The International Criminal Court on Trial

The prosecution of Kenya's president and his deputy has put the ICC in a serious bind.

We like to think of courts as stern stewards of the rule of law, providing firm anchors in an otherwise rapidly changing world. In reality, however, even the most robust judicial institutions are seldom immune to the influences of politics, and indeed most sensible legal systems contain provisions for balancing justice against potentially competing human interests. This balance is a difficult one for any domestic system to strike. But for an international institution, the challenge is even more formidable.

The International Criminal Court (ICC), the only permanent international tribunal with the mandate to prosecute war crimes, crimes against humanity, and genocide, is currently fighting an uphill battle to maintain its credibility as an impartial enforcer of the rule of law. Last month, the African Union (AU) convened an Extraordinary Summit to demand that the Court defer its prosecution of Kenya’s incumbent president, Uhuru Kenyatta, which is due to start on November 12, as well as that of its deputy president, William Ruto, which began last September. The AU insists that the ICC would be compromising regional peace and stability by forging ahead with the trials, and it threatens to orchestrate a mass exodus of African nations from the Rome Statute, the treaty that established the ICC, if the Court fails to address the AU’s concerns.

It is not difficult to empathize with some aspects of the AU’s point of view. Since the ICC became operative in 2002, it has only prosecuted African leaders while turning a blind eye to crimes against humanity in other parts of the world. With regard to the Kenyan cases in particular, the Court’s policy that Kenyatta and Ruto put aside their governing duties in order to attend trials at The Hague is perceived as a breach of national sovereignty. At a time when the country is dealing with acute terrorist threats, epitomized by the recent Westgate shopping mall tragedy, a decision to cut off Kenya from its highest sitting heads of state is inopportune, if not deeply irresponsible.

At the same time, in threatening to organize a pullout from the ICC if the Kenyan trials are not suspended, the AU is further compromising the Court’s integrity. There is no question that losing the support of a significant number of African countries, some of which are founding members of the Rome Statute, would weaken the ICC (a fact that AU leaders know well). In effect, these leaders are willing to exploit their collective influence to achieve their desired outcomes, even if by this act they are setting a harmful precedent for the use of political coercion in an international court of law.

Some critics and policy-makers view the African eruption of discontent and attempts at extortion as exceptional disturbances demanding an exceptional response. Accordingly, they have called for granting a suspension of Kenyatta and Ruto’s trials, or alternatively allowing the accused individuals to be absent from most of the hearings. But these calls are misguided. The predicament in which the ICC presently finds itself is not a matter of bad fortune or untimely accident. There are inherent paradoxes in the design of the Rome Statute, which will continue to expose the Court to such threats to its legitimacy for as long as they remain unaddressed.

Two crucial institutional features combine to make the ICC vulnerable to political manipulation of the kind that threatens its judicial integrity and legitimacy. Firstly, there is the United Nations Security Council’s unchecked power to effectively stop the ICC from prosecuting a case by invoking Article 16 of the Rome Statute every twelve months and deferring a trial indefinitely. Admittedly, the chances of the Council enacting a deferral are slim, since such a measure requires the unanimous support of the Council’s five permanent members (P5). However, the Council is a very political body, and the mere possibility of it exercising control over the ICC in this regard compromises the Court’s impartiality. We have already seen attempts by the AU to lobby France and other P5 members for a deferral of the Kenyan cases. Paradoxically, three of the P5 are not even members of the ICC, which renders this power not only undeserved, but also rather insulting to non-P5 members of the ICC that might suffer from its misuse.

Secondly, and more fundamentally, the ICC depends on the cooperation of state parties in order to carry out prosecutions. Unlike domestic judicial systems, which can deploy law enforcement to compel indicted persons into the courtroom, the ICC relies on member states to surrender their own or visiting officials to the Court. To date, the indicted president of Sudan, Omar al-Bashir, has travelled to at least eight foreign countries, three of which are parties to the ICC, without being arrested. The thorny question for the Court is how to preserve allies that may prove instrumental in the execution of future trials, while resisting pressure to submit to the will of the powerful.

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