Parallel Paths and Unintended Consequences: The role of civil society and the ICC in Rule of Law Strengthening in Kenya

Christine S. Bjork Ms., Harvard Law School
Juanita Goebertus Estrada Ms., Harvard Law School

Abstract

This paper examines the nexus between international criminal law and capacity building of domestic criminal justice systems. We question whether the ICC can contribute to either concrete domestic criminal justice reform or broader rule of law strengthening through its so-called preliminary examinations. Using Kenya as a case study, the paper discusses whether the ICC’s preliminary examination that took place between February 2008 and March 2010 (when the Pre-trial Chamber authorized the Prosecutor to open a formal investigation) has provided civil society fighting impunity for the post-election violence with a lever to trigger accountability. We assert that although Kenyan civil society has gained legitimacy from the ICC preliminary examination to pursue political goals, which in turn might lead to rule of law strengthening, they have not used the preliminary examination to pursue direct criminal justice reform. We suggest that the reasons why Kenyan civil society has not been successful in advocating for domestic criminal justice reform is primarily due to (i) the “perverse incentive” created by ICC preliminary examinations, where NGOs whose main goal is ICC intervention will focus their advocacy on what makes the country “unwilling or unable” instead of insisting on capacity building of the domestic justice system, and (ii) the lack of political transition coupled with government involvement in atrocities in Kenya, which makes the government unsusceptible to pressure. Finally, we suggest a framework for understanding how the ICC can empower civil society through preliminary examinations.