International Justice

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Tag Archives: Kenya

Kenya tells UN to close Dadaab camp after Garissa attack

On April 2nd, 148 students were killed in an attack by Somali militants from the al-Shabab Islamist movement. The attack took place at a college in Garissa. The United Nations has been asked by William Ruto to close Dadaab camp. Ruto is Kenya’s Deputy President.


Dadaab camp is the largest refugee camp in Africa that is surrounded by the desert in the north east of Kenya near the border of Somalia. Set up in 1991, the camp arranges housing for families escaping conflict in Somalia. Dadaab has been a home for some families for 20 years. In addition Dadaab has a Unity Primary School where about 2,500 children get a free education.

Ruto has given the UNHCR 3 months to close the refugee camp and “make alternative arrangements for its residents- otherwise, Kenya would ‘relocate them ourselves.’” He insists the the camp be closed and that the residents are moved back to Somalia. Somalia now has safe areas where the militants have been chased out of by African Union Forces. Moreover Ruto has asked for the relocation of more than 500,000 Somalis.

So far the UN has taken no action, according to the head of the UN refugee agency UNHCR in Kenya.

Other controversy with the Dadaab camp is that before, Kenyan members of parliaments and governors have accused al-Shabab of hiding in the camp. Furthermore the group was responsible for a siege at the Westgate mall in 2013 located in Nairobi.

Will the UN take action? It is in my opinion that the UN is unlikely to close the camp and relocate all of its inhabitants. At the moment the camp has a strong community and resources. There are families, schools, and stores established in Dadaab. I do believe though that the UN will increase it’s measures of security and continue monitoring the al-Shabab Islamist movement. This then beckons the question of whether or not this action will be enough.

Developments in the Kenyan Conflict

Kenya is reeling from the recent al-Shabab attack on Garissa University, and the eyes of the world are on the Kenyan government as it reacts to the violence done in its country. Just today, the interior minister of Kenya has announced that several Somali money transfer firms have been shut down, and the bank accounts of 85 individuals and entities have been frozen. The goal of the Kenyan government is ostensibly to prevent Islamic militants from using the firms to fund terrorist attacks. However, Kenya is home to hundreds of thousands of Somalians, many of whom are refugees fleeing conflict in Somalia, and they see this action by the government as an act of persecution and oppression. President Kenyatta is known for having somewhat authoritarian tendencies, especially in times of conflict, and this action by the government could be a precursor to future crackdowns as violence persists or escalates. Even more concerning is the ethnic dimension borne by this particular action by the government. By targeting Somalian individuals and entities the Kenyan government is doling out a blanket punishment that is undeserved by the majority of Somalians living in Kenya, and risks carrying out a form of ethnic oppression should the sanctions continue.

Garissa University College Killings shock Kenya

A recent article from Human Rights Watch discussed an armed attack on Garissa University College in Kenya yesterday (April 2nd, 2015). The attack confirmed at least 147 dead and 80 injured. The scale of the event was Kenya’s worst terr04Kenya3-web-master675orist attack since the bombing of the United States Embassy in 1998 that killed 213 people. The Al-Shabaab militant group was responsible for the killings that targeted the students at the College. Al-Shabaab is an extremist group based in Somalia and the group is responsible for many armed attacks in Kenya that has resulted in approximately 800 deaths.

Regardless of Kenya’s efforts in the past to enter Somalia and put a stop against Al-Shabaab, Kenya is still a very vulnerable country that is prone to attack. “Kenya’s efforts to tackle rising insecurity have been marred by serious human right violations, including extrajudicial killings, enforced disappearances, arbitrary detentions, and torture by security forces” (Human Rights Watch). The international community should keep an eye on the violence in Kenya due to the fact that there has been discriminatory abuses of Muslim and ethnic Somali communities. Kenyan police also have to be wary of mistreating it’s own citizens while providing security forces after the attack regardless of the shock and anger they obtain.

An attack of this size shows the hostility and disdain for human life in Kenya. According to Leslie Lefkow, “To counter the threat effectively, Kenyan security forces should ensure a lawful response in line with human rights.” I agree with this statement, the Kenyan government has to be careful in it’s decisions on how to police this event and be even more careful in how it responds to Al-Shabaab.

