The International Criminal Court (ICC) has been placed under international scrutiny and even outrage within the last year, most notably because it has commenced a trial against current Kenyan President Uhuru Kenyatta and his deputy William Ruto for crimes against humanity committed during the 2007 post-election violence in Kenya. The court also remains under criticism for its continued, almost exclusive pursuit of African perpetrators, with all of the 21 cases from 8 different situations (countries) opened in the court coming from Africa. (It is important to note, however, that of the 8 situations referred to the ICC, 5 of them were referred to the court by the African nations themselves, and that the ICC is a court of last resorts, meaning that it may only pursue cases when national judicial systems fail to do so themselves.)
This ‘African bias’ of the ICC has given President Kenyatta, along with other African leaders, the fuel needed to attack the court and even attempt to withdraw from it. Given Kenya’s economic and political weight in Africa, namely in East Africa, President Kenyatta has been able to galvanize many African leaders to join his anti-ICC crusade and has even managed to force the court to bend its own rules. Specifically, the court has agreed to “special rules” for acting government officials, such as allowing for absences from hearings. As many have pointed out, such an action calls into question the court’s ability to execute fair and equal justice for all, no matter their position. As one Kenyan human rights activist and lawyer, Abdul Noormohamed, stated, “This is what we do at home, bending the courts for the sake of the powerful…It’s painful to see an international court now changing the rules for the sake of the ego of one powerful man.”
One issue the Kenyan case has glaringly highlighted in the international arena are the inherent difficulties in pursuing justice at the potential cost of peace, especially for democratizing nations. When examining democratic transitions, especially ones that occur after or in the midst of violent conflict, it becomes difficult to determine whether peace and stability or justice should prevail. Often, there must be some concessions made which sacrifice justice in order to achieve peace and vice versa.
This is clearly a large part of the debate over the ICC’s decision to bring sitting President Uhuru Kenyatta and his deputy William Ruto to justice. Now that Kenya has reestablished peace and stability following the 2007 post-election violence, does that mean that justice should not be pursued at the highest levels in order to maintain this peace? Is the threat of instability, not even the promise of it, an acceptable justification for the ICC to bend its rules to cater to a powerful leader? And what of the many thousands of victims of this violence, is potential peace worth the cost of their right to justice? Contrarily, is the endless pursuit of justice worth the lives that may be ruined in the future should this pursuit backfire?
These questions about peace and justice, along with many others about the future and continued relevance of the ICC, can be applied to many contexts and will continue to play out in the international arena, especially with the recent launching of war crimes investigations in the Central African Republic. Democratizing nations emerging from violent pasts must weigh the costs of both peace and justice in order to find a balance between the two so that violence does not continue in the future and so that perpetrators of past violence face some form of justice.