What Determines Perceptions of Bias toward the International Criminal Court? Evidence from Kenya

• DOI: 10.1177/0022002719893740
• Author: Yvonne Marie Dutton,Geoff Dancy,Eamon Aloyo,Tessa Alleblas
• Published date: 01 August 2020
• Date: 01 August 2020
• Subject Matter: Articles

Article

What Determines

Perceptions of Bias

toward the International

Criminal Court?

Evidence from Kenya

Geoff Dancy

1

, Yvonne Marie Dutton

2

,

Tessa Alleblas

3

, and Eamon Aloyo

4

Abstract

The International Criminal Court (ICC) has struggled with the perception that it is

biased against Africans, especially in relation to its investigation in Kenya. But which

Kenyans are most likely to believe the ICC is biased? Building on pluralistic models of

public opinion and psychological studies, we aim to contribute to emerging research

on attitudes toward international courts. We expect that group attachments will

drive attitudes toward international institutions. Yet, we also theorize that exposure

to violence makes individuals more likely to support international justice and reject

narratives that would have the effect of insulating those who have committed crimes

from being held accountable. Using new survey data from 507 Kenyans in the fall of

2015, we find support for our hypotheses.

Keywords

international law, international institutions, war crimes tribunals, conflict

1

Tulane University, New Orleans, LA, USA

2

Robert H. McKinney School of Law, Indiana University, Indianapolis, IN, USA

3

Independent Researcher

4

Institute for Security and Global Affairs, Universiteit Leiden, Den Haag, the Netherlands

Corresponding Author:

Eamon Aloyo, Institute for Security and Global Affairs, Universiteit Leiden, Wijnhaven, Turfmarkt 99, Den

Haag 2511 DP, the Netherlands.

Email: e.t.aloyo@fgga.leidenuniv.nl

Journal of Conflict Resolution

2020, Vol. 64(7-8) 1443-1469

ªThe Author(s) 2019

Article reuse guidelines:

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DOI: 10.1177/0022002719893740

journals.sagepub.com/home/jcr

The International Criminal Court (ICC ) depends on the supp ort of member state s

and their populace to function. This can create a legitimacy challenge for the ICC

because it charges individuals with atrocity crimes when domestic governments

are unable or unwilling to do so. Often, the push for accountability in situation

countries invites a reactionary “us versus them” narrative. Since 2009, some Afri-

can leaders, when confronted with the possibility of criminal accountability, have

painted the Court as a neocolonial tool that is biased against Africans (Cole 2013;

Verini 2016).

Kenyan leaders Uhuru Kenyatta and William Ruto began stumping against the

ICC in 2010 after its prosecutor charged them with instigating attacks following the

2007 presidential elections. Attackers committed numerous sexual assaults, killed

1,100 citizens, and displaced more than 600,000 (Amnesty International 2014, 7).

Kenyatta and Ruto claimed that they were not responsible for this violence but were

instead victims of a biased ICC. Proposing few policies of redress for the real victims

of violence, Kenyatta (a Kikuyu) and Ruto (a Kalenjin) joined together in 2012,

forming the Jubilee Coalition to campaign for president and deputy president. A key

campaign strategy was to invoke the ICC as the enemy. Referencing Africans’

history of Western domination, they asked citizens to reject another intrusion on

Kenyan sovereignty. (Corporate Europe Observatory 2015; Mueller 2014).

In this article, we use evidence collected from 507 face-to-face surveys of

Kenyancitizensinfall2015toexplainwhysomeKenyansperceivedtheICCas

biased against Africa. We do not seek to evaluate whether the ICC is in fact biased

as others have done (Smeulers, Weerdesteijn, and Hola 2015). Nor do we attempt

to explain the outcome of the 2013 or 2017 presidential elections (Ferree, Gibson,

and Long 2014).

Much of the emerging research on attitudes toward international courts contends

that individuals’ perceptions are a direct function of group allegiances (Chaudoin

2016; Klarin 2009). According to one theory, people who share an identity with

defendants are more likely to view international courts as biased (Chaudoin and

Chapman 2017). Building on pluralistic models of public opinion and psychological

studies, we theorize that exposure to violence also makes individuals less likely to

agree that the ICC is biased against Africa.

Kenya is an ideal context for testing these theories given the presence of exten-

sive ethnic-based clientelist networks. Because the country’s leaders conducted a

public, derisive campaign against the ICC, group attachments should prove a pow-

erful driver of political attitudes including toward international institutions. Indeed,

our survey data show that Kenyatta’s and Ruto’s co-ethnics are more likely than

others to agree that the ICC is biased against Africans.

However, one’s personal experience with violence exerts the reverse effect. Ken-

yans who identify as witnesses or victims of violence in 2007 are much less likely to

agree that the ICC is biased against Africa. More surprising, this holds even if the

respondent identifies as a co-ethnic of Kenyatta or Ruto. On this basis, we argue that

exposure to violence is a primary determinant of attitudes toward the Court.

1444 Journal of Conflict Resolution 64(7-8)