“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: