Last week was an unprecedented one for the International Criminal Court (ICC). In the span of a few short days, a sitting deputy head of state of one nation was peaceably brought to stand trial in a different country to answer for his crimes while serving in government. That same week, the accused’s government voted to withdraw from the ICC, a development as remarkable as the first.
The accused are Uhuru Kenyatta, William Ruto and Joshua Arap Sang. ICC prosecutors have charged them with orchestrating post-election violence in their home country of Kenya that claimed the lives of 1100 people. Their participation in the justice system of the ICC is simultaneously surprising and telling; firstly because it is unusual for sovereigns to submit so easily to prosecution; and secondly because such submission indicates the fundamental weaknesses in the prosecution’s case. Simply put, there is a reason that Uhuru Kenyatta is in the Hague rather than Sudanese president Omar Bashir. No sitting head of state would ever submit to this prosecution if the evidence against them was strong.
Thus, the events of the past week and the ICC prosecution of these Kenyan leaders may ultimately foretell the end of the ICC because these very same events exemplify the fundamental problems with the ICC’s mission. The ultimate withdrawal of Kenya from the Rome Statute, the ICC’s founding document, is a first glimpse into what can be assumed as the ICC’s increasing irrelevance and dissolution.
Critics of the ICC often point to the Office of the Prosecutor’s geographically lopsided investigations. While the ICC does not solely target Africans and African states (the ICC is conducting and has concluded preliminary investigations in non-African countries), the natural conclusion is that the Office of the Prosecutor selects easy targets – situations where meeting the burden of proof is easy and international interference from political actors is minimal. Even the selection of Fatou Bensouda, a highly esteemed lawyer and jurist from the Gambia, as Chief Prosecutor has yet to bear any fruit insofar as geographic diversity or additional investigations is concerned. But perhaps these issues indicate a different point.
Unlike many of my colleagues in the legal profession of the United States, I do not conclude that the ICC’s troubles stem from internal issues. Rather, the fatal flaw with the Court is not that its staff are failing, instead, the staff are doing the best with a limited amount of jurisdictional and practical resources. The ICC has targeted “weak” states for investigation because the Rome Statute makes it so. The Rome Statute constrains the ICC with onerous “preconditions to jurisdiction” that ultimately bind the ICC to its member states’ territorial jurisdiction or to its’ member states’ citizenry. Furthermore, the ICC can never really mount a meaningful investigation in countries where the rile of law is strong for two reasons– the ICC is not needed in countries with a functioning justice system and the ICC cannot investigate (even if it wanted to) because the Rome Statute provides that individual member states get a first try at conducting their own prosecutions.
Even an expansion of the ICC’s jurisdiction last year to “crimes of aggression” has yet to add extra jurisdictional muscle to the fledgling organization. Ultimately, the ICC is caught in a classic double-bind. It cannot undertake serious investigations without considerable concessions from its member states, but it also cannot afford to alienate its member states by undertaking investigations in the first place. Otherwise, the ICC would naturally be confronted with the situation encountered last week: the withdrawal of the member state whose citizens are under prosecution. Only in the most egregious of circumstances can the ICC ever hope to prosecute and convict those who violate the strictures of international humanitarian law.
Without consistent international backing and with no plenary jurisdiction or investigatory power, the ICC must necessarily eat what it is fed, and that is the excesses of African leaders and militiamen that perpetrate acts of violence throughout the continent. Unless the ICC can contrive a way to work around these fundamental problems, Kenya may not be the last nation to leave the Court.
Photo credit: valentinastorti
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