions like TRCs, the Kenyan TJRC in its current form would be unlikely to be meet the proposed principled criteria in the broader interpretation, in part because those whose support is necessary for the TJRC to be legitimate – mainly the victims and civil society – have withdrawn their support from the institution. Gravity aside, an increasingly delegitimised, non-prosecutorial mechanism is unlikely to keep the ICC away; domestic prosecutions can.

*Lydiah Kemunto Bosire is reading for her doctorate in politics at the University of Oxford, with a research focus on transitional justice in Kenya and Uganda. She is also the co-founder of Oxford Transitional Jusitice Research (OTJR). Previously, she worked at the International Center for Transitional Justice, the WHO and the UN.

Further Reading

Human Rights Watch. 2005. The Meaning of “The Interests of Justice” in Article 53 of the Rome Statute. Human Rights Watch, June.
Online: www.iccnow.org/documents/HRWInterestsOfJusticeJun2005.pdf.

Burke-White, W. 2008. Proactive complementarity: The International Criminal Court and national courts in the Rome system of international justice. Harvard International Law Journal.

Roche, D. 2005. Truth Commission Amnesties and the International Criminal Court. British Journal of Criminology 45, no. 4 : 565-581.

Rodman, K.A. 2009. Is Peace in the Interests of Justice? The Case for Broad Prosecutorial Discretion at the International Criminal Court. Leiden Journal of International Law 22, no. 01: 99-126.

Scharf, M. P. 1999. The Amnesty Exception to the Jurisdiction of the International Criminal Court. Cornell International Law Journal 32: 507.

This article is part of a debate organized by Oxford Transitional Justice Research (OTJR) in collaboration with Moi University (Eldoret) and Pambazuka News. A selection of essays based on this debate will be published in an edited volume by Fahamu Books. For PDF documents of the debate please go to www.csls.ox.ac.uk/otjr.php.

At the conclusion of its Summit in Sirte, Libya, on July 1, 2009, the Assembly of Heads of State and Governments of the African Union (AU) decided that “AU Member States shall not cooperate … in the arrest and surrender of President Omar El Bashir of The Sudan.” In a press release issued two weeks later, on July 14, the organisation explained that this decision “bears testimony to the glaring reality that the situation in Darfur is too serious and complex an issue to be resolved without recourse to an harmonised approach to justice and peace, neither of which should be pursued at the expense of the other.”

This AU resolution responds to the decision of the judges of the International Criminal Court (ICC) in March 2009 to issue a warrant for the arrest of Sudan’s President, El Bashir, in connection with alleged war crimes and crimes against humanity in Darfur, Western Sudan. The AU’s decision has rightly been criticised on legal and policy grounds. The AU Summit is not the place to decide issues about the ICC because 23 of the 53 members of the AU have not yet accepted the ICC and this decision is capable of giving the unintended impression that the AU tolerates impunity for mass atrocities in Africa. What it does, however, is provide an opportunity to acknowledge and confront the many challenges currently facing international justice in Africa.

The greatest fears about the role that international justice is playing in Africa arise not from crimes behind us but in connection with a mass atrocity that some informed people foresee and all must work to prevent – a disintegration of Sudan into a regional killing field.

I was born a refugee into the Nigerian civil war in which an estimated two million were killed in 30 months. Most people in our continent are, like me, children of war, want, and deprivation caused mostly by bad government. Like the rest of the world, our needs are basic. We desire a world in which our people, families and ourselves can harness our abilities in dignity, peace and justice under government that is for us not against us.

In most of our countries, these basic expectations of citizenship are illusory. This is why most of us supported the establishment of the International Criminal Court (ICC). For us, justice for mass atrocities is intimately personal. We believed the Court would help to end high level impunity for mass atrocities, enabling us to attain the best we are capable of. Yet a little over five years since the Court received its first case from Uganda in 2003, the initial optimism from Africa that greeted it has been replaced by hardened scepticism from traditional opponents and, most worryingly, by fear among victims and host communities uncertain whether the Court can help them.

