Nearly sixty years ago, the International Covenant on Economic, Social and Cultural Rights (ICESCR) asserted that everyone has the right to take part in “cultural life,” echoing Article 27 of the Universal Declaration of Human Rights. Over time, this has been supplemented by other instruments including the 1954 Hague Convention, which requires states to protect cultural property in times of war, and the Convention on Intangible Cultural Heritage. The latter calls on states to safeguard the performing arts and other practices which provide communities with a “sense of identity and continuity.” However, during his state address, Russia’s president denied that Ukraine exists as a nation, insisting that its people lack their own history and culture. Russian forces have subsequently attempted to realise these claims by destroying the very places where Ukrainians sang, danced, and celebrated their shared history.

Days after Ukraine came under attack, Russian forces bombed the Ivankiv History Museum, which housed 25 works by the acclaimed artist Maria Prymachenko. The aerial assault soon moved to Mariupol, where Russian missiles struck the Donetsk drama theater, killing over a dozen civilians. Alongside bombed out buildings and broken glass, Russian soldiers left a trail of stolen artefacts. More than 2,000 artworks were taken from museums in Mariupol, including ancient icons and treasured paintings. Eight months later, soldiers pillaged Kherson, seizing artefacts from the city’s cathedral, national archive, and two museums. Throughout these attacks, cultural officials have sought to protect Ukrainians’ cultural heritage, partnering with private companies and Polish organisations to evacuate collections from conflict zones. Even so, it remains unclear how many stolen items have been irrevocably lost or damaged. The destruction of Ukrainians’ heritage threatens to erase tangible pieces of their history, and ultimately their identity as a people. Cultural sites facilitate the transmission of knowledge from one generation to the next, connecting people to their past as they envision their future. By impeding this process, Russian forces have violated another set of rights that fall under Articles 1 and 13 of the ICESCR.

The freedom to participate in cultural life is critical to enjoying other human rights, from education to self-determination. After the ICESCR went into effect, its committee explained that the right to education is “intrinsically linked” to cultural protection. Communities learn about themselves through their culture, and they use education to pass down languages, customs, and other traditions. Although Ukrainians are resisting cultural erasure and continue to produce new works of art and literature, the invasion has prevented them from accessing key sites of historical and cultural knowledge. Furthermore, Article 1(1) of the ICESCR states that “all peoples” should be able to pursue their “cultural development” by virtue of their right to self-determination. When the war began, many officials referenced this section of the Covenant, including the UN Special Rapporteur on cultural rights. Xanthaki asserted that Russia violated Ukrainians’ right to self-determination by refusing to recognise their cultural identity and using that denial to justify the invasion.

Russia’s attack on Ukrainian culture not only breaches human rights law, but amounts to a war crime in its own right. The Rome Statute, which established the International Criminal Court (ICC) in 2002, prohibits the “destruction and appropriation of property, not justified by military necessity.” Although Russia is not party to the Rome Statute, the Council of Europe and the United States have argued that senior officials should be nonetheless prosecuted via special tribunal. Evidence from Ukraine’s cultural sites could thus play a pivotal role in future trials. Since Ukrainian forces have reclaimed more territory, international NGOs have been able to visit damaged sites that were previously only visible via satellite. Their findings confirm that Russia has continued to wantonly destroy Ukrainians’ cultural heritage. Holding these perpetrators accountable sends an important message that Ukraine’s cultural identity is valuable and deserving of protection, while also highlighting that the defense of cultural rights in war remains a critical issue for the international human rights community.

Let’s fast forward to our modern world, where social media has become the primary medium for sharing, amplifying, and debating our collective voices, fears, opinions, and hopes. In 2023, social media platforms are at the centre of global communication. Just as in the past, we must ask ourselves whether social media companies should be held accountable for the hate speech proliferating on their platforms, particularly in the context of war and conflict.

This blog presents three compelling arguments on why social media companies should be held responsible for hate speech on their platforms, especially in the context of conflict and war, emphasizing the pressing need for change.

1. Lack of a Blueprint for Accountability in Times of Conflict

One significant challenge that we face today is the absence of a clear and comprehensive legal framework dictating how social media companies should adapt their content policies during times of war and conflict. The consequences of this accountability gap have been devastating, as exemplified by the mismanagement of the Rohingya genocide.

Without guidance, these companies have been able to profit from advertising, largely turning a blind eye to this content’s potential to incite violence. Content, it seems, takes a back seat to profit. The absence of a blueprint for accountability is poignantly demonstrated in the case of the Rohingya genocide, in which Meta had a pivotal role.

2. The Influence of Leadership Changes on Platform Behavior

The second reason to hold social media companies accountable for hate speech in conflict and war is to recognise the evolution and significance of media platforms in our society. Throughout history, words and information have been crucial in inciting harm before physical violence occurs.

Social media operates differently from traditional media, transcending national borders and potentially offering a window of hope. The leadership of these platforms resides outside the confines of dictatorial states, which means that their role in violence can be mitigated before a spiral into mass violence occurs.

In the summer of 2023, the International Criminal Court (ICC) took a significant step by acknowledging its role in addressing social media’s significance in international crimes. Karim Khan KC, the Prosecutor of the ICC, articulated a new approach that recognises the impact of technology on contemporary international criminal injustices.

Khan’s statement highlights the need to explore pathways for holding social media executives accountable under the Rome Statute. The ICC’s recognition of the role of social media in inciting and profiting from wars within the private sector is a significant step toward holding these companies and their leaders responsible.

An illustrative example of leadership-induced shifts in social media platforms is Twitter’s response to Russia’s war in Ukraine. Under former CEO Jack Dorsey, Twitter introduced policies aimed at curbing hate speech and extremist content, aiming to reduce the presence of divisive and inciting content in relation to the war. The platform, in its policy statement, acknowledged its responsibility toward society.

However, when Elon Musk took on the role of CEO, he initiated policy reversals and technological changes, eroding the previous efforts. X’s content quality deteriorated, fostering hate speech and extremism. Musk’s actions against hate speech organisations worsened the situation, making Twitter a hub for divisive content and a rise in state-led disinformation campaigns by Russia, China, and Iran. This example highlights the significant influence of individual leaders within global businesses and their potential impact on international crime and global stability. Musk’s policy changes amplified Russian propaganda during the conflict, undermining previous restrictions on disinformation.

3. Setting a Crucial Precedent for the Tech Industry

The final point emphasises the importance of setting a precedent for the tech industry. Holding social media companies accountable would send a strong message to other tech firms that develop and design technologies with significant societal impacts.

As we look ahead, social media is our last chance to set a moral and legal compass for private companies before even more transformative technologies emerge, such as generative Artificial Intelligence (AI) and deep fakes.

The Urgent Necessity of Accountability

It is more critical than ever that we hold social media companies accountable for hate speech, specifically in the context of conflict and war. While legislation such as the UK Online Safety Bill and the EU Digital Service Act seek to impose duty of care obligations of platforms, these must be expanded to include duty of care to prevent international crimes, such as genocide and war crimes, from being facilitated through social media platforms.

The absence of a blueprint for accountability, the influence of leadership changes, and the need to set a precedent for the tech industry all underscore the pressing necessity for change. Holding social media companies accountable for hate speech is not just a good idea for global society; it is a necessity. We need to act quickly to compel social media companies to act responsibly before this opportunity is lost.

• Read: From Capture to the Court: The Use of Digital Technology in Advancing the Pursuit of Justice for International Crimes 
• Read: Why Artificial Intelligence is Already a Human Rights Issue
• Read: Mental Autonomy and Technology: A Cross-disciplinary Approach to Protecting Freedom of Thought and Opinion
• Read: Use of Artificial Intelligence by the Judiciary in the Face of COVID-19

Notwithstanding this, the US imposed new sanctions on Iran after the Trump administration withdrew from the JCPOA on May 8, 2018. Further, the US has announced very recently that the UN sanctions are being re-imposed on Iran pursuant to the ‘snapback process’ under the JCPOA. According to the ‘snapback process’, “if the UNSC does not adopt a resolution within 30 days of receiving a notification by a JCPOA participant State of an issue that the JCPOA participant State believes constitutes significant non-performance of commitments under the JCPOA, all of the provisions of [the above-mentioned six resolutions] shall apply in the same manner as they applied before the adoption of [Resolution 2231]” (Para. 11 and 12 of Resolution 2231 and Article 36 and 37 of the JCPOA).

