How Post-Colonial is the International Criminal Court? A case study on the Kenyatta and Ruto Case

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2014
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en
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The International Criminal Court (ICC) in The Hague is a “tool of imperialism”, according to the wellknown lawyer Charles A. Taku (TPIR Heritage Defense, 2012a). This is an often heard accusation in Africa. Numerous political leaders from the continent have expressed their doubts about the fairness of the ICC. The essence of these accusations is always the same: Western powers abuse their influence on the ICC to rule over the African continent. This thesis investigates where these accusations come from, and whether or not the African leaders might have a valid point. In doing so, this thesis uses the cases against the Kenyan leaders Uhuru Kenyatta and William Ruto as a case study, and the theory of post-colonialism as a theoretical framework. The accusation of the African leaders is in fact the claim that the ICC is a neo-colonial court. Neocolonialism is a phenomenon first described by Nkrumah (1965). It describes how Western powers still try to keep their influence in African countries, even though these countries are decolonized and (on paper at least) fully independent. But according to Nkrumah (1965), Western countries, not necessarily former colonial powers, still try to control African countries, through economic or monetary policies. Neo-colonialism should not be confused with post-colonialism. Post-colonialism “deals with the effects of colonization on cultures and societies”, as Ashcroft, Griffiths & Tiffin (2000, p. 186) define it. This thesis focuses on the concept of post-colonialism as described by Fanon (1967, 1991). He argues that Western powers legitimize their (post-)colonial behavior by framing Africa as an uncivilized, undeveloped and backward continent. In doing so, the (former) colonial powers legitimize their actions in the (former) colonies. Spivak (1985) describes how the use of language can influence the politics of – in her case – colonial Great-Britain. She shows that British rulers in India created a false image of the Indians. Thereby the colonial British showed people in Britain and India who was in charge, and who was the dominated, subjected party. This thesis investigates whether or not the ICC does something similar in their court documents. The International Criminal Court is the first permanent international court, founded in 1998, and fully operational since July 1, 2002. A total of 122 countries have signed up to the Rome Statute (2011), making them State Parties to the ICC. The fully independent ICC was established in order to end the impunity of criminals of war (ICC, 2014e). To date, twenty-one cases in eight situations have been brought to the ICC, all which concern African individuals (ICC, n.d.c.), a fact that might fuel the perceptions of the African leaders that the ICC is only focusing at Africa. This thesis analyses the court documents pertaining to the cases against the Kenyan president Kenyatta and his deputy Ruto. Kenyatta and Ruto are facing trials for their alleged role in the post-election violence in their country that occurred in 2007 and 2008, during which over twelve hundred people got killed (CIPEV, 2008). Both are accused of crimes against humanity, and both object to their trials and claim that the ICC is targeting them for political reasons only. The Pre-Trial Chambers confirmed the charges against both individuals; the Office of the Prosecutor has a hard time collecting evidence, however – resulting in the prosecution asking for an adjournment of the case (Allison, 2014). The final chapter (Chapter 4.0) of this thesis contains a content analysis that compares the court documents of the ICC with a so-called ‘neutral standard’, in this case the news coverage of the Kenyan newspaper Daily Nation. Differences between both groups of texts show the characteristics and meaning of the selected texts. If the African leaders are right in their perception that the ICC is a post-colonial tool that is only targeting Africans, the court documents should contain more post-colonial features than the neutral standard. This thesis looks at (the framing of) two terms in both (groups of) texts. The first is the act of taking someone’s life. Is this act described in a neutral way (‘to kill’), or in a more colored way (for instance, ‘to cut his throat’)? The second aspect the content analysis of this thesis looks at is the framing of the attacks. Are the post-election attacks framed as spontaneous outburst of violence, or as pre-planned and organized killing sprees? The results of the content analysis, and the comparison between the two sets of texts, show that the court documents of the International Criminal Court contain more features that might be called postcolonial. In the ICC documents, the act of taking someone’s life is slightly more often described in a negative way (32% in the ICC documents versus 27.4% in the neutral standard). In addition, the court documents frame the attacks in Kenya as being pre-planned more often than the neutral standard (33.1% in the ICC documents versus 16% in the neutral standard). Nevertheless, these results and the analysis of this thesis do not lead to the conclusion that the ICC is indeed a post-colonial tool, as some African leaders claim it to be. There are other, possibly more likely explanations for the differences in the use of language. However, based on the results of the content analysis it becomes clear that the ICC portrays the acts in Kenya as more negative than the neutral standard. And whatever the reasons for this use of language is, that might strengthen the feelings of discontent about the ICC amongst African leaders
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Faculteit der Managementwetenschappen