Divided we fall: how the International Criminal Court can promote compliance with international law by working with regional courts.

AuthorSainati, Tatiana E.
PositionAbstract through III. Enforcing International Law A. Compliance Theories 2. The Liberal (Kantian

Abstract

Kenya's 2007 presidential elections inflamed deep-seeded ethnic tensions in the country, sparking violence that left thousands dead and more than half-a-million civilians displaced. After the bloodshed, Kenya failed to investigate, prosecute, and punish those responsible for the atrocities. The Prosecutor for the International Criminal Court (ICC) launched an investigation into the Kenyan situation, acting under his statutory authority, and eventually brought charges against six high-ranking Kenyans, including President Kenyatta. After years of investigations, the Prosecutor ultimately withdrew the case against the Kenyan President--a potentially fatal failure heralded by some as the death knell of the ICC.

During the course of the ICC proceedings, Kenyatta lobbied to expand the jurisdiction of the regional East African Court of Justice (EACJ) in order to try the accused more locally. Kenya's move to transfer the cases to the regional court has been largely overlooked in the commentary on the situation in Kenya. Nevertheless, Kenya's strategy raises important questions about the role of regional courts in the ICC's efforts to combat impunity that have gone too long unanswered: What criteria should be used to determine when a regional court provides a better forum than the ICC? Can the ICC support the efforts of these regional courts? Should it? In considering these questions, this Article argues that, if the ICC is to fulfill its promise, its role in ending impunity should not be limited solely to pursuing cases. Instead, the ICC should defer to regional courts where such courts are supported by transnational social movements--networks of civil society groups, legal and political activists, and local human rights activists. Regional courts supported by such movements are better equipped to further the ICC's goals by promoting compliance with international law at home and domesticating international human rights principles so that they resonate locally.

Table of Contents I. Introduction II. The ICC in the International Criminal Justice System A. Ending Impunity for Perpetrators of Egregious Human Rights Abuses B. The Complementarity Paradox 1. The Legal and Rhetorical Meanings of Complementarity 2. Complementarity in the Rome Statute 3. Complementarity in the Practice of the ICC C. Critics of the ICC 1. The Call for a More Culturally Attuned ICC 2. The Call for Clarity in Prosecutorial Decisions III. Enforcing International Law A. Compliance Theories 1. The Rationalists 2. The Liberal (Kantian) Strand 3. Process-Based Theories B. Regional Courts and TSMs 1. The Case of the Inter-American Court of Human Rights 2. The Experience of the Community Court of Justice for the Economic Community of West African States IV. The Ill-Fated ICC Prosecutions of Kenyan Officials A. Background on the Situation in Kenya 1. Domestic Responses to the Violence 2. International Responses to the Violence 3. The ICC Proceedings Against Kenyan Officials B. Responses to the ICC's Proceedings 1. Kenyan and African Union Resistance to the Proceedings 2. The East African Community and the Situation in Kenya 3. Impact of the Kenyan Trials on Domestic Reforms 4. The Implosion of the Case Against Kenyatta V. A Framework for Partnering with Regional Courts A. The Credibility and Efficacy of the East African Court of Justice B. The EACJ and Regional Social Movements C. Expanding the EACJ's Jurisdiction to Cover the Kenyan Situation--A Path to Promoting International Law in East Africa VI. Conclusion I. Introduction

When Mwai Kibaki, a Kikuyu, was declared victor over Raila Odinga, a Luo, on October 30, 2007, in Kenya's presidential election, the announcement stoked long-standing ethnic tensions and ignited a firestorm. (1) Election brutality was nothing new in Kenya--violence has been associated with Kenyan elections since the restoration of a multi-party political system in 1991. But, the 2007 post-election bloodshed was different; it was more deadly, more destructive, and more widespread. (2) When the violence at last abated, more than 1,000 people were dead, and more than half a million civilians had been displaced. (3)

External intervention came swiftly. (4) Efforts to resolve the conflict peacefully began in the first week of January 2008. (5) On February 28, 2008, Former UN Secretary-General Kofi Annan, together with the African Union Panel of Eminent Personalities, brokered a power-sharing agreement and established the Commission of Inquiry on Post-Election Violence (CIPEV or Waki Commission). (6) The CIPEV recommended the creation of a special tribunal to try those most responsible for the post-election violence. (7) In the event that the government failed to create such a tribunal, the Waki Commission recommended that the names of those most responsible be handed over to the International Criminal Court (ICC) for prosecution. (8)

After three bills to create the special tribunal failed in the Kenyan Parliament, the Waki Commission sent the names of the six individuals believed to be most responsible for the post-election violence to the ICC. (9) The ICC Prosecutor, Louis Moreno-Ocampo, sought a summons for the six individuals named on December 15, 2008. (10) On November 26, 2009, Moreno-Ocampo filed a request for an investigation. (11) Almost a year later, the Prosecutor issued summonses for six high-ranking Kenyan officials--known as the "Ocampo Six"--to appear before the Court. (12) In January 2012, the Pre-Trial Chamber confirmed charges against four of the Ocampo Six--including President Kenyatta and Vice President Uhuru--to bring these cases to trial. (13) After years of frustrating investigations, the Prosecutor's case against the Kenyan President ultimately unraveled. (14) The high-profile misadventure prompted questions about the legitimacy and efficacy of the International Criminal Court, exposing an institution crippled by its inability to compel cooperation with its proceedings. (15)

Far from bringing closure, the Prosecutor's actions raised an entirely new set of issues: the case marked the first exercise of the prosecutor's proprio motu power (16) to commence an investigation at his own initiative, (17) a highly contentious authority conferred only after "extensive debates and division of views" among the states who established the ICC. (18) The dispute turned on whether the Prosecutor should have the authority to trigger the jurisdiction of the court on his own motion, absent any referral from either a State Party or the UN Security Council. (19) Such independent prosecutorial authority was (and remains) controversial, as it risked "politicizing the Court and thereby undermining its credibility." (20)

The tensions between the African states and the ICC heightened the risk of politicizing the court. Once the ICC's most strident supporters, the African states now accuse the ICC of improper political motivations and inappropriate targeting of African leaders for investigation while neglecting atrocities committed by more powerful Western figures. (21) In addition to the concerns raised by the African states, commentators have questioned whether the atrocities committed in the wake of Kenya's 2007 election were sufficiently grave to merit the ICC's attention. (22) For his part, Kenya's president lobbied for the removal of the cases before the ICC (23) and sought to expand the East African Court of Justice's jurisdiction to try the accused more locally. (24)

Kenya's move to transfer the cases to the EACJ raises important questions about the role of regional courts in achieving the ICC's goals: Do regional courts provide an appropriate forum for trying those accused...

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