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Think Again: In Adversity there is Opportunity for the International Criminal Court

Yellow police tape reading ‘Crime scene do not cross’, courtesy [puamelia]/Flickr

This article was originally published by the Institute for Security Studies on 19 April 2016.

On 4 April, the International Criminal Court (ICC) suffered the most significant setback in its nearly 14 years of existence.

In a majority decision, judges terminated the case against Kenyan Deputy President William Ruto and Nairobi radio executive Joshua arap Sang.

This brought to an ignominious end the court’s attempt to administer justice for the crimes committed during the post-election violence in Kenya in 2007/2008, during which over 1 300 people were killed and more than 600 000 displaced.

‘On the basis of the evidence and arguments submitted to the chamber, Presiding Judge Chile Eboe-Osuji and Judge Robert Fremr, as the majority, agreed that the charges are to be vacated and the accused are to be discharged,’ said a statement issued by the ICC. In a subsequent statement, the ICC’s prosecution team blamed a lack of cooperation from Kenya and widespread witness intimidation for its difficulty in obtaining evidence.

It didn’t help, of course, that Kenyatta and Ruto became president and deputy president only after the charges against them were lodged, greatly complicating the politics around the case. Against overwhelming opposition from Kenya, it was never going to be easy to make the charges stick.

The BBC described the decision as ‘a huge blow for the ICC’, while The Economist described it as a ‘disaster’ for the court. It’s hard to disagree: the collapse of the ICC cases against all six Kenyan suspects and accused, including current President Uhuru Kenyatta, means that no one has yet been held accountable for the serious crimes committed in Kenya. (There have been a handful of prosecutions within Kenya for specific crimes committed during the course of post-election violence, but nothing that targets the instigators of the violence.)

Justice for the many victims remains distant.

Even though Kenya, rather than the ICC, should bear the brunt of responsibility for the unsuccessful prosecutions, they came at great cost to the ICC’s legitimacy and influence in Africa, with the Kenyan government going to great lengths to discredit the court and turn other African nations against it. This anti-ICC sentiment reached its nadir in January this year, when the African Union (AU) unanimously adopted a decision to urgently develop a comprehensive strategy concerning the ICC, including the possibility of collective withdrawal from the Rome Statute (the treaty that establishes the court).

But in ‘disaster’ there is also opportunity. Could the collapse of the Kenyan cases actually be a blessing in disguise for the ICC, at least in terms of its relations with its African members states?

‘While different member states in Africa have differing views on the issue, in the short term the key pressing political issue for Kenya – one of the AU member states most critical of the court has been neutralised – at least for now. So, in some ways, some of the political urgency for withdrawal is gone,’ said Kelly-Jo Bluen, an international justice specialist at the Institute for Justice and Reconciliation.

This makes a lot of sense. As long as Kenya’s president and deputy president were both on trial in The Hague, Kenya was always going to lobby hard against the court. This motivation no longer exists, which suggests that Kenya might well ease up on its diplomatic offensive against the ICC.

This would give the court the time and the space to rebuild its relationships on the African continent – although there is still plenty of work to be done on that front.

‘Not all of the push for withdrawal has to do with immediate or expedient consequence. There are concerns among AU member states with the politics of justice in broader picture, which includes questions about failure to prosecute other powerful actors in the international system. If the difficulties in prosecuting powerful actors in Kenya are anything to go by, it does cast doubts on the ICC’s capacities to prosecute other powerful actors, including those outside of Africa. In the longer term, this will have continued and expanding implications for the court’s legitimacy both inside and outside of the AU,’ said Bluen.

Ottilia Anna Maunganidze, senior researcher at the Institute for Security Studies, agrees that there is now a chance for the ICC to learn from mistakes made with regards to the Kenyan situation. ‘If we are being pragmatic, not all prosecutions succeed. This decision doesn’t mean that the ICC prosecutors are incompetent or that the ICC should be shut down. It does mean that there is a need to work smarter and to find more effective ways to push harder for cooperation from member states.’

Maunganidze said that the ICC had been too gentle with Kenya in the beginning, and paid the price. ‘In Kenya they believed they would get full cooperation, but they didn’t. They could have pushed for arrest warrants to be issued for suspects, because then Ruto and Kenyatta would not have been able to run for office. They were nice to Kenya, when they could have gone for the jugular.’

Allan Ngari, a researcher at the Institute for Security Studies, said the dismissal of the Kenyan cases might actually worsen the ICC’s relationship with the African continent, because it can be construed as a confirmation of Kenya and the AU’s criticisms. Ngari said the decision could be used to justify the African position. ‘What this decision of the ICC could do, however, is bolster African states’ position to withdraw on several grounds that they state – and which could be summarised as the court operations falling far short of their expectations when they individually decided to ratify or accede to the Rome Statute.

‘It is also possible that African states and the African Union may see this decision as progress in their efforts to make known their concerns about the operations of the court. In this sense, they may wish to continue engaging with the different processes available to address their concerns,’ he said.

As Ngari’s comments underscore, the ICC still faces a difficult task in convincing African member states that it remains credible and relevant. But there’s no doubt that this task is made slightly easier by the fact that Kenya’s President and Deputy President, who have been the court’s chief critics, are no longer on trial, thereby removing the urgency and self-interest which motivated much of their determination to undermine it. So while international commentators aren’t wrong in describing this moment as a low point in the ICC’s history, it is also a rare opportunity for the court to get its relations with Africa back on track.


Simon Allison is an Africa Correspondent for the Daily Maverick and a consultant for the Institute for Security Studies. @simonallison

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