Pirate Trials, the International Criminal Court, and Mob Justice: Reflections on Postcolonial Sovereignty in Kenya

But jurisdiction is not merely an ambit or sphere (better described in this case as “competence”); it is basically—as is visible from the Latin origin of the word itself, jurisdictio—a legal power, hence necessarily a legitimate power, “to state the law” (dire le droit) within this ambit, in an authoritative and final manner.

—Prosecutor v. Tadic¹

Jurisdiction is typically understood in relation to territory or nationality.² This conceptualization complements a global order of separate sovereign states, each enjoying the power to judge within its territory and to create law for its citizens. Universal jurisdiction, by contrast, entails the ability to judge offenders who have no connection to the state sitting in judgment. Decoupled from territory and nationality, the exercise of universal jurisdiction raises the question of whether it undermines a global order of sovereign states by allowing one state to reach into the affairs of another. This question is underscored by the crimes that, in the twentieth century, were found to give rise to universal jurisdiction, such as crimes against humanity that, in one common formulation, “shock the conscience” of mankind. There is an apparent tension between a global order of state sovereignty and the exercise of universal jurisdiction that either promises to curb sovereign abuses or threatens to conceal imperial meddling behind a judicial façade.

There are, however, other ways in which the relation between state sovereignty and universal jurisdiction might be construed. For instance, the figure of the pirate, the original object of universal jurisdiction, suggests a different relationship. The pirate acts in a zone beyond sovereignty—the high seas—and acts not on a sovereign’s behalf. The exercise of universal jurisdiction in prosecuting piracy thus seems to complement a global order of territorial states. The pirate was hostis humani generis, the enemy of all mankind, or at least the enemy of the state system.³ Conversely, the perpetrator of crimes against humanity—the modern enemy of all mankind—often claims to act in the name of the state. Presented thus, we have two distinct conceptions of the relationship between sovereignty and universal jurisdiction.

Over the past few years in Kenya, various stories have unfolded side by side that provide a more nuanced illustration of the ways that sovereignty and universal jurisdiction interact. On the one hand, Kenya has been unable to establish a domestic process to punish the political and business elites said to be behind the vicious ethnic violence occasioned by the contested election in 2007. In response, the prosecutor of the International Criminal Court (ICC) has initiated proceedings on his own motion and asserted his intention to prosecute a handful of perpetrators for crimes against humanity. On the other hand, over roughly the same time period, starting in 2006, Kenya has accepted delivery of and begun prosecuting Somali pirates captured by the naval forces of various wealthy states on the high seas, asserting its universal jurisdiction over them. For a moment, then, we have in Kenya both the oldest and one of the newest objects of universal jurisdiction. Even as Kenya imports the original “enemy of all”—the pirate—it prepares to export to The Hague the new “enemy of all”—the perpetrator of crimes against humanity.

How should we understand this conjunction in Kenya? Does the profound tension produced by the dual appearance of figures from such different historical moments constitute a contradiction? Are the two stories expressive of different understandings of sovereignty and global order, or do they fit together as a coherent whole? Is the twentieth-century extension of universal jurisdiction from piracy to crimes against humanity expressive of the roughly contemporaneous decoupling of formal sovereignty from power after World War II and decolonization? Drawing on brief visits to Kenya in 2008, 2009, and 2010, including firsthand observations of pirate trials in Mombasa, I take up these questions. The abstract problem of the relation between universal jurisdiction and state sovereignty should be localized and theorized, I suggest, in relation to the postcolonial African sovereign state, its relations with more wealthy states, and its relation...