Kenya is a country overwhelmed by despair. Mired in violence, dispossession and a crumbling infrastructure, the once peaceful coexistence shared by its ethnic groups has vanished. Ethnic cleansing has taken its place. More than 200,000 people have been displaced, according to the International Red Cross, and there is mounting evidence of murder, torture and gang rape. These are not random acts of violence; these are crimes against humanity.

In the rush to end the violence and re-establish order, the international community should not lose sight of the fact that atrocities have been committed. Out of political expediency or the need for a bartered settlement, pressure may mount to adopt a policy of impunity for these crimes. This would be a monumental and tragic mistake.

A policy of impunity in Kenya would be based on a misguided belief that it is necessary to chose between peace and justice. But this is a false and hollow choice. It would leave the victims of these crimes emotionally destitute and irrevocably weaken the rule of law.

Most damaging, however, is what impunity would do to Kenya's future. It would provide impetus for more violence and suggest to all Kenyans that these crimes can somehow be condoned. But they cannot ever be accepted. Kenya, like all post-conflict countries, will not return to a stable, peaceful environment unless it deals forcefully with the deep divisions engendered by the atrocities.

The international community has long recognised the nexus between reconciliation and justice and has made it clear that those who have committed crimes against humanity cannot be exonerated; they must be held accountable.

Under international law, Kenya has the responsibility to prosecute the perpetrators of these crimes. It is true that the current political situation could make it difficult to carry out effective investigations and prosecutions — that is why the only viable option to ensure justice is for the International Criminal Court (ICC) to step in.

Established on July 1, 2002, the ICC was the first permanent international court to investigate and try individuals for the most heinous violations of international criminal law: genocide, war crimes, crimes against humanity. The court reflects the international community's respect for and enforcement of justice and its determination that grave breaches of criminal law will not go unpunished.

Kenya made known that it would adhere to these principles when it ratified the ICC's Statute in March 2005. Consequently, it is subject to the ICC's jurisdiction and is obligated to cooperate fully with any investigations.

Based on what we know already, there is a reasonable basis for the prosecutor to seek authority from the court to proceed with a full investigation. Immediate steps should be taken to collect, examine, and preserve any evidence. Most importantly, measures must be taken to protect the victims and witnesses — they are the most vulnerable in the crisis and the most pivotal in bringing about justice.

International law has progressed significantly over the last decade. One of its fundamental tenets is that there can be no impunity for those who commit gross violations of humanitarian law, such as crimes against humanity. Failure to prosecute these crimes is not the result of the absence of law, but rather the lack of political will.

The international community must ensure that this does not happen in Kenya. An ICC investigation would send a clear message to the perpetrators and to those who might be emboldened by a lack of action: impunity for these crimes will not be tolerated. Justice is not expendable.

Mark S. Ellis is the executive director of the International Bar Association

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