A breakthrough in justice? Accountability for post-election violence in Kenya

Abstract

The International Criminal Court (ICC) provides the most promising, and potentially only, venue for accountability for those most responsible for serious post-election violence in Kenya. • International scrutiny, specifically the involvement of Kofi Annan and diplomatic pressure, sought to promote a resolution to violence and gave weight to the recommendations of a domestic commission of inquiry, but were unable to ensure domestic or hybrid accountability proceedings. • The ICC is expected by many in Kenya and beyond to pursue positive complementarity— that is, to have a significant impact on domestic accountability and the fight against impunity in the country. • The approval of the investigation into the situation in Kenya turned on a determination that crimes likely to be tried were not being investigated or tried in Kenya, and that they were of sufficient gravity to merit ICC scrutiny. • It will be difficult to ensure that ICC proceedings are accessible to the population, but potential for impact of the trials in Kenya depends on this. • Both case selection and the approach to timing and publicity of arrest warrants are sensitive politically. • Though the new Kenyan constitution, approved in a referendum in August 2010, might help prevent political violence in the future, serious and sustained efforts will be required to avoid tragic scenarios around the 2012 elections and beyond