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The Priority of Conflict Deterrence and the Role of the International Criminal Court in Kenya’s Post-Electoral Violence 2007–2008 and 2013

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Abstract

The entry into force of the Rome Statute on 1 July 2002 establishing the International Criminal Court (ICC) has signified a shift in the goals pursued by international criminal law. Due to new types of warfare dynamics, international protection is in need of new orientations, particularly with regard to conflict deterrence aims. This urgency is widely documented by the normative action framework of the Responsibility to Protect (RtoP) and, more recently, by the UN Secretary-General 2012–2013 Reports for the RtoP’s implementation. The scope of this study is twofold. On the one hand, it aims to explore theoretical overlapping between the jus post bellum and the RtoP with regard to deterrence effects of the ICC; on the other hand, it proposes to illustrate such dynamics by reference to Kenya’s post-electoral violence during the period 2007–2013. Kenya represents an instance of a post-conflict society whereby transitional justice actions have taken place under a de facto adoption of a RtoP framework. As a result, I defend a qualified correlation between ICC’s retribution and deterrence effects. I claim that the hypothesis of the ICC’s deterring effects accounts in Kenya is constructed upon a general condition of direct compliance by self-interested rational actors (such as high-ranking political candidates and their secretariat) as well as on unintended effects of ethnic stabilization. I further consider that this possibility is reinforced by systemic interdependencies with other national and international initiatives such as the Kenyan National Dialogue and Reconciliation (KNDR) mediation initiative, the Grand Coalition Government, the Panel of African Eminent Personalities led by Kofi Annan, and the findings of the Commission of Enquiry of Post-Election Violence (CIPEV).

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Notes

  1. In discussing the post bellum, L. May refers to the problem that the “post” in post-war raises. He refers to the Second Gulf War initiated in March 2003: “By May of 2003, US President George W. Bush declared victory in this war. At that time, only a few hundred US soldiers had been killed. By August 2010, when US President Barrack Obama declared an end of combat operations, nearly 3000 more US troops had died since Bush declared victory. And even as late as the end of 2010, nearly 50,000 US troops were still in Iraq”; L. May therefore asks rhetorically “When did the Iraq War move into its post” phase? Surely it was not when Bush declared victory […]” (May 2013, 316).

  2. It must be observed with Jo and Simmons that “[…] the ICC does not outlaw war; it outlaws specific violations of the laws of war, those ‘limited to the most serious crimes of concern to the international community as a whole’ including genocide, crimes against humanity, and war crimes. Footnote 1 (Rome Statute, Art. 5(1) (a–c))”. It follows that deterrence effects can be successfully measured in so far as crimes against humanity, even if not all crimes, are halted (Jo and Simmons 2014, 5).

  3. On the distinction between retributive and social deterrence, see Jo and Simmons (2014). Differently from the authors’ conceptualization of social deterrence as a dependent variable on either international trade and aid, mobilization of human rights organizations or finally rebel groups with government aims, I consider it instead in terms of popular support for the ICC (Jo and Simmons 2014, 38). I consider here only an institutional systemic interconnection and not also preventive resources embedded within vulnerable groups themselves. For an account of this aspect, and particularly of how the external preventive aspect of the RtoP connects to the internal resilience capacity of targeted groups, see Mayersen (2014), 483–507.

  4. For a stimulating and sophisticated classification of Kenya as reflecting the case of a conflicted society within a non-transitional state, see Hansen (2011b), 1–46. While previously convinced of this classification, I here defend the view that Kenya’s post-electoral phase of 2007 is rather that of a post-conflict society under transition.

  5. On the perplexing issue concerning the legal status of the jus post bellum, see Chayes (2013), 291–305 and the reply by Verdirame (2013), 307–313.

  6. Whereas reparatory (or retributive) measures are based on the reconstruction of facts for the prosecution of individual criminals, restorative measures aim at reconciling the societal parties among themselves. In this latter sense, criminal justice should aim at reconciliation rather than the punishment of the perpetrator. Notwithstanding this radical difference, it remains essential to recognize the encroachment between the two areas. On this point, see Corradetti (2013).

