Guilt, Innocence and Post-Election Violence: Lessons from the ICTY

Marko Milanovic over at EJIL Talk! has analysed a recent Appeals Judgement by the International Criminal Tribunal for the Former Yugoslavia. The judgement acquitted Momcilo Perisic, a Croatian Serb, of aiding and abetting war crimes. In it, Milanovic notes that regardless of whether the Appeals Chamber was right or wrong in its reasoning, Serb nationalists are already using it to paint another piece of the narrative portrait of Serbian forces as wholly guiltless during the Yugoslav war of the 1990s.

A similar process in relation to Croat nationalists happened when a Croat general, Ante Gotovina, was acquitted on appeal a few months ago. Here is an excerpt from Milanovic’s piece:

“…what in my view makes [the Perisic judgement] even more unfortunate are its wider consequences, in particular in the solidification of official narratives of the warring parties in the former Yugoslavia  – and in that the Perisic and Gotovina acquittals are depressingly similar.  Even though both the trial and appellate judgments provide ample evidence of the enormous amount of support that the then FRY provided to the Croatian and Bosnian Serb separatists, the current Serbian government has decided to treat the Perisic acquittal as some kind of general exoneration of Serbia as a state for its involvement in mass atrocities in Bosnia and Croatia. It thus, for instance, decided to emulate the Croatian government, which had sent a state plane to pick Gotovina and Markac up from the Hague with a red carpet welcome in Zagreb upon their acquittal, and sent its own decrepit and barely airworthy jet for Perisic, who then grandstanded at a press conference at the Belgrade airport about the innocence of the Serbian state, people, and his own little self, to much applause from the Serbian press, officials and elites. And so, through an act of concerted political manipulation, the ICTY becomes an instrument for collectivizing innocence rather than for individualizing guilt, becoming indeed the opposite of what many of us had hoped it would be.” [emphasis mine]

I’ve highlighted this commentary because I think it’s highly relevant to what certain Kikuyu and Kalenjin politicians are attempting with regard to the ICC trials of Ruto, Sang, Kenyatta and Muthaura. While the Kenya cases do not involve warring parties or two ethnic states like Croatia and Serbia, the creation of ‘official narratives’ is well underway. Though the ICC has several times emphasised that Kikuyus and Kalenjins are not on trial, this does not suit the narrative of the politicians. They would rather feed the perception that both ethnic groups are being persecuted via these trials. The recently concluded elections showed how effective this can be in rallying voters. I expect the same kind of ethnic grandstanding of Serbian and Croat nationalists to be repeated if any of the Kenyan cases end in acquittal (or dropping of charges, in the case of Muthaura.). We got a small taste of it when the court refused to confirm charges against Henry Kosgey.

The creation of such official narratives of persecution will also help to deter Kenya itself from trying to investigate and prosecute others bearing the greatest responsibility for 2007/8 PEV. So for these politicians, it kills two birds with one stone.


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Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango


Advancing the rule and role of law in Africa

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