Those fighting terror must learn from Nuremberg and Yugoslavia

Sometimes I think all the security measures Kenya is taking to combat terrorism are as useful as installing Wi-Fi in a cemetery.

What is the value and purpose of all the fifteen thousand cameras in Nairobi? Are they working?

What is the purpose of those hundreds of round mirrors used by guards to screen cars all over the place? Have they ever detected a bomb?

Do those guards even know what a bomb looks like? When I ask them they all say “Yes, we have been trained.” Then, when I ask “What do they look like?” they all laugh nervously and change topic.

Why is everyone scanned everywhere? It is as if every place has become an airport, or perhaps a jail.

Our budget allocates Sh223.9 billion to security, roughly one tenth of a total Sh2.1 trillion. According to Dr Robert Mudida, Kenya’s security expenditure is twice that of Tanzania, three times that of Uganda and 10 times that of Rwanda.

Certainly, there are drastic differences between all these countries and their budgetary needs, and it is clear that Kenya did not choose its neighbours. It is also clear that what Kenya is spending on security is what Uganda and Tanzania are saving.

Kenya has become the pillow that cushions the region from the dangers of hotheads who would upset the relaxing peace of a good bed. The bed is beautiful East Africa and the hotheads are those radicalised people who would burn the pillow.

A meeting of minds has just taken place in Nairobi, attracting wise men and women from all over the world to share their experiences and put their brains together. They come from all corners of Kenya, from several African countries, from the US, Europe, Asia, Australia and the Middle East.

The focus of the discussion is “Terrorism: Challenges to emerging democracies in Africa”. These men and women belong to all races, religions and beliefs.

'TO DIE FOR GOOD IDEALS'

I have attended many meetings, workshops and conferences, and this one has been different. The topic is dangerous, daring, volatile and touchy.

People have sharp differences and divergent points of view. They have disagreed, but in a civilised manner. That’s the difference.

For some, terrorism is deeply rooted in the radicalisation of religion, for others in abysmal economic differences. For some, it is ethnic hatred and for others the secularisation of the state. Ideas were exchanged and people disagreed, but at no point was there violence.

Cabinet Secretary Nkaissery was frank and straightforward. He spoke on the necessity of dealing with terror with a heavy hand. He has a point.

The problem is how heavy should the hand be? How far should it reach and where should it be placed? “Should the hand’s heaviness be limited?” pondered Harvard Law School’s Prof Alex Whiting, and who determines this limits?

Could this hand get deformed or broken to pieces by the forcefulness of its strikes?

Serge Brammertz, Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, says we need a global solution, or else there is no solution.

‘Global’ for Brammertz does not mean only geographically global, but all-round. How much are policemen earning, what are their living conditions? Are they ready to die for their country? Are they ready to die for good ideals?

SUMMARY EXECUTION

The late Robert H. Jackson was the last US Supreme Court Justice to serve on the Court without a law degree, although he attended Albany Law School.

Among other things, he is remembered as the only person to have held the positions of Solicitor-General, Attorney General and Associate Justice of the Supreme Court.

Justice Jackson is best remembered for his involvement in the 1945 International Military Tribunal that held the first trial in history for crimes against the peace of the world.

This tribunal heralded a just method of meting out vengeance against the leaders of Nazi Germany deemed most responsible for war crimes and crimes against peace.

The question whether the Nazi leaders should be summarily executed or subjected to a justice process was, surprisingly, a matter of contention between the United States, Britain and the Soviet Union. Justice Jackson struggled to secure the triumph of justice over pride and vengeance.

Following the judgments of the International Military Tribunal, the International Law Commission derived a set of principles popularly referred to as the Nuremberg Principles which have, in several ways, guided the development of the body of international criminal law as we know it today.

Following the Nuremberg experience, the UN Representative of Trinidad & Tobago suggested in 1989 the formation of the International Criminal Court (ICC). Unfortunately, the Rome Statute that established the Court has encountered several hurdles during its relatively short lifetime.

BEYOND THE ICC

Its merits and demerits; successes and failures; scores and losses are often times over-emphasised or at times ignored. To do the ongoing debate justice, we must pass silently over it.

There is something positive to be said about the establishment of a Court with jurisdiction over particular crimes, which - as Justice Jackson would have it - are a “menace to the world”. There is something worth mentioning about a criminal justice system that threatens the impunity of the selfishly powerful, and the highly efficient and organised criminal underworld. N

National criminal systems have proved quite ineffective in the past in the face of complex transnational crimes. The future of international criminal justice is key to world peace.

This future is not pegged to the survival of the ICC and its successes and failures, or those of its officials, but is essential in an interconnected world, where human and drug trafficking, financial crimes, wildlife crimes and terrorism cross country boundaries with no visa restrictions.

We cannot guarantee success, but we guarantee failure by giving up.

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