The International Criminal Court and the End of Impunity in Kenya (Springer Series in Transitional Justice)

The period immediately following Kenya's 2007 presidential election left a shocking trail of atrocities, with over 1,000 people dead and countless thousands left victimised and displaced. In response, the International Criminal Court began a series of investigations and trials, promising no impunity for even the highest ranking perpetrators. When the country's president and vice-president were implicated in the crimes, the case took on worldwide significance. __The International Criminal Court and the End of Impunity in Kenya__ is a five-year study addressing critical human rights issues with a global reach and is the first detailed account of the ICC's intervention in Kenya. It probes the relationship between the ICC and state institutions, known as positive complementarity, and asks whether the ICC's intervention led to an end to impunity. The author provides comprehensive analysis of the Waki Commission's sealed envelope, the government's attempts to establish a special tribunal and the trials in The Hague. He also provides in depth consideration of any influence the ICC's intervention may have had on the passing of a new constitution, the establishment of a truth commission and important reforms to the judiciary, police and witness protection programme. Documenting the effects of these interventions on the Kenyan people, and on the country's legal and judicial systems, the book provides vital lessons in global justice as it: •Details the ICC's involvement in Kenya in the aftermath of extreme violence and instability •Evaluates the ICC prosecutor's strategy of positive complementarity •Identifies optimal conditions for positive complementarity to be effective •Links cultures of impunity to state-sponsored corruption •Explores the possible impact of the ICC on national and global policy •Discusses implications in responding to future crimes against humanity Replete with official government sources, __The International Criminal Court and the End of Impunity in Kenya__ is necessary reading for researchers and practitioners working in public international law, particularly those specialising in conflict and post-conflict states. Acknowledgements 8 Contents 10 Abbreviations 14 About the Author 16 Chapter 1: Introduction 17 1 The Prosecutor’s Promise 18 2 The Effectiveness of International Criminal Justice 20 3 Methodology 24 3.1 Scope 24 3.2 Research Method 25 3.3 Assessing the ICC’s Impact 27 4 Ending Impunity 28 4.1 The OTP and the End of Impunity 29 4.2 The Ending of Impunity for Kenyans 30 4.3 Assessing the End of Impunity 32 5 Precursors for Positive Complementarity 33 6 Structure of Project 36 Bibliography 40 Chapter 2: The Strategy of Positive Complementarity 44 1 Origins of Positive Complementarity 45 1.1 Complementarity and the Rome Statute 45 1.2 The Birth of Positive Complementarity 46 2 OTP’s Understanding of Positive Complementarity 47 2.1 The Two Dimensions of Complementarity 48 2.2 Strategy for Encouraging Prosecutions 49 3 Positive Complementarity in Practice 53 3.1 Early Years and Negative Complementarity 53 3.2 Success Stories? 55 3.3 The Shadow Side of Complementarity 57 4 Conclusion 58 Bibliography 59 Chapter 3: Kenya’s Post-Election Violence and History of Impunity 62 1 Kenya’s Post-Election Violence 63 1.1 Disputed Presidential Elections and the Road to Violence 63 1.2 Causes of the Violence 66 2 History of Institutionalised Impunity 68 2.1 Colonial Era 68 2.2 Post-Independence 70 2.3 The Institutionalisation of Impunity 74 2.4 Culture of Impunity 76 3 Conclusion 79 Bibliography 80 Chapter 4: From Nairobi to The Hague 83 1 Phase One: Commencement of Preliminary Examinations (February 2008–July 2009) 84 1.1 Monitoring the Situation 84 1.2 The Waki Report and the Sealed Envelope 85 1.3 Strike One 86 2 Phase Two: Encouragement of Domestic Prosecutions (June 2009–November 2009) 88 2.1 The Complementarity Contract and the Delivery of the Sealed Envelope 