Did the ICC Help Prevent Kenya Election Violence?
Published on April 1, 2013
Written by: Mark Leon Goldberg
One of the more hotly debated questions in international justice is whether or not the International Criminal Court has any sort of deterrent effect; that is, does the mere presence of the ICC or threat of ICC action deter would be war criminals from unleashing violence?
This is a difficult proposition to prove because it is hard to demonstrate any sort of counter-factual based on events that did not happen. But proponents of the ICC — and I count myself among them — tend to find evidence where we can.
Enter the generally peaceful outcome of Kenya’s tense election season, where fear of prosecution helped keep a lid on violence. To be sure, there was some rioting yesterday by supporters of the defeated candidate. But it was no where near the scale of the 2007/8 violence which lead to the ICC inquiry and 6 indictments.
So, does the relative calm and lack of violence in the wake of Kenya’s hotly disputed election evidence of the ICC’s deterrent effect? Jeffrey Gettleman:
There are a few crucial reasons there were far fewer stories this time around like Mr. Mwangi’s [a shop owner whose store was destroyed in the 2007/8 violence.]. First, Mr. Odinga and other politicians urged their followers to stay calm and accept the decision of the Supreme Court; in 2007 and 2008, before the courts were overhauled and people had more faith in them, Mr. Odinga had called for protests.
Second, protests were outlawed during this election period, and armies of police officers were pre-emptively deployed to stomp out any dissent.
Third, most Kenyans have been extremely fearful of returning to the frightening days of 2007 and early 2008 when the country essentially shut down and Kenyans of all ethnic groups and socioeconomic classes suffered.
“People are angry about the court’s decision, no doubt,” said one Luo man in Kisumu who spoke on the condition of anonymity because he feared for his safety. “But everybody just wants to move on.”
And fourth, there is the International Criminal Court hanging over Kenya like a thick, black cloud. Both Mr. Kenyatta and his running mate, William Ruto, have been charged with crimes against humanity, accused of organizing some of the violence during the last election period. They are scheduled to stand trial soon. Many Kenyans said this has served as a brake, making politicians of all stripes fearful of inciting any violence and then being hauled away.
I think it is fair to say the ICC was a contributing factor. Politicians saw many of their colleagues wrapped up in legal cases and under indictment–including even the leading candidate for president. That powerfully demonstrated to the political class that being an elite is no guarantee of immunity from international justice. The ICC can’t be “worked” as easily as the local criminal justice system precisely because it is separate from the political institutions as Kenya.
It would be difficult to speculate on how much the ICC contributed to deterring election related violence. But I think it is indisputable that it was a force for restraint.