When several prominent Kenyans appeared before the International Criminal Court recently, they were judged by a legal standard that no one, in theory, should be above. But to critics, the court itself isn't above politics that too often get in the way of real justice.
The cases center on six men from Kenya's two main rival factions, who allegedly helped orchestrate an outbreak of post-election violence. For weeks, the country was awash in killings, rapes and the displacement of some half a million people, and then months of tense silence. Many Kenyans are hopeful that the International Criminal Court (ICC) might cut through the country's "culture of impunity." Others fear the court will only exercise the cultural impunity of Western powers.
The ICC itself is a recent invention -- based on the 2002 protocol known as the Rome Statute (joined by 118 countries, not including the U.S.). But the institution is rooted in a legacy of international courts dating back decades, from the post-World War II Nuremburg Trials to post-conflict tribunals for Rwanda and the former Yugoslavia. It's still evolving. So far, the court has yielded only a handful of cases and trials. One of the most notorious suspects, President Omar Al-Bashir of Sudan, remains "at large." In part this is due to the ICC's limited jurisdiction, as a court of last resort for issues that governments fail to address through their own institutions. ICC trials, based on investigations that can be initiated by the prosecutor or by the United Nations Security Council, focus on "those accused of the gravest crimes."
That doesn't guarantee justice for victims, of course, but it does at least get people talking about what it might look like. Last year, Kenya's fragile coalition government (a fusion of the two factions that clashed in 2007) launched a new constitution to help push the country beyond the conflicts that shattered Kenya's image as a bastion of stability in the region.
Today, Kenyans wonder whether outside intervention through the ICC would solidify national unity or reopen half-healed wounds.
The ICC issue has reignited domestic political tensions ahead of the 2012 elections, imperiling the presidential prospects of Deputy Prime Minister Uhuru Kenyatta, son of Kenya's first President Jomo Kenyatta. Prosecutor Luis Moreno-Ocampo charges that Kenyatta and two other high-profile allies of President Mwai Kibaki, conspired to stoke factional and ethnic violence after the election, including brutal police crackdowns as well as attacks by members of the Kikuyu Mungiki sect against supporters of Prime Minister Raila Odinga. (Three suspects on Odinga's side also face ICC charges.)
Kenyatta, for his part, has denounced the allegations as a "pack of lies." Earlier this year, the Kenyan government even sought to block the entire ICC process from moving forward, though the attempt at a legal end-run ultimately failed, according to Human Rights Watch.
Kenyans in the street are divided. In a BBC report last December, an interviewee voiced well-founded skepticism: "The work of the ICC is partial and if they are not going to raise the standards, they have no business investigating people. Whether by design or default, politics can be read all over the work of this court."
But Patrick Gathara, a Kenyan political cartoonist and activist, told Colorlines.com that a flawed process could still serve a higher purpose:
The court is itself set up to achieve political purposes and is therefore open to criticisms of bias and selective prosecutions. While these are legitimate concerns, we should not lose sight of the fact that the court does try real cases and deal with real crimes; and that some justice (however selective) is better than none. ...
[The ICC] targets African countries and "rogue" states simply because the powers that be (read: the West) will not countenance their citizens or their allies being subject to international processes.... International justice, like most other international systems, is an evolving concept and therefore we should consolidate whatever advances have been made while at the same time seeking to extend them.
The Kenyan government is getting even more mixed reviews. According to one monitoring report published earlier this year, opinion surveys show that despite reforms following the 2007 conflicts:
Politicians are widely viewed as sponsors of illegal armed groups that took part in the violence, and which transformed into extortion gangs. Up to 42 percent of respondents in the survey think these illegal groups will emerge and play a political role before 2012. Failure to prosecute political and civil crimes has eroded public confidence in the government's ability and willingness to fight impunity. It has slowed the momentum of citizen advocacy for prosecution or other forms of accountability.
According to surveys, a slight majority of Kenyans favored an ICC trial in the Hague for the six suspects; about a third preferred a "local tribunal."
Applying a global standard of equal justice seems near impossible for crimes that stem from vast inequalities in wealth and power, particularly when judgement shades into issues of race and gender. The court's critics see imperialism behind its seemingly disproportionate fixation on, and demonization of, the leaders of African countries (Democratic Republic of Congo, Uganda, Darfur and Central African Republic in addition to Kenya). And when it operates alongside a global war on terror (the leaders of which have somehow, curiously, evaded the long arm of the law), a court without boundaries seems the very picture of neoliberal impunity.
After the ICC issued a warrant against Libyan leader Col. Muammar Gaddafi earlier this year, the head of the African Union lashed out at the court for imposing Western-centric "double standards," reported the New York Times:
The African Union's chairman, Jean Ping, told reporters that the court was "discriminatory" and focused on crimes committed in Africa but ignored those committed by Western powers, including in Afghanistan, Iraq and Pakistan.
"With this in mind, we recommend that the member states do not cooperate with the execution of this arrest warrant," the motion said.
Its scope may be narrow, but the ICC dockets are hardly stuffed with frivolous charges. They're replete with chronically overlooked cases of rape, mass murder and other atrocities. The injustice lies in the ongoing human rights violations that take place outside the Hague every day, sometimes under regimes that the ICC is already probing. Indeed, Human Rights Watch criticized the ICC as well for inconsistent case selection--not necessarily because of political or racial bias, but because investigations had often overlooked major crimes and perpetrators.
Gender-related violence is another potential blind spot, particularly in the case of Thomas Lubanga Dyilo, a DRC rebel now on trial for crimes related to child soldiers. Women's Initiatives for Gender Justice recently expressed outrage at "the absence of charges for gender-based crimes in the case against the leader of a militia group widely known to have committed rape, sexual enslavement, and other forms of sexualised violence."
More than 60 years ago, in the wake of the Holocaust, the Nuremburg trials seeded a vision for some form of universal justice. Now, the ICC still falls well short of that goal, but it has widened the road to global justice and complicated it along the way. Recently, some have speculated that Palestine's pursuit of full statehood status at the U.N. might open opportunities to bring Israel to the Hague. Imagine the state birthed from the ashes of genocide finally being held to account for atrocities committed in its own name.
José Ayala Lasso, former U.N. High Commissioner for Human Rights once warned us, "A person stands a better chance of being tried and judged for killing one human being than for killing 100,000." Though the International Criminal Court hasn't corrected that imbalance, it has tipped the scales of justice just slightly, toward a collective moral gravity.
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