Two Thursday’s ago the Kenyan president, Uhuru Kenyatta, apologized to the Kenyan people for the past wrongs committed by his and past governments. The apology was taken differently by many people, however, Kenyatta was finally taking ownership of the abuses caused by post-election violence in the ’07-’08 election. Perhaps the Kenyan people should all start to unite and work together under a cohesive government after this recent attack on the Garissa University College. The apology can be used to spark a unity in Kenya that is so desperately needed in order to prevent future terrorist attacks that are easily penetrating the country.

Al-Shabaab Gunmen Attack Christians at Kenyan University

Early this morning, Islamist gunmen associated with Al-Shabaab, a Somali group dedicated to turning Somalia into a fundamentalist Islamic state, attacked Christians at Garissa University College. 70 have been reported killed and many others have been taken hostage. As far as Al-Shabaab goes, the group taking responsibility for the attack, the group is labeled as an international terrorist organization that has been blamed for several attacks in Somalia killing international aid workers, journalists, members of civil society, and AU peacekeepers. It also has committed acts of terrorism abroad, claiming responsibility for the Kampala, Uganda bombings in 2010.


President Kenyatta, a controversial figure by his own right, has called for the inspector-general of police “to take urgent steps” to ensure a boost in security personnel, noting that the nation is in dire need of more officers.

According to witnesses, the gunmen separated students according to their religion. Muslim students were allowed to leave, while Christian students were held hostage. Such religious targeting calls into mind the terror that Boko Haram, a militant Muslim group in Nigeria, has been reaping on Christians in the nation. Boko Haram is also committed to overthrowing the Nigerian government in order to replace it with an Islamic State. ISIS, an extremist militant Islamic movement, also has its stated aim of expanding its caliphate in the name of fundamental Islam. Such terrorist groups all seem to have in mind the goal of overthrowing existing order and replacing it with fundamental Islamic States. Given the sensitive nature of such conflicts revolving around religious difference, it will be interesting to see the role taken by the West and the United States in combating such terrorist organizations. Moreover, such conflicts bring to the forefront the issue of classifying violence that is targeted against groups because of their religion. Can such killings constitute a form of genocide? Is the international community compelled to act against such crimes as human rights violations?

For the full story, click here.

Kenyatta apologizes to Kenyan public for past wrongs

President Uhuru Kenyatta of Kenya delivered an official apology to the Kenyan public during a state of the nation address this past Thursday. He apologized for the wrongs committed by his own government and of governments past, mentioning the post-election violence of 2007-2008, as well as the 1984 massacre of hundreds of Kenayan-Somalis.

The International Criminal Court just recently dropped charges against President Kenyatta for warcrimes committed during the period of post-election violence because of a lack of evidence and cooperation by the Kenyan government. But, the report by the Truth and Reconciliation Commission in Kenya “recommended that the president apologize to the public within six month after receiving it. Kenyatta received the report on May 2013”.

During his speech, Kenyatta announced that he had requested that the Ministry of Finance set up a fund of $110 million to be used throughout the next three years for “restorative justice”. President Kenyatta has yet to announce what exactly he plans for the fund to do or accomplish, but it is his first public apology for the crimes committed following his election.

The apology earned Kenyatta a standing ovation from the members of Kenyan parliament, although the reactions of the public have been mixed. Some do not accept the apology at all, while the majority tend to feel that it is “better late than never”. Apologies can provide the acknowledgement of past atrocities that is important for rehabilitation of a society and victims, but it will be interesting to see the true impact of Kenyatta’s statements, if any at all.

Witness Intimidation and ICC Processes

The Kenyatta trial, already one with far reaching implications for the ICC judicial process, in terms of indicting a sitting head of state, has been hit with further complications as witnesses have withdrawn testimony, withdrawn all together or disappeared. Fatou Bensouda says it is because of “unprecedented intimidation”, resulting from bribes and threats to not testify.

With every dropout, the ability of the case to stand diminishes. The collapse of the trial would also do away with the African Union’s issues with the trial. But this case is not just important in isolation, for the people of Kenya and so forth. It is important for precedent, and for the ability of the ICC to act as a deterrent to sitting heads of state not to commit crimes against humanity. It is no surprise, then, that Bensouda has not given up.

Bensouda’s final throw of the die is to gain access to Kenyatta’s financial records, but it seems that only a Kenyan court has the authority to do so. A clear problem, since few judges would have the courage to actually release his records.

With a court system that is so young, every case has far reaching implications, setting specific precedent and so forth. This, though, has a potential to weaken the powers of the ICC (or at least, prevent them from becoming a deterrent to sitting heads of state) and thus it is vital from this standpoint that the ICC push on and hopefully present Kenyatta’s case.