Having rejected the illegal snapback sanctions reimposed by the US, the UNSC and the other parties to the JCPOA have already emphasized that the US is not a party to the JCPOA and, thus, it is not a position to implement snapback mechanism.

The economic sanctions imposed by the US ended in failure, considering that they were unable to attain their proclaimed goals. Sanctions intrinsically aim to change the target States’ political behaviour through punishing them because of their breach of certain rules and/or to prevent the target from infringing legal and political rules which the imposer deems important (M. Miyagawa, The Aims of Economic Sanctions, 1992, 89). The US sanctions have not been successful in changing the Iranian regime’s political behaviour, particular in the Middle East, and therefore the sanctions have moved beyond their main objective, and have targeted the lives of civilians who did no wrong.

The US maximum pressure and stepping up sanctions on Iran, particularly in the age of COVID-19, have been considered as a moral abomination and wantonly cruel act of collective punishment, while its people die because of a virus that threatens all humanity. The nature of the sanctions explicitly demonstrate how they can be categorized as ‘inhumane acts’ and could therefore be classified as ‘crimes against humanity’ codified by the 1998 Rome Statute. According to Article 7 of the Rome Statute, ‘crimes against humanity’ encompasses crimes such as murder, extermination, rape, persecution and all other inhumane acts of a similar character (wilfully causing great suffering, or serious injury to body or to mental or physical health), committed ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.

Giving the nature of the US sanctions, it is enough to consider an act as ‘crime against humanity’ if the perpetrator has inflicted great suffering, or serious injury to body or to mental or physical health intentionally, and the perpetrator been aware (mens rea) of the nature and gravity of the act as factual circumstances that established the character similar to any other act referred to in Article 7.

It has been reported and documented by Human Rights Watch that the US unilateral sanctions have drastically constrained the ability of the Iranian government to finance humanitarian imports, including medicines, causing serious hardships for ordinary Iranians and threatening their right to health. This is a shorthand way of considering the US unilateral sanctions on Iran as ‘crimes against humanity’ under Article 7 of the Rome Statute, where the widespread impacts of the sanctions have systematically targeted civilian lives. That is to say, mens rea is most clearly present while the US is wilfully blind to facts and circumstances which would bring its acts within crimes against humanity by reimposing murderous sanctions despite the ongoing global public health crisis and internationally reported impacts of the detrimental sanctions on civilians (see Prosecutor v. Duško Tadić (Judgment), IT-94-1-T, para. 657).

That much is obvious that the recently reimposed snapback sanctions are going to impair the Iranians’ right to health more than ever, while the Trump administration avoids monitoring the detrimental impacts of the reimposed sanctions on civilian lives.

The Unimpressive ICC Track Record

The challenges faced by the ICC in dealing with such issues was fully highlighted by the case of Thomas Lubanga Dyilo [Lubanga], who was found guilty of war crimes and conscription of child soldiers in the Democratic Republic of Congo. Clear indications of the accused being involved in crimes such as rape and other sexual forms of slavery emerged in this case, however no punishment was imposed on those counts. Despite evidence of such gender violence arising in the course of the trial, the ICC, on account of the prosecution’s ongoing failure to investigate and highlight these charges, did not ultimately consider these charges, providing no punishment or suitable relief in this regard. If this were to become a precedent in the jurisprudence of international criminal law, it would render the ICC far less able to effectively prosecute sexual crimes.

The Lubanga case and the obstacle it highlights is not the only problem the ICC faces dealing with instances of gender violence.  Most trials before it involving counts of such violence have unfortunately arisen from the African continent. The continent has been subject to immense civil strife and gender violence is a recurring phenomenon. Despite this, the ICC has failed to address these cases in a more fact and society-specific manner. The ICC currently relies and applies its narrow understanding of rape which necessarily entails penetration, thereby restricting its own ability to press for suitable reparations for victims, who may not fall under this specific bracket of ‘rape’ victims. This view ought to be replaced with the broader definition accepted by other global organisations such as the United Nations, especially in context with gender violence observed in conflict situations as well as those which are perpetrated by extremist groups  covering crimes such as forced sterilization, among other things.

