ICC on Trial

The Kenyatta Trial and International Justice

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

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