This article is about the ways that the notion of the African perpetrator and notions of ‘culpability’ are mediated through a distinct colonial–postcolonial continuum. These different assessments for assigning and comprehending guilt result in what I term an ‘ICC impunity gap’. Epitomising this gap is the case against Kenya’s William Ruto and the recently dropped case against Uhuru Kenyatta, whose indictments by the International Criminal Court (ICC) cohered with and confirmed the image in the international imagination of the perpetrator – an image of an African commander whose actions are in need of international judicial management. I consider the historical and juridical frames through which Kenyatta and Ruto were indicted and the resultant disjuncture in recognition by analysing the historic circumstances surrounding the violence that erupted following the 2007 presidential election alongside legal arguments made by the ICC about ways to determine culpability for mass atrocities. Though not new to legal anthropology, notions of legal time are scarcely interrogated in western jurisprudential circles, particularly with regard to differences in international law (which limits how notions of legal time are conceptualised). The goal is to make visible a particular ‘gap’ in the legal and popular senses of criminal responsibility, especially as it relates to the temporality and proximity of legal responsibility. By reflecting on temporal determinants for parsing guilt, I suggest that we consider the way that new modes of criminal liability shapes new narratives that determine the way that the perpetrator figure is constructed in international criminal law circles.

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Keywords Culpability, Impunity gap, International Criminal Court, International law, Kenya, Perpetrators, Proximate violence, Temporality, The individualisation of criminal responsibility, Uhuru Kenyatta, William Ruto
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Journal International Journal of Human Rights
Clarke, K. (2015). Refiguring the perpetrator: Culpability, history and international criminal law’s impunity gap. International Journal of Human Rights, 19(5), 592–614. doi:10.1080/13642987.2015.1032265