Kenyan President Uhuru Kenyatta smiles as he appears before the International Criminal Court in The Hague, October 8, 2014.
Kenyan President Uhuru Kenyatta smiles as he appears before the International Criminal Court in The Hague, October 8, 2014.
Peter Dejong / Courtesy Reuters

In 2002, the International Criminal Court (ICC) came into being. At the time, observers were hopeful that rule of law could help constrain humanity’s worst impulses, a sentiment that, today, may seem foolhardy. Yet, where else would victims turn? Ruthless tyrants and their henchmen have killed, raped, and tortured innocents, and few, if any, international institutions have been able to stop them or provide justice after the fact.

The ICC has very real and sometimes infuriating limitations. Convictions are too few, cases are too long, and the backlog is too high; frustrations inside and outside the court grow. But so does the demand for the ICC’s help. Whether it be in Syria, Palestine, North Korea, Sri Lanka, or in reaction to U.S. and British activities abroad, the ICC’s problems have not kept governments and people from urging it to get involved in more and more places. Thus, the promise of the ICC remains intact, despite the challenges it faces.

However, now it is confronting one of its biggest tests. On December 3, 2014, ICC judges ordered that the case against Kenyan President Uhuru Kenyatta, who is accused of crimes against humanity for planning and funding violence in the wake of Kenya’s 2007 elections, should proceed within one week or be dismissed. Two days later, the prosecutor of the ICC, Fatou Bensouda, having already conceded that Kenya’s non-cooperation with her investigation left the case unready for trial, withdrew the charges. She reserved the right to file them again in the future.

Her decision was highly anticipated. Leading up to the withdrawal of the charges, the media-savvy Kenyan government and its interlocutors had painted the ICC as a neocolonial tool of the West used to target disfavored African leaders. As evidence, they pointed to the absence of any non-African cases on the court’s current docket. Further, they argued, criminal trials anywhere, whether in Kenya or The Hague, disrupt Kenya’s attempts to move on from its recent bloody past and build a stable, peaceful future.

Compelling as this narrative may seem to some, the truth is much simpler: With 122 members heavily concentrated in Latin America and Africa, and with Africans in many key leadership posts, the ICC reflects the world it represents. Kenyan officials’ condemnation of the ICC was a cynical way to maintain power. If the activities of senior Kenyan governmental officials who were private citizens during the 2007 post-election violence and are alleged to have been involved in mass atrocities were never aired in a courtroom, those officials would avoid not only conviction but also reputational damage. Their grip on power in Kenya, as a result, would remain secure.

In years past, they would not have needed to worry. Traditionally, government leaders who organized mass atrocities either lived out their days in power or were comfortably exiled when not in power. The prospect of prosecution was remote at best. The rules of this sordid game began to change, however, when the Nuremberg Trials held Nazi officials accountable for genocide, crimes against humanity, and war crimes. Those trials set a standard for dealing with leaders such as Liberia’s Charles Taylor, former Yugoslavia’s Slobodan Milosevic and Radovan Karadzic, and Cambodia’s Nuon Chea, who were all tried for their participation in atrocities. Demands for justice slowly became a regular part of diplomatic and popular discourse whenever atrocities occurred.

To keep their impunity, political figures had to get more sophisticated. With the help of London-based public relations firms, Kenya’s government crafted, as David Bosco, an assistant professor at American University, called it, “the how-to manual for frustrating” ICC cases. The new impunity playbook is as straightforward as it is nefarious. First, win public sympathy by distorting facts to make the judicial process look unfair and biased. At the same time, feign cooperation with the court to provide cover for step two, which is to quietly yet thoroughly undermine the criminal case through witness intimidation and evidence tampering. This second step is possible because the ICC (like all other international tribunals) relies on the states in which the crimes occurred to guarantee access and on other states to use political and diplomatic pressure to get the country in question to cooperate with the ICC.

