Will survivors of sexualized violence in Kenya see justice?

News out of the International Criminal Court does not bode well for Kenyans seeking justice six years after the country’s violent post-election crisis.

Sitting President Uhuru Kenyatta’s trial for crimes against humanity was set to begin February 5, but has been delayed at the prosecution’s request for additional time to gather evidence after one witness withdrew and another admitted to providing false information. Instead, the ICC will hold a hearing to consider the prosecution’s request for a three-month adjournment and Kenyatta’s request to have the case thrown out altogether. He claims innocence in the face of various charges against him: murder, deportation or forcible transfer, rape, persecution, and “other inhumane acts.”

Kenyatta is accused of financing a local Kikuyu militia that carried out attacks against ethnic Luos in the aftermath of Kenya’s 2007 presidential elections. The politically motivated violence resulted in the deaths of at least 1,500 and the displacement of 300,000 civilians, according to IRIN, the UN news service. In the midst of these tribal clashes, sexualized violence was also reportedly widespread. According to the Afya Kenya Foundation, a nonprofit health outreach organization based in Nairobi, approximately 1,700 men took part in raping an estimated 600 women in Nairobi alone, the majority of gang rapes involving no less than three men.

A 2008 report from the Nairobi-based Centre for Rights Education and Awareness also asserts that there was mass sexualized violence. The report found:

The wide scale violence which followed the December 2007 presidential elections brought new dimensions to the problem of sexual and gender based violence particularly in the areas affected by the conflicts such as Nairobi, Naivasha, Nakuru, Burnt forest, Eldoret and Kisumu where media reports and survivor accounts pointed to high incidences of sexual violence. The Kenya Police Crime Report data for 2007 indicated that there were 876 cases of rape reported, 1,984 cases of defilement, 181 cases of incest, 198 cases of sodomy, 191 cases of indecent assault and 173 cases of abduction reported in the year.

Of course, these figures only account for those rapes and assaults that were reported; it is nearly impossible to know the actual number of assaults that occurred. Women may choose not to report rape due to several factors, including (but certainly not limited to) intimidation, distrust of local authorities, humiliation, and fear of being blamed or shunned by their communities. It is also worth noting that these rapes did not abruptly end when the conflict ceased; thousands of displaced women and girls continue to face threats of sexualized violence in camps for internally displaced persons.

So while numbers and stories of sexualized violence abound, obtaining convictions in such cases has often proved elusive.

The ICC’s track record proves that prosecuting crimes against humanity, especially those involving cases of sexualized violence, is extremely challenging. At a minimum, success requires adherence to international legal norms, respect for victims, and a strong political will to prosecute. But, as Kenyatta’s trial demonstrates, even when these factors are working in tandem, victory is not a shoo-in. The process—from collecting evidence to combating witness intimidation and local perceptions of the ICC, to securing charges and commencing the trial—is fraught with obstacles.

There is hope, however, to be gleaned from the court’s predecessors, the ICTY and ICTR, with regard to prosecuting rape as a crime against humanity (although both tribunals have also been criticized for their lack of convictions). For example, the office of the prosecutor for the ICTY was able to successfully identify several victims who were willing to testify, thus helping to create and preserve a historical record of events, while the ICTR developed an international legal understanding of rape through its prosecution of rape as genocide and a crime against humanity (in the Akayesu case).

Any successful prosecution for widespread rape requires international courts to fulfill special considerations for the nature of the crime. These include:

• Conducting gender-sensitive investigations. This means proper collection of evidence and witness testimony, ideally by investigative teams with adequate female representation who are sensitive to the needs of sexually assaulted witnesses and victims.

• Providing adequate witness and victim protection. In addition to securing the safety of those testifying at trials while they are in The Hague, the ICC needs to ensure its Victims and Witnesses Unit extends adequate protection measures to witnesses upon their return home. As part of these protection measures, it would be prudent to establish a mechanism to track which witnesses face harassment upon return, by whom, and where. This would help determine patterns of retribution and identify locales that may need additional oversight and protection.

• Providing local, public access to hearings. Local populations should be objectively informed about proceedings in order to combat images of one-sided justice and promote a sense of fairness among those affected by war crimes. Radio telecasts and printed information in local languages can help accomplish this goal, as can local town halls hosted by ICC representatives to provide updates on proceedings.

• Ensuring that the sentence is consistent and commensurate with the crimes committed. Sentences communicate to both offenders and victims alike a value judgment on the crimes committed. Lax sentences, then, indicate that the international community does not take rape and other forms of sexualized violence as seriously as other crimes, thereby devaluing the experiences of victims and condoning the acts of perpetrators. This may seem obvious, but it bears repeating.

In the case of the ICTY, convicted perpetrators of sexualized violence were given sentences that, in comparison to the gravity of the crimes, were lackluster. For example, in the Kunarac case, three defendants were convicted of multiple counts of murder, rape, and enslavement, but were given sentences of only 28, 20, and 12 years, respectively. In the case of Kenya, the ICC must send a strong message with commensurate sentences that rape is not a by-product of conflict, but a serious crime that will not be tolerated.

Whether Kenyatta will have his day in court remains to be seen. But one thing is certain: the women and men who suffered in these politicized attacks deserve justice. The international community is watching with weary eyes.