WILL THE ICC PROCESS BRING A LASTING SOLUTION TO KENYA?

         I concede that punishing perpetrators of evil is definitively a viable mechanism for combating impunity. In appropriate cases, the criminal process can be deployed to engineer compliance with the law and to deter would-be perpetrators of evil. I argue, however, that the objectives of using criminal prosecution to re-establish social equilibrium and promote reconciliation, though laudable and rhetorically inspiring, are simply unattainable. The hope that international criminal prosecutions will reconcile mutually distrustful ethnic groups with a long history of reciprocal hatred is quaint, perhaps even naive.

       Violence is so interwoven with the maladies in the continent - corruption, poverty, ethnic tensions - that it is doubtful if criminal prosecutions alone can serve as a chastening influence on the behavior of the leaders or the citizens trapped within the society. Building an effective strategy to reestablish social order in post-conflict African societies requires an understanding of the idiosyncratic environmental factors that animate violence, as well as recognition that criminal prosecutions cannot address the social pathologies that have disfigured Africa.

       It is these pathologies that will define and shape Africa’s future, not the legacy of criminal prosecutions. First, efforts to use criminal prosecution to modify behavior and contribute to social equilibrium rest on a failure to appreciate that causes of conflict in Africa cannot be resolved through the criminal process.The overarching goal of criminal prosecution is to apportion blame and punish the guilty. Criminal prosecutions are not designed to and can neither address nor alleviate the underlying social problems that lead to and perpetuate violence.