The current President and Vice President of Kenya are being tried by the International Criminal Court (ICC) on charges of organizing post-2007 election violence that killed more than a thousand, including a group of women and children who were burned to death huddling together in a church in Kiambaa that was intentionally set on fire. Unsurprisingly, perhaps, the pair is using their considerable political power to fight back against the ICC and the possibility of going to jail for crimes against humanity. Kenya, under their direction, has been leading the attack in the African Union against the Statute of Rome -- a treaty signed by 122 countries around the world which established the ICC. In the last few months, the animosity against international justice as delivered by the ICC has risen to a fever pitch.
The African Union, led by Kenya, met in early October to discuss withdrawing en masse from the Statute of Rome. When that effort failed, Kenya got the African Union to urge the UN Security Council to intervene for the benefit of heads of state accused of war crimes. The UN Security Council has declined to do so. Now Kenya is arguing before the Assembly of States Parties -- the group of nation states which signed the Rome Statute and exercise control over the Court -- that the Rome Statute should be amended to shield sitting heads of state from trial at the ICC.
Kenyan President Uhuru Kenyatta’s main argument against the ICC is that it engages in selective prosecution -- that all eight of the conflicts currently being scrutinized by the ICC are within Africa. But perhaps that claim requires closer examination. Of the eight situations, the ICC Prosecutors used their discretion to open investigations in only one -- that of Kenya. The other seven cases were either referred to the ICC by the Security Council or by the involved nation itself. Furthermore, the ICC is bound by the Statute of Rome and has limited jurisdiction. It can’t go after crimes committed by those who haven’t signed the treaty, including China, Syria, and Russia. While universal criminal justice is a goal for the future, there’s very little argument that fugitives like Omar al-Bashir or Joseph Kony or the others on the ICC Prosecutor’s arrest list shouldn’t be there.
The ICC’s vocal opponents point fingers at the organization -- ”The ICC is racist,” they say. “It’s on an African witch hunt; it’s the new face of Western Colonialism.” All their outrage seems to be focused on the national and racial identities of the powerful men accused -- and none focused on the hideous crimes these men are accused of committing against powerless victims. Why aren’t we hearing more voices in support of the African victims of these atrocities? Kenyatta has yet to be proved guilty of the charges he faces at the ICC. But who can question the seriousness of the events which led to those charges -- murder, rape, forced deportation, and other crimes against humanity against thousands of people in villages that supported his political opponents? Aren’t those victims entitled to a measure of justice?
This is not the first time in history that powerful men cried “racism” when charged with war crimes. The International Criminal Tribunal for the former Yugoslavia (ICTY) was accused of racism by the Serbs after its generals were charged with genocide for the horrors committed on the Bosnian civilian population. “Racism” seems to be a preferred emotional claim to try to attract sympathy against an international institution. But shouldn’t that sympathy be reserved for the victims of these crimes?
International criminal justice tries not to be diverted by the politics of nations. When the worst of the worst are at large, their victims are not free to make their voices heard. The claims of the powerful that they are the victims of the ICC ring hollow. The real victims are the millions who have been savaged by a handful of villains. Those victims have suffered through the worst that modern humanity has witnessed. The ICC steps in when a state has no means to tackle the grievous crimes committed by those in power. The people of Darfur, Uganda, DRC, Kenya -- which of these aren’t deserving of the ICC’s help? Shouldn’t our sympathy go to those victimized by these crimes rather than the powerful men accused of perpetrating them?
Powerful men create news. When Kenyatta goes before the African Union and urges countries to withdraw en masse from the ICC, that’s news. The news sets the agenda for the discussion that follows -- the ICC’s attention on situations in Africa; the unfairness of requiring sitting heads of state to face prosecution in the ICC. Maybe the victims were mentioned in the news when their village was first overrun, and their people were murdered or raped. But the victims have no power to set the agenda. Those who are still alive get to stand by and watch the world’s discussion turn to the unfairness of prosecuting the powerful. Let’s not let the political manipulations of powerful defendants distract us from the ICC’s noble purpose of seeking justice for the real victims of atrocities.
I’m a survivor of war and have first hand experience of what it means to be a victim of mass atrocities. Being a victim made me feel powerless and pushed to the brink. But when powerful men who terrorized me and my family were finally brought to justice, it meant a lot. Justice is not revenge. Beyond punishing the guilty, justice under the law gives back to the victims a part of their soul previously crushed by war. Justice gives voice to the powerless. Justice forever writes into human history our cries in the night.