Since the first summons of now Kenyan President and Deputy President, Uhuru Kenyatta and William Ruto, to the International Criminal Court (ICC) in 2011 and 2013, a protracted debate has emerged around the history and future of the ICC, which in itself is an intermediate victory for the defense. Coming into force in 2002, the institution has, at its extremes, been deemed a bastion of global peace and an instrument of global hegemony. While the content of the cases themselves are unremarkable compared to the Court’s record, they are increasingly amounting to a crucial moment in the Court’s history.
Following 2007 elections (that pitted the incumbent party (Party of National Unity) against the well-regimented Orange Democratic Movement at both the national and local levels), confirmed reports of irregularities immediately brought into question the legitimacy of the incumbents’ victories. In a matter of days violence erupted, causing the death of over a thousand individuals and the displacement of hundreds of thousands, which only ended following a peace deal brokered by former UN Secretary-General Kofi Annan. Despite the violence plainly failing along political lines and showing evidence of coordination from both parties’ central organizations, key political figures involved were not immediately implicated. Only after a domestic Commission of Inquiry was completed in 2009, were six suspects identified, who were eventually referred to the International Criminal Court.
Among the original inspirations for the Court was the idea that if the international community could create a credible threat to prosecute war crimes, one could prevent the type of gruesome civil wars that prevailed in the post-Cold War period. Instead of peacekeeping and boots on the ground, intervention could be reduced to a minimum. It was signed into existence via the Rome Statute in 1998, and came into force in 2002. Its reception then was lukewarm, and 18 years after the first signing, only 60 countries have actually ratified the Statute, despite there being 139 signatories.
As a court charged with the duty of prosecuting international crimes, most commonly war crimes, the ICC has generally struggled to assign culpability of mass violence to individual suspects. Furthermore it has suffered under the criticism that it has disproportionately focused on African situations, with 9 out of 13 cases that passed preliminary phases pertaining to Africa. The eventual election to executive office of two of the accused in the Kenya set the stage to bring these criticisms—and by extension the potency of the Court—into question.
It is open to some speculation whether the Court “shops” for politically salient cases, but it is—at the very least— unlikely that the ICC planned to be prosecuting an acting head of state come 2013 in Kenyatta and Ruto. Their candidacies put an institution that is not known for nimble public relations in the center of discussion across international media and at many Kenyan dinner tables. Within Kenya, a zero-sum discourse came into play; voting for Kenyatta became discursively linked with the rejection of an imperialist ICC. In fact, in his victory speech, Kenyatta pointedly equated his indictment to a violation of “the democratic will of the people of Kenya”.
Apart from briefly reporting on key witnesses dropping out and the eventual dismissal of Kenyatta’s case, international media has taken a back seat in the debate. For the persuasive Kenyatta and Ruto, poor coverage has given them the necessary space to launch and win a discursive battle on the jurisdiction of the ICC. Despite coming from competing parties and opposite sides of the 2007 violence, they have cooperatively challenged the Court by invoking narratives seen in Kenya not so long ago. Nationalism and Pan Africanism discourses were a specialty of Kenyatta’s late father and founding father of Kenya, Jomo Kenyatta. For good ends and bad, Jomo strategically used foreign intrusion to shore-up his domestic and continental legitimacy and status.[1] Today, it seems his son is doing the same, using his indictment to rally other african leaders behind him against the Court:
‘It is my sincere hope that our ICC reform agenda will succeed so that we can return to the instrument we signed up for. If it does not, I believe its utility for this continent at this moment of global turmoil will be extremely limited. In that eventuality, we will be failing in our duty if we continue to shore up a dysfunctional instrument.’ U. Kenyatta
Notably, the African Union Chairwoman, Nkosazana Zuma, has strongly seconded calls for head-of-state immunity, organizing a sizable coalition within the organization. Instead of outright saying countries should exit the Rome Statute, her comments were, “obviously countries have joined the ICC, so it’s not an easy decision they want to take. But if the ICC behaves in a way where countries have to choose between the [African Union courts] and the ICC, then it’s going to be difficult.”
In fact, a number of influential African states have expressed similar skepticism, most notably South Africa, where the President has not only spoken out against the Court, but violated the Rome Statute by failing to detain Omar al Bashir, a fugitive of the Court and acting President of Sudan. Should South Africa, Kenya, Tanzania, Uganda, and other nations leave the Treaty in the face of diplomatic threats from the United Nations, the Court would confront an even greater uphill battle for legitimacy and relevance.
Thus the referral of the Kenyan situation to the ICC may have otherwise set forth a strong precedent, has ultimately left the Court in an exceptionally difficult situation. Among its choices are to treat the cases in front of them as any other, regardless of political context, cede jurisdiction over acting heads-of-state, guilty or not, or let Ruto’s case fall apart as well, thereby appeasing Kenya and deflating the movement Kenyatta is fomenting.
Ultimately the current legitimacy crisis at the ICC can potentially be explained by examining its ability to serve as a credible threat against those who would commit war crimes. As Mahmood Mamdani (Columbia University), and Thabo Mbeki, former South African President, noted, “Unlike criminal violence, political violence has a constituency and is driven by issues, not just perpetrators.”[2] The election of Kenyatta and Ruto is emblematic of exactly that issue; they both represent perpetrators and victims, and were successful in maintaining public legitimacy. Their summons to the ICC, which was legally sound and within its jurisdiction, brought together both of their constituencies against the Court.
Apart from a navigating the current crisis between the Court, Kenya, and other African nations, more broadly, resolving how to maintain the broad threat of prosecution, while learning how to engage complexity will be essential to its future. In fact, failing to do so may only serve to strengthen the incentive for war criminals to be a winning belligerent, and achieve a lofty public office.
Edit: After the initial publication of this piece, a key ruling occurred in the case of William Ruto, denying recanted evidence from being heard by the court on February 12th. This break represents a key step towards exoneration.
Picture Link - MEAACT PHOTO / STUART PRICE.
[1] The Political Economy of Kenya. SAIS Studies on Africa. (1987). Eds. Michael G. Schatzberg.
[2] http://www.nytimes.com/2014/02/06/opinion/courts-cant-end-civil-wars.html