The establishment of the ICC represented a major breakthrough in international diplomacy: the creation of a mutually respectful consensus around the compelling idea of bringing to account those who bear the greatest responsibility for the worst crimes known to humanity. But today mutual recrimination has replaced respectful dialogue, debates on the ICC often degenerate into epithets and supportive diplomacy is absent. Criticism of the Court, no matter how constructive, risks being denounced as endorsing impunity; support for it, no matter how reasonable, is easily branded imperialism or its agent.

Undoubtedly, the ICC has implacable enemies driven by desire for unaccountable power but there are also reasonable fears about how the court’s work could affect a precarious regional situation.

In authorising the arrest of Sudan’s President El Bashir, ICC judges agreed that he had a case to answer for his alleged role in war crimes and crimes against humanity committed in Darfur. But the execution of the warrant without an adequately managed transition could create a power vacuum in Khartoum, unleashing destabilising tremors beyond Sudan’s borders.

Consequently, all nine countries that share a border with Sudan are on a war footing. Without a government for two decades, nearby Somalia is already a major destabilising factor in the region. Uganda’s murderous Lord’s Resistance Army, long supported by Khartoum and whose leaders are also wanted by the ICC, is re-grouping in vast ungoverned border territory between Sudan, Uganda and DRC. The 2005 ‘comprehensive’ peace agreement (CPA) that ended Sudan’s half century-long north-south war risks breakdown, while the Darfur crisis in western Sudan remains active.

These uncertainties drive an undisguised arms race in the region. If the CPA collapses, many fear a transnational atrocity site like none this region has known.

I recognise most of those who harbour these fears. They are neither pillaging presidents nor ravaging rebels. Like the child refugee I was a few decades ago, they are victims driven by neither Dollar nor Dinar; widowed refugees from their homesteads, unsure whether the next meal will come or whether they will be alive at the next dawn.

Victims now seem to be the people paying the highest cost for international justice. They suffer threats of death, exile, and other forms of persecution for their commitment to justice with little protection, assistance or acknowledgement from governments or international institutions. I have heard claims that those who express uncertainties about the work of the ICC in Africa may have been purchased by powerful enemies of justice. This makes victims seem expendable and discredits their well-founded fears as dubious. They are neither.

Most victims need reassurance that when the neighbourhood mass murderer arrives their only defence is not the promise of a warrant from a distant tribunal on thin resources. They are right in asking that the promise of justice should be accompanied by credible protection from reprisals. The ICC’s friends must address this.

While the misbegotten duel between supposed imperialists and alleged impunity apologists persists, the deadly business of mass atrocities continues unchecked, its victims in Africa fret, and the credibility of the ICC suffers.

To overcome these difficulties, four things are needed. First, the ICC’s resources must be improved to focus more on winning back the trust of victims through better outreach and effective protection. Thus, better co-ordination is needed between African governments, the ICC, the UN at its highest levels, governments and philanthropies. Next, the African Union must translate its rhetoric against impunity into a programme of action, showing that African lives matter and it will not issue a free pass to those – big or small – that violate Africans.

Third, principled multilateral diplomacy is needed to reassure both governments and victims that the Great Lakes countries will not be allowed to become a level killing field. In particular, the five permanent members of the Security Council should use their strategic heft to engage intensively with this looming crisis. Finally, we must re-establish mutual respect among people in the advocacy communities who sometimes disagree as to means but mostly agree as to ends.

Odinkalu heads the Africa Programme of the Open Society Justice Initiative and Co-Chairs the Darfur Consortium in Kampala (Uganda) and New York (USA).

We welcome links to this article and comments. Reproduction or redistribution of the above text requires the prior consent of the original source. Please contact lydiah-kemunto.bosire@politics.ox.ac.uk

Kenyans are very suspicious of the rare unity between the Cabinet and the Parliament as they jointly dismiss calls for the prosecution of the perpetrators of post-election violence atrocities. This unscrupulous behaviour is not coincidental, but a well crafted strategy: the Cabinet and Parliament are distorting facts on the requirements for a local tribunal, in order to escape accountability. Politicians are satisfied that they are now sharing the spoils and that it is business as usual. They prefer to push the issues that contributed to the crisis under the carpet in order to focus on efforts to capture power in 2012. While we commend the Kenyan government for renewing efforts to enact the Special Tribunal to try those responsible for the 2007 election violence, we believe that nothing short of momentous symbolic shock therapy to the political elite would incentivize formation of an effective, independent and impartial Tribunal locally. Here, we believe the International Criminal Court (ICC) continues to have a major role.

In order to expose the devious political maneuvering of the Cabinet and Parliament in opposing the enactment of an effective, credible and independent local Tribunal, we note that there is tremendous improvement on the current Bills being debated by Cabinet compared to the ones defeated in Parliament in February 2009. We are happy to observe that the current Bills, which we have seen and scrutinized substantively, reflect the recommendations of the International Center for Policy and Conflict (ICPC) and other civil society groups.

Following demands made by civil society groups on how to ensure independence and credibility of the Tribunal, major progress has been made: for instance, the Constitution Amendment Bill 2009 (amendment of section 3A of the Kenyan constitution) protects the Statute and the Tribunal from constitutional challenge, and ensures that the majority of judges, as well as the prosecutor, registrar and investigators, are foreigners. The Special Tribunal Statute and the bodies that it establishes respect human rights including the right of suspects to a fair trial; they observe principles of equality and non-discrimination and the issue of retroactivity (section 77) and time limitation do not apply. Where any law is in conflict with the Special Tribunal Statute, the Tribunal provides that the provisions of the Statute shall prevail: no Act, including an Act to amend the Special Tribunal Statute, may alter any decision of the Tribunal or relieve any person of any penalty imposed by the tribunal; no executive act, whether under the authority of current Constitution or any other law, may alter any decision of the tribunal or relieve any person of any penalty imposed by the tribunal, except as provided by the Special Tribunal Statute; and that No Kenyan Court including the High Court of Kenya shall interfere with proceedings or the work of the Tribunal (section 60). Further, the bills provide that no powers under sections 26 (Attorney-General), or 27 – 29 (Presidential Prerogative of mercy and pardon) shall be exercised with respect to the tribunal; independent funding shall be provided; and watertight victims’ and witnesses’ protection will be provided. Moreover, the Tribunal has the primacy and exclusive jurisdiction powers on all matters relating to post-election violence atrocities; the president does not enjoy immunity under section 14 (Protection of President in respect of legal proceedings during office) Finally, The Bills define the crimes, address individual criminal responsibility, command responsibility, and resignation of the suspects from public office.

With these provisions, it is our view that a Special Tribunal with major international representation is the best option for justice for the victims of violence and preferable to a transfer of jurisdiction outside of Kenya.

Regrettably, the enactment of the Tribunal has begun on the wrong footing, failing the most basic test of its independence and credibility. The Cabinet is turning into a hub of impunity, horse trading in the full sight and knowledge of the two principals, President Kibaki and Prime Minister Odinga. Kenyans strongly condemn the Cabinet for allowing political considerations to block the raising of the bar of the Special Tribunal in order to meet the mandatory international standards. It is our expectation that the Cabinet and Parliament will act in a sense of sobriety and responsibility in the pursuit of national goals and objectives. No efforts should be spared in confronting their insidious game of self preservation at the expense of the wheel of justice and accountability efforts against impunity. Kenyan legislators are among the highest paid in the world; the least they should do is to deliver quality legislation. Their ability to deliver an effective Tribunal should be the test of their legislative competence.

We believe that bringing the perpetrators of post-election violence and gross human rights violations to justice will contribute greatly to preventing future human rights violations in Kenya. However, the fragmentation and absurd protection rackets in the Cabinet and Parliament are likely to be the single biggest impediment to the crucial exercise. For this reason, we emphasize that the ICC and Special Tribunal are not mutually exclusive but rather complementary: if the local tribunal is not enacted as seems increasingly likely, the ICC should pursue the prime suspects. If the Tribunal is enacted, the ICC should still continue its monitoring role, as Kenyans do not want ‘show’ trials; they want fair trials. The Tribunal cannot bring justice to the thousands of post-election violence victims if it tries only a handful of the most notorious individuals, while scores of top officials and other prime suspects remain free. No court, including the proposed Tribunal, should fall short of the international standards which the Kenyan government is bound to uphold. The ICC must bear the burden of responsibility in ensuring that all the international standards that form the basis of other international and mixed criminal processes are explicitly incorporated in any process of accountability for Kenya.

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Ndung’u Wainaina is Executive Director and Pamela Chepneg’etich is Assistant Programme Director at International Center for Policy and Conflict.

We welcome links to this article and comments. Reproduction or redistribution of the above text requires the prior consent of the original source. Please contact lydiah-kemunto.bosire@politics.ox.ac.uk

On 9 July 2009, Kofi Annan the former chief mediator in the aftermath of Kenya’s post-electoral violence, transferred an undisclosed list of senior politicians to the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo. These politicians are alleged to have committed crimes against humanity during the post-electoral violence between December 2007 and February 2008. What prompted Annan’s actions?

The Office of the Special Adviser of the United Nations Secretary-General on the Prevention of Genocide (OSAPG) has developed a framework of analysis which includes indicators regarding the proclivity to genocidal acts in a particular country. Among these indicators are the prevalence of atrocities and extra-judicial executions, the presence of illegal arms, armed elements formed around a particular identity group, a break-down in inter-ethnic relations and exclusionary political practices. However, the most salient issue that the OSAPG framework of analysis identifies is the persistence of impunity for atrocities committed, particularly those targeting particular ethnic groups. As far as this framework of analysis is concerned, Kenya’s political situation, especially following the post-electoral violence of 2007 and 2008, contains all of these indicators and more. The question is therefore whether the current climate in Kenya can be described as one in which the proclivity towards genocidal acts remains high.

In order to remedy this predisposition and the legacy of the crisis, the National Accord and Reconciliation Agreement was signed on 28 February 2008 between the Party of National Unity (PNU) and the Orange Democratic Movement (ODM), following the Annan-led mediation effort. This Agreement identified a range of measures that were necessary in order to prevent the future outbreak of inter-ethnic violence. The Commission of Inquiry into on Post-Election Violence (CIPEV) also known as the Waki Commission produced a series of ‘recommendations concerning measures to be take to prevent, control, and eradicate similar violence in the future; bring to justice those responsible for criminal acts; eradicate impunity and promote national reconciliation’. The Waki Commission also recommended the establishment of a Special Tribunal of Kenya to try suspected sponsors and organisers of the post-electoral violence. This would serve as an in-country legal framework for the adjudication and administration of justice for the alleged suspects and thus confront the spectre of impunity which threatens to foster future violence.

Specifically, the Waki Report insisted that ‘it is imperative to guard against further encouragement of the culture of impunity by granting blanket amnesty to all and sundry in the post-election mayhem’.Astutely, the Waki Commission ensured that the recommendations in its report were accompanied by sunset clauses that would initiate consequences for in-action or intransigence. The Report stated that if ‘an agreement for the establishment of the Special Tribunal is not signed, or the Statute for the Special Tribunal fails to be enacted’, then ‘a list containing names of, and relevant information on, those suspected to bear the greatest responsibility for crimes falling within the jurisdiction of the proposed Special Tribunal shall be forwarded to the Special Prosecutor of the International Criminal Court’. This list was in the hands of Annan who has now delivered it to the Prosecutor of the ICC in The Hague.

The Grand Coalition Government failed to establish a Special Tribunal when the proposed Constitution of Kenya (Amendment) Bill 2009 was defeated by 101 to 93 votes in the Kenyan parliament, on 12 February 2009. The deadline that the Waki Commission stipulated had passed, but the Grand Coalition Government did not seem capable of re-visiting the issue. A number of senior political figures in both the PNU and ODM camps have allegedly been implicated in organising and instigating the post-election violence. Specifically, this included Kalenjin leaders from the Rift Valley Province who allegedly financed and organised pogroms against supporters of the PNU. It also included leaders in the Central Province who in retaliation allegedly organised and financed revenge attacks on Kalenjin, Luo, Luhya and other pro-ODM communities in the province. According to analysts, Kenya politicians on both sides were concerned that the local tribunal would be open to manipulation and therefore preferred the Hague option.

