Antony Njuguna / Nairobi

The big news out of the ICC today was the confirmation of charges against four of the “Ocampo Six” Kenyan elites accused of orchestrating and inciting the country’s post-election violence in 2007-2008. Ruto, Arap Sang, Muthaura and Kenyatta had their charges confirmed and are expected to appeal; charges against Kosgey and Ali were dismissed by the Court’s judges because of a lack of evidence.

The decision comes four years after the violence and almost two years after the investigation was opened by the Chief Prosecutor. In that sense it is an underwhelming “milestone” but it is nevertheless an important reminder of the potential significance of ICC justice for Kenyan politics and stability.

The Court is mindful of its impact on stability. In its summary statement today it expressed that

“The chamber is mindful of concerns regarding the precarious security situation in parts of the country. It is also attentive of its responsibility to maintain stability in Kenya, and to fulfill its duty vis-a-vis the protection of victims and witnesses….It is our utmost desire that the decisions issued by this Chamber today, bring peace to the people of the Republic of Kenya and prevent any sort of hostility.”

Stability concerns are related to the upcoming presidential election. Two of those now set to stand trial – Kenyatta and Ruto – have both expressed their intention to run in the election but it’s now unclear if that will be possible. But their rival ethnic and political factions are more likely to use domestic and international attempts to mete out justice as political engineering.

The International Crisis Group recently released an important briefing on these issues with several recommendation to the Court and Kenyan government:

“These cases have enormous political consequences for both the 2012 elections and the country’s stability. During the course of the year, rulings and procedures will inevitably either lower or increase communal tensions. If the ICC process is to contribute to the deterrence of future political violence in Kenya, the court and its friends must explain its work and limitations better to the public. Furthermore, Kenya’s government must complement that ICC process with a national process aimed at countering impunity and punishing ethnic hate speech and violence.”

With respect to views on the ground, two recent polls show relatively divided, but declining, support for the ICC among Kenyans and notably increasing concerns about the impact of trials on security.

The link between human rights prosecutions and specific and/or general deterrence has been hashed out by various notable academics (see Vinjamuri and Kim and Sikkink). But the Kenya situation will provide for an excellent test case of such deterrence claims for several reasons. First, there is strong and active local civil society support for the ICC. This increases the chance that future potential human rights violations will be monitored and evidence can be collected and thus make prosecutions more credible. Second, the Kenya situation came to the ICC at the initiation of the Prosecutor after years of stalling by the Kenyan government – this underscores the Court’s “court of last resort” moniker and that justice is possible in spite of politics. Third, those considered “most responsible” are high level political elites yet their domestic power has not prevented their trial. Of all the situations before the ICC, this will be the one to watch for deterrence effects.

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