Furthermore, the question of acts of sexual violence perpetrated by extremist groups is still not pursued. There is ambiguity surrounding the manner in which the ICC will  address instances wherein children are born out of sexual violence resulting by acts of non-state actors such as ISIS or Al-Shabab. The ICC does provide a platform for giving effect to individual criminal responsibility, however, clarity is needed with respect to dealing not only with victims of such a conflict situation, but also on how to deal with members of such organisations.

Article 75 of the Rome Statute provides that the ICC should ensure appropriate means for rehabilitation.  While rehabilitation is clearly an appropriate goal, whether the ICC’s reparative framework is sufficiently equipped to address all types of crimes, and whether there needs to be a broader and deeper outlook developed given the changing conflict situations as illustrated above,  are now urgent questions which need answering.

What is the Future?

Gender violence in conflict represents a serious violation of the human rights of those who fall victim to it. The ICC as a judicial body must endeavour to prevent the sort of procedural difficulties evidenced in the Lubanga case, which could jeopardise its ability to safeguard the rule of law. It is also crucial that the ICC makes a thorough evaluation of its current understanding of sexual violence, and develops it to match the complexity and dynamism we see in conflict situations today. The need for the ICC to develop a broader understanding of the cruel realities occurring every day in conflicts is urgent and therefore, calls for a time of serious introspection on this twentieth anniversary of its being.

This embarrassing reversal might have been avoided if the government had taken the time to follow the correct legal processes.  The arguments and papers before the High Court revealed that South Africa’s executive made out no case whatsoever for any urgent need to remove the country from the ICC, and that South Africa was in fact involved midway in various consultative processes with the ICC to deal with its concerns.  Those concerns included its arguments for leaving the ICC.  Its primary contention is that South Africa is caught in a bind. On the one hand, it must observe diplomatic immunity for heads of state, as per international customary law backed up African Union pressure. Yet its membership of the ICC required it to arrest presidents like Sudan’s Al-Bashir, wanted for genocide, crimes against humanity, and war crimes. To escape this bind, South Africa opted out.  It also raised the risible argument that there was no cause for concern for African victims of such crimes, since the African Court of Human and Peoples Rights would be recast to prosecute international crimes as an African alternative to the ICC – a claim that is undermined somewhat by the fact that not one of the 15 ratifications required for such recasting has been obtained (South Africa has not even signed the amendment protocol let alone ratified it), and heads of state and other senior African officials would have iron-clad immunity from prosecution before the recast African Court.

These and other arguments in support of its withdrawal have been subjected to withering criticism by many, including most recently a number of retired Justices of South Africa’s Constitutional Court.

Of course the implications of a withdrawal by South Africa have sent shockwaves, inducing fears that its move will threaten the existence of the Court itself in Africa.  That consequence for African victims of the world’s worst crimes would be massive, recalling that there is scant chance of them receiving justice before domestic courts.

But most importantly, South Africa’s decision to remove itself from the ICC means a squandered opportunity to show leadership and to use its influence within the Court to help assuage the concerns about the work of the ICC.  There is a real debate about the effect of immunities within the ICC and the unhealthy relationship of the ICC with the Security Council.  A better solution for South Africa would be to remain a constructive member of the Court, working to improve the ICC from within.

There are several options available, which I have written about elsewhere, and they are not mutually exclusive.

The first is to engage with other States Parties to reform referral processes by which the ICC investigates cases. In Africa alone, 34 countries have ratified the Rome Statute; if coordinated, this would represent the most powerful bloc within the treaty.

The second is to push for a political resolution to the question of whether serving heads of state should have immunity. Since the Bashir arrest debacle, South Africa has led a working group at the ICC’s Assembly of States Parties on this very matter. South Africa is – now again – well positioned to streamline the ICC’s consultation process on the matter.

The third is to push for more clarity from the UN Security Council when it refers situations to the ICC implicating a Head of State (like Bashir). The Council ought to express itself unambiguously about the removal of immunities and the obligations regarding cooperation. It also needs to improve its consultation process with African states and the African Union in relation to ICC matters.  South Africa is ideally suited to contribute to this process of reform.

