Global Policy Studies & International Security

Without Teeth, the ICC Lacks Real Bite


On December 15, 2010 the International Criminal Court (ICC) revealed the names of six Kenyan government officials involved in the 2007-2008 post-election violence in the country. The highly publicized announcement had been long-awaited by the Kenyan population. Citizens stopped their daily activities to tune into the announcement made by chief ICC prosecutor Luis Moreno-Ocampo.

The news provided answers to the violence that took place after the general elections in Kenya in December 2007. In that month, political riots broke out in Kenya after presidential candidate Raila Odinga accused President Mwai Kibaki of rigging the election process. The political riots soon erupted into ethnic attacks directed at President Kibaki's Kikuyu tribe. In the end, at least 1,100 people were killed, 3,500 were injured and 600,000 were forced to flee their homes.

The ICC’s announcement formally accused several prominent Kenyan government officials, including the son of founding president Jomo Kenyatta, two cabinet ministers, and the head of the civil service. These officials were accused of committing "massive crimes," including crimes against humanity during the post-election crisis. But what did this accusation actually accomplish?

So far, the ICC has taken no action. All of the accused persons continue to deny the charges against them and to search for ways to avoid a trial at The Hague. Immediately following the ICC announcement, the accused persons pressured the Kenyan Parliament to remove the country from the Rome Statute, the founding treaty of the ICC. On Thursday, December 16, the Kenyan parliament debated a motion to revoke the country's membership in the ICC.

Although the Kenyan Parliament voted against the motion, the accused leaders continue to search for other ways to avoid the ICC case. Last Friday, Kenyan officials gained the support of the African Union's Peace and Security Council to endorse deferral of the case. The resolution will be presented at the African Union Summit in Addis Abba, Ethiopia this week. Article 16 of the Rome Statute states that cases before the ICC can only be deferred, or suspended, on a resolution of the UN Security Council. Kenyan officials argue that a deferral should be accepted in this case because of government plans to establish a domestic judicial mechanism.

However, the claim that the Kenyan Government is able to carry out its own investigation of the December 2007 crisis is not credible.  It is clear that the accused Kenyan officials are searching for any possible way to avoid a trial at The Hague. More than three years have passed since the post-election ethnic attacks in Kenya and the government failed to establish a tribunal during this time. The Kenyan Government lacked the capacity to act, therefore warranting the takeover of the case by the ICC.

The UN Security Council should not permit a deferral of the ICC investigation in Kenya.  Such a deferral would not only hurt the Kenyan nation but it would also damage the legitimacy of the ICC.  Kenya needs to have this crisis investigated and taken to The Hague so that justice can be served. A trial at The Hague would serve as a warning to political elite in Kenya and other African countries that political and ethnic violence will not be tolerated.

For the ICC, this is a significant case because it is the first of its kind involving political violence rather than rebellion or counterinsurgency. It is essential that the ICC continue with its efforts to bring the perpetrators to justice and prove to the world of its ability to discourage post-election violence.

Anton du Plessis, head of the International Crime in Africa Programme at the Institute for Security Studies in Pretoria stated that "Thousands of Kenyans suffered extreme violence and gross violations of human rights (after the December 2007 elections). The Kenyan government should reaffirm its commitment to seeing justice done for these atrocities and support the ICC process."

This is not the first time in the history of the ICC that the organization has suffered from a lack of effectiveness. In July 2008, the ICC accused Sudanese President Omar al-Bashir of genocide, crimes against humanity and war crimes. Yet nations such as Kenya and Chad defied their duties as State Parties of the Rome Statute and neglected to arrest President al-Bashir when he visited their countries in 2010. Despite the issuance of a second arrest warrant for the Sudanese president in July 2010, no progress has been made in this case. This is just another example of how the ICC lacks the ability to enforce its decisions in the absence of the cooperation of member nations.

Although the ICC has seen failures and inaction in the past, the court now has an opportunity to make progress. The world is watching both Kenya and the ICC. This is an opportunity for the state of Kenya to show that it has evolved as a nation since the election crisis and is working toward a peaceful future. For the ICC, it can use the Kenya case to prove to the world that it is an effective institution that is able to investigate crimes against humanity and add teeth to its bite.

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