88 2.2 Strike Two and the Division of Labour 89 3 Phase Three: ICC Investigations (December 2009–December 2010) 92 3.1 Strike Three and Investigations Proprio Motu 92 3.2 Continued Encouragement of Domestic Proceedings 94 4 Phase Four: ICC Pre-Trial Stage (December 2010–March 2013) 96 4.1 The ‘Ocampo Six’ 96 4.2 The ‘Ocampo Four’ 98 4.3 The ‘Ocampo Three’ 99 5 Conclusion 100 Bibliography 101 Chapter 5: Prosecuting Perpetrators 105 1 A Yardstick for Success 105 2 The Small Fish 107 2.1 Prosecutions by Numbers 109 2.2 Prosecutions by Crimes 113 2.3 The OTP’s Influence 115 3 The Big Fish 116 4 The Foreign Affairs Façade 117 4.1 The Special Tribunal and Motion Without Movement 118 4.2 Justice Delayed but Justice Assured 120 4.3 Investigating the Ocampo Six 122 5 Kenyans in The Hague 124 5.1 Local Support for ICC Intervention 124 5.2 A Blow to Impunity 128 6 Impunity Gaps 129 7 The Shadow Side of Complementarity 133 7.1 Increased Threats to Witnesses 133 7.2 Politicisation of the ICC 135 8 Conclusion 140 Bibliography 141 Chapter 6: Don’t Be Vague, Go to The Hague! 146 1 An Unsuitable Strategy 147 1.1 Political Suicide 148 1.2 Domestic Inability 149 2 The OTP’s Influence 152 2.1 Not the Initial Impetus 152 2.2 Influencing Leaders 155 2.3 Imminent but not Inevitable 160 2.4 Vested Interests 164 3 Foreign Affairs Façade 169 3.1 Reneging on Referral 169 3.2 Rescuing the Ocampo Six 170 3.3 Withdrawal from the Rome Statute 171 3.4 Security Council Deferral and Shuttle Diplomacy 172 3.5 Article 19 Application 173 3.6 East African Court of Justice 175 3.7 African Court of Justice and Human Rights 176 3.8 Motions Without Movement 177 3.9 Obstructing Investigations 178 4 The Shadow Side of Complementarity 182 4.1 Discouragement of Local Prosecutions 183 4.2 A Mechanism We Can Control 184 5 Conclusion 187 Bibliography 189 Chapter 7: Rule of Law Reforms: Post Hoc Ergo Propter Hoc? 196 1 The OTP and Rule of Law Reform 197 2 The Tenth Parliament’s Rule of Law Reforms 199 2.1 Constitution 201 2.2 Criminal Justice System 202 2.3 Electoral Process 204 2.4 National Reconciliation 205 3 Catalysts for Reform 207 3.1 The Ongoing Reform Process 207 3.2 The Post-Election Violence 211 3.3 Legacies and Campaigns 213 3.4 International Pressures 215 3.5 Domestic Pressures 217 4 The OTP’s Impact 219 4.1 The International Crimes Act 2008 219 4.2 Witness Protection 221 4.3 Judicial and Security Sector Reforms 225 4.4 Simultaneous but Separate 226 5 The Shadow Side of Complementarity 229 5.1 The Government of National Disunity 229 5.2 Delays and Distractions 233 5.3 Illusory Reforms 234 6 Conclusion 236 Bibliography 238 Chapter 8: Culture of Impunity 245 1 Ending the ‘Culture of Impunity’ 246 2 Judging the Judges 248 3 Policing the Police 251 4 The Shadow Side of Complementarity 255 5 Conclusion 258 Bibliography 258 Chapter 9: Conclusion 261 Bibliography 266 Appendix Timeline 268 Index 276 The Period Immediately Following Kenya's 2007 Presidential Election Left A Shocking Trail Of Atrocities, With Over 1,000 People Dead And Countless Thousands Left Victimised And Displaced. In Response, The International Criminal Court Began A Series Of Investigations And Trials, Promising No Impunity For Even The Highest Ranking Perpetrators. When The Country's President And Vice-president Were Implicated In The Crimes, The Case Took On Worldwide Significance. The International Criminal Court And The End Of Impunity In Kenya Is A Five-year Study Addressing Critical Human Rights Issues With A Global Reach And Is The First Detailed Account Of The Icc's Intervention In Kenya. It Probes The Relationship Between The Icc And State Institutions, Known As Positive Complementarity, And Asks Whether The Icc's Intervention Led To An End To Impunity.^ The Author Provides Comprehensive Analysis Of The Waki Commission's Sealed Envelope, The Government's Attempts To Establish A Special Tribunal And The Trials In The Hague. He Also Provides In Depth Consideration Of Any Influence The Icc's Intervention May Have Had On The Passing Of A New Constitution, The Establishment Of A Truth Commission And Important Reforms To The Judiciary, Police And Witness Protection Programme.