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Is the International Criminal Court biased against Africans? Kenyan victims don’t think so.

Kenyan President Uhuru Kenyatta appears before the International Criminal Court in The Hague on Oct. 8, 2014. (Peter De Jong/European Pressphoto Agency)

In early February, the African Union (A.U.) passed a nonbinding resolution encouraging member states to withdraw from the International Criminal Court (ICC), the international justice institution that holds people accountable for war crimes, crimes against humanity and genocide. Kenya’s government already has signaled that it may withdraw, after repeatedly arguing that the court is biased against Africans.

[interstitial_link url=”https://www.washingtonpost.com/news/monkey-cage/wp/2016/10/15/heres-how-kenyans-want-their-democracy-to-work/?utm_term=.1500c01cc0fa”]This is how Kenyans want their democracy to work[/interstitial_link]

But ordinary Kenyans aren’t as convinced that the ICC is biased against Africa as some African leaders would have us believe. That’s what we found by conducting a public opinion survey in 2015. And here’s what’s most significant: Kenyan victims, who suffered or witnessed violence in their country, are far less likely to believe the ICC is biased against Africa.

The African Union and the International Criminal Court

At its 2017 annual meeting, the African Union passed a complex ICC withdrawal resolution. Some states, notably Nigeria and Senegal, strenuously objected.

Kenya doggedly pushed through the resolution. In 2011, ICC prosecutor Luis Moreno Ocampo indicted Uhuru Kenyatta, who later became Kenya’s president in 2013, and others on charges of promoting ethnic violence after the 2007 presidential elections.

[interstitial_link url=”https://www.washingtonpost.com/news/monkey-cage/wp/2017/01/20/people-like-the-international-criminal-court-as-long-as-it-targets-other-problems-in-other-countries/?utm_term=.b444c6575087″]People like the International Criminal Court — as long as it targets other problems in other countries[/interstitial_link]

The violence erupted after Mwai Kibaki hastily had himself sworn in as president after what the opposition party, led by Raila Odinga, called a rigged election. Odinga’s primarily ethnic Luo and Kalenjin supporters attacked Kibaki’s ethnic Kikuyu supporters. The Kikuyu, the group to which President Kenyatta belongs, responded by retaliating. According to Human Rights Watch, the violence resulted in more than 1,000 people dead and half a million displaced.

Kenya’s campaign against the ICC attracts a group of African leaders who previously butted heads with the court, or who fear they may be prosecuted in the future. In 2009, the ICC prosecutor issued an arrest warrant for President al-Bashir of Sudan, the first time the court indicted a sitting head of state. Shortly after, al-Bashir called the ICC a “colonial court.”

Since then, a number of African leaders have pushed the narrative that the ICC is driven by Western neocolonialism and is biased against Africans. During a speech at the October 2013 A.U. summit, while he was under indictment, Kenyatta declared that “Western powers are the key drivers of the ICC process” and that “African sovereignty means nothing to the ICC and its patrons.” At every A.U. meeting since, Kenyan leaders have urged countries to consider opting out. In October 2016, Burundi and South Africa — each of which has also had recent run-ins with the court — announced they were quitting the ICC.

We can measure claims of ICC bias against Africans

After taking into account the ICC’s limited jurisdiction, which extends to 124 countries that have joined the court, one group of researchers found that the ICC does not arbitrarily target African leaders. The ICC prosecutor generally intervenes in the “gravest,” or most violent, conflicts in the world over which it has jurisdiction. It is also important to note that the ICC is a court of last resort, which means that it will investigate and prosecute international crimes only when domestic courts are unable or unwilling to do so.

But objective evidence doesn’t always win the day. That’s why we wanted to know whether Kenyan citizens believed their leadership’s anti-ICC campaign. Do Kenyans — particularly the victims the ICC was meant to protect — agree that the ICC is unfairly targeting Africans?

Here’s how we did our research

In 2015, a team organized by The Hague Institute for Global Justice collected interviews of 507 randomly selected Kenyans in five regions: Nairobi/Murang’a; Naivasha/Nakuru; Mombasa; Kisumu; Eldoret. These regions had either been targeted during the 2007-2008 post-election violence or are home to violent groups implicated in ethnic violence.

In these regions, only 34.3 percent of participants agreed with the statement, “The International Criminal Court, ICC or The Hague is biased against Africa.” (We included “The Hague” because the name of the city where the ICC sits is often seen as synonymous with the court itself.) A plurality of respondents, 46.2 percent, disagreed, and 19.5 percent remained neutral or said they did not know.


Who in Kenya is more likely to think the ICC is biased?

Kenyatta and ICC suspect William Ruto created the Jubilee Coalition so they could run for president and deputy president in Kenya’s 2013 elections — even though they were political and ethnic rivals (Ruto is Kalenjin) during the 2007 elections. According to this survey, members of Kenyatta’s ruling Jubilee Coalition are more likely to agree with him that the ICC is biased, as you’d expect. The figure below shows that a little more than 50 percent of those who voted for Kenyatta’s Jubilee Coalition in 2013 agree that the ICC is biased.


But there’s another factor that matters even more in whether someone trusts or distrusts the ICC: having suffered or witnessed violence, which we call victimhood.

In this sample, about half (50.6 percent) of respondents were victims of election violence in either 2007 or 2013. The figure also shows how that experience affects a person’s perceptions of the ICC. As you can see, 60 percent of victims do not agree that the ICC is biased.

Ethnic group membership may matter as well. Kikuyu and Kalenjin are represented in the ruling Jubilee Coalition — and they are more likely than average Kenyans to rally behind Kenyatta’s anti-ICC rhetoric. But being a member of a particular ethnic group doesn’t necessarily mean unflinching support for the president, especially among victims. Of survey respondents who identified with the ethnic groups in power, 69 out of 181 (38 percent) said they suffered or witnessed election violence. In this group, opinions about the ICC are more evenly split: 26 percent agree that the ICC is biased, 25 disagree and 18 are neutral.

Much remains to be explored

Trust in Kenyan national courts is low; 65.6 percent of these Kenyans have “little” or “no” trust in their national judiciary. Those who distrust Kenyan courts are less likely to believe the ICC is biased against Africans. Presumably, those Kenyans may believe that the ICC is one of the few institutions that can address endemic impunity in Kenya.

Reformers across Africa try to use ICC interventions to pressure their governments into accepting norms of accountability. As the ICC prosecutor recently stated, “The victims [of atrocities] deserve justice, the victims are Africans, and in the absence of the ICC nobody else is giving them justice.” Our findings suggest that many Kenyans agree with the prosecutor, and probably would object to Kenya and other African countries withdrawing from the ICC.

Tessa Alleblas is a researcher at The Hague Institute for Global Justice.

Eamon Aloyo is a senior researcher at The Hague Institute for Global Justice.

Geoff Dancy is an assistant professor of Political Science at Tulane University.

Yvonne Dutton is an associate professor at Indiana University McKinney School of Law.