Unpacking the International Criminal Court intervention in Kenya – Fellows’ seminar by Njoki Wamai

14 October 2021

“International criminal law as epitomised by the International Criminal Court (ICC) assumes that retributive justice is the most effective way to end impunity after mass atrocities universally,” said Dr Njoki Wamai, Assistant Professor at the International Relations Department, United States International University-Africa based in Nairobi.

STIAS Iso Lomso fellow Njoki Wamai during her seminar on 7 October 2021

Wamai, one of the fifth cohort of STIAS Iso Lomso fellows, is working on this research project which will result in a book. “I’m exploring the ICC intervention in Kenya to understand the impact on victims’ conceptions of international justice and their cultures of survival. I have been documenting popular, granular perceptions in Kenya and I hope to do so with other African countries where the ICC has intervened to understand its legacies for peace and reconciliation.”

Wamai traced the development of the ICC from the Nuremberg Trials – “This was the first time that political leaders were prosecuted and where there were individual criminal liabilities for atrocities”; through the establishment of international criminal courts for Yugoslavia and Rwanda; the proposal of a permanent international court and the Rome Statute which established the ICC in 1998 and came into force in 2002. The Statute was initially signed by 60 countries but currently includes 124 states. However, major powers like the USA, China, India and Russia are not signatories. The Statute established four international crimes namely genocide, crimes against humanity, war crimes and the crime of aggression.

Wamai explained that from the beginning the ICC faced challenges and criticisms from the US, China and Russia. “The ICC was seen as interfering in their sovereignty and the ICC’s ideas of victors’ justice have been criticised,” she explained. “The ICC thrust itself into ongoing dilemmas faced by post-conflict countries like – Does peace or justice come first post-conflict?”

“As many of the ICC’s active cases are from Africa – it’s also seen as neo-colonialism and lacking in legitimacy. The general conception is that the ICC has double standards – it’s more likely to act against Africans, Asians, etc. than against Western powers,” she added. “The court also has no actual mechanisms to arrest – states have to do that – this is seen as ineffective and lacking in authority.”

Turning to her case study in Kenya, Wamai explained that the ICC intervened in Kenya after the disputed 2007/8 election led to violence, resulting in the displacement of over 650 000 people and the death of 1133 according to the post-election violence commission report.

The ICC started work in 2010 with its then prosecutor Louis Moreno Ocampo declaring that, “Kenya would be a lesson in dealing with mass atrocities”. This included the establishment of a Truth, Justice and Reconciliation Commission. The ICC initially had public support (60% according to Gallup polls) pushed with strong campaigning including the tagline ‘Don’t be vague, let’s go to The Hague’.

However, once six top-level commanders were indicted – the Ocampo 6, including current President Uhuru Kenyatta and his deputy William Ruto – support declined dramatically.

“The six came from the two major ethnic groups which had a history of existing divisions that led to the conflict,” explained Wamai. “The ICC failed to understand what that meant.”

Things came to a head with the formation of a coalition between two of the accused who then went on to fight and win the 2013 election.

“Despite charges of crimes against humanity before the ICC, President Uhuru Kenyatta and his deputy William Ruto were controversially elected in the 2013 general election,” said Wamai. “The ICC then withdrew the case in 2016 citing lack of cooperation by the Kenyatta-led government.”

When elephants fight, the grass suffers

“I believe the ICC left with egg on their faces,” continued Wamai. The ICC was preaching justice but local politicians discredited justice in favour of some kind of temporary peace. The case shows that the international court may not fully understand victims’ and survivors’ unique demands for justice within their local contexts.”

“The coalition included the biggest ethnic numbers. They sold a narrative of peace to the electorate. Victims are not passive, they have interests, and, in particular, don’t want disruption of their lives because that can take people back to poverty. They wanted peace and the ICC became the common enemy.”

“The ICC essentially precluded history, context and existing conflicts. Their top-down framework constructed justice as governance. The ICC in Kenya saw itself as not part of the politics. Basically the ICC was naïve, failing to understand the history of reciprocity and obligation that defines communities.”

This has caused a crisis in the image and purpose of the ICC since 2016 with some countries, including South Africa, wanting to leave. “I believe it’s time to rethink what they do and why, time to assess the court’s political, legal and popular legacy,” said Wamai.

“The marriage of convenience that led to the coalition government is also now broken, leaving Kenya politically volatile.”

Justice denied?

“The sudden departure of the ICC coupled with the Kenyatta-led government’s peace narrative without justice also exacerbated the victims’ historical and on-going social and economic injustices.”

Most research on the ICC has been about the legal issues rarely about how people are impacted. Wamai’s PhD thesis, currently being turned into a book, is on this gap. She pointed out that local narratives often differ from the legal narrative.

“Some countries have used more traditional approaches to justice – like the Gacaca courts in Rwanda and Mato Oput cleansing rituals in Uganda. This is seen as being more restorative but is also subject to potential corruption and doesn’t offer consistent types of punishment. They are also not seen as dealing well with gender concerns like restoring dignity in rape.”

“I’m a firm believer in the need for justice to get peace, how it is done is the big question,” she said. “I believe in justice that addresses criminality and also marginalisation of communities. Unless the foundation of justice is based on a local, bottom-up level it collapses like on quicksand. We must first address the root causes of why people are marginalised, why groups are discriminated against whether its race, religion, ethnicity, class, gender. In Kenya the land question between ethnic groups and other historical injustices need to be addressed for sustainable peace.”

Michelle Galloway: Part-time media officer at STIAS
Photograph: Noloyiso Mtembu

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