I read After Genocide while en route to Kenya. And especially, while en route back. I tried to square what I was reading with what I was hearing in Kenya, wondering if Kenyan’s hopes for justice were unreasonably high, or if in fact what we were seeing there was a fundamental challenge to the premise of Adam Smith’s book.

In some ways, the Kenya case is simple. Serious violence, complicity at high levels, initial interest in accountability, but then brakes put on when the possibility of accountability started to get serious. A good number of the political elite are finding creative ways to divert and confuse any initiatives for criminal justice.

The means to criminal accountability should not be difficult, if the intention was there. The existing national system is not trusted, but a proposal for a Special Tribunal, rooted within the national legal framework, has been debated for almost a year. The primary point of pressure to create this tribunal is the threat of the International Criminal Court taking up the case. The choice between the ICC and a Special Tribunal has been hotly debated in cabinet meetings and in the front page headlines for months on end. At the height of the controversy, SMS text messages were widely circulating: “Don’t be vague, go to The Hague.”

Human rights advocates worry that no prison in Kenya can keep under bars persons of high stature: there are too many corrupt practices, this is simply unrealistic, they insist. While many agree, as would Adam Smith, that the obvious best route is the creation of a nationally-based tribunal for many of the perpetrators, there is nervousness from Kenyans about the ability to process the big fish there. Meanwhile, the resistance continues from some powerful figures in Parliament. A bill for the Special Tribunal is in Parliament and will be voted soon.

Meanwhile, another important backdrop to this accountability discussion: all Kenyans seem to agree that there is a likelihood of serious future violence looming over Kenya, to be sparked either with the 2012 elections, or sooner. “This happened because we weren’t prepared,” community members are saying about last year’s violence. “Next time, we’ll be prepared.” Last time, they fought with machetes and gardening tools. But for the future, they have already armed themselves with serious weapons.

The one possibility for stopping the violence? Accountability at the top, people say. The ICC is critical, Kenyans widely agree. A few well-placed arrest warrants would completely change the picture, they say – perhaps people would stop these same violence-stoking tactics in the future. (Recent threats from the international community to place sanctions on Kenyans if progress is not made on accountability has also served as an important factor.)(1)

Pondering Kenya, and reading Adam Smith’s plea for a national response as far-preferred over a reliance on international courts, I couldn’t help but wonder if key element was not missing: the critical importance of political will. Kenya has great legal and other professional capacity, and Kenya has excellent independently-minded people. But it also has many who have every interest in subverting the possibility of justice, and some of these hold significant power at present. The best role of the ICC in this case is to make clear that international justice is ready and willing to act if justice does not move forward on the national level. In fact the ICC has increasingly been doing just this, announcing recently that Kenya-focused investigators have been hired, for example.

Is international justice expensive? Yes. Is criminal justice sufficient? No. But can Kenya find its way out of this cycle of intense violence without serious measures of bold and forthright accountability? This seems very unlikely. Impunity for the worse crimes continue, remarkably, even when so much is known about what happened and who played a role.

In Kenya, the ICC role is critical – not just for the past, but, even more, for the possibility of preventing serious violence and killings in the future.

Priscilla Hayner is the Director of the Peace and Justice Program and the Geneva Office of the International Center for Transitional Justice.

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(1) Much more about Kenya can be found on the sister SSRC blog, “African Arguments”, and the debate on Kenya that is hosted there. In the interest of space, my brief comment here is leaving out related details: the Truth, Justice, and Reconciliation Commission, the Waki Report on post-election violence, and other measures.