While democratic elections are the cornerstone of a system of governance that best protects the right of the individual to self-determination, elections are not always without problems. In the absence of certain legal frameworks, such as a strong rule of law or an effective complaints adjudication system, factors like existing socio-economic cleavages or ongoing political skirmishes can lead to violence during the election process. Often, perpetrators of election violence benefit from a culture of impunity and victims are left unassisted. Though many recent examples of violent election crises – such as Iran, Moldova, Zimbabwe, and Kenya – have garnered unprecedented international attention, justice has not necessarily followed. In Kenya, in the wake of post-election violence that shook the nation, the most likely venue for justice may be the International Criminal Court (ICC). This is an unprecedented effort at ending impunity, but the implications for dealing with election violence more broadly have yet to be explored.
Violence erupted in Kenya in relation to the Presidential elections on December 27 2007. On December 28, reports from the national counting center showed a lead for opposition candidate Raila Odinga over incumbent Mwai Kibaki. As local results from Kibaki strongholds experienced unexplained delays, Odinga supporters grew increasingly suspicious. On December 30, the Election Commission Chairman announced Kibaki as the winner, only to later declare that he had been pressured to do so. Violence fueled by rumor, anger, and long-standing grievances began the next day and continued for two months. The bloodshed left at least 1,100 dead and over 300,000 persons displaced. In February 2008, an agreement was brokered by former UN Secretary General Kofi Annan and a panel of Eminent Persons. The two Presidential candidates formed a Government of National Unity, a National Dialogue and Reconciliation was launched, and two high-level inquiries into the violence were initiated.
Pursuit of Justice
Now, two years on, perpetrators of election violence in Kenya may be the first ever to face the possibility of prosecution by the ICC. But this does not necessarily signal a new approach to prosecuting election violence, nor should it. As horrific as the casualties and impact of the violence are, the ICC is only getting involved because of the particular nature of the violence. Most acts of election violence, even large massacres such as that in the Philippines in November of last year, would not likely fit in the ICC’s narrow jurisdiction that limits it to acts of genocide, crimes against humanity, war crimes, or aggression between states. One element that makes this case different is the ethnic nature of much of the violence; another key factor is the alleged complicity of government officials. The possible involvement of state actors (referred to within the ICC definition of crimes against humanity) and the specter of ethnic cleansing (raising the possibility of genocide) have made ICC jurisdiction a possibility.
Additionally, the report by the Commission of Inquiry into Post Election Violence, known as the Waki report, mentioned the ICC specifically as an alternate venue in the case that its recommended timeline and framework for a Special Tribunal for Kenya were not followed.
Balancing Act
Where is the balance between local and international justice? Some in Kenya, including the government, are arguing that Kenya should first be allowed to pursue justice locally. More generally, some argue that the increasing involvement of international tribunals and bodies like the ICC actually remove the burden of dealing with perpetrators from national authorities, thereby reinforcing corruption and impunity. In relation to election violence, election officials and election dispute resolution systems would be included in this argument. International prosecutions do not offer any long-term resolution for underlying causes, such as socio-economic grievances or past atrocities that may fuel such heinous acts of violence.
The limited scope of international justice is another factor cited by opponents. Even if the ICC does agree to investigate in Kenya, prosecutions will likely focus on a few leaders or instigators of the violence and would not be likely to reach the vast majority of actual perpetrators. The cases against most perpetrators would still fall to national courts, if momentum for such justice remained.
On the other side of the debate, some argue that in countries dealing with crimes of this magnitude, local justice is unlikely because of corrupt judicial systems, involvement of the government in the violence, or inadequate justice structures. A state accused of orchestrating violent acts is unlikely to prosecute the implementers of its strategy. And, the involvement of the ICC in any country does not preclude concurrent national trials.
Though limited in number of prosecutions, the publicity and international attention given to any ICC prosecutions would be huge in comparison with coverage of local trials. If the ICC asserts jurisdiction, it will also clearly put similar types of election violence in the category of crimes against humanity or genocide, opening the door for future prosecutions of state-supported or ethnically-driven election-related atrocities. This kind of weight and attention to the problem could mark a significant blow to impunity for perpetrators of widespread election violence around the world. It will also set a new precedent for the ICC Prosecutor’s discretion to go after new cases.
New Venue for Election Violence Cases?
Will this set a precedent for cases of election violence around the world? If the ICC asserts jurisdiction, it could mean that advocates against election violence have a new tool and a new inspiration. However, as noted above, the vast majority of such violence will not fall under the ICC’s mandate which is probably for the best. The local impact and intimate nature of much election-related violence, at least that between rival parties, could better be served by local justice. The key to ending such violence is to inhibit low-level perpetrators at the same time as national criminal and electoral measures (such as banning the candidacy of parties or individuals found responsible for violence) create disincentives for leaders of such violence. In cases in which the state is the primary perpetrator of violence, the ICC may indeed provide a much-needed impartial venue for the most serious cases. But it will not replace the local justice needed for most perpetrators or the action needed by local and national authorities to restrain this phenomenon.
Developments in Kenya, both domestically and internationally, will be important for citizen activists, democracy assistance providers and those working to stop election violence and impunity in general. They will also help set precedent for the ICC Prosecutor’s discretion to go after new cases. Yet even if the ICC does not assert jurisdiction, the debate and attention on the topic could support activists against violence. Whether or not the ICC becomes a factor, it remains essential for countries facing the problem of election violence to find long-term, local solutions to the political violence, corruption, and historical cleavages that mar the full and peaceful democratic participation of their citizens. The direction of reconciliation and justice in a country rests ultimately in the hands of its people and its leaders.