The OSAPG framework of analysis also notes that a trigger event, such as an election, is often necessary to unleash political tensions and to foment violent acts between people and ethnic groups. The impending Kenyan presidential and general elections of 2012 may turn out to be the trigger event that unleashes political violence on a scale not witnessed before in the country. Regrettably, a number of the country’s politicians believe that by frustrating the implementation of the provisions of the National Accord and Reconciliation Agreement and the specific recommendation to establish the Special Tribunal, they would improve their chances or those of their co-conspirators to capture the presidency. However, there is still time to avert this scenario. In particular, the issue of impunity has to be addressed as a matter of urgency.

The failure of the Grand Coalition Government to establish a Special Tribunal forced Annan’s hand. The Coalition had continued to pay lip service to the need to end impunity without any genuine commitment to punishing those who were guilty of crimes against humanity. Several politicians argued that it was necessary to promote healing and reconciliation through the proposed Truth, Justice and Reconciliation Commission rather than pursuing judicial persecution. Others argued that the prosecutions would threaten the stability of the country, but this revealed a lack of understanding that the short-term neglect of justice for the victims would lay the foundation for future violence and instability in the Kenya.

*Dr. Tim Murithi is Head of Programme at the Institute for Security Studies Office in Addis Ababa, Ethiopia, and author of The Ethics of Peacebuilding (Edinburgh University Press); and The African Union: Pan-Africanism, Peacebuilding and Development (Ashgate). He has held posts at the Universities of Bradford and Cape Town, the UN Institute for Training and Research and as a consultant for the African Union.

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Notes

The handover of the names of the suspects behind Kenya’s post-election violence to the International Criminal Court (ICC) opens an uncertain chapter in the country’s history of political violence. This development has generated a vibrant debate among Kenyans: What should accountable politics look like? What is the role of transitional justice in getting us there? Under what conditions might the current turn of events contribute to the country’s long term stability?

This forum offers a space where concerned Kenyans can come together with a range of experts, scholars, practitioners, and commentators to discuss fundamental questions about how Kenya got here, and the strategies necessary to move the country forward. This essay provides an overview of recent debates on violence and accountability in Kenya and summarizes the first set of contributions to this forum.

Any policy aimed at addressing Kenya’s current crisis necessarily assumes the existence of a clear understanding of what caused the violence in the first place. While some scholars explain the recent cycle of violence as a manifestation of the negative side of electoral democracy, where elites fight over control of the state in a context of zero-sum politics, others emphasize the trend of informalizing violence, where elites set up, control, or manipulate an alternative security infrastructure (which, among other things, can be deployed to coerce opponents). Others still find these explanations incomplete, and instead cite structures of inequality, with a particular focus on grievances over access to land and resources. Many of these explanations privilege the agency of the political class in manipulating ethnic cleavages.

Daniel Branch’s essay in this series disagrees with many of these accounts’ focus on elites, as they insufficiently interrogate the agency of ordinary Kenyans in the violence. Normalization of violence, Branch argues, is evidence of a society’s shifting moral landscape: Kenyans increasingly accept violence in a range of arenas as a means of exerting authority. Elite manipulation of that violence to reduce electoral uncertainty forms only one expression of a wider social phenomenon. Branch’s conclusion points to a question that continues to be debated in response to violence by state agents: is there moral and immoral violence? Or is it the case that (as with the dichotomy of political and apolitical violence that Branch finds unhelpful) in time the distinctions dissipate?

Daniel Waweru’s essay also discounts many of the common accounts for the post-election violence, and offers in their place an explanation based on the permeation of the majimboist ideology outside of the political class and into the community. This view carries implications for what is politically feasible in the current considerations of accountability and constitutional reform: Waweru argues that while President Moi informalized violence during his reign as a strategy of strengthening the ethnocentric majimboist fringe, his exit from power terminated state sponsorship for the majimboist project, leading Kalenjin opinion leaders to be more radicalized, and their project of ethnic cleansing more ideological and popularized. Consequently, the very majimboist elites who must come into the political fold for there to be effective constitutional reform in Kenya are the same ones who would be marginalized in processes of accountability. In what appears to be a variation of the ‘peace v justice’ debate that has characterized Sudan, Uganda and elsewhere, Waweru argues that Kenya can have either reform or accountability, but not both.

