Transitional Justice, Jus Post Bellum and the Priority of Conflict Deterrence: Assessing Kenya's Post-Electoral Violence 2008-2013

Abstract

Transitional justice goals have changed profoundly in recent times. Shifts have occurred both as a result of the evolution of the discipline as well as of a change of objectives and their impacts on warfare cycles (ad bellum, in bello, post bellum). Particularly this second dimension has become decisive in the construction of more effective mechanisms of violence deterrence through transitional justice measures. After a conceptualization of the post bellum, I introduce the notion of conflict deterrence. This is as a sub-optimal goal of international policy falling within the more far reaching standard of prevention as stated in the UN Charter, the Responsibility to Protect documents and, more recently, in the UN Secretary General 2012-3 Reports. Following from these insights, I consider the case of Kenya’s post-electoral phase 2008 and 2013 and argue for a qualified correlation between the action of the International Criminal Court and its deterrence effects. I claim that the hypothesis of a deterrence effects by the ICC are well-grounded but contingent to a) self-interested rational actors, such as high rank politicians or public officials and b) to a systemic interconnection between different institutional actors.