Kenya's Most Wanted

The United States must find a way to work with its East African ally, even if it's run by an accused perpetrator of crimes against humanity.

The victory of Uhuru Kenyatta, indicted for crimes against humanity*, in Kenya's presidential election poses a familiar dilemma for the West: how to weigh support for human rights against economic and security interests in a part of the world marked by terrorist threats, simmering regional conflicts, and increasing economic and trade opportunities. But Kenyatta's victory also raises a potentially thornier conundrum: whether actively opposing his assumption of power will indeed advance the cause of international justice at all.

Last week's Kenyan elections were a messy affair. There are allegations of fraud in the electoral register, and the country's electronic counting system crashed, leading Raila Odinga, the runner-up, to challenge the result. But the current outcome seems likely to hold. If it does, Kenyatta -- the son of legendary Kenyan President Jomo Kenyatta -- will soon begin a five-year term.

The contentious outcome echoes the country's last vote, in 2007, when Odinga lost narrowly to a different opponent. Back then, Odinga also disputed the result and -- saying he did not trust the courts -- urged his followers to take to the streets. Two months of unrest ensued, including boycotts, ethnic clashes, and more than 1,000 deaths. During this upheaval, according to an indictment issued by the International Criminal Court (ICC), Kenyatta and others engaged in the wholesale displacement, torture, persecution, and ever murder of ordinary Kenyans. Kenyatta stands accused of directing leaders of a Kenyan criminal syndicate to attack perceived opposition supporters. He has vehemently denied committing any crime, vowing to cooperate with the court and mount a robust defense.

The indictment was a landmark for the ICC. Most of the court's cases had targeted abuses by militias during armed conflicts. This time, in what observers called a warning shot for African and other global leaders accustomed to using violence to defend their rule, the court went after top national leaders who had used brutal repression to maintain political power. The case was also noteworthy because it was undertaken by the ICC prosecutor himself without a request from either the U.N. Security Council or the Kenyan government. After the indictment was issued, the Kenyan parliament passed by a wide margin a non-binding protest motion calling to withdraw the country from participation in the ICC.

Fast-forward five years to this year's contested Kenyan election. This time the country's constitution had been strengthened with a bill of rights; the courts have been cleaned up. Those improvements seem to have helped avert violence thus far. But while lives may be spared this time around, the stakes in this election are still high for Kenya, Western governments, and the ICC. The United States and Kenya have cooperated in fighting terrorism ever since the 1998 bombing of the U.S. Embassy in Nairobi. Under the Obama administration, economic and security cooperation and the sharing of intelligence have intensified, particularly on Somalia, home to the al Qaeda-linked militant group al-Shabab. Nairobi is a prime media hub for the continent and is the locus for the United Nations' vital peacekeeping and humanitarian programs throughout Africa. The United States and Europe are aware that if Kenya pivots away from them, it will likely be in the direction of China, which is already heavily invested in Kenyan oil, mining, transportation, and infrastructure projects.

Despite, or perhaps because of, their close relationships with Nairobi, the United States and Europe have not hid their distaste for a Kenyatta victory. U.S. Assistant Secretary of State Johnnie Carson warned Kenyans before the vote that "decisions have consequences," and Britain has announced that its diplomats would have only "essential contacts" with Kenyatta. The impetus to treat Kenyatta as a pariah is motivated not just by recoil at his alleged actions, but by the practical notion that to deter them, the international community must make crimes against humanity out of bounds not just legally but also politically, diplomatically, and socially. If the ICC hopes to avert abuses and isolate those who commit crimes against humanity, it must ensure that indicted leaders can't simply go on with business as usual. This is why there has been so much pressure on governments to shun and isolate Sudanese President Omar al-Bashir, who has been indicted and subject to an arrest warrant by the ICC for five counts of crimes against humanity.

But Western efforts at stigmatizing  those who commit crimes against humanity have sometimes backfired in Africa. For years, Africans have alleged that the court unfairly targets Africa while ignoring crimes in the West. That suspicion has fed the continent's resistance to Bashir's indictment, which the Arab League and African Union have both condemned as the Sudanese leader travels freely to Oman, Egypt, Kenya, China, and elsewhere. The warrant for Bashir is now five years old, and it's unlikely he'll be apprehended soon.

In Kenya, suspicion of the ICC is now running so high that Kenyatta used his indictment as a campaign selling point. Responding to the court's subpoena, Kenyatta maintained his innocence. He further taunted the court, playing to nationalist sentiments and vowing to resist international interference in Kenyan affairs. "The ICC was definitely a factor in this election, but not necessarily the factor you would expect," Maina Kiai, a leading Kenyan human rights activist, told the New York Times. "It got people out [to vote]. People were saying, 'They're our boys; they're our sons; we need to protect them.'" "Thank god for the ICC," representatives from Kenyatta's party reportedly crowed. Analysts have also said that by raising the arrest warrant during the closing days of the campaign, Western diplomats played right into Kenyatta's hands. Last week the Kenyatta campaign accused the British government of "shadowy, suspicious, and rather animated involvement" in Kenya's election, a claim London sharply denied. The United States' own failure to join the ICC puts Washington on even shakier ground with the Kenyan public.

