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