Nonetheless, Gabriel Lynch’s essay argues that both accountability and reform are essential for Kenya, although she sees little evidence that the state will act differently from previous episodes of violence. Highlighting that reforms to date have been largely superficial and procedural with little focus on how complex issues coalesce, she offers three concerns on which the state must focus: the presidency and its zero-sum politics, impunity and the informalization of violence, and the politics of ethnicity. Further, she points out that the manner in which Kenyan (and African) politics are framed and understood – as ‘good’ citizen v ‘bad’ politician, for instance – misses the different meanings of history, incentives and reciprocity in political processes.

Despite Lynch’s scepticism, the handover the Waki envelope to the ICC has generated a vibrant (and hopeful) discussion on the importance of historical clarification and transitional justice in general, and of prosecutions in particular. However, the Kenyan media is dominated by confusing descriptions of which mechanism is legally feasible or politically desirable. What happens when many Kenyans appear to prefer the ICC and have no trust in a national process; international NGOs prefer a domestic process because, they argue, Kenya has the institutional capacity that can deliver justice with some modifications (although an equally persuasive explanation for this preference from international NGOs may be the general reluctance among many ICC supporters to see the Court in yet another African case); prominent ODM parliamentarians declare their intention to actively sabotage efforts for domestic prosecutions; and cabinet members from both parties argue that the only way is a domestic tribunal because to do otherwise would imply that Kenya is a failed state? Which of these interests should matter more? Who decides? Is it possible for this discussion to emphasize objectives of accountability, leaving processes as secondary considerations?

In all the confusion, another important discussion is glossed over, as Tim Murithi emphasises in this forum: he makes intelligible the reasons why Kofi Annan handed over the envelope to the ICC prosecutor. While the three ministers who went to Geneva have oscillated between shock at an Annan ‘betrayal’ and (reluctant) praise of Annan’s ‘patience’, it remains unclear why Annan acted as he did. Murithi argues that Annan passed the envelope to the ICC because the coalition seemed oblivious to the fact that their disinclination for accountability placed Kenya in a high risk category in the framework of the Office of the Special Advisor of the UN Secretary General for the Prevention of Genocide. In their vacillation between doing nothing, paying lip service to prosecutions or expressing preference for a Truth, Justice and Reconciliation Commission, political leaders exhibited a lack of political vision for meeting the justice needs of victims, thus forcing Annan’s hand.

In thinking about lessons that we can draw from the past violence, the essay by Wanjiru Kamau-Ruternberg analyses how the performance of gendered violence in the form of forcible male circumcision plays into ethnic politics. She argues that circumcision offered a framework for Mungiki violence against Luo men because it was embedded in a narrative of feminizing ethnicities; a narrative was alive in the discourses of Kenyatta, found confidence in the period of the draft constitution referendum, and was ironically embraced by Raila Odinga himself. In this atmosphere, where the feminized could be violated, it was only a matter of time before the gendered ‘ecology of violence’ expanded to include feminized Luo men.

Sisule Musungu’s contribution focuses on the way forward. His summary of a 2000 report on possible future Kenyan scenarios emphasizes the need to avoid the maintenance of the status quo – what the project terms the ‘el nino’ scenario – as the outcome of such a scenario can only be fractured decline. He argues that, much like the late years of the Moi era, Kenya has reached another crossroads, and it might be time to dust off and reconsider the discussions that inspired change a decade ago.

Even so, the possible political outcomes from the current crossroads are not obvious. Might Kenya be the case where the heretofore weak ICC ‘deterrent’ argument gains relevance? For instance, to what extent are shifts in Kenyan political and ethnic alliances a response to a credible threat of prosecutions? Does the potential involvement of the ICC (and the subsequent excitement about prosecutions) have the capacity to de-ethnicize and de-collectivize the post-elections violence, to recast blame from communities to individuals in the political class? Or would prosecutions be inadequate for the multifaceted forms of violence experienced in Kenya? Beyond the ICC, how adequate or appropriate are the proposed transitional justice measures for the Kenyan context? What are the competing interests in Kenya’s project of political reform and accountability, and whose interests are likely to triumph?