The fourth is to continue pushing for UN Security Council reform. The ICC is undermined by the Security Council’s reluctance to refer cases involving major powers, for example in Syria. This process is difficult, but would be even harder if South Africa were not involved.

This moment in time allows the South African government to put the imbroglio of its ill-fated withdrawal in the past.  The future of the Court is at stake, and there is an opportunity for the government to continue engaging constructively to improve the ICC.  Whether the Zuma administration has the foresight or insight to do so is another question entirely.

The Chamber found it necessary to distinguish between crimes committed against persons and those targeting property. It recognized that an attack on human life is necessarily of greater gravity than damage to property, and that sentencing must reflect this reality. Nonetheless, the Court clearly demonstrated its willingness to recognize the innate significance of culture and heritage to populations, which shows a remarkable step forward in the development of international law.

However, in committing time and resources prosecuting this ‘lesser’ crime, the ICC has been criticized for stretching the Rome Statute’s principle of gravity too far. An obvious counter-argument is that crimes against cultural heritage was always contemplated as a crime of significance attracting the ICC’s jurisdiction, as it is enshrined under war crimes in Article 8(b)(ix). A new crime has not been established in this case; rather, the Court has expanded the focus of crimes within its realm and brought international law in line with contemporary attitudes and understandings of the significance of culture.

Whilst the Court’s priorities and jurisdictional scope are valid concerns (especially considering that murder, rape and torture has been carried out in the region), it must be remembered that an assault on cultural identity and heritage can have as devastating an impact on an individual as physical violence, and deserves recognition as such. One witness testified that the entire international community is suffering as a result of the destruction of significant sites since “heritage is a part of cultural life”. Another witness described the attack on Timbuktu’s religious buildings as “a war activity aimed at breaking the soul of the people of Timbuktu”. As reiterated by ICC Prosecutor Fatou Bensouda, it is no longer appropriate to ignore or dismiss the impact that an attack on cultural heritage has on the “identity, the memory and the future of entire populations”.

A unique feature of this case is the admission of guilt given voluntarily by Mr Al Mahdi. The actions that qualify as war crimes under the Rome Statute are arguably so significant and harmful that an accused should never have the opportunity to have their sentence reduced merely for admitting guilt. The Rome Statute appropriately ensures that Mr Al Mahdi is not held to a lower standard of justice for his admission. The Trial Chamber analyzed Article 65, which governs admissions of guilt, and emphasized that an admission of guilt in no way opens an avenue to plea bargaining, although it is a mitigating factor in sentencing. The fact that his admission of guilt was made “against a backdrop of overwhelming evidence pointing to his guilt”, was weighed against the benefits of saving the Court’s time and resources, and relieving witnesses of the burden of testifying.

The Trial Chamber sentenced Mr Al Mahdi to nine years imprisonment, reiterating that retribution and deterrence are the ICC’s primary objectives of punishment. Whilst the finding that an attack on cultural heritage is punishable as a war crime sends a strong signal to those around the world engaging in similar acts, the deterrent effect of this case is limited in a significant manner. The ICC’s jurisdiction is limited to acts committed by a State Party that has accepted the jurisdiction of the Court, or upon referral by the United Nations Security Council. Therefore, non-state actors such as Islamic State and the Taliban (whose countries have not accepted the jurisdiction of the ICC) cannot be brought to account for their acts of irreversible cultural destruction in areas such as Syria.

These shortcomings do not detract from the significance of this case in extending and upholding international protection for the common cultural heritage of mankind. Rather, they set the benchmark for the progress yet to be made and the challenges yet to be overcome, especially in addressing modern day terrorism and upholding human rights in complex, volatile environments.

The policy document comes in the wake of the South China Sea dispute judgments which were given in July 2016 by the International Tribunal of the Permanent Court of Arbitration. The Tribunal gave two rulings in this case. The first was regarding the claim made by China for sovereignty over the South China Sea, which was rejected by the Court. The second was that China had violated its obligations under the United Nations Convention on the Law of the Sea (UNCLOS) by building various artificial islands causing severe environmental damage to the coral reefs.

