4 - Ensuring Peace and Reconciliation while Holding Leaders Accountable: The Politics of ICC Cases in Kenya and Sudan
Corresponding Author(s) : Tim Murithi
Africa Development,
Vol. 40 No. 2 (2015): Africa Development: Special Issue on International Criminal Justice
Abstract
The International Criminal Court (ICC) was established as a permanent independent institution to prosecute individuals who have committed or are implicated in the most serious crimes of international concern including genocide, crimes against humanity and war crimes. This study assesses the challenge of ensuring peace and reconciliation while holding leaders accountable, with specific reference to the politics of the ICC cases in Sudan (Darfur) and Kenya. In particular, this article argues that the issue of prosecuting alleged perpetrators is problematic with respect to the cases that the ICC is currently engaged in. The study argues that since the ICC has become involved in peace, reconciliation and political processes, it thus has the potential to disrupt such initiatives if its interventions are not appropriately sequenced. The study further argues that both President Omar al-Bashir of Sudan, and subsequently President Uhuru Kenyatta of Kenya, managed to politicize the ICC interventions in their countries. The article concludes that this process of politicization of the Court’s interventions in Sudan and Kenya, eventually led the ICC into a political stand- off with the African Union (AU), with the United Nations Security Council being an unresponsive but implicated secondary actor. The study also concludes that since neither the ICC nor the AU have managed to find a way out of the impasse, there is a need to develop some innovative strategies. This article therefore offers some insights into a prospective way forward.
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- African Union, 2009, Peace and Security Council, Statement on the ICC Arrest Warrant against the President of the Republic of Sudan, Omar Al Bashir, PSC/ PR/Comm. (CLXXV), 5 March.
- African Union, 2012, Decisions, Resolutions and Declarations of the Assembly of the Union, Eighteenth Ordinary Session of the Assembly of Heads of State and Government, Assembly/Au/Dec.397(XVIII), 29 to 30 January, Addis Ababa, Ethiopia.
- African Union, 2013, Decisions and Declarations of the Assembly of the Union, Extraordinary Session of the Assembly of Heads of State and Government. Ext/ Assembly/AU/Dec.1-2, 12 October.
- Branch. A., 2011, Displacing Human Rights: War and Intervention in Northern Uganda, Oxford: Oxford University Press.
- Branch. A., 2012, ‘Neither liberal nor peaceful? Practices of “global justice” by the ICC’, in Campbell S., Chandler D., and Sabaratnam M., eds, A Liberal Peace? The Problems and Practices of Peacebuilding, London: Zed Books.
- Cassese, A., Gaeta, P. and Jones, J., 2002, The Rome Statute of the International Criminal Court: A Commentary, Vol. 1, Oxford: Oxford University Press.
- De Waal, A., 2008, ‘Darfur, the Court and Khartoum: The politics of state non-
- cooperation’, in Waddell N. and Clark P., eds, Courting Conflict? Justice, Peace and the ICC in Africa, London: Royal African Society. Available at http://www. lse.ac.uk/internationalDevelopment/research/crisisStates/download/others/ ICC%20in%20Africa.pdf.
- Fanon, F., 1964, Toward the African Revolution, New York: Grove Press.
- Ferguson, N., 2004, Colossus: The Rise and Fall of the American Empire, London:
- Allen Lane.
- Government of Kenya, 2008, Report of the Commission of Inquiry into Post-
- Election Violence (CIPEV – The Waki Commission), Nairobi, Kenya. Happold, M., 2006, 'Darfur, the Security Council and the International Criminal
- Court', International and Comparative Law Quarterly 55.
- International Criminal Court, 2014, Statement of the Prosecutor of the International
- Criminal Court, Fatou Bensouda, on the Withdrawal of Charges against Mr.
- Uhuru Muigai, Kenyatta, Press Release, 5 December.
- Integrated Regional Information Network (IRIN), 2004, Office of the Coordinator
- for Humanitarian Affairs, 25 March available at www.irinnews.org.
- Meernik J., 2005, ‘Justice and peace? How the International Criminal Tribunal
- affects societal peace in Bosnia’, Journal of Peace Research 42 (3): 271–89. Ndegwa, S., 1997, ‘Citizenship and ethnicity: an examination of two transition moments in Kenyan politics’, American Political Science Review, 91(3),
- September.
- Office of the Prosecutor of the International Criminal Court, 2007, Policy Paper on
- the interests of justice, The Hague: International Criminal Court, September. Rome Statute of the International Criminal Court, 2002.
- Sands, P., 2005, Lawless World: The Whistle-blowing Account of how Bush and Blair
- Are Taking the Law into their Own Hands, London: Penguin.
- Schabas, W., 2010, ‘The International Criminal Court’, in Black D. and Williams P., eds, The International Politics of Mass Atrocities: The Case of Darfur, London:
- Routledge.
- Sengupta, S., 2014, ‘Politics seen undercutting credibility of a court’, New York
- Times, 2 June.