These and other questions will be tackled in future essays in this forum. We welcome your reflections and contributions.

*Lydiah Kemunto Bosire is reading for her doctorate in politics at the University of Oxford, with a research focus on transitional justice in Kenya and Uganda. She is also the co-founder of Oxford Transitional Jusitice Research (OTJR). Previously, she worked at the International Center for Transitional Justice, the WHO and the UN.

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Let me argue that the Bashir arrest warrant is something else—a moment of crisis in the project of building a global human rights order. The immediate cause of this is Moreno Ocampo’s overreach. Possibly his status as a celebrity prosecutor, feted by the Hollywood stars who have converged on the Darfur crisis, led him astray.

In turn the fact that the Prosecutor was able to demand an arrest warrant against a sitting head of state, without the possible risks for peace and security being subject to debate at the UN Security Council, reveals a major weakness in the international architecture. The Rome Statute of the ICC requires the Prosecutor to consider the interests of justice and the victims when deciding whether to prosecute. But he is within his rights if he interprets this is a narrow and negative obligation, which is only not to prosecute if the individual characteristics of the accused (age or mental state) don’t allow for a meaningful trial, or if the victims and witnesses might be harmed by a prosecution. The UN Security Council has the responsibility for weighing the interests of peace and security. But with the U.S., Britain and France (the ‘P3’) all sensitive to the demands of domestic activist constituencies, and the Secretary General abdicating any responsibility for the issue, the Council has done nothing except rebuff the entreaties of the African Union.

No mechanism or institution has safeguarded the interests of peace or represented those whose overriding concern is peace. Unconstrained by any countervailing or moderating considerations, the Prosecutor has had his way. The Pre-Trial Chamber that threw out the genocide charges did so solely on evidentiary and legal grounds—the Prosecutor had not met their (rather low) threshold of demonstrating that Bashir had a case to answer on those charges. Politics did not intrude into their deliberations.

There is also no mechanism which obliges the UN Security Council to listen its African counterpart. More than 60 percent of UN Security Council business concerns Africa, but there are no permanent African representatives on the Council and Africa has no veto. Last July the African Union Peace and Security Council voted for the ICC action against President Bashir to be suspended. Twice the AU petitioned the UNSC for this to be considered, twice it was rebuffed. African governments, including Sudan’s neighbours, argue that the P3 have the luxury of endorsing high principles to satisfy their domestic constituencies, but it is Africans who will pay the price if Sudan’s peace agreements unravel. It is African peacekeepers who are in the front line if Darfur explodes. This division of responsibilities was workable when the UN Security Council was sensitive to African concerns, and Africa had no option but to go along with P3 dictat. It’s no longer acceptable. The mantra ‘no peace without justice’ is not a substitute for political analysis.

And in turn, this tells us much about how the world now looks different to when the Rome Statute was adopted eleven years ago. In 1998, at the zenith of unipolar western hegemony, when history had been briefly interrupted (not, it turned out, ended), the march of liberal values and norms seemed unstoppable. There was no contest over human rights, only over the speed at which they would be enforced.

Today, global governance and especially its human rights component, is rather more contested. The American ‘might is right’ project was neither as mighty nor as smart as the neo-cons anticipated, substituting too much wishful thinking for facts and analysis—a shortcoming that seems to be shared with the enthusiasts for indicting Bashir. China and Russia always saw the world differently to America, and are more confident in saying so, while smaller countries such as Iran and Venezuela are emboldened to challenge the wounded Leviathan. Africa’s democratic progress has stalled (though not yet reversed).