In past cases, the ICC has tried to apply its laws to situations of environmental destruction. One such case was against the President of Sudan, Omar Al-Bashir. In 2009 arrest warrants were issued against Bashir for crimes against humanity, war crimes and genocide. Among these were acts of contamination of wells and water pumps in Darfur.

What the South China Sea case demonstrates is that the ICC is not adding more crimes and extending its jurisdiction, but is assessing the existing offences in a broader context. This new emphasis on environmental based crimes is a shift from the previous cases where it primarily focused on acts of violence.

It is great to see the ICC taking up environmental crime, however this alone is not enough. In 2006 there was a bombing in Lebanon which caused an oil spill over the Mediterranean Sea. The Bichhri village case concerned toxic sludge which had percolated deep into the ground, polluting the groundwater. While both of these cases would have come within the definition of environmental destruction and would have been tried in front of the ICC, these situations remain outside the Court’s jurisdiction. This is the case for two reasons. First, the ICC can only take up cases which occurred after the Rome Statute came into force, on the 1^st of July, 2002. Second, the ICC’s jurisdiction remains restricted to the nations that have ratified the Rome Statute.

However, even where a country has not ratified the Rome Statute, their citizens can still be tried in front of the ICC. Under Article 13(b) of the Rome Statute, read along with Chapter VII of the UN Charter, the United Nations Security Council (UNSC) may refer any situation to the ICC, and this can involve any individual from any State even if it has not ratified the Rome Statute. Chapter VII is binding on all States party to the UN Charter and hence the ICC can exercise its jurisdiction on States which have not signed the Rome Statute.

The ICC’s policy will now also deal with organizations and corporations. However, since an entire body cannot be held responsible, only individuals such as the CEO or the owner of a company could be held liable.

While this policy may be welcomed by the global community, we still need to look at what can be done by the ICC. It can convict perpetrators for their crimes, however what is at stake is the lives of people affected by environmental destruction. What they require is reparation and restitution of the environment to its condition prior to the destruction.

An example of such a practice comes from the 1991 Gulf War, during which there were oil fires and oil spills within and outside the Gulf region. To compensate the victims and pay for environmental reparations, the UNSC established the United Nations Compensation Commission as a fact finding body to assess and award compensation.

The focus on environmental destruction may serve a symbolic purpose for the ICC and its development in the 21^st century. However, the success of this approach depends on the impact it will have on the lives of people living in the communities impacted by environmental destruction.

Mr Al Mahdi was a member of Ansar Dine, a paramilitary terrorist group imposing Sharia law in Mali and surrounding areas, when they captured Timbuktu in 2012. He is accused of directing and overseeing attacks against mosques and mausoleums of Muslim saints, which, according to Prosecutor Fatou Bensouda in her opening statement, “were the embodiment of Malian history” and “relics of a great chapter in humankind’s intellectual and spiritual development on the continent”. Of the ten mausoleums attacked, nine were sites protected by UNESCO. Fatou Bensouda emphasised the impact of the destruction of cultural heritage on the “identity, the memory and the future of entire populations”, and reminded the court that such acts often foreshadow even worse outrages against populations.

As well as being the first case before the ICC to try ‘crimes against culture’, Mr Al Mahdi is also the first accused to plead guilty to charges before the court. In his admission of guilt, Mr Al Mahdi stated: “I will keep my hopes high that the people I have hurt will be able to forgive”. However, in echoing the wisdom of the International Criminal Tribunal for the former Yugoslavia, Fatou Bensouda reiterated that “the restoration of cultural heritage never brings back its inherent value”. The damage inflicted by Mr Al Mahdi cannot be undone and should not be forgotten.

