Can ICC Prosecutions Stem Electoral Violence?

The arrest of the former president of Ivory Coast, Laurent Gbagbo, last week, means the International Criminal Court, ICC, has now charged leading officials from two African states with orchestrating violence following elections.

The ICC cases in Kenya and Ivory Coast pose the question whether orchestrated electoral violence could be a thing of the past in Africa.

The ICC has summoned six Kenyan public figures, including the deputy prime minister and the former police commissioner, who face charges of crimes against humanity for the violence that erupted after the country’s 2007 presidential polls.

Approximately 1,100 people were killed and over 3,000 injured during violent uprisings that were eventually halted by a power-sharing deal between the Orange Democratic Movement, ODM, and the Party of National Unity, PNU in early 2008.

The former Ivory Coast leader Gbagbo is charged with four counts of crimes against humanity, including murder and rape allegedly perpetrated against civilians in Abidjan and the west of the country between December 2010 and April 2011, as he refused to cede power to the incoming president, Alassane Outarra.

Experts believe the action the ICC has taken in Kenya and Ivory Coast will go a long way towards deterring future unrest on the back of elections in Africa. However, both countries will need to carry out long-term reforms to underpin the deterrent value of criminal justice.

“The ICC intervention in Kenya and [Ivory Coast] can show how international justice has a positive impact on trying to address some of the consequences of electoral frauds and disputes,” said David Donat Cattin of the non-government group Parliamentarians for Global Action.

He also pointed to the need for countries to conduct their own criminal investigations alongside those of the ICC in order to complete the justice process – something Kenya has so far failed to do.

“In [Ivory Coast] the statements of [President] Outarra are really good, because he is saying he is going to investigate the crimes of Gbagbo and other economic crimes, whereas he will leave it to the ICC to investigate [alleged] war crimes and crimes against humanity,” Donat Cattin said.

Experts believe that as a result of the ICC’s intervention in Kenya, there is less likelihood of a repeat of the systematic, planned violence seen in 2007.

“If, in another election, [Kenya’s leaders] are going to plan or to organise or to finance people to engage in criminal activity the fact that you are likely to be prosecuted at the international level is going to act as a deterrent,” Nina Okuta, senior human rights officer at Kenya National Commission on Human Rights, said.

The summoning of six Kenyan suspects to The Hague appears to have calmed the febrile political atmosphere in the country, but more lasting effects will only become apparent once the charges against them are confirmed, and if convictions are secured.

Another constraint on the deterrent factor of cases brought before the ICC is that the court’s reach is limited – it seeks to prosecute only those who are held most responsible for crimes. In Kenya, only the six most senior alleged perpetrators have been brought before the court, so that hundreds if not thousands of others will escape similar legal action.

“In the long term, [deterrence] could be a problem. We can’t hope that the court is going to provide a solution,” Okuta said.

In Ivory Coast, critics have accused the ICC of missing an opportunity to prevent the atrocities committed in 2010 by failing to intervene earlier.

The ICC gained jurisdiction in the Ivory Coast in 2003 following the internal armed conflict that split Ivory Coast in two, but it did not take action against those responsible for abuses.

“The ICC didn’t intervene and wasn’t seen as much of a threat [in 2010],” Donat Cattin said. “Maybe the ICC could have had a much more preventive and dissuasive role [in the 2010 violence] if it had intervened in the previous [2003] conflict.

“The sooner international justice can intervene, the better the impact is on the leaders on the ground, who receive the warning that certain acts of violence are intolerable and should not be committed any more.”

The ICC has also attracted criticism for not intervening even-handedly in all the countries where it has jurisdiction and where prosecutable crimes may have taken place.

Kenya was the first case in which ICC prosecutor Luis Moreno-Ocampo used his powers to initiate an investigation, without the conflict being referred either by the state itself or by the United Nations Security Council.

“If this [deterrent factor] is to be continued and sustained, it needs the ICC to be credible, to be persistent, to be coherent, to be consistent, to intervene in all situations in a similar way, [and] to apply justice in a way that is predictable,” Donat Cattin said.

Experts are cautious about the extent to which ICC prosecutions alone will deter future atrocities.

“We have, in various contexts where conflicts have occurred, the realisation that prosecutions in and of themselves are not sufficient to deter criminal conduct within a society,” Christine Alai of the International Centre for Transitional Justice in Kenya said.

“While [impunity] thrives at the top levels of the executive, that impunity also thrives among us, as members of society. So addressing the question of impunity at the topmost level is critical, but other measures must also be put in place to guarantee that there will not be a recurrence of violations or violence every electoral year.”

In Kenya, the real deterrent against future electoral violence lies within the country’s own legislative structures. The 2007-08 violence took place amid a lack of a robust electoral and judicial systems to settle disputes and thus prevent violence, experts say.

“A country with a trusted judicial system and a trusted electoral management body is very likely to have very peaceful elections. because people know and trust the system,” Njeri Kabeberi, executive director of the Centre for Multi-Party Democracy in Kenya, said. “In Kenya we had a crisis because the electoral management body failed the country, but also our judicial system was not to be trusted. So anyone with a dispute could not trust that going to court was going to assist them.”

In addition to ICC intervention, reforms to national systems should reduce the risk of violence and lower the incendiary power of elections, in which the stakes are high for those in, or seeking, office.

Kenya’s new constitution, passed in August 2010, makes provision for some of these reforms, including changes to the judiciary and the security services, and devolution of some powers from the central executive to county level. According to Alai, “If we can begin to achieve a level of reforms within those institutions, then we begin to guarantee our people that we will never again have to face similar occurrences in our country.”

Alai argues that it is Kenya and other states, and not ultimately the ICC, that must act to prevent abuses.

“The bulk of the work remains to be done, and it is not the responsibility of the ICC,” she said “It is the responsibility of the government of Kenya.”

Timothy Chepsoi is an IWPR-trained journalist in Nairobi.

This article was produced as part of IWPR’s international justice training programme for Kenyan journalists, held in The Hague.