The Attack on Westgate Mall and Kenya’s Opposition to the ICC

On September 23, the International Criminal Court granted Kenya’s Deputy President, William Ruto a week long adjournment during the climax of Al-Shabab’s attack on Westgate Mall in Nairobi. While Kenya begins to recover from what President Uhuru Kenyatta called a “despicable and beastly” attack, the ICC has reminded Ruto that his trial must resume this week.
Ruto’s case preludes Kenyatta’s, which is slated to begin in mid-November.
Kenyatta and Ruto are accused of organizing the violent outbreaks that followed the 2007 election cycle in Kenya. The crimes against humanity for which they stand accused resulted in the death of around 1,300 Kenyans and left another half million displaced. While the two politicians fervently deny the charges, they have consistently stated their intention to adhere to the ICC process.

Despite these assurances, the Kenyan government has taken steps to undermine the court at every turn. For instance, after Kenyatta was elected last spring, Kenya’s delegate to the UN submitted a petition to the ICC to terminate its proceedings against him and sent a letter to the UN Security Council asking that body to intervene and end the trials. In early September, Kenya’s parliament snubbed the Court by passing a bill that, if signed, would begin the process of Kenya’s withdrawal from the ICC.
Nevertheless, human rights observers like Daniel Bekele from Human Rights Watch have deemed the trial of Kenya’s head of state crucial to ending the nation’s “impunity crisis.” “For decades those who have turned Kenya’s elections into bloodbaths have gotten away with murder,” he explained.
Before September 21, the ICC treaded a precarious line between maintaining the integrity of its process and remaining sensitive to Kenya’s political stability and national security. The attack at Westgate Mall, during which more than 70 civilians were gunned down, has turned that precarious line into a perilous tightrope. The attack has galvanized international support for Kenyatta, and has reminded the world of Kenya’s importance to countering terrorism and establishing stability in East Africa.
The coming months will be the most trying in the ICC’s brief history. The outcome of the two trials could have lasting effects on the legitimacy of the young international tribunal.
“Don’t be vague, say the Hague!”
The 1998 Rome Statute, which came into force in 2002, established the ICC and endowed it with the “power to exercise its jurisdiction over persons for the most serious crimes of international concern,” including genocide, war crimes and crimes against humanity.
The ICC, sometimes called the “Court of last resort,” sets out to complement the national criminal jurisdictions of state-parties. As long as the internal judicial system of a state-party can successfully hold perpetrators accountable for international crimes, the ICC will not override that nation’s jurisdiction. The court only has jurisdiction when a state-party is unable or unwilling to pursue justice at the national level.
Cases can come before the ICC through three channels. First, the U.N. Security Council can refer cases to the ICC. Second, a state-party can refer a case from its own jurisdiction for consideration by theICC. Third, the ICC can initiate its own investigation.
The trials against Ruto and Kenyatta came to the Court through this last channel. Prior to ICCinvolvement, Parliamentary votes to establish a tribunal to investigate responsibility for the post-election violence failed on three separate occasions.
Kenyatta is not only a powerful politician, he is the son of Kenya’s founder, Jomo Kenyatta, and also the nation’s richest man. The Kenyan Parliament’s failure to establish a tribunal is just one example of how this “impunity crisis” permeated the highest level of lawmaking in Kenya.
Kenyatta and Ruto have consistently denied the charges leveled against them. The two have also complied with every summons the Court has issued. However, as mentioned above, the actions that the Kenyan government has taken to stall the Court’s process demonstrate how it consciously undermines the ICC at a number of levels.
As the trials commence, Kenyatta, Ruto, and other commentators have started to argue that the ICCprocess will degrade Kenya’s stability. Even if they end impunity for crimes against humanity, will the trials endanger the very people they were meant to help protect?
The ICC and stability in Kenya
Many critics of the ICC trials against Kenyatta and Ruto claim that the proceedings will endanger Kenya’s fragile political stability. Kenyatta and Ruto represent an alliance between the Kikuyu and Kalenjin tribes. This alliance is particularly significant because much of the violence that followed the 2007 elections occurred between these two ethnic groups.
