UN Photo/Eskinder Debebe

Lessons from Kenya: Unpacking the ICC’s Deterrent Effect

UN Photo/Eskinder Debebe

Whether the International Criminal Court (ICC) can produce its hoped-for deterrent effect is a question that has interested many scholars. Until recently, the literature on whether the ICC deters has been more theoretical than empirical. Several studies have changed the nature of the debate into a more evidence-based one. In-depth case studies can further enhance our understanding of the ICC’s deterrence power because they could reveal the circumstances under which deterrence may occur.

As part of The Hague Institute’s Peace-Justice Nexus project, we conducted a case study of Kenya and its relationship over time with the ICC. Unique to this study is that it includes novel data from interviews conducted in Nairobi during 2015 with former government officials, journalists, academics, policy analysts and civil society leaders. Our evidence reveals the complexities of gauging the ICC’s deterrent power and demonstrates that not all actors are deterred in all situations or in the same ways—or even permanently.

While the ICC may deter in some circumstances, we do not expect that it can deter all actors all the time. We hypothesized that several factors will influence the ICC’s ability to deter: (1) the domestic political context, (2) the type of actor the ICC is targeting, and (3) the level of the ICC’s intervention. First, we distinguish between democracies and non-democracies (or unconsolidated democracies). The latter are states where the executive is not fully independent from other branches of government and that may not fully respect the rule of law. Such states typically have poorer human rights practices and/or weaker domestic legal institutions than democracies. Should these states join the ICC, they face an increased risk of prosecution.

The type of actor the ICC pursues also matters—especially if it concerns state leaders in non-democracies or unconsolidated democracies. They may view the benefits of power as being exceptionally high and the risks of prosecution as exceptionally low. They not only have power, but also often have access to state resources they can divert to themselves or their cohorts. Since their positions allow them to manipulate the international justice system which depends on state cooperation, these actors may not find an ICC action threatening.

Finally, the level of the ICC’s intervention is relevant. For example, a low level of intervention lowers the cost side of the equation, making it more likely that a rational actor will not be deterred from committing abuses. A high level of intervention, though, may push state leaders “into a corner” such that they may decide to commit human rights abuses so as to hold onto or gain power.

The case study evidence supports our hypothesis. It shows that the lowest level of ICC intervention—ratification—did not prevent incidences of mass atrocities or other human rights abuses. In the aftermath of the 2007 presidential elections —only two years after ratification of the Rome Statute — Kenya plunged into elite-driven ethnic violence that left more than 1000 dead and hundreds of thousands displaced. Ratification also did not prompt the Kenyan government to improve its judicial mechanisms or implement democratic reforms to bring perpetrators to justice. Interviewees argued that during this period, Kenyan leaders greatly discounted the ICC’s threat. Political leaders reportedly did not realize that they could be brought to The Hague.

We did find evidence of a deterrent effect at a higher level of ICC intervention: namely, after the ICC Prosecutor decided to launch cases against six Kenyans. There is reason to believe that these cases played a role in the relatively peaceful elections in 2013. First, among the suspects were the two presidential candidates, Uhuru Kenyatta and William Ruto, who reportedly joined forces in part to defeat the ICC. The fact that these political rivals united may have alleviated some tensions between previously warring groups. Further, an ICC judge went on record that the court might issue arrest warrants if candidates were heard preaching hatred. Some interviewees also noted that the Kenyan civil society used the ICC’s presence to remind candidates that inciting violence would put them at greater risk with the ICC.

On the other hand, the evidence of a deterrent effect during the period of the ICC’s prosecution is equivocal. While the threat increased the costs, it may have influenced state leaders to commit abuses to help them hold on to or gain power in order to thwart the ICC. Reports suggest that while leaders were preaching peace, they were also bribing, intimidating or perhaps even killing (potential) witnesses.

Our case study evidence does not suggest any lasting deterrent effect. In fact, several interviewees stated they were not confident that the next elections would be peaceful. Also our study does not show any change in the government’s willingness to end impunity. Kenya’s leaders repeatedly tried to stop the ICC proceedings from going forward—lobbying the United Nations and African Union. Kenya has also only prosecuted a handful of low-level perpetrators of the 2007 violence, and many interviewees stated that the Kenyan government had made clear that it would not be seeking to prosecute perpetrators of the violence. President Kenyatta said as much in his 2015 State of the Nation address.

To conclude, our case study reveals that the ICC’s ability to deter depends on the level of its intervention as well as a number of country- and target-specific factors. Other in-depth case studies of ICC situation countries would contribute to a more nuanced understanding of its deterrent power.

The original version of this post can be found on openGlobalRights, a section of openDemocracy.

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