ICC must go back to drawing board after Kenyan cases

This week President Uhuru Kenyatta made history as the first sitting Head of State to appear before the International Criminal Court (ICC) in The Hague.

However, formal judicial proceedings were overshadowed in media coverage and public debates by parallel theatrics.

Relatively little attention was given to the court’s decision that the President be addressed as Mr Kenyatta (rather than as President Kenyatta) in the status conference, or to the legal arguments presented.

Instead, coverage focused on the ‘dramas’, ‘spectacles’, and ‘staging’ of responses that occurred outside of the courtroom.

More specifically, it focused on Mr Kenyatta’s address to the joint session of Parliament on Monday; the temporary appointment of Deputy President William Ruto as acting President; President Kenyatta’s departure and arrival at Jomo Kenyatta International Airport; demonstrations in The Hague; the President’s public statements.

Published photos in turn provided portraits of the President’s relaxed demeanour; the Deputy President’s support for his colleague; the demonstrations on the steps of the ICC building led by the always colourful Nairobi Senator Mike Sonko; and the warm welcome the President received on his departure from and arrival in Nairobi and The Hague.

For me, what this coverage highlighted is the extent to which, the ‘virtual trial’ – or the “trial of cooperation” whereby the “political interactions between [court], State, and international community… determine a State response to [a court’s] demands for cooperation” (Victor Peskin 2009) – has taken centre stage. This is not unusual.

On the contrary, Mr Peskin’s work on the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda, as well as Duncan McCargo’s analysis of the Extraordinary Chambers in the Courts of Cambodia, reveal a common pattern whereby political debates around an international criminal judicial process tend to gain predominance. But why is this?

PROTECT INDIVIDUALS

First, international tribunals and the ICC lack the vestiges of a State and are therefore reliant on government cooperation to carry out investigations, locate witnesses, and bring suspects to trial.

However, there are a number of reasons why states or political elites might not want to cooperate with such processes, or might seek to bring them to a halt.

For example, they may seek to protect particular individuals or institutions from successful prosecution, or to defend themselves against (or to use) nationalist arguments regarding the need to protect state sovereignty from external interventions.

As a result, the prosecution tends to try and negotiate with, but also to shame states in an ongoing effort to motivate state cooperation; while targeted states often seek to use the court’s intervention for their own ends or to counter-shame the court — whereby they stress (and sometimes exaggerate) a court’s shortcomings and mistakes — in an attempt to undermine its moral authority.

In this case, Kenyan elites have proved particularly adept at counter-shaming the ICC and at questioning its neutrality, its interpretation of events, and potential impact. Thus, emphasis has been placed on the fact that all of the ICC’s cases focus on Africa cases.

In turn, President Kenyatta and his Deputy have presented themselves as innocent parties who have been ‘taken to’ The Hague by vested interests.

Finally, it is argued that — as democratically elected leaders of a regional powerhouse in an area wracked by terrorism — that the cases are detrimental to peace, security, and development.

ON TRIAL

I leave it to others to determine whether they are swayed by the arguments presented by the ICC or the Jubilee Alliance and their respective supporters in this ‘virtual trial’. But what is clear is that the ICC is also on trial.

Moreover, it is evident that, if the ICC is to be more successful in future cases, it needs to learn that it cannot simply rely on the moral high ground of being an ‘international’ judicial body or the strength of its legal arguments to ensure that it enjoys sufficient support to conduct successful investigations and prosecutions.

Instead, it has to work to inculcate greater faith in all aspects of its works so as to ensure that it is generally perceived as an example of neutral justice, and that it cannot be so easily recast as a performance of injustice and as a threat to a country’s sovereignty, peace and security.

In short, it is time that the ICC gave more consideration to the whole range of its operations from its selection of cases and investigations to its public relations and outreach programmes.

Gabrielle Lynch, associate professor of Comparative Politics, University of Warwick ([email protected]; @GabrielleLynch6)