The question of whether efforts and resources should be focused on the destruction of culture or on the alleged rapes, torture and murders in the same region has been raised as part of the global response. However, history has taught us — especially after witnessing the devastating effects of colonization, dictatorships, and extremist regimes — that harming, destroying and erasing a person’s culture can have just as significant an impact on a person’s sense of integrity, safety and autonomy as physical violence can. The experiences of the Stolen Generation of Indigenous children in Australia, as documented in the ‘Bringing Them Home’ report, revealed to the world just how devastating the denial and destruction of one’s cultural heritage can be, and the impact of political policies enforcing removal, assimilation and isolation resonates in Australian society today. No matter where or when they occur, crimes against culture cannot and should not be tolerated because, ultimately, culture is who we are; an attack on culture is an attack on our shared humanity. The trying of this case amounts to international recognition that destruction of cultural heritage is itself a severe atrocity against targeted populations, and likely attracts punishment under the Rome Statute. This casts a much wider net for prosecutors around the world to identify, investigate and punish acts that harm humanity, and expands the scope for justice on an international level.

Whilst deliberate and ruthless attacks on sites of cultural and religious significance feature prominently in 21st-century terrorist strategies, they also resonate strongly with the doctrine of cultural hierarchy and the concept of supremacy that underlies colonization. Hundreds of traditional cultures have been attacked, eroded and deliberately erased across the centuries, and so the judgment of the Chamber becomes even more important in recognizing historical injustice and potentially deterring future crimes of a similar nature. If an attack on cultural heritage is found to attract the jurisdiction and power of international criminal courts as a war crime, protection is then extended to the buildings, natural sites, and wonders which hold our beliefs, our history and our hopes for the future.

The international community has eagerly awaited the judgment of the Chamber and the anticipated extension of legal protection to the common heritage of humankind.

Editor’s note: The OxHRH Blog hopes to publish a follow-up blog from the author analysing the judgment, delivered yesterday, in detail. 

One of the main outcomes of the Court’s indictments was the creation of the Jubilee Alliance between the main co-accused: Uhuru Kenyatta and William Ruto. While they were accused for crimes committed on opposing sides of the PEV, they decided that the best way to survive the indictments was to band together. As Gabrielle Lynch explains in The Alliance of the Accused, Uhuru and Ruto constructed a narrative that the ICC was broadly targeting Africa in a fashion that was reminiscent of colonialism. More specifically, they argued that the Court had chosen to single out their respective Kikuyu and Kalenjin communities while leaving other ethnic groups, like opposition leader Raila Odinga’s Luo community, untouched. Thus the process rallied support, sympathy and anger against the ICC process amongst two of the largest communities in Kenya. Uhuru and Ruto’s alliance and their counterintuitive narrative of the injustice of the ICC process led them to a narrow electoral victory in 2013. As President and Deputy President, it is alleged that Uhuru and Ruto were able to frustrate the proceedings and avoid a full trial by a means of coordinated witness intimidation as well as use of resources and power of the state to withhold crucial evidence.

It seems, perhaps, unfair to criticise the Court for failing to predict Kenya’s complex alliance system. Kenya’s parties change weekly in the lead-up to elections, and alliances are constantly shifting. Thus, at the time of the indictments, the prosecution could not have foreseen that this would happen and thus could not choose their indictments based on such a hunch. If anything, the prosecution team looked to show some consideration for local context. For example, in recognition of the power-sharing agreement that came about after the PEV, the ICC only indicted deputies of the two 2007 presidential candidates (Raila Odinga and Mwai Kibaki) potentially to preserve the delicate security situation.

There was little the ICC did to adapt to these changes in the inevitably hostile political context. A criminal trial system, with its innate rigidity, cannot and does not operate in a vacuum. Whereas the system may not seamlessly move to the rhythm of different political contexts, it should certainly be guided in its implementation by the realities of local power politics. As Sarah Nouwen and Wouter Werner argue, the ICC tends to portray politics as external to the law even if the Court’s fight against impunity is also a direct struggle against local politics. But the Court cannot turn a blind eye to the fact that it is a part of, if not the epicentre, of politics. This attitude, as the Kenyan case demonstrates, can greatly derail justice.

Additionally, the failure by the ICC to address the inherent weakness of its witness protection mechanism also provided fertile ground for the abovementioned local politics to undermine victims of human rights abuses’ quest for justice. But what exactly is justice for these victims? The formal criminal justice involved in the ICC process understandably cannot address all the needs of victims. However, little to no action has been taken to pursue their other needs and demands, such as healing, reconciliation, compensation and guarantees of non-repetition, an impasse that will be the topic of the upcoming second part of this blog.