"Peace will not come from a court case in a distant land": Kenya vs. The International Criminal Court


Interesting piece in The New York Times about the International Criminal Court, which is based in The Hague and prosecutes war crimes and crimes against humanity. The article is by Martin Kimani, Kenya's rep at the United Nations. The ICC has indicted high-level Kenyans for violent actions after the 2008 elections. Kimani notes that had the ICC, which came into being in 2002, existed when the Republic of South Africa dismantled apartheid and created its widely praised Truth and Reconciliation Commission, it would have likely indicted the very leaders who ended apartheid. 

If International Criminal Court had existed in the 1990s and applied the same evidentiary standards that were used to indict Kenya's leaders in 2011, it might very well have sought to charge Nelson Mandela, F.W. de Klerk, and Inkatha's leader, Mangosuthu Buthelezi, for the crimes that occurred on their watch, likely with fatal consequences for South Africa's successful transition.

Many South Africans were skeptical of the idea of a T.R.C., with its parade of sordid killers walking off scot-free.

But South Africa was afforded — and afforded itself — an opportunity to pursue its own solution to its challenge. If it worked in South Africa, it can work in Kenya, too. Our recent record of reforms demonstrates that we have an appetite to take up this responsibility.

Peace will not come from a court case in a distant land.

The ICC, argues Kimani, is not acting according to its charter, which focuses on "complementarity" with specific country's legal systems. The basic idea is that if a country deals with crimes in an effective way, the ICC should pull back and act only as a court of last resort.

After the post-election violence in 2008, a coalition government was formed and we overwhelmingly approved a new constitution. We now have a real separation of powers, an independent judiciary and prosecutor, an imperial presidency trimmed to size, and power has been devolved to the local level.

Like South Africa, we have a truth, justice and reconciliation commission that completed its work this year. And an independent electoral commission and courts delivered a free and peaceful election in 2013 whose winners, Uhuru Kenyatta and William Ruto, were political rivals in an alliance that united the main ethnic communities at the heart of the 2008 violence.

Read the whole thing.

Human Rights Watch says the Kenyatta and Ruto, both of whom are defendants named in The Hague proceedings, haven't done enough to stave off ICC involvement.

As Matt Welch points out here, the U.S. has had a strained relationship with the ICC and has certainly never (and with for many good reasons) submitted itself to its jurisdiction.

In 2010, Reason talked with T. Markus Funk, who worked at the Departments of Justice and State, and authored a critical analysis of the ICC titled Victims' Rights and Advocacy at the International Criminal Court.

Check it out below: