Kenya vs. the International Criminal Court - OZY | A Modern Media Company


The ICC was supposed to be a beacon of hope, but a crisis is brewing over its authority.

The International Criminal Court was supposed to have been so much: a way to hold modern-day Hitlers and Pol Pots to account, a potent deterrent for would-be war criminals and a beacon of justice for victims of horrific abuse. Some even thought the court would provide closure for national traumas.

Laudable aspirations. But today, many of the fondest dreams for the court have been seriously deferred, if not dashed. In recent months, Kenya has said it would withdraw from the ICC’s jurisdiction, and the African Union (AU), a conglomeration of leaders on the continent, has threatened to do so too. International law heavyweights have criticized the court for imperiling the relevance of international law. Its prosecutor’s office barely has enough resources to do its job. And then there’s the race question: It’s hard to ignore that fact that all 32 of the ICC’s indictments have been of African leaders.

Kenya has said it would withdraw from the ICC’s jurisdiction, and the African Union (AU) has threatened to do so too.

“The process has degenerated to some kind of race hunting,” AU chairman and Ethiopian prime minister Hailemariam Desalegn complained at a summit of AU leaders in May. 

It all adds up to perhaps the most serious crisis the court has faced in its 11 years of existence. David Crane, a prominent war-crimes prosecutor, warns that the ICC’s “political tin ear” could result in “a long slide into irrelevance for international law.” 

Uhuru Kenyatta outside at the International Criminal court in Hague

Then-deputy prime minister and finance minister Uhuru Kenyatta.

Source Bas Czerwinski/Getty

Few would have predicted such an upheaval would be triggered by Kenya, East Africa’s largest economy and, for many years, its most stable country. In 2007 and 2008, electoral violence killed some 1,500 Kenyans and displaced hundreds of thousands more. A human rights commission in Kenya recommended the creation of a special tribunal to hear cases, but it was never created. In 2011, the ICC indicted Uhuru Kenyatta and William Ruto on charges of crimes against humanity for allegedly masterminding the killings. 

The ICC has never before tried a sitting leader — let alone a sitting head of state — and many are up in arms over the idea.

Then, this year, Kenyatta ran for president — and won in the first round. Ruto became his deputy. That’s when many of the problems came to a head. For starters, the ICC has never before tried a sitting leader — let alone a sitting head of state — and many are up in arms over the idea it would do so. Last month, the AU demanded immunity for the continent’s sitting leaders on the grounds that attending and managing the litigation would disrupt the process of running a country. 

The court already granted Kenyatta leave for much of his trial, which was scheduled to begin November 12, allowing him to testify by video rather than from the dock at the Hague. On Thursday, the court deferred the proceedings for three months. That’s not enough for Kenya. The government is holding out for a yearlong delay, which it might win if the United Nations Security Council approves, Article 16 of the Rome statute that established the court provides that the Security Council could renew such deferrals indefinitely.

William Samoei Ruto facing forward in a gray suit, looking away from camera

Former Higher Education Minister William Samoei Ruto

Source Getty

In some ways, a deferral seems reasonable. Defending oneself from charges of crimes against humanity would likely interfere with the requirements of high office. Permanent members of the Security Council such as France and the United States seem to think that a deferral would be in their own national interests too. Kenya is considered stable and a bulwark against terrorism in the Horn of Africa — priorities that gained weight after September’s Westgate Mall terrorist attacks in Nairobi, committed by loyalists to al-Shabaab.

But the notion that sitting leaders shouldn’t be tried leads to another conundrum. If staying in power confers immunity, one might expect leaders accused of crimes against humanity to hold onto power as long as they can, at all costs.

Meanwhile, in Africa, there are arguments that Kenyatta’s election means that Kenyans just want to “move on,” and past the imperatives of justice. Polls have shown a drop in Kenyan support for the ICC since the election, from 60 percent to 40 percent, though at least some of the wavering is due to intense propaganda from the government.

But supporters of the ICC say that without it, there would be no recourse for victims of electoral violence or other human rights abuses. In the vast majority of cases, those responsible for the serious crimes around the elections have not been held to account, according to Human Rights Watch.

Portrait of Fatou Bensouda facing towards the camera in a beautiful purple coat.

Prosecutor Fatou Bensouda of the International Criminal Court 

Source Michael Koonan/Getty

Besides, they say, the court was never meant to be popular — that, in fact, the court was meant to challenge power and authority and that a certain amount of backlash against its mandate is to be expected. 

“In some ways, it’s inevitable,” says Elizabeth Evenson, senior counsel at Human Rights Watch. “The court was set up to take on the most entrenched cases of impunity, those with the highest levels of alleged irresponsibility.” 

Its jurisdiction was always limited, though. Some of the world’s most powerful countries, including the United States, China and Russia, never agreed to participate in the court. Their non-participation, rather than any purported racism or conundrums over trying sitting leaders, may be what kills the court’s promise in the long run.

For now, though, it’s worth remembering the old words of then-U.N. secretary general Kofi Annan, who thought — optimistically, it seems from this vantage — that the ICC could provide “universal justice,” and that in doing so, would be a beacon of hope for the dispossessed: “Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.” 

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