Kenyans’ Domestic Perception of the ICC

Since arrest warrants were issued for Kenyan President Kenyatta and Deputy President Ruto in 2011, there has been much debate about Kenyan public perception of the International Criminal Court’s intervention.  In 2007 and 2008 political violence surrounding President Kenyatta’s election ensued– over 1,000 people were killed, over 3,000 were injured, and hundreds of thousands more were displaced.  The ICC’s decision to investigate these crimes now serves as one of the key points African Union states point to in their criticism of the ICC’s alleged “Africa bias.” Leaders from many African nations, but in particular from Kenya and Uganda, accuse the court of unfairly targeting Africans in its investigations and prosecutions.  Kenyatta’s case is one of two in which an active head of state has been indicted by the court– the other is an indictment of Sudanese President al-Bashir. Although Kenyatta seems largely to be cooperating with the ICC, his fellow leaders continue to be critical and outright hostile towards the court. A somewhat less examined topic is public perception of the ICC’s decision to intervene. uhuru+ruto+cabinet

According to recent reports, Kenyan public perception is split. An “element of fatigue” seems to be prevalent among Kenyans.  They are tired of what has become a 6 year investigation process. Most surprising, however, is that this “fatigue” is present even among victims of the violence. They are, “accepting the narrative purveyed by national leaders – that they should accept what had happened and move on.”  There is not public consensus, however, that justice and reconciliation are unnecessary. Many advocate for “justice in whatever form,” including, especially, mechanisms for reconciliation.  Indeed, because the alleged perpetrators are still in power, there is no question that victims must continue to live within the system orchestrated by those who committed crimes against them and their families. Potential public fatigue with the ICC and criminal prosecutions, as well as the entrenched power of alleged perpetrators, point to a severe need for serious reconciliatory justice.

The ICC in Kenya

ICC Prosecution Accuses Kenya Government of Withholding Evidence

This week, the ICC prosecutor publicly accused Kenya’s government of withholding evidence relevant to the court’s investigation in the country. In 2007, post-election violence killed 1,200 and displaced 300,000-500,000. The ICC opened its investigation in the wake of Kenya’s own failure to prosecute those most responsible as per the peace agreement. The court has issued indictments for three perpetrators from each side of the conflict; among these are current president Kenyatta and deputy president Ruto. While Kenyatta and Ruto are voluntarily standing trial, this case shows many issues with prosecuting a sitting head of state. It has provoked hostility to the court from the African Union, where Kenyatta is popular and intrusions on sovereignty are feared. Both Kenyatta and Ruto wield extensive power in Kenya; they are often absent from their hearings, and there have been accusations of intimidation and bribery of witnesses. The new accusation of withholding testament is a further demonstration of this power. While the voluntary cooperation of a sitting head of state in an ICC investigation increases the court’s legitimacy, officials’ ability to obstruct that same investigation undermines this achievement.

The ICC Witness Project and Kenya

Kenya violenceTake a look at the ICC Witness Project that

“is a collaboration between Kenyan poets, in Kenya itself and in the diaspora. The project aims to give voice to some of the missing witnesses for the ICC trial. We want to make sure those who were part of the Post-Election Violence that rocked Kenya in 2008 are not forgotten.”

Read through some of the posts on your own. This article explains the project further, in terms of why it is necessary, and how Kenyans are dealing with the legacy of violence and ICC trials. It also has a few selected and powerful posts.

Kenya needs a great many things.

It needs Post-Election Violence to unhappen:

Those who were killed need to undie, need to
crawl from their graves in solidarity.
Ashes need to burn backwards, float in air,
gently unfuse themselves from wooden church doors
and melted glass windows.

women need to guard their wombs, begin the process
of being unraped, erase their memories
as they become whole, unbirth those children who
were begotten from violence.

And those displaced people! They need to move,
redisplace themselves back to their original locations.
Retill their lands, watch the stones
jump magically back into houses.
The pangas need to flake off the blood,
replace themselves quietly,
claim back the rust that spotted them before.

Kenya is moving on.
Kenya is moving on.

Witness #47

I do hereby make oath and swear as follows:

1. THAT I am a male adult individual of sound mind hence competent to swear this affidavit.
2. THAT I once said something about someone, but I’ve changed my sound mind.
3. THAT I now revoke my testimony because I’m terrified of what might happen instead.
4. THAT I never expected those I moved against to come into power.
5. THAT both bribery and threats are effective tools to buy a witness.
6. THAT if you are reading this, I might be in a shallow grave somewhere.

