The Hague has a lesson for Kenya today

It was an amazing sight. Sixty young, wonderful Kenyan law students were braving the cold, standing outside Churchillplein 1, in The Hague.

They were going through security clearance procedures, yesterday, to enter the International Criminal Tribunal for the Former Yugoslavia (ICTY).

The group was scheduled to attend a hearing in the appeal of Milivoj Petković, a Bosnian Croat army officer who was sentenced to 20 years in jail for ethnic cleansing and other crimes against humanity committed by the army under his command. Petković was the head of the Croatian Defence Council (HVO).

Petković sat quietly in the room while his defence lawyers argued his innocence with certain difficulty. After the hearing, we had a talk by Dr Serge Brammertz, Chief Prosecutor of the ICTY.

The ICTY was the first international criminal tribunal set up by the international community, after the Nuremberg and Tokyo tribunals that the winning powers set up following the Second World War to judge crimes committed by the losers.

Many international crimes were committed after the Nuremberg Trials ended, but no international criminal tribunal was set up until 1993, when the ICTY came into existence.

The international community has failed humanity several times, where atrocities have passed strangely unnoticed. One such instance today before our eyes is Syria, and it cries out to heaven.

Syria’s tragedy is much larger than the conflict in the former Yugoslavia, has lasted longer and has killed more people. The UN Security Council just looks at it, speaks about it and wrings its hands uselessly but does nothing about it. 

The Syrian people are dying because of a world dilemma; the dilemma of peace versus justice. Every long-ruling dictator dreads this dilemma, when the thought of relinquishing power crosses his or her head.

A CERTAIN AMOUNT OF PEACE

The international community also faces this dilemma before establishing war-crime tribunals. Amnesty may guarantee a certain amount of peace, for example, by offering a dictator a safe haven and a generous retirement package, usually full of luxury, in exchange for surrender of power.

This is the trade of justice for peace or freedom, and it sends a chilling message of impunity to other cruel leaders.

Is impunity – in the form of amnesty – the price we must pay for the sake of peace? Or as Brammertz put it, is injustice the price we must pay for peace?

The ICTY came into being because the UN thought justice could not be traded for peace. This is the great dilemma international justice attempted to resolve by having an International Criminal Court (ICC) with permanent jurisdiction.

This dilemma may have been jeopardised by the involvement of a political decision-making body, such as the UN Security Council, in this court.

Why should a political body such as the UN Security Council be involved in a judicial body like the ICC? The students were left with this open question in their minds.

Today, the answer to this dilemma may be found as the group pays a visit to the ICC in its new premises and hears the reasons from the judges and the prosecutor herself.

ARCHITECTURAL BEAUTY

The ICTY visit came to an end and Prosecutor Brammertz graciously accompanied us to the gate. The group had to rush for an appointment with Justice Julia Sebutinde of the International Court of Justice.

Justice Sebutinde was the first African woman ever appointed to the highest court on earth, the International Court of Justice, commonly known as the ICJ.

The ICJ is located at the Peace Palace, a beautiful building owned and managed by the Carnegie Foundation. It is a wonderful, living example of public-private partnership. How fitting that the building hosting the World Court would be owned by a private philanthropic foundation.

There can be wonderful and necessary interplay between the private and public spheres for the common good. In the case of the ICJ, it is appropriate that a court judging states would find its home in neutral entity that is not a state. 

The security clearance was quick and efficient and Justice Sebutinde was ready for us when we were ushered in the great hall, where all the important ICJ decisions have been taken.

Legal history and architectural beauty are overwhelming in this room. It is as if two different worlds had come together in one room, law and justice merged with architecture and harmony.

Justice Sebutinde delivered a majestic talk with a long, engaging question-and-answer session. Two hours went by so fast that we suddenly realised we had to rush out of the building to be on time for a reception at the Kenyan Embassy in The Hague.

EVERY YOUNG MIND

Kenyan embassies are homes away from home. The air, the reception, the charm and the Kenyan tea made students sense a sort of déjà vu, a longing for home. The students enjoyed every bit of hospitality.

This experience makes young Kenyans see their home country in a more positive light and forget petty, silly politics. For many of them, this visit engraves in their minds a fact that they had always taken for granted; that they are really, proudly Kenyan.   

The meeting at the embassy was short, after which the group had to make its way to a cocktail reception offered by the Mayor of The Hague at the City Hall.

The city government is very keen to change our perception of The Hague, from being a threat to a city of peace, where international courts deliver justice, making peace sustainable.

I guess this visit entrenched in every young mind the clear idea that lasting, sustainable peace is built upon justice, for peace is more related to freedom and respect than to the simple absence of war.

Day One was over. The academic trip had just started. Too many intense ideas, feelings and emotions had already been experienced in one day. The learners had moved out of the classroom and into the real world. Learning had acquired a different dimension. Change is in the air.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi