As readers of this blog will know, I think one of the most important and useful aspects of the ICC is its complementarity provision (which is why I am worried about the ICC’s recent justification for its jurisdiction over the case against Germain Katanga). The ICC should only ever be a court of last resort, and the strength of the system established by the Rome Statute is the potential it has to encourage domestic level prosecutions. For that reason (as well as being based in Nairobi), I am watching closely the interaction between the ICC and the Kenyan government over how to pursue accountability for the 2007 post-election violence.
Yesterday, Kofi Annan handed the ICC Prosecution a sealed envelope of materials (derived from a 3-month investigation into the violence by the Waki Commission – you can get a copy of the Commission’s full report here). This followed a meeting between the Prosecutor and Kenyan officials earlier in the week, where they agreed that so long as the Kenyan authorities carried out genuine judicial proceedings against those most responsible for the violence, the ICC would have no grounds to intervene.
In order to play it’s “over the shoulder” monitoring function in cases like Kenya (as well as Colombia), there must be agreed upon benchmarks to indicate whether proceedings are progressing at the national level. In their meeting, Kenyan officials agreed to provide the ICC Prosecution with the following by September this year:
I will be following the progress of this situation on this site over the coming months. Kenya’s next elections are in three years time. Holding those responsible for the post-2007 election violence before then is a key ingredient in the prevention of a repeat performance in 2012.
Kenyan politicians are playing the most dangerous game in handling the post-election violence and they know this quite too well. Like being caught between a rock and a hard place, most would want to wish claims of involvement and the imminent prosecutions away but in vain. Either way, they choose to embrace a local tribunal with no presidential powers of pardon and they are toast. Into “Ocampo’s” hands, another toast! The buck stops with Kenyans and thats for sure!