Africans were the early enthusiasts of the ICC and it was African ratifications that ensured that the Rome treaty came into effect in 2002. The Court’s first three cases were all referred by African governments. This fact is cited by those who want to argue that the ICC is not unfairly singling out Africa. But the ICC’s advocates should be a little more attentive to how Africans understood the role of the Court at that time—they expected that it would work in partnership with African NGOs and judicial systems to develop comprehensive justice and peace responses to crises such as northern Uganda and DRC. And at first, Moreno Ocampo advocated this joined-up and locally-sensitive approach—as late as 2005 he told the Assembly of States Parties that governs the ICC, ‘We reached consensus that we are bringing a justice component to a comprehensive effort to achieve justice and reconciliation and bring an end to violence in northern Uganda.’ He indicated he wouldn’t take any step that might endanger peace.

Moreno Ocampo’s tune changed. Last month he told Foreign Policy journal that there should be no negotiation with President Bashir and that the Court is ‘a fact’ and ‘I’m sorry if I disturb those who are in negotiations.’ Increasingly, the Prosecutor sounds like an NGO activist—Save Darfur with legal powers. He should not be surprised that African governments and activists are also changing their tune. The reasons for governments’ unhappiness is self-evident. Human rights activists are worried about a backlash in which they will become victims, without anyone to protect them (least of all a Prosecutor whose careless insinuations about the sources of his evidence exposes national activists and humanitarian organizations to the suspicion of having conducted investigations on his behalf). They are also worried that the project of building justice at the local and national levels will be jeopardized by association with the Court.

The Sudan Government rejects the ICC as part of a neo-colonial conspiracy. It is easy to scoff at this—there has been too little coordination, let along conspiracy, among the internationals to make this a credible allegation as such. But the neo-colonial charge resonates. Western powers are ready to subject Africa to intrusive experiments in governance that they would never allow at home and could never impose on major powers. In New York, Washington DC or London, Africa’s voices can be ignored without consequence.

It is inconceivable that the British Government would permit the ICC to investigate crimes committed in Northern Ireland, either by the IRA or the security forces. Some might argue that the ICC should have jurisdiction because the UK is a State Party to the Rome Statute and it shows no interest in prosecuting these crimes—having extended a de facto amnesty that the ICC cannot in law recognize. The interests of peace in Northern Ireland mean that the victims of these abuses will never see their perpetrators brought to a British court. In the U.S., President Obama is in no rush to prosecute members of the previous Administration for what he recognizes correctly as torture and surely will not allow the ICC to do the job that the U.S. courts are unwilling to do.

Archbishop Desmond Tutu wrote recently in support of the ICC, asking ‘Will Africa let Sudan off the hook?’ What Tutu didn’t mention was that in the 1990s he himself ‘let Apartheid off the hook’ with his Truth and Reconciliation Commission, which involved granting amnesty to those who confessed—a process that would be impossible today in the presence of an ICC Prosecutor in uncompromising mood. The TRC showed that there are forms of justice other than retributive justice in a courtroom. If they were in command of their own destiny, it is likely that Sudanese would set up something like the TRC.

The double standards matter because human rights are a matter of politics and power. The Prosecutor likes to project an image that he is an essentially powerless individual, battling the world’s dictators and war criminals, armed only with the truth. But his decisions have real consequences. Most probably, when Sudan refuses to comply with the arrest warrant, the Prosecutor will demand that the UN Security Council impose sanctions or undertake military action to execute an arrest. The Prosecutor’s six monthly report on Darfur is due in June so this is the likely occasion for such a demand. We will hear a lot of rhetoric about justice and obligations that cannot be compromised or negotiated. It’s unlikely that we will see military action conducted in the name of human rights, but it’s not impossible.

One of the many tragedies in the ICC’s Sudanese adventure is that it may signal a turning point for international justice, but in the opposite way to that hoped by the Court’s advocates. It’s possible that the Libyan campaign for African countries to de-ratify the Rome Statute may gain some traction, at least insofar as Africa freezes its cooperation with the Court. It’s probable that, quietly encouraged by China and Russia, African governments will rediscover the value of a hard interpretation of sovereignty. They will remind the rest of the world—as Sudan is doing now—that foreigners are guests in their countries and should behave accordingly.

The ICC has brought on a crisis for human rights in Africa. This crisis has no obvious solution, save the reminder that where human rights are most enduring, it is because they have been struggled for and won by citizens, country by country.