To win in the court of public opinion, the Kenyan government and its allies called into question the ICC’s fairness and legitimacy by pointing out that all individuals under investigation or prosecution at the ICC are from Africa. It did not matter that the ICC was, in most cases, responding to requests by African countries to investigate atrocities committed in their country. (The U.N. Security Council referred two other African countries to the ICC without obstruction by China and Russia, themselves hardly enablers of Western imperialism.) The one outlier is Kenya, where, starting in 2009 the then-ICC prosecutor initiated formal investigations in the 2007 election violence consistent with Kenya’s status as an ICC State Party. However, he did so only after a Kenyan investigative commission recommended that the ICC step in if Kenya failed to create a domestic tribunal, which it did not create.

The unfortunate reality is that the continent with the highest number of atrocity-ridden conflicts is Africa. Of greater relevance, within the ICC’s jurisdiction, is the fact that a higher percentage of African countries are party to the ICC than, say, Middle Eastern countries (27 percent versus two percent). In short, the ICC’s involvement in Africa is the logical fulfillment of its mandate. That is not to say that the perception of a Hague-based international court with live cases solely against Africans is not troubling. It is. Yet, to ignore millions of African victims for the sake of appearing “balanced” would truly compromise the ICC’s integrity.

Further, the premise put forth by Kenya’s government—that the ICC is a “tool” for the West push out disfavored regimes—is far-fetched. In fact, regime change may be the last thing Western powers would want in Kenya, given that the Kenyan government has been a reliable counter-terrorism ally.  

Even so, the Kenyan officials’ narrative about the ICC took hold. And then it was time for the second step in the new impunity handbook—undermining the case. With many states diplomatically and politically unwilling to support a court of law that was percieved to be biased, Kenya had cover to disrupt the ICC cases more dramatically. Of course, it was careful not to do so blatantly. Instead, Kenyan authorities issued a litany of public pronouncements vowing full cooperation. At the same time, key witnesses due to testify in the Kenyatta case were bribed and intimidated, assets were not frozen in defiance of court orders, access to information was restricted, and meaningful cooperation was not forthcoming.

In the meantime, the new model of impunity has been catching on. For example, Laurent Gbagbo, the deposed president of Cote d’Ivoire who is sitting in an ICC jail awaiting trial, is running for reelection, a tactic Kenyatta used as a private citizen to gain “head of state” status, which he argued would shield him from prosecution—a legally dubious proposition, at best.

So, where does the international community go from here? For one, the ICC should recognize its own mistakes. It committed missteps on the diplomatic stage—failure to resort to the ICC Assembly of State Parties for Kenya’s non-cooperation far earlier—and should have followed a better investigation and prosecution strategy from the start, especially when the Kenyan suspects were private citizens. For instance, the ICC should have had a permanent investigative field office in Kenya collecting documentary and communications evidence from the start.

Yet, to focus on these missteps would be to deflect true blame. Unless countries that are party to the ICC are willing to accept an international tribunal with its own enforcement power (that is, an ICC police force), individual states will need to take their duty to cooperate with the ICC more seriously. To date, most of them have stood idly by while Kenya unleashed its political attacks on the ICC. The failure to counter this assault, for example, by making regional security assistance with Kenya conditional on cooperation with the ICC, calls into question why the international community formed the ICC in the first place: establish international peace and security through a just rule of law.  

The countries that are party to the ICC must begin to make tough decisions, starting this week as they, and influential observer nations such as the United States, gather in New York for the ICC Assembly of States. In many ways, this conference will forecast the future of the ICC. Vitally important subjects are on the agenda: the woeful underfunding of the Court and Kenyan proposals to amend the ICC’s governing treaty to codify statutory immunity for heads of state.

As the assembly begins, the question to be answered is, which countries, if any, will choose to be true leaders in international criminal justice. If no one takes up the call, victims of atrocities, both living and those not yet born, will bear the consequences.  

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  • KIP HALE is senior counsel to the American Bar Association (ABA) Center for Human Rights and director of the Center’s International Criminal Court Project.
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