Today the International Criminal Court begins its first hearings to confirm charges against three of the six men accused of orchestrating the violence that followed Kenya's 2007 Presidential Elections, leaving over 1,000 dead and over 350,000 displaced. We interviewed many of the displaced during the spring of 2008 while working with Kenyan rights groups determined to confront a political culture prone to violence with justice through genuine accountability.
The ICC is a relatively new but potentially powerful instrument for holding those responsible for the most serious crimes to account, and these trials therefore represent an important step in Kenya's reconciliation process and towards ending the cycles of impunity that have blighted the country's recent political history.
The ICC must not forget, however, that its mission depends crucially on its ability to deliver a sense of justice and accountability to the victims of the crimes it investigates and prosecutes. Victims are the primary constituents of the Court's work. These are the communities that must have their faith in the rule of law restored through a clear sense that justice has been done and that any rewards for violence have been reclaimed, lest their grievances be allowed to slowly erode the prospects for a sustainable peace.
One of the most effective means of ensuring that victims are engaged in the justice process is by ensuring that trials are held in or near their communities where possible. This is an unquestioned assumption in most domestic criminal cases, and the stated preference of many victims' groups. How can victims be expected to engage fully in a judicial process when it is conducted thousands of miles away?
The Rome Statute, the ICC's founding document, clearly recognises the importance of administering justice locally through the so-called "principle of complementarity," which limits the Court's jurisdiction to case where the State itself is unwilling or unable to conduct trials of its own. While the ICC sits in The Hague, the statute therefore clearly allows it to convene elsewhere, particularly where this will help bring justice closer to victims.
A recent review conference convened to discuss the Court's progress over its first ten years also reaffirmed the centrality of victims to its work, and stressed that the Court needs to dramatically strengthen its presence in situation countries, as well as other aspects of its outreach programme.
Regrettably, and despite numerous proposals to hold some or all of its proceedings in Kenya, hearings have today started in The Hague. This is a decision is consistent with the Court's continued reluctance to conduct trials in countries where the relevant crimes have been committed.
There are, of course, circumstances that might make such local hearings impossible. The primary concern of any investigations and trials must be the wellbeing of witnesses and victims, including their physical and psychological welfare. The reality of many of the post-conflict societies in which the Court operates is unfortunately such that this cannot be guaranteed.
There is, however, little to suggest that the Court has conducted a comprehensive analysis of the current security situation in Kenya. The Prosecutor himself has noted that "no security assessment has been conducted that permits the Chamber to determine that conducting the proceedings on site will be in accordance with the Rome Statute's security requirements." Furthermore, little thought appears to have been given to whether the relevant security concerns could be mitigated or managed in a way that would make it possible to conduct some proceedings in affected communities. Nor, if its security concerns are indeed well founded, does the Court appear to have seriously considered conducting some of its hearings in neighboring Tanzania, which already hosts the international criminal tribunal tasked with prosecuting those responsible for the genocide in Rwanda.
Breaking cycles of impunity that reward violence and undermine trust in the rule and institutions of law is an ongoing project. The ICC has an important role to play in this project, but to succeed it must do more to engage victims in its work from the very onset of its investigations and throughout its trials. Advocacy groups such as No Peace Without Justice are now working to ensure that the Court's decision does not set a precedent that presumes against conducting trials in affected communities in the future, and to encourage the ICC to strengthen its protection and support mechanisms victims and witnesses. This is crucial not only to ensuring the Court lives up to its potential in Kenya, but to the long-term project of building sustainable peace through universal international criminal justice.
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