For now, shunning Kenyatta may risk not only Western security and regional interests, but also embolden those seeking to further discredit the court. Keeping their hands clean of contact with Kenyatta may inoculate Western governments from criticism from human rights advocates. But it is unclear that such distance will bring Kenyatta any closer to prosecution, since an effective prosecution will need buy-in from Kenyans. As long as Kenyatta continues to cooperate with prosecutors, Western governments can distinguish him from the openly defiant Bashir. Western governments should use the time before a potential future conviction to seek to mobilize credible voices in Kenya who will promote understanding and respect for the ICC's judicial process and outcome, as well as for national accountability processes to deal with many lower-level suspects associated with the 2007 violence. Despite the election outcome, a 2012 Gallup survey revealed that seven out of 10 Kenyans approve of the ICC's involvement in the cases of Kenyatta and the others accused in relation to the election violence. If the court is to win back its credibility among the Kenyan people, it will be because local opinion leaders, rather than Western diplomats, come to its defense.

The surprise announcement earlier this week that the ICC would drop its case against one of Kenyatta's co-accused has heightened skepticism over the strength of the evidence against Kenyatta but also called attention to lapses in the Kenyan government's cooperation with international prosecutors. For better or worse, this development has the side effect of making it easier for Western countries to adopt a more measured stance until the ICC process is further played out.

Given the weakness and slow pace of international justice mechanisms worldwide, many advocates rejoiced when the ICC took strong action in response to the 2007 Kenyan election violence. They were heartened by the prospect that those responsible for large-scale killings, sowing mass fear, and undermining democracy would be held to account. Any retreat from support for the ICC, or capitulation to the sentiment of defiance rallied by Kenyatta, risks undercutting the court's already tenuous international credibility, and eroding the faith of Kenyan human rights defenders who have fought for justice. Western diplomats need to be careful in supporting the process of international justice while not interjecting themselves into Kenyan politics in a way that grinds the quest for accountability to a halt.

*Correction, March 18, 2013: Uhuru Kenyatta has been indicted for crimes against humanity, not war crimes, as this article originally stated incorrectly. References throughout the article in reference to war crimes have been changed to crimes against humanity. Return to article.


National Security

The Hate List

Is America really being overrun by right-wing militants?

The Southern Poverty Law Center released its annual "Year in Hate and Extremism" report last week, and as usual, it was terrifying. In an article for the SPLC's Intelligence Report magazine, researchers said they had identified an "all-time high" of 1,360 antigovernment groups active during 2012 and about the same staggering number of hate groups as last year, a total of 1,007.

Many news organizations, from wire services to TV networks, covered the new figures uncritically. The SPLC looms large in most discussions of American extremism, in large part because they have little or no competition. Very few journalists cover domestic extremism on a regular basis, and those who do tend to work for publications that have an overt political slant.

There are no significant academic centers that regularly publish objective and rigorous data on non-Islamic domestic extremism (although a few notable individual efforts can be found). Government attempts to explore the issue are often consumed by political backlash, and a recent look at domestic right-wing extremism by the Countering Terrorism Center at West Point ignited a firestorm over its excessive political exposition, while its less than crystal-clear methodology raised other questions.

For better or worse, the SPLC remains the go-to media source for data on domestic extremists of the non-Muslim variety, with the Anti-Defamation League coming in second in terms of published resources. Those journalists who do cover domestic extremism often rely on the SPLC for facts and figures.

The problem is that the SPLC and the ADL are not objective purveyors of data. They're anti-hate activists. There's nothing wrong with that -- advocating against hate is a noble idea. But as activists, their research needs to be weighed more carefully by media outlets that cover their pronouncements.

"The Year in Hate and Extremism" report classified domestic extremists in two broad categories: hate groups and antigovernment organizations. The raw numbers for antigovernment outfits were unavailable, but the data on the 1,007 hate groups cited in the report can be found online.

Many groups take exception to their inclusion on the hate list, arguing their content is legitimately political. Rather than get bogged down in that particular argument, let's simply look at the methodology of the list.

The SPLC presents its hate group data by state, rather than in one unified list. When the state entries were gathered into a single spreadsheet, the total number of groups came to 1,007, as advertised. But once you get past simply counting the rows, serious questions arise.

The biggest issue raised by the hate list is when a local group should be deemed a separate entity from a national group. When you go to find the raw data online, the SPLC's site explains that it counts counted "1,007 active hate groups in the United States in 2012," including "organizations and their chapters." But "The Year in Hate and Extremism" did not make the "chapter" distinction explicit. It is rarely drawn out in the organization's frequent media appearances, nor was it mentioned in a letter from the SPLC to the Justice Department warning of the growing threat.