- Sriram, C.L., 2009, ‘The ICC Africa experiment: the Central African Republic,
- Darfur, northern Uganda and the Democratic Republic of the Congo’, in Sriram C.L. and Pillay, S., eds, Peace versus Justice? The Dilemma of Transitional Justice in Africa, Scotsville: University of Kwa-Zulu Natal Press.
- United Nations, 2004, Extra-judicial, Summary and Arbitrary Executions: Report of the Special Rapporteur, Ms Asma Jahangir – Mission to Sudan, United Nations Commission on Human Rights, Sixty First Session, E/CN.4/2005/7/Add.2, 6 August.
- Voice of America, 2013, ‘US officials says that Kenya’s elections have “consequences”’, 7 February, available at www.voanews.com, accessed 15 June 2013.
References
African Union, 2009, Peace and Security Council, Statement on the ICC Arrest Warrant against the President of the Republic of Sudan, Omar Al Bashir, PSC/ PR/Comm. (CLXXV), 5 March.
African Union, 2012, Decisions, Resolutions and Declarations of the Assembly of the Union, Eighteenth Ordinary Session of the Assembly of Heads of State and Government, Assembly/Au/Dec.397(XVIII), 29 to 30 January, Addis Ababa, Ethiopia.
African Union, 2013, Decisions and Declarations of the Assembly of the Union, Extraordinary Session of the Assembly of Heads of State and Government. Ext/ Assembly/AU/Dec.1-2, 12 October.
Branch. A., 2011, Displacing Human Rights: War and Intervention in Northern Uganda, Oxford: Oxford University Press.
Branch. A., 2012, ‘Neither liberal nor peaceful? Practices of “global justice” by the ICC’, in Campbell S., Chandler D., and Sabaratnam M., eds, A Liberal Peace? The Problems and Practices of Peacebuilding, London: Zed Books.
Cassese, A., Gaeta, P. and Jones, J., 2002, The Rome Statute of the International Criminal Court: A Commentary, Vol. 1, Oxford: Oxford University Press.
De Waal, A., 2008, ‘Darfur, the Court and Khartoum: The politics of state non-
cooperation’, in Waddell N. and Clark P., eds, Courting Conflict? Justice, Peace and the ICC in Africa, London: Royal African Society. Available at http://www. lse.ac.uk/internationalDevelopment/research/crisisStates/download/others/ ICC%20in%20Africa.pdf.
Fanon, F., 1964, Toward the African Revolution, New York: Grove Press.
Ferguson, N., 2004, Colossus: The Rise and Fall of the American Empire, London:
Allen Lane.
Government of Kenya, 2008, Report of the Commission of Inquiry into Post-
Election Violence (CIPEV – The Waki Commission), Nairobi, Kenya. Happold, M., 2006, 'Darfur, the Security Council and the International Criminal
Court', International and Comparative Law Quarterly 55.
International Criminal Court, 2014, Statement of the Prosecutor of the International
Criminal Court, Fatou Bensouda, on the Withdrawal of Charges against Mr.
Uhuru Muigai, Kenyatta, Press Release, 5 December.
Integrated Regional Information Network (IRIN), 2004, Office of the Coordinator
for Humanitarian Affairs, 25 March available at www.irinnews.org.
Meernik J., 2005, ‘Justice and peace? How the International Criminal Tribunal
affects societal peace in Bosnia’, Journal of Peace Research 42 (3): 271–89. Ndegwa, S., 1997, ‘Citizenship and ethnicity: an examination of two transition moments in Kenyan politics’, American Political Science Review, 91(3),
September.
Office of the Prosecutor of the International Criminal Court, 2007, Policy Paper on
the interests of justice, The Hague: International Criminal Court, September. Rome Statute of the International Criminal Court, 2002.
Sands, P., 2005, Lawless World: The Whistle-blowing Account of how Bush and Blair
Are Taking the Law into their Own Hands, London: Penguin.
Schabas, W., 2010, ‘The International Criminal Court’, in Black D. and Williams P., eds, The International Politics of Mass Atrocities: The Case of Darfur, London:
Routledge.
Sengupta, S., 2014, ‘Politics seen undercutting credibility of a court’, New York
Times, 2 June.
Sriram, C.L., 2009, ‘The ICC Africa experiment: the Central African Republic,
Darfur, northern Uganda and the Democratic Republic of the Congo’, in Sriram C.L. and Pillay, S., eds, Peace versus Justice? The Dilemma of Transitional Justice in Africa, Scotsville: University of Kwa-Zulu Natal Press.
United Nations, 2004, Extra-judicial, Summary and Arbitrary Executions: Report of the Special Rapporteur, Ms Asma Jahangir – Mission to Sudan, United Nations Commission on Human Rights, Sixty First Session, E/CN.4/2005/7/Add.2, 6 August.
Voice of America, 2013, ‘US officials says that Kenya’s elections have “consequences”’, 7 February, available at www.voanews.com, accessed 15 June 2013.