–Witness #82 

It’s an important outlet for all those victimized by the post-election violence in Kenya, and not just the selected few who can participate in an ICC trial. The Kenya cases have been marred by accusations of witness tampering, bribery, and intimidation. Truth-telling must therefore be a central feature of any accountability in Kenya. 

Effectiveness of Proceedings

Effectiveness of Proceedings

In the case against Kenyan President, Uhuru Kenyatta, there have been continual talks that the prosecution may eventually be forced to withdraw from lack of evidence.

Kenya’s government is considered to be obstructing the crimes against humanity case against its president by withholding access to crucial documents. 

Under Article 17, what kind of jurisdiction can ICC exercise when no action is taken by the state or when the state is unwilling or unable to genuinely carry out the investigation in the prosecution?

The terms “unwilling” and “genuine” both seem to have complex political ties based on both normative and empirical factors.

Even if the Kenyan government were to comply and provide evidence, how would we know if the evidence presented will suffice? Is there a reward system set in place in order to get evidence on a more timely manner? If the ICC acts, in certain respects, as a human rights court, and they do not reflect the intentions of due process, wouldn’t this be inconsistent with the intention of bringing people to justice?

As with so many cases, I understand that delay may be necessary (but not a sufficient requirement), but how does the Court assess delay and reasonable time? Is this simply determined on a case-by-case basis? Is sickness and death of indicted individuals the ultimate delay in justice? 

Deferral Worthy? Kenya and the ICC

Deferral Worthy?

Should Kenyatta’s case be given deferral by the Security Council Under Article 16 of the Rome Statute?

At the 12th ASP meeting last year, Uganda’s minister for Justice and Constitutional Affairs, Mr. Frederick Ruhundi stated that Kenyatta’s case should be granted deferral by the UN Security Council. Ruhandi argued that the Kenya’s decision to elect Kenyatta should be respected and he should be granted deferral while he still holds office. This power of the security council to defer cases is granted under Article 16 of the Rome Statute. Article 16 allows the UN Security Council to pass a resolution under its Chapter VII authority to defer an ICC investigation or prosecution for a renewable period of 12 months. Article 16 states in full: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the court to that effect; that request may be renewed by the Council under the same conditions.” Chapter VII of the UN Charter empowers the Security Council to take measures to “maintain or restore international peace and security” if it has determined “the existence of any threat to the peace, breach of peace or act of aggression.”

While several occasions have arisen over the years where states have argued that deferral under Article 16 of the Rome Statute of an ICC investigation was necessary, the Council have never yet used its power of deferral. In Kenyatta’s case, while I do understand the argument in support of his case’s deferral, believing that his case should be put on hold until his presidential term is complete, it at the same time sets a bad precedent for Article 16 and the role of the ICC. Under the statute, article 16 deferrals should only be granted by the Security Council when a case is believed to pose a threat to peace and security. If they were to grant Kenyatta’s case worthy of this, it would send the message that State’s have ultimate authority over the court. Additionally, it sends the message that a State can simply threat violence or outbreak if the court does not grant their wishes. This would be a huge threat to the legitimacy of the court.

Is the ICC discriminatory towards Africa?

In keeping with this week’s concentration on the ICC, I found this article from the New York Times Book Review, which is to be published next week.

This article addresses the claim that the ICC is discriminatory towards African leaders, as it has only prosecuted Africans in its 11 year history.  This accusation is particularly applicable today, as the ICC is encountering resistance from the Kenyan Government during their prosecution of their former President, Uhuru Kenyatta, for the 1,100 murdered and 650,000 displaced during the elections in 2007-2008.  The Kenyan Government has appealed to the UN Security Council and the African Union and sent diplomats to various African nations in an attempt to incite a mass withdrawal of African participants in the ICC, a move which would undoubtedly cripple the ICC; of the ICC’s 122 participating states, 34 are African.

The author of the article, Kenneth Roth, lists the many reasons that the ICC has only prosecuted Africans until now: many African nations enlisted the assistance of the ICC to try their former leaders, the high level of support the ICC has been shown by African nations, and the supposed predilection of its former chief prosecutor, Luis Moreno Ocampo of Argentina, to pursue arrest warrants rather than engage the court in long legal battles.  However, the supposition that the ICC is discriminatory towards Africans is a more concrete criticism of the ICC, which is interesting because the readings we did this week had to do with the tough balance that the court must walk between its own power and respecting state sovereignty, a more theoretical dilemma than the one presented by the Kenyans today.

