By Marlise Simons
The International Criminal Court has given the green light to open formal criminal investigations of the political leaders who organized the violence that shook Kenya after its disputed election in 2007, the court announced Wednesday.
Two of three court judges said that the clashes, which left more than 1,100 people dead and drove hundreds of thousands from their homes, could amount to crimes against humanity. The judges' decision will now allow the prosecution to bring a case.
Kenyan groups and Western governments have called for the international court in The Hague to step in after the country's political leaders refused to set up a special tribunal to prosecute those responsible for the killings, saying they would rely on Kenya's existing courts to handle the cases instead.
But several of the suspects accused by human rights groups of masterminding the violence are high-ranking government ministers, prompting widespread criticism that they would not be held accountable by the nation's ineffective courts.
The prosecutor has not identified anyone he intends to prosecute. But now that international criminal proceedings will begin, supporters of the process hope that they will help break the pattern of political violence that accompanied not only the recent election in Kenya, but also voting in 1992 and 1997.
"The potential impact of meaningful trials can be huge if they can restore confidence in Kenya that elections don't have to turn into blood baths," said Richard Dicker, a director of Human Rights Watch. "But the sad lesson here is that an international court has to step in when the political elite cannot muster the will to see justice done at home."
For the international court, which has 110 member nations, the Kenyan case adds a new layer to its caseload. Until now, the court, which was created by the Rome Treaty of 1998 and opened its doors for business in 2002, has dealt with violent conflicts involving governments and rebel groups. These cases had all been brought by governments, or in the case of the conflict in Sudan, by the United Nations Security Council.
But Kenya is the first case in which the prosecutor - spurred by Kofi Annan, who helped broker a peace deal to end the violence - decided to investigate on his own authority. He has stepped carefully, though, aware that critics of the court, including the United States, which is not a member, have been wary of actions by an aggressive, independent prosecutor.
In a statement Wednesday, Louis Moreno-Ocampo, the prosecutor, said that the court would work "for and with the Kenyans" and that others, including political, religious, business and ethnic leaders would have to play a role in acknowledging what happened in their country and making sure it did not happen again.
The prosecutor's office has been looking into Kenya since early 2008. Its hand was strengthened by an international commission of inquiry, the so-called Waki commission, established by the Kenyan government.
The commission's findings, boxes full of documents, were handed over to the prosecutor. He also received a list of names of politicians held most responsible for inciting militia gangs to go on a rampage and attack political rivals from other ethnic groups. The list has not been published.
But the prosecutor's actions may not mean that Kenyan suspects will arrive at the court anytime soon. If any arrest warrants are issued, the court will depend on Kenya to detain and hand over the individuals.
Witnesses who will be asked to testify may be at risk, and some may be too fearful to cooperate. Several witnesses who had spoken to the Waki commission reported that they had received death threats and had to go into hiding after their names had been leaked.
