ICC trials call world attention to our shame

By Kethi D Kilonzo

 “It is not what the Germans did to the Jews. It is what the rest of the world failed to do”.  Simon Schama.

In his opening statement in the first prosecution before the Nuremburg International Military Tribunal, Justice Jackson stated in part “the common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils …”

In 1944, when eventual victory over the Axis powers seemed likely, President Franklin Roosevelt asked the War Department to devise a plan for bringing war criminals to justice. Before the War Department could come up with a plan, however, the Treasury Secretary sent his own ideas on the subject to the President’s desk. His eye-for-an-eye proposal suggested summarily shooting many prominent Nazi leaders at the time of capture and banishing others to far-off corners of the world. Under the plan of the Treasury Secretary, German prisoners of war would be forced to rebuild Europe.

The Secretary of War saw things differently. In his counter-proposal the responsible Nazi leaders would be tried in court. Roosevelt eventually chose to support the War Department’s plan. Churchill favoured execution of captured Nazi leaders. Stalin’s proposal was to put the war criminals on trial.

The criminal trials that followed WWII saw to it that the “big” and “small” men responsible for the atrocities were tried by the International Military Tribunal, and domestically in their home countries respectively.

The persons responsible, as direct and indirect perpetrators were brought to book and made to answer for their crimes through public trials.

After the Rwanda Genocide, both the “direct” and “indirect” perpetrators of the crimes committed against the Rwandese faced public trials in domestic and international tribunals respectively.

The essence of criminal trials is not to obtain conviction. The primary purpose is to afford the victims, and those accused, a fair hearing. The person standing accused is given a chance to defend himself and the victims of that crime or their relatives public knowledge of what happened.

Elgeyo Marakwet Senator Kipchumba Murkomen during the debate on ICC at the Senate stated that President Uhuru Kenyatta and Deputy President William Ruto are being crucified for the post-election violence.

As a nation, we should not celebrate that the president and his deputy are facing justice in an international criminal court for the post-election violence. Au contraire, we should be ashamed that we have and continue to fail to shield the victims of the violence by prosecuting and/or condemning those who wronged them for no reason other than their tribe. We have voluntarily ceded our societal moral and legal responsibility to foreigners.

As Kenyans, we should all look down in shame every time the ICC is mentioned because three people face the scorn, and the brunt of the scales of international criminal justice on behalf of the whole nation.

We have collectively, and individually, by failing to speak out and expressing moral outrage for and on behalf of the victims, placed the yoke of post-election violence on the shoulders of three individuals.

When history is written of the ICC trials, it will not be of the actions of the community of nations; rather, what Kenyans failed to do to protect their own.