ICC: “The home of justice” or “the toy of declining imperial powers”?

“The ICC has been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims. It stopped being the home of justice the day it became the toy of declining imperial powers.” – Kenyan President Uhuru Kenyatta at a recent African Union summit

In class last week, Professor Tiemessen mentioned the current trial of  President Uhuru Kenyatta of Kenya.  Kenneth Roth, in a recent New York Review of Books article, investigated the case and what it means for the future of the ICC.

President Kenyatta is accused of directing violence during contested elections in 2007 and 2008.  An estimated 1,100 people were killed and as many as 650,000 were forced to flee their homes.  Kenyatta, now on trial at the Hague, is fighting vigorously against the ICC; however, rather than relying on proof of his innocence, his focus seems to be on de-legitimizing the process and cause of the international court.

Kenyatta’s trial has showcased several issues haunting the ICC since its inception especially its authority (or lack thereof) as an international court and its politicized nature given the whims and motives of member and non-member states.  Beyond this, Roth provides interesting commentary on the historical trajectory of the ICC as it has attempted to create legitimacy around its mission and institutional processes.  “In its initial years, perhaps in an effort to establish itself and build political support, the ICC seemed to focus on widely despised figures who lacked a powerful constituency—people like the child-kidnapping Kony or the warlords of eastern Congo.”  But what happens when the ICC goes after heads of state who might be powerful and powerfully supported in their home region?

Now as the ICC turns to prosecuting such heads of state, and moreover sitting heads of state, its work faces increasing resistance not only from the individuals themselves but from the states in which such individuals wield power.  Kenyatta’s trial provides an example of this.  As Roth explains, “Ominously, the alliance campaigned in part by denouncing the court, turning the charges against its leaders into a nationalist protest against interference in Kenya’s affairs.”  Kenyatta has removed the focus of his trial from his criminal past and towards the role and function of the ICC.

As Roth writes, “Kenya” (notably not Kenyatta) “has been making two main arguments in its defense.”  Kenya argues that (1) the court is Africa-centric in its work to identify and condemn perpetrators of human rights atrocities, and (2) a head of state should not be put on trial until after he has served out his term in office.

The reasoning behind this second point is to maintain state-wide stability and allow officials to carry out their imminent duties.  (In Kenyatta’s case, coordinating resistance against local terrorist groups like al-Shabaab.)  This second point goes directly against the ICC’s governing statute which declares that heads of state are in no way exempt from immediate criminal prosecution.  This defense, I believe, provides the most interesting detail of Kenyatta’s trial because Kenyatta’s defense largely ignores his own criminal acts and rather relies heavily on accusations against the legitimacy of the ICC.  What does Kenyatta’s trial mean for the future of other ICC cases?  Will Kenyatta’s trial shift the focus or scope of ICC action?  How might his defense influence the defense of future accused leaders?  Roth’s article presents many of these questions (and more) and provides an interesting read on challenges faced by the ICC as it enters its 12th year.

Kofi Annan tells Kenyans not to vote for candidates indicted by the ICC

Kofi Annan (the former UN secretary general) is urging Kenyans to not vote for politicians who are going to go on trial at the ICC. The vote is in March 2013, and two candidates, Uhuru Kenyatta and William Ruto, are going to be tried. (Earlier blogs here mention this alliance).

Both candidates are actually running together, in hopes of showing that Kenyans are united. Kenyatta and Ruto were both indicted by the ICC of crimes against humanity in the 2007-2008 Kenyan crisis. Ruto was also charged for corruption. Because of this indictment, most leaders of other governments won’t want to work with them.

Annan’s recommendation was based on the fact that a leader needs to be able to meet with other heads of state and be trusted by them. “When you elect a leader who cannot do that, who will not be free or will not be easily received, it is not in the interests of the country and I’m sure the population will understand that,” Annan said.

