Kenya and the ICC

by Kevin Jon Heller

Violence in Kenya following the disputed 2007 elections left more than 1,300 people dead and more than 500,000 internally displaced.  Last month, Kenya’s Commission of Inquiry into Post-Election Violence released a 527-page report — the Waki Report — that concluded much of the violence was planned and organized by members of Kenya’s security agencies, business leaders, politicians, and government officials.  The report recommended creating no later than February 28, 2009, “[a] special tribunal, to be known as the Special Tribunal for Kenya… that will sit within the territorial boundaries of the Republic of Kenya and seek accountability against persons bearing the greatest responsibility for crimes, particularly crimes against humanity, relating to the 2007 General Elections in Kenya.”  Actually, “recommended” isn’t the right word: to let the Kenyan government know that it meant business, the Commission of Inquiry also placed the names of suspected perpetrators into a sealed envelope, gave that envelope to Kofi Annan, and instructed him to pass the envelope along to the ICC Prosecutor if the Special Tribunal is not created by the deadline.  The identities of the suspects are unknown, but news reports indicate that the envelope contains the names of at least six Cabinet Ministers and five MPs.

Kenya’s leading political parties responded quickly and predictably to the Waki Report.  Prime Minister Raila Odinga’s Orange Democratic Movement (ODM) dismissed the report “in toto,” insisting that it is “full of incurable errors.”  And President Kibaki’s Party of National Unity (PNU) described the report as “shoddy and shallow.”

Enter the ICC.  Speaking to reporters two weeks ago, Moreno-Ocampo stated unequivocally that he is ready to investigate the Kenyan situation if the government does not take the Waki Report seriously:

The International Criminal Court has warned that if Kenya does not move fast to act on the Waki report, then it will take over the cases of the names contained in a secret envelope handed to Kofi Annan.

However, the prosecutor said the list of suspects in the envelope will only be the starting point of investigations to establish if there was any case that fits within their mandate.

Prosecutor Luis Moreno-Ocampo said if Kenya failed to try the suspects of post-election violence, then the court will move in to start investigations and prosecute those involved.

He said Kenya had no option but to form a tribunal to investigate and prosecute suspects in the Waki secret envelope handed over to Mr Annan, the former UN secretary-general who was chief mediator in the talks that led to the coalition government.

[snip]

The ICC prosecutor in the Dominican Republic was responding to a question by Mr Sirma during the meeting on whether he had received the secret Waki list and what he was going to do about it.

The meeting had been convened to check the status of the ICC ratification by the member countries.

Meanwhile, the Kenya National Commission on Human Rights, on Tuesday said it had submitted its report on post-election violence to the ICC and pledged to help the court to prosecute the suspects.

Mr Sirma told the Nation: “I asked Mr Moreno-Ocompo whether he had received the list from Kenya but he said that was a matter between the ICC and Mr Annan. However, he said they were watching what was happening.”

And he warned: “If you don’t want us to be involved, form the tribunal. We have been alerted about the killings.”

However, the prosecutor said the list of suspects in the envelope will only be the starting point of investigations to establish if there was any case that fits within their mandate.

Moreno-Ocampo’s statements had their intended effect: after much internal dissensus, both the PNU and the ODM ultimately endorsed full implementation of the Waki Report.  And Kenya’s coalition government has now agreed to create the Special Tribunal necessary to prevent the ICC from getting involved:

An official statement said President Mwai Kibaki and Prime Minister Raila Odinga would head a committee “to prepare an implementation work-plan” of the Waki report.

The two men lead a power-sharing government set up to end Kenya’s worst violence since independence.

The cabinet also agreed on Thursday to implement the report of another commission of inquiry which called for extensive reform of the electoral system to avoid a repeat of this year’s chaos.

The violence erupted after Kibaki and then opposition leader Odinga both claimed victory in a presidential election, but it was rooted in long-standing ethnic and land issues and the huge gulf between rich and poor.

Odinga’s decision to support the implementation of the Waki report, despite vocal opposition from within his ODM movement, was seen as a signal that Kenya has turned a political page.

Kenya’s response to Moreno-Ocampo’s ultimatum demonstrates the importance of a permanent international criminal court that has global jurisdiction and an independent prosecutor.  The ICC can only investigate a limited number of situations, but even the threat of an investigation can promote local accountability.  But for the ICC’s pressure, the government officials responsible for Kenya’s post-election violence would almost certainly escape accountability entirely — Kenya’s coalition government obviously has little interest in investigating its own members, and there is almost no chance that the Security Council would get involved in the situation.  Now those officials will at a minimum lose their government positions, and may well end up facing criminal prosecution for their actions.

It is impossible to know, of course, whether Moreno-Ocampo would have actually initiated an investigation had the Kenyan government not agreed to implement the Waki Report.  Assuming he would have, though, there is another reason to celebrate his actions: it indicates that the OTP may be moving away from its strictly quantitative conception of situational gravity, which I have continually criticized.  It is difficult to see how investigating the situation in Kenya could be defended on quantitative terms: although 1,300 dead is appalling and unacceptable, that number pales in comparison to the other situations the OTP is investigating.  Qualitatively, however, the Kenya investigation makes perfect sense: as I argue in my recent essay, given the importance the international community attaches to democratic self-governance and the frequency with which government officials and rebel groups use violence to steal elections, election-related violence is precisely the kind of extremely grave crime that the ICC should be investigating.

http://opiniojuris.org/2008/12/01/kenya-and-the-icc/

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