Top prosecutor tells IWPR debate that justice process requires partnership between local and international courts.
With the war crimes trial of Kenya's president on the verge of collapse, an international prosecutor has argued that the business of delivering justice for mass crimes is not solely the domain of institutions like the International Criminal Court (ICC).
Serge Brammertz, the prosecutor of the United Nations' International Criminal Tribunal for the former Yugoslavia (ICTY), emphasised that justice ultimately depended on a partnership between national and international courts.
"Is international justice changing? Of course," Brammertz said during a debate hosted by IWPR and the Wayamo Foundation at Strathmore university in Nairobi on February 12. "What we've seen with the International Criminal Court is that international justice is looking for a totally different dynamic where national authorities are playing a much more important role."
Brammertz said efforts by the ICTY and the International Criminal Tribunal for Rwanda (ICTR), among others, to prosecute large-scale crimes over the last 20 years had been successful.
"Is international justice in decline? I don't think so," he said.
The prosecutor noted that since the inception of the ICC, there had been a shift to a greater reliance on local institutions. In situations where international courts prosecuted a few senior-level suspects, the onus was increasingly been on national judiciaries to take up cases against lower-level figures.
The debate, entitled International Trials Under Scrutiny: Are Prosecutions the Key to Accountability for Mass Crimes in Africa? was the sixth in a series of events held under a two-year programme Generating Demand for Accountability: A Critical Reporting and Media Project in Kenya.
Brammertz's comments came amid suggestions that support for the ICC has waned sharply in Kenya as the country's government and the African Union have sought to derail the cases against President Uhuru Kenyatta and his deputy, William Ruto.
Kenyatta and Ruto are charged at the ICC with orchestrating attacks during the violence which unfolded in Kenya following a disputed presidential election in December 2007. A former journalist, Joshua Arap Sang, is also on trial.
More than 1,100 people were killed and 3,500 injured in the bloodshed. Hundreds of thousands who were forced from their homes have never been able to return.
The trial of Ruto and Sang started in September 2013. Prosecutors have asked judges to delay proceedings against Kenyatta as they do not currently have enough evidence to bring the case to court.
Other justice experts on the six-person panel described how Kenya's leaders had sought to discredit the ICC since the March 2013 presidential election.
Macharia Gaitho, managing editor for special projects at the Nation Media Group and chairman of the Kenya Editors' Guild, said this had caused people to turn against the ICC and against international justice generally as a way of achieving accountability for crimes committed in 2007 and 2008.
"What we are seeing is that it has become as if it is almost the ICC on trial, and by extension the international justice system, because of the politicisation of the whole thing and the political emotions involved right from the beginning," he said.
Gaitho said there was an "element of fatigue" in public attitudes to the Hague court. There was no longer much backing for the ICC cases among supporters of Kenya's ruling Jubilee party, and even victims of the violence were increasingly accepting the narrative purveyed by national leaders - that they should accept what had happened and move on.
A third panellist, Betty Murungi, vice-chair of the Kenya Human Rights Commission, said that another factor behind the decline in support for the ICC was the perception that it was a foreign court.
Murungi contrasted the ICC's intervention in Kenya with other post-conflict situations in which national courts had pursued cases to complement international prosecutions. In Kenya, however, six years after thousands of crimes were committed, prosecutions had barely got off the ground. Murungi said this made it very difficult for Kenyans to buy into the justice process at The Hague.
"It appears that support for the ICC comes from outside the regions that are impacted by conflict," she said. "It appears that the international justice agenda is an external agenda."
Other panellists criticised the ICC for focusing only on high-level suspects.
Charles Kanjama, a lawyer at Kenya's High Court, said that in a country like this where domestic proceedings had largely failed, the end result was selective justice.
"It's not possible to achieve justice if you pursue those perceived to bear greatest responsibility while acknowledging that the system of pursuing lower-level perpetrators has collapsed," he said.
Kanjama said this was the greatest challenge facing the ICC in Kenya.
He also pointed to gaps in the ICC's jurisdiction and inconsistencies in referrals to the court by the UN Security Council. The court can only investigate crimes committed in its 122 member states. This excludes major states like the United States, China and Russia. Meanwhile, the Security Council has referred conflicts in Darfur and Libya to the ICC, but has so far ignored Syria and other parts of the world like Sri Lanka.
"As long as the ICC system does not make greater efforts to be all-inclusive, to ensure that its reach is global, and to ensure it goes hand-in-hand with local mechanisms in taking care of [mid- and lower-level] perpetrators, it is not going to succeed the way it was intended," Kanjama said.
Others argued that the level of support for the ICC depended not so much on the mechanics of the justice process but on how the court was portrayed in the public sphere.
Over the last year, leaders in Kenya and other AU states have striven to undermine the ICC's reputation. Kenyatta and Ugandan president Yoweri Museveni have both accused the ICC of being a tool used by Western states to target Africans.
Audience member Kioko Ireri, a professor of journalism at the United States International University in Nairobi, said it was essential to counter this kind of rhetoric.
"How do we convince Africans and people in the less developed countries that this institution was not developed to target them?" he said. "Because that is the biggest reason for the decline in support for the ICC."
Other members of the audience disputed the argument that victims of the 2007-08 violence in Kenya were no longer interested in getting justice at the ICC.
Ottilia Maunganidze of the Institute for Security Studies in South Africa insisted that victims still wanted to see people prosecuted.
"We tend to over-generalise the views of people we do not see, because it is easy," she said. "Interviewing 20 or 30 people who say they are tired of following the process does not mean they do not want to see justice for the crimes. I am not talking about international justice, but justice in whatever form."
Murungi, of the Kenya Human Rights Commission, said a recent survey on victims and their desire for justice showed how important it was to have mechanisms beyond prosecutions. The most recurrent themes in the survey responses were demands for reparations and the desire for reconciliation with neighbours.
"One cannot be too casual about people having to be reconciled and having to repair the social fabric," she said.
In that context, Murungi noted the failure to provide adequate and equitable reparations.
"We did not see the equality of treatment of all victims of post-election violence, and that is problematic," she said.
Gaitho, of the Kenya Editors' Guild, said criminal prosecutions, whether conducted by the ICC or locally, were key to preventing future outbreaks of violence.
"We buy a very temporary ceasefire when we decide to forget and move on, because the underlying issues have not been resolved and will certainly flare up again - and probably worse than it has been," he said. "We cannot run away from that."
This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.