Tribalism vs. Democracy

Tribalism and traditional tensions between various ethnic communities seems to be a common theme throughout Africa. These deep-rooted tensions create divisions in all parts of life, and contemporarily in political life. In light of the present situation in Kenya where violence has been (and is sure to continue to be) based upon ethnic discrimination, it is interesting to question the relationship between tribalism and democracy. Kenya is not the first African nation to host these ethnic or tribal frictions among various communities: Sierra Leone, Rwanda, and South Sudan (to present a few examples) have also been permeated by ethnic considerations in the political realm. What this really boils down to is that the majority of people in these countries identify more closely with their tribes than their country. Historically, the effect on an unconnected nation on democracy proves to be corruption, discrimination, and violence: elected leaders will play favorites, thus causing discrimination and lack of attention to parts of the population, followed by dissatisfaction, resentment, and often brutal clashes between the victims and perpetrators of this prejudice. In Kenya, the tensions are so high among tribes that people are talking about temporarily moving during the election period due to fear of their neighbors: “Many of my neighbours are not from [my] tribe, and I know whatever the outcome of the coming election, they might attack me. I don’t want to wait for that to happen. I am looking for a house to rent in a place where my people are many. It is the only way I can feel safe.”

Thus far, I have portrayed tribalism in a negative light. However, it is also important to mention that not all African nations are afflicted by deep tribal divisions and it is possible to transcend ethnic differences in order that a national loyalty and identity trump tribal divisions. There are various ways to resolve ethnic divisions, such as creating one national language that supersedes local or ethnic loyalites as the independence leader Julius Nyerere did for Tanzania. (The picture above shows the various languages and dialects of Kenya by region.) “Stengthening democratic institutions is another approach – election results people can trust and independent law courts which deliver honest verdicts would give people less need to rely on the protection and provision of tribe.”

In the end, the question I’d like to put up for discussion is: Is tribalism undermining democracy in Africa?

Elections in Kenya: As Polls Loom, Tensions Mount

With the March 2013 Kenyan elections looming on the horizon, the realties of political violence become more real. Many remember the inter-communal violence of the 2007 elections in which some 600,000 people fled their homes and more than 1,500 were killed. To avoid regional and ethnic violence in the coming election, many people are making arrangements to go to other areas of the country where they may hopefully avoid the violence likely to erupt near their homes in the slums. According to government data, 71 per cent of Kenya’s urban population lives in slums. “During the [2007-8] post-election violence, traditional myths about the existence of ‘ancestral homelands’ – considered to be binding to specific ethnic communities by blood – were transferred to Nairobi’s suburbs and violently enforced,” the Nairobi-based Peace Research Institute wrote in a recent report.

“Ethnic identities were checked by vigilante groups at zone boundaries [in slums], inter-group clashes occurred mostly along such boundaries, and the slum-dwellers adjusted their daily movements with regard to the location of ethnic zones (e.g., by avoiding zones held by members of opposing ethnic communities),” the report added

Pockets of violence have already begun to erupt across the country, worrying many following the Kenyan elections in the international community. It has been suggested that Kenyans need to be sensitized on national unity and also learn the skills to be able to address their grievances without necessarily finding comfort in their tribal groupings.  But would it be possible to teach them these skills? Is there even room for international intervention? Or would this only exacerbate tensions within Kenya even more, adding more outside seemingly outsider opinions to the mix?

Two Of “Ocampo Six” Will Run On Shared Ticket For Kenya’s Upcoming Election

Two members of Kenya’s “Ocampo Six”—Deputy Prime Minister Uhuru Kenyatta and ex-minister William Ruto—just announced that they are campaigning for the March presidential election as running mates. As you may recall from lecture, they are charged with crimes against humanity by the ICC for deadly election violence in 2007 (more details: the six men cooperated, two had the charges dropped, and trials for the other four, including Kenyatta and Ruto, will begin April 10).

In a blog post about a month ago, awoodz wrote about public opinion of the ICC in Kenya, pointing out that most Kenyans support the ICC’s charges but also tend to politically support the same people who are being charged. The political implications are further exacerbated by the fact that the election is to be held just one month before the trial (a petition that sought a court ruling on wether Kenyatta and Ruto were allowed to run was unexpectedly withdrawn this week).

I look at this and see a collision course for another year of election controversy. Ruto and Kenyatta, who were originally rivals, make up a very serious candidacy and are in the position to both (possibly) win the election and be convicted or delegitimized by the ICC. As Ruto says, “It is up to Kenyans to elect leaders, and not the courts.” What is the proper role of the ICC in this situation? Should it stick to its ideals and carry out justice regardless of the political reality? Or should it mitigate the side effects by perhaps delaying the trial, which would have multifarious consequences of its own. It seems like a very delicate situation at every angle, and the outcome will likely send a big message to the international community about the ICC’s willingness to engage in a politically “hot” matter.

ICC Indicted Presidential Candidates Discuss Alliance

Uhuru Kenyatta and William Ruto seek Kenyan alliance 

A recent posting on the BBC News website addresses a possible discussed alliance between two key candidates in the 2013 Kenyan Presidential Election. The two candidates, Deputy Prime Minster Uhuru Kenyatta and former minister William Ruto have both been indicted by the ICC and charged crimes against humanity in relation to orchestrating the violence that followed the elections of 2007. As the article states, “both men deny playing key roles in the violence of the 2007 poll” and intend to  follow through with their plans to run for office. While communications are still in their negotiatory stage and nothing has officially been established, this discourse between the two presidential candidates charged with crimes by the ICC could potentially result in important political ramifications both on the national and international stage. Their defiance of their charges in running for office is notable, as the people of Kenya even question if the candidates should be put on the ballot. The article discusses how a court in Kenya will convene next week to hear a petition that would potentially bar the two candidates from entering the election. Civil society groups have been especially outspoken in attempting to keep the candidates from running.

Munyori Buku, the director of communications in the Deputy Prime Minister’s office released the statement, noting that “the goal of their alliance would be ‘national unity, prosperity for all Kenyans [and] reconciliation'”. This statement contains validity in that the potential alliance between the two candidates could lead to more peace  and stability following the post-election results next year as Kenyatta and Ruto were on opposing sides during the 2007 election. However, while peace and reconciliation between all Kenyans following the 2013 elections is the ultimate goal, it must also be considered what additional hidden agendas may exist under all this rhetoric. It is especially important to frame the actions of Kenyatta and Ruto in relation to their upcoming trials in the Hague, scheduled to commence around the time of the election next year.

Public Opinion of the ICC in Kenya

Public Opinion of the ICC in Kenya

A new Gallup poll came out that surveyed Kenyan public opinion about the ICC proceedings in Kenya and the upcoming election. The primary findings were that: 1) 7 out of 10 Kenyan support the ICC indictment of the Ocampo Six 2) Fewer than 1/3 of Kenyans want the trial to take place in Kenya and 91% of Kenyans are opposed to the trial taking place anywhere else in Africa and 3) overall it seems as if the ICC court proceedings are not significantly affecting voter intention in the upcoming election, with Kenyatta and Kuto (the two officials whose charges were dropped) coming in second and third after current president Odinga in polls.

On the one hand, the public is obviously very adamant in their desire to enact justice through the ICC in the Hague. On the other hand, many Kenyan citizens still politically support the same people who they want charged. While these contrasting positions could be seen as sending “contradictory messages” (as the Economist thinks), it seems to me that the results are more an affirmation of the ICC chief prosecutor’s stance that judicial and election processes are indeed two distinct social processes, which do share some political space of course, but are not inherently dependent in all aspects.

This reminds me of a comment that Professor Tiemessen made during last Thursday’s lecture: she thought the assertion that ICC judicial processes markedly influence domestic political decisions in some sense overestimates the ICC’s power over political practice. Indeed, I think that in assessing the political agency of the ICC it is important to keep in mind public utilization of the ICC as a political tool. That is, it is important to question how the ICC becomes political. Yes, holding the Ocampo 6 trials in the Hague is an international political maneuver that helps to re-assert the ICC’s universal jurisdiction, but as the Gallup poll indicates, it also reflects a political decision by Kenyan citizens to use the ICC to demand justice while pursuing their own distinct political agendas.

Bensouda visits Kenya To Hear Victims’ Stories

Chief prosecutor Fatou Bensouda went on her first official trip to Kenya to speak to victims and displaced persons who suffered from the violence of that nation’s 2007 election. It is estimated that over 1,300 people died as a result of the violence that followed the election, and displaced some 350,000 more. 

Bensouda made it clear that the ICC would be prosecuting those most responsible for the crimes committed, namely key politicians and businessmen at the top of the chain of command. This has once again sparked the debate of how to deal with lower level perpetrators, who most likely will never be formerly tried in a court of law. The article sites one victim to the violence stating she refuses to return to her home because the individual who she witnessed killing her children and burning down her house still lives there today. This brings into the question then, how far do the reaches of justice extend? In cases when the victim is faced with their perpetrator after the conflict has ended, what can or should be done, especially if peace and reconciliation are the ultimate goals? 