The ICC investigations may have helped solidify this alliance in the most recent elections. As Catherine Wambua-Soi, Al Jazeera’s East and Central Africa producer explained, “The ICC was the glue that held Kenyatta and Ruto together…At the end of it all, the two were seen as victims and many argue that the March vote was in essence a protest against all the ‘outsiders’ who warned of consequences of electing suspects of crimes against humanity.”
While the ICC trials are crucial for holding violators of international human rights standards accountable, if they undermine the stability that has halted ethnic violence, then they will put many more Kenyans at risk.
A panel of Kenyan political analysts and former legislators recently described two kinds of justice at work. Speaking for the panel, Peter Kagwanja, CEO of the Africa Policy Institute argued that “The kind of hang ‘em high justice you see at the ICC has absolutely nothing to do with the victims.” Meanwhile, the men, women and children who were displaced by violence in 2007, and who continue to languish in ill-equipped Internally Displaced Persons (IDP) camps need a kind of “restorative justice” that theICC has not addressed. Restorative justice would focus on providing the victims with humanitarian aide and development to facilitate substantive improvements to their quality of life.
Still, the ICC has maintained that holding perpetrators accountable is not only essential for justice on behalf of victims, but also for assuring that crimes such as these will not occur in the future. More than anything else, the Court has reiterated its dedication to the ICC process. As chief prosecutor Fatou Bensouda reminded the international community earlier in September, “The judicial process is now in motion at the International Criminal Court. Justice must run its course.”
The galvanizing effect of the attack on Westgate
On September 21, gunmen from the al Qaeda linked Somali militant group al-Shabab stormed into an upscale mall in Nairobi. The ensuing four day standoff resulted in at least 70 deaths and another 175 injuries. Most of the fatalities were civilians.
During the siege, al-Shabab stated via Twitter, “For long we have waged war against the Kenyans in our land, now its time to shift the battleground and take the war to their land.”
Al-Shabab’s goal may have been to strike fear in the heart of Kenyans, but their violence has also helped Kenyatta and Ruto galvanize domestic and international support. In a statement made during the crisis, Kenyatta, whose nephew died in the attack, promised, “We shall have full accountability for the mindless destruction, deaths, pain, loss and suffering we have all undergone as a national family. These cowards will meet justice, as will their accomplices wherever they are.”
Kenyatta’s strong words reassert Kenya’s geopolitical importance to the global war on terror. In a phone call with Kenyatta, President Barrack Obama offered the United States’ condolences for the attack and reaffirmed his nation’s partnership with Kenya.
The European Union’s Africa Director, Nick Wescott reflected Obama’s sentiments, “I would regard the need to combat terrorism as essential business,” he stated in an interview with Reuters. While Wescott also mentioned that the ICC trial should be kept separate from Kenya’s importance to combating terrorism, he hedged his bets.
“Let’s see how it goes. It is essential that we all work as closely together as possible to deal with threats like this in Kenya, in Somalia, everywhere,” Wescott offered.
Kenyatta’s allies have already begun to argue that the President’s trial should be dropped in light of the attack. Moses Kuria, who works for Kenyatta and Ruto’s Jubilee coalition asked, “Do you want to focus on the ICC when so much has to be done? The security concerns of the world at this time would better be served by us focusing all our energies on fighting terrorism,” he went on.
While the ICC is still considering Kenyatta’s request to appear by video for his first hearing instead of in person, the court’s prosecutor has taken a proactive position toward the effects of al-Shabab’s attack.
According to Reuters, Benosouda, the ICC’s chief prosecutor, stated that she was ready to use the same branch of the ICC that is prosecuting Kenyatta and Ruto to help Kenya “bring justice to those responsible for the weekend raid in Nairobi.” She continued stating that “such attacks by armed groups upon innocent civilians are contrary to international law and may constitute a crime under the Rome Statute, to which Kenya is a State Party.”
Al-Shabab’s attack adds to the political repercussions of Kenyatta and Ruto’s trials for the ICC. Consequently, the ICC has even more at stake moving forward. But as the geopolitical importance of the trials grows, the voice of the victims of the post election violence of 2007 continues to wane.
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