One of the clearest examples of how this counting methodology can be confusing concerns the American Third Position Party, or A3P, which is listed 17 times, with each of those instances counting as a separate hate group.

A3P is a national political party devoted to white nationalism. We don't say there are 102 political parties in the United States because the Republicans and Democrats each have a national party as well as state chapters (not to mention local chapters), and there are states which have A3P listed more than once.

Similarly, the American Nazi Party is listed six times, and the Council of Conservative Citizens is listed 37 times. There are many more. When you filter the list for organizations with identical names, the list of 1,007 becomes a list of 358.

So why doesn't the SPLC describe its list as 300 or 400 hate groups with 1,007 chapters around the country?

"These are groups," said Heidi Beirich, who heads the SPLC Intelligence Project. So if A3P activists gather in Las Vegas, "it's a group of people who get together to promote these materials." And if a different group of A3P members gather in another state, that's a different group, according to the SPLC's count.

Some of the duplicate names on the list are legitimately distinct -- for instance, there are at least two major splinter groups of the Aryan Nations (although seven appear on the list). But others appear clearly problematic, like "Georgia Militia," which is listed 14 times. One listing has a county as its location, another says "statewide," and the remaining 12 list no location and contain no links to additional information.

While there is an argument for separately counting local skinhead gangs with a national affiliation or Ku Klux Klan affiliates, it's not a slam dunk.

If three Klan chapters in one state are part of one specific national Klan organization, should they count as separate groups? If a skinhead gang is part of the Western Hammerskins, do you count both the local and the regional? The SPLC counts the Midland Hammerskins and the Northern Hammerskins three times each, and the Confederate Hammerskins nine times.

And what about the Jewish Defense League (counted nine times), the National Socialist Movement (55), or the Nation of Islam (105)?

The list isn't pristine on other fronts either. The Political Cesspool is a website and podcast, the Crocker Post is a blog, and Silver Bullet Gun Oil is a business that markets offensive tchotchkes to anti-Muslim extremists. VDARE is a white nationalist website with multiple authors, but it does not on the face of it appear to be a traditional boots-on-the-ground organization, at least not according to a profile written by the SPLC.

"We try very hard to avoid listing just a guy at a computer," said Beirich. "So we look very hard at other activities, like flyering, meeting, other activities, something that indicates it's more than just a guy working at a computer."

Beirich said some pure websites might have slipped through their filters, but argued that VDARE is an organization working actively to promote a specific agenda, citing a recent webinar with "several participants" as evidence of its organizational activities.

Radical bookstores and racist record labels also appear on the list. Are these hate groups, or hate businesses, or just businesses? Are they peddling specific ideologies or making a buck off of several? Do they hold meetings? Write tracts? Burn crosses?

Reasonable people can debate these reasons for including or disqualifying each of these listings, but the number of entries that require such debate is staggering given the specificity of the SPLC's reporting. We're not talking about a difference of 5 or 10 percent in the relative counts; it's 65 or 70 percent.

"I do not think it's misleading," said Beirich. "I think it would be much more misleading to say here's 10 or 15 groups than to point out, the way we do, the way those groups are functioning. We want to show the geographic reach of those groups."

Counting an organization like A3P as one instead of 17 would "distort the data in a different direction," Beirich said. "It would look like there are American Third Position people active in just one location, and that would be false."

But at the end of the day, it's not clear how it's a "distortion" to say "400 groups in 1,007 locations around the country" as opposed to "1,007 groups."

These distinctions also pertain to the broad numbers on antigovernment groups provided in "The Year in Hate and Extremism" report. Most coverage of the report focused on this realm, where the SPLC reported massive growth during President Obama's first term.

Although the data was not made available, the questions raised by the hate group list are at least as relevant for antigovernment organizations. If a statewide militia has chapters in several towns, is it more than one militia? If a Patriot movement group under one umbrella has one or two (or even five or six) people in each of 17 different states, should we count 17 groups?

These questions are more important than ever in the age of online organizing. During the 1990s, hosting a "chapter" implied a certain amount of organizational activity that is no longer necessary. Geography is still important, but it's not necessarily supreme.

Based on my own tracking of antigovernment extremism, I'm fairly certain the movement has grown in recent years, perhaps substantially. But most of the movements I track are geographically diffuse, even though they operate under a single organizational banner. I'm skeptical that the number of distinctly separate antigovernment organizations in the United States runs anywhere close to the 1,360 reported by the SPLC.

If there is any lesson in all of this, it's that the study of domestic American extremism shouldn't be the exclusive province of activists. Academics and journalists -- a lot of them -- need to turn their skills and objectivity toward this problem and start collecting evidence that can be published and rigorously reviewed.

As of today, journalists investigating domestic extremism have few alternatives to the SPLC when seeking information about the size and shape of extremist movements in the United States. Reporters have to work with the information they can obtain, but they should read -- and carefully explain -- the fine print.