Bensouda further separates the distinction between the actions of the ICC to the current elections in Kenya stating that “It is a separate process. It is not part of the elections  It is not part of politics”. However, can the ICC really separate itself from domestic politics? If the court is dependent upon the support of local governing bodies for both collection of evidence and ultimate prosecution of perpetrators, can the ICC really claim to be independent of the state politics? The ICC must be at least somewhat invested in the upcoming elections as it will partly dictate the unfolding of the future trials. 

Kenyans meet with Fatou Bensouda, the Chief Prosecutor of the ICC, to discuss their struggle

Since we had just discussed the role of the Chief Prosecutor within the ICC during class today, I thought this news today is very interesting:

Statement from the Prosecutor of the ICC

This is a link to a statement from the prosecutor of the ICC. It is interesting to read how the prosecutor views her role and her responsibilities in regards to truth telling, remembering the victims, and working with the national justice systems.

Kenya’s Election and Safety Concerns

Resounding claims of overall safety concerns were articulated in the recent BBC article: Viewpoint: Can Kenya avoid election bloodshed? Within this article, Gray Phombeah highlights a valid question of stability for Kenya during its elections between two candidate facing criminal charges. “ Episodes of inter-ethnic violence, killings, and the use of hate speech have increased” claims Phombeah. Moreover, and arguably more importantly, is the similarity between the current situation in Kenya and during the election in 2007 that resulted in the death of at least 1,000 people and displacement of thousands.

In our readings we have learned about the process of reconciliation and its essentiality for healing.  As proven from past situations, a country that has not fully experienced sincere reconciliation may often return to its violent state. This raises an important legal question. At what point will international intervention be able supersede the widespread outbreak of violence? Especially when that violence might de-stabilize that of the national military. While, of course, this suggestion breaches the sovereign power of any country, when will international law begin to favor basic human rights over that of state rights?

William Ruto’s Charges at the ICC

William Ruto, a presidential candidate in Kenya is currently facing charges at the International Criminal Court in The Hague for his alleged involvement in the violence that occurred during the 2008 presidential elections. He is accused of “being criminally responsible as an indirect co-perpetrator pursuant to article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, deportation or forcible transfer of population, and persecution.” Recently, BBC interviewed him about said charges and what would happen if he or Uhuru Kenyatta were elected. In a short clip, Ruto vehemently denies the charges that he is being faced, which goes along with what we discussed in class about the effectiveness of international criminal tribunals and how difficult it is to prove such serious crimes. Ruto states that he had no role in the planning and execution of the violence, going so far as to say that there is evidence that proves he was kilometers away from his house on days where he allegedly distributed guns. He ends that portion of the interview with a question that is sure to be echoed by his attorney, “What further evidence do you need?” It will be interesting to see how this “proof” affects his case and the upcoming presidential election.

Kenya’s Election and the ICC

Uhuru Kenyatta and William Ruto, two presidential candidates in Kenya’s upcoming elections, are both facing charges by the ICC for crimes against humanity committed during the post-election period of 2007 and 2008. As a signatory of the Rome Statute, Kenya is obliged to cooperate with the ICC, despite the fact that Kenya’s constitution gives immunity to Kenyan presidents from prosecution. In addition, both candidates have been cooperative with the ICC thus far, and state their intention to continue to cooperate in the future. Despite these positive signs of progress, there is still some concern over transitional justice in Kenya. With the elections to be held in March 2013 and the trials to begin the following month, Kenya has repeatedly requested a deferral of the cases (which the ICC has denied).  The ICC has also accused Kenya of being uncooperative and delaying responses to the ICC’s requests for assistance.

As Leebaw writes, international courts and tribunals “may override national conflict over the question of whether to ‘punish or pardon,’ yet debates over ‘whether to cooperate or not to cooperate’ may still undermine the goals of these institutions in important ways” (Leebaw 103-104). Despite Kofi Annan’s praise of Kenya’s reforms and mechanisms for addressing future electoral disputes, a lack of cooperation with the ICC may risk furthering a culture of impunity. With the election set to occur before the trials, there will be no set example of sentencing to deter future violence, especially if the outcome of the election is again contested. In addition, if either Kenyatta or Ruto are elected and convicted, Kenya will face new political challenges. Will a conviction override voters’ feelings towards their president-elect? What kinds of consequences will this have for reconciliation? How could a Kenyatta or Ruto administration (even if the president himself were unable to serve) properly address acknowledge the crimes of its leader, yet also move forward without destabilizing the country again?