  7. On the general definition and aims of the Responsibility to Protect strategy, see http://responsibilitytoprotect.org/ICISS%20Report.pdf (accessed 6.08.2013).

  8. The African Union, on the one hand, sponsored Kofi Annan diplomatic initiative for a Panel of African Eminent Personalities, whereas, on the other hand, it attempted, unsuccessfully, to promote negotiations through its Chair, John Kufuor. He arrived in the country on 8 January 2007 with the aim of having the Parliament sign the “Principles of Agreement”. This document was meant to establish a starting platform to address the reasons beyond post-electoral violence but, unfortunately, due to the hostility of Kibaki’s fraction, the agreement was not reached. See International Crisis Group. 21 February 2008. Kenya in crisis. Africa Report n°137, Nairobi / Brussels. http://www.crisisgroup.org/en/regions/africa/horn-of-africa/kenya/137-kenya-in-crisis.aspx. Latest access 30 May 2015.

  9. Groups which participated in the violent events and deaths that followed the 2007 elections consisted mostly of state forces and political militias, and in a minor percentage of rioters and communal militias (ACLED 2013, fig. 3).

  10. Majimboism refers to a general political process of ethic regionalization, decentralization and reinforcement of authority of local communities. However, this is a politically contested process which for some resorted to an attempt to stop the process of independence of the country. For its supporters, instead, majimboism is close, but not equal, to “federalism”.

  11. I refer here to the overall stabilizing effects based on other means than the ICC initiative: the Kofi Annan Panel of African Eminent Personalities, the Waki Commission, the Kenyan National Dialogue and Reconciliation, the Truth, Justice and Reconciliation Commission, and the political balance achieved by the coalition government of Odinga and Kibaki. Also the stabilizing role of the ICC must be understood within such a conflict deterrence non-judicial setting.

  12. The Rome Statute, indeed, clarifies that the role of the ICC is “complementary” and not in replacement of that of domestic courts.

  13. See Kenyan National Dialogue and Reconciliation and The National Accord and Reconciliation Act (2008). For the activities and the role vested by the TJRC, see Asaala (2010). On Kenya’s new constitution, see Kramon and Posner (2011); on Kenya’s gender policy issues, see Nordström (2013).

  14. Ruto and Kenyatta, the latter until 5 December 2014, are accused according to Art. 25 (3) (a) of the Rome Statute of being criminally responsible as indirect co-perpetrators. Kenyatta is held responsible of murder (Art. 7 (1) (a)); deportation or forcible transfer (Art. 7 (1) (d)); rape (Art. 7 (1) (g)); persecution (Art. 7 (1) (h)) and other inhuman acts (Art. 7 (1) (k)); in the case of Ruto allegations include murder, deportation and persecution.

  15. Polls have been conducted by Ipsos Synovate on the basis of face-to-face interviews with a sample of 2000 people, during a period spanning over the last week of June 2013. The results were released on 10 July 2013 and the error margin is estimated to be plus or minus 2.2 % (Ipsos Synovate 2014).

  16. Within a context of deterrence, the ICC’s outreach would also need to be seen as reduced in the spectrum of individual action, for instance, by the prosecutor (proprio motu). Also this will need to be connected more closely to the UN institutional framework. On a preliminary study taking into consideration some preventive functions of transitional justice measures at domestic level, see Hansen (2009); on the wrongs that the ICC can involuntarily provoke, see Schiff (2012). As for the difficulty in achieving criminal justice at the domestic level in Kenya, see Brown and Sriram (2008). See also Gegout (2013), 809–10.

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Acknowledgments

I wish to thank the other members of the panel for their comments: R. Teitel, J. Marko, B.A. Leebaw. I am particularly grateful to M. Saul and G. Zyberi and to the two anonymous reviewers for their comments and suggestions. Any remaining errors in the text are mine alone. This article is prepared under the auspices of MultiRights, European Research Council Advanced Grant #269841 at the University of Oslo, Norway.

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    Claudio Corradetti

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Corradetti, C. The Priority of Conflict Deterrence and the Role of the International Criminal Court in Kenya’s Post-Electoral Violence 2007–2008 and 2013. Hum Rights Rev 16, 257–272 (2015). https://doi.org/10.1007/s12142-015-0373-3

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