^ Documenting The Effects Of These Interventions On The Kenyan People, And On The Country's Legal And Judicial Systems, The Book Provides Vital Lessons In Global Justice As It: •details The Icc's Involvement In Kenya In The Aftermath Of Extreme Violence And Instability •evaluates The Icc Prosecutor's Strategy Of Positive Complementarity •identifies Optimal Conditions For Positive Complementarity To Be Effective •links Cultures Of Impunity To State-sponsored Corruption •explores The Possible Impact Of The Icc On National And Global Policy •discusses Implications In Responding To Future Crimes Against Humanity Replete With Official Government Sources, The International Criminal Court And The End Of Impunity In Kenya Is Necessary Reading For Researchers And Practitioners Working In Public International Law, Particularly Those Specialising In Conflict And Post-conflict States. Chapter 1: Introduction -- Chapter 2: The Strategy Of Positive Complementarity -- Chapter 3: Kenya's Post-election Violence And History Of Impunity -- Chapter 4: From Nairobi To The Hague -- Chapter 5: Prosecuting Perpetrators -- Chapter 6: Don't Be Vague, Go To The Hague! -- Chapter 7: Rule Of Law Reforms: Post Hoc Ergo Propter Hoc? -- Chapter 8: Culture Of Impunity -- Chapter 9: Conclusion. The period immediately following Kenya's 2007 presidential election left a shocking trail of atrocities, with over 1,000 people dead and countless thousands left victimised and displaced. In response, the International Criminal Court began a series of investigations and trials, promising no impunity for even the highest ranking perpetrators. When the country's president and vice-president were implicated in the crimes, the case took on worldwide significance. The International Criminal Court and the End of Impunity in Kenya is a five-year study addressing critical human rights issues with a global reach and is the first detailed account of the ICC's intervention in Kenya. It probes the relationship between the ICC and state institutions, known as positive complementarity, and asks whether the ICC's intervention led to an end to impunity. The author provides comprehensive analysis of the Waki Commission's sealed envelope, the government's attempts to establish a special tribunal and the trials in The Hague. He also provides in depth consideration of any influence the ICC's intervention may have had on the passing of a new constitution, the establishment of a truth commission and important reforms to the judiciary, police and witness protection programme. Documenting the effects of these interventions on the Kenyan people, and on the country's legal and judicial systems, the book provides vital lessons in global justice as it: Details the ICC's involvement in Kenya in the aftermath of extreme violence and instability; Evaluates the ICC prosecutor's strategy of positive complementarity; Identifies optimal conditions for positive complementarity to be effective; Links cultures of impunity to state-sponsored corruption; Explores the possible impact of the ICC on national and global policy; and, Discusses implications in responding to future crimes against humanity. Replete with official government sources, The International Criminal Court and the End of Impunity in Kenya is necessary reading for researchers and practitioners working in public international law, particularly those specialising in conflict and post-conflict states Front Matter....Pages i-xv Introduction....Pages 1-27 The Strategy of Positive Complementarity....Pages 29-46 Kenya’s Post-Election Violence and History of Impunity....Pages 47-67 From Nairobi to The Hague....Pages 69-90 Prosecuting Perpetrators....Pages 91-131 Don’t Be Vague, Go to The Hague!....Pages 133-182 Rule of Law Reforms: Post Hoc Ergo Propter Hoc?....Pages 183-231 Culture of Impunity....Pages 233-248 Conclusion....Pages 249-255 Back Matter....Pages 257-267