Don’t Be Vague, Go to The Hague!

Abstract

The Prosecutor encouraged the Kenyan government to conduct its own investigations and prosecutions and the government promised that post-election violence suspects would be tried domestically. The literature on positive complementarity suggests that the threat of international prosecutions ought to have provided a positive incentive for the government to ensure that trials took place at the local level. So why was it that so many members of government, including senior ministers, threw their support behind international prosecutions, united in the popular catch cry, ‘Don’t be vague, go to The Hague?’

This chapter argues that, although the threat of international prosecutions influenced politicians, the strategy of positive complementarity was ultimately unsuccessful in persuading them to support a local mechanism because senior leaders with blood on their hands were simply not prepared to commit political suicide by supporting the prosecution of themselves or their allies. As a consequence, such persons expressed support for the mechanism they felt was most likely to result in themselves and their allies evading accountability. Some favoured a special tribunal they felt they could control, while others threw their support behind an ICC process they considered would take many years to conclude and perhaps even longer if action was taken to frustrate the progress of the cases. At the same time, however, politicians were well aware of the need to publicly demonstrate that they were committed to ending impunity. The OTP’s constant insistence of the need to end impunity therefore had the effect of encouraging politicians to engage in a foreign affairs façade whereby they continuously gave assurances that they supported the ICC process but simultaneously took steps designed to frustrate the progress of the cases.

This chapter further argues that the OTP’s encouragement of domestic prosecutions had at least two unexpected and undesirable shadow sides. First, and somewhat paradoxically, the threat of international prosecutions may have discouraged some within government from supporting local trials. Second, to the extent that the strategy of positive complementarity served as a catalyst for the establishment of a special tribunal, it was to encourage the creation of a mechanism that was lacking in independence and fairness.