The international justice two-step

The phrase "international justice" evokes a sense of true justice, where the global community rallies to ensure that a great injustice is never perpetrated again. In 2007, a Kenyan general election was declared unfree and unfair by the losing opposition. The ruling party told the opposition to get stuffed. 

The general election and the declaration of the presidential results had a terrible aftermath. One thousand, one hundred and thirty three were declared dead when the dust settled. In 2010, six Kenyans - three prominent politicians, two very senior civil servants and a little-known radio host - were indicted at the International Criminal Court for offences connected with the aftermath of the 2007 general election. Six years later, not one of them was convicted.

Kenya, just like the United States, the United Kingdom, Saudi Arabia and Israel, have put the lie to the story that there is such a thing as "international justice." What has always been there is victor's justice; the one left standing decides what punishment needs to be meted out to the one on his back on the floor. The experiments at victims' justice have all been in the developing global south: Africa (Rwanda) and Asia (Cambodia). The Rome Statute is the logical culmination of these somewhat successful experiments. It has been exposed to be the failure it was always going to be.

Since the Allied Powers tried - and punished - Nazi leaders at Nuremberg after the Second World War, it should have been clear to the wide-eyed idealists that it is the victorious who determine the outcome of a conflict, not an international tribunal. International tribunals, looked at in a different light, have a lousy foundation for their authority: treaties. Treaties are the bastard children of international politics and diplomacy, especially when unsavory nations are involved. (If you do not understand the unsavory nature of the British or French, you're beyond help.)

Treaties are compromises that nations strike in order not to offend each other as they sell each other goods and services. The Rome Treaty is no different. Its ostensible aim may be to ensure that war crimes are punished, but its true aim is to ensure that markets are not disrupted by conflict. Kenya may not be as big a market as South Africa, Egypt or Nigeria, but be under no illusion, it is an important market and the 2007/2008 crisis threatened the proper operations of that market. The victims were the fig leaf used to cover the true reason why an ICC trial was needed.

Now that the Government of Kenya has had its knuckles rapped by the sham of an ICC investigation and the fiasco of a  prosecution, the pretense at justice for the victims is at an end. Many have been "resettled" and "compensated" though many PEV offenders walk free without fear of arrest or prosecution. The DPP has concluded that few prosecutions can be sustained on the basis of the information available. (His office, by the by, is not looking for fresh information.) The Judiciary's hand are tied; the Supreme Court is not the constitutional court nor does it have original jurisdiction in criminal matters. Besides, says the Chief Justice, Kenya's is a bandit economy and he and his judiciary are under siege.

International justice is a sham, a scam. The sooner we got over the lie, the sooner we can design a system of justice that suits our purposes. What form that system will take remains a mystery we have been unable to crack, blinded as we were by traditions and customs of the "international community."