Why our obsession with ICC cases is frustrating peace-building efforts

The upcoming International Criminal Court trials may, in my opinion, be the matchstick that could set on fire the dry tinder that is Kenya’s highly-polarised politics.

While not appearing to downplay the suffering that many poor Kenyans underwent or have continued to undergo since the disputed elections, I am still leery of the attention-seeking antics of former ICC prosecutor Luis Moreno-Ocampo.

These sentiments are not unjustified. In the case of Sudan, for instance, Mr Moreno-Ocampo had repeatedly said, with no evidence whatsoever, that the government was orchestrating “systematic attacks to “eliminate African tribes”.

In an encouraging indication that the ICC judges had a better command of the facts, they rejected three charges of genocide, finding that he had failed to demonstrate that President Omar al-Bashir had a case to answer on that.

This was a stunning rebuff to Ocampo. Worse, the prosecutor hinted, again repeatedly, that he got his information from humanitarian agencies. Because of his rashness, the damage done was incalculable.

Agencies were expelled, their infrastructure dismantled, and assets seized. The Sudanese refugees were worse off now than before, due to those unrestrained pronouncements.

As a country, we are hobbling towards the General Elections guided by a fractious peace arrangement. The commissions established to operationalise peace are either infantile or prone to the same ethnic divisions that saw the country torn asunder in 2007.

Efforts at peace and reconciliation have largely failed because they lack both the political will and effective cultural re-engineering strategies. It is probable that the judgment of the Ocampo 4 could make or break this country.

The idea that a penalty should be retributive, deterrent, stigmatising and educative, presupposes a universal model of justice, the purpose of which is to uncover the truth and to inflict exemplary punishment to a few people.

As is well known, the retributive conception of punishment confers upon penalties, ethical or moral content, so that it seems widely accepted that universal consensus is met over the responses which should be given to international crimes.

Thus, retributive justice has been considered necessary since 1993. But retributive and exemplary justice is considered necessary also because it would be a decisive way to contribute to the prevention of new crimes.

The ICC Statute provides for the prosecutor an option not to initiate, or to suspend an investigation or a prosecution, if they do not serve the interests of justice [art. 53, par. 1 (c) and 2 (c)].

To serve the interests of justice means to give contribution to the satisfaction and reparation of victims, to the prevention of new crimes, and to reconciliation.

In the framework of the United Nations, at least since 1992, the prevailing idea is that peacemaking and peacekeeping interventions have to be followed by actions of peace-building to achieve lasting peace.

In the UN Secretary-General’s “Agenda for Peace” that year, post-conflict peace-building was described as “actions to identify and support structures which will tend to strengthen and solidify peace in order to avoid a relapse into conflict”.

This initiative depends critically on domestic initiative, capacity and political will, while requiring international support to facilitate the process.

The purpose of this process is that of creating and consolidating the bodies and structures needed to preserve peace; but also that of building a peace capable of reducing the risks of new conflicts by fighting against the economic, social, political and cultural roots of conflicts.

It is my view that a preoccupation with the Ocampo 4 may undermine efforts at national cohesion by victimising the suspects who hold a huge sway in their communities.