ICC trial may harm Kenya's reform

Wednesday, December 29, 2010; 8:06 PM

THE INTERNATIONAL Criminal Court (ICC) has had a decidedly lackluster record since its creation in 2002. The court, which the United States declined to join, has so far taken on five cases - all of them in Africa - but has yet to complete a trial. Most of the suspects it has charged are still at large, notably Sudanese President Omar al-Bashir. Most important, it's not clear that the court's actions have done more good than harm. The indictment of Mr. Bashir on genocide charges, though undoubtedly merited, has complicated efforts to broker peace in Darfur and hindered an upcoming secession referendum in southern Sudan.

Rather than pull in his horns, the court's prosecutor, Argentine Luis Moreno Ocampo, has grown more ambitious. Earlier this year he used, for the first time, the court's authority to initiate an investigation, rather than acting on a referral from member states or the U.N. Security Council. His target was Kenya, where intercommunal violence after a disputed 2007 presidential election killed more than 1,000. This month Mr. Ocampo announced that he would seek criminal summonses from the court for six prominent Kenyans implicated in the violence, including a deputy prime minister, two other senior government officials and the former national police chief.

For the past three years Kenya has been slowly seeking to recover from the violence and the ethnic tensions it unleashed, with mixed results. In August, a referendum on a new constitution was fair and mostly free of violence; the constitution itself will make Kenya a more democratic country when it is fully implemented. However, attempts to establish a national tribunal to try those responsible for the 2007 bloodletting have been blocked, and some Kenyans fear that the next presidential election, due in 2012, could trigger a repeat.

Mr. Ocampo has now inserted the ICC into this delicate situation. His aim is to end impunity for the violence and deter any repetition. The prosecutor diplomatically singled out three leaders from each of the two principal sides in the fighting, while leaving their leaders - President Mwai Kibaki and Prime Minister Raila Odinga - untouched. Rather than request an arrest warrant from the court, he asked for a summons, a milder measure that would not require the Kenyan government to detain the suspects.

Nevertheless the first reactions to the action have been negative. The Kenyan parliament passed a resolution calling on the government to withdraw from the ICC. The government says it will instead try again to conduct its own trials, which under the ICC's rules could supplant its case. That would be the best solution for Kenya and also, probably, for the ICC, which, like other international tribunals, appears unable to deliver a speedy trial.

The danger is that, instead of consolidating the fragile new political order, the prosecution of senior political figures will drag Kenya back toward civil war. President Obama appeared to recognize that threat in a statement he issued on the day of Mr. Ocampo's announcement, in which he urged Kenyans to cooperate with the ICC - and also to "remain focused on implementation of the reform agenda and the future of your nation." Justice for human rights crimes is important; but Kenya's continued peace and democratic progress is of greater value than another endless prosecution in The Hague.

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