by Jack Nitschke
When one considers the nobility of its aims, and the immense difficulties inherent in its operation, it’s something of a surprise that the International Criminal Court (ICC) manages to function at all. Yet it persists at a sclerotic pace, struggling to do its work against a backdrop of obfuscation and hypocrisy from signatory and non signatory states alike. To date, after eleven years of existence, it has only managed to convict one person (Congolese warlord, Thomas Lubanga Dyilo, a full six years after his initial indictment), and it labours beneath an ever growing backlog of cases. Bringing accused to trial is entirely contingent upon the cooperation of signatory states, permitting high profile indictees, like Sudan’s President Omar al-Bashir, to thumb their noses at the court. Now the Court’s very future seems to hinge upon the outcome of two pending trials, that of Kenya’s president, Uhuru Kenyatta, and his vice-president, Mark William Ruto.
On October 12th, the African Union in Addis Ababa passed a motion urging the ICC to refrain from prosecuting incumbent national leaders, and threatening to withdraw from the Rome Statute should it fail to do so. What effect this would have upon the Court’s cases against Mr Bashir and Mr Kenyatta is unclear. However, it sets a terrible precedent. If heads of state and their deputies can evade justice by virtue of incumbency, it may encourage them to cling to power at all costs (a tendency that the African continent has thankfully begun to wean itself from).
The ICC was created to be a something of a court of last resort, for states with a judiciary either incapable or unwilling to prosecute the perpetrators of genocide, war crimes or crimes against humanity. In the wake of the horrific genocides of the 1990s, the need for such an institution seemed all too apparent. Yet the noble sentiment that led to the court’s creation has not been enough to overcome the jealousy with which states approach their judicial sovereignty. Many member states are unwilling to take responsibility for apprehending errant indictees, particularly such high profile ones as Mr Bashir, yet their continued failure to undermines the Court’s authority and reinforces the culture of impunity for the powerful that the ICC was created to upend.
Mr Kenyatta and Mr Ruto stand accused of masterminding the terrible bloodshed that came in the wake of Kenya’s disputed 2006 presidential election. During this year’s election campaign, Mr Kenyatta insisted that he would cooperate with the court, and that his indictment was a “private matter”, that would not encroach upon his presidency. Now that he is in office, that appears to have changed. In a bellicose address to the AU, he claimed that the electoral mandate which he received earlier this year from the Kenyan people makes any attempt to hold him to account for the deaths of 1300 civilians in 2007 an act of “imperialism”. “[It] is all consistent with a political agenda,” he claims, “rather than a quest for justice.” He went on to gloat over the apparent decline of the West, and to denounce development aid as “structural colonialism.” In all, a rather petulant performance from a man who has shown himself to be a far shrewder politician in the past. Western diplomats in Nairobi now complain of “childish” snubs by the president, who apparently refuse to meet with newly assigned European diplomats. Mr Ruto has proved somewhat more amenable, promising to cooperate with the Court and to abide by its ruling, so long as it permits him “sporadic” absences, owing to the responsibilities of his office.
Should Mr Kenyatta fail to show present himself to the Hague on November 12th, it will tarnish, perhaps irreparably, the legitimacy of the Court. For this reason, a resolution is due to come before the UN Security Council which, under article 26 of the Rome Statute, would see Mr Kenyatta’s trial delayed by a period of twelve months, with the possibility of indefinite renewal. This option appears to be favoured as a face saving measure by Western governments who, unwilling to see the Court humiliated, also hope to utilise Mr Kenyatta as a crucial ally in actions against East African terrorism. Those who argue that such a move would be tantamount to immunity for Mr Kenyatta are being ignored for the time being. As, it seems, are those who remark upon the sheer absurdity of the situation; giving the means to delay the ICC’s deliberation to an international body dominated by states not subject to its jurisdiction.
Such delaying tactics leave a bitter taste, but they may indeed be a necessary evil if the Court is to avoid a confrontation with the AU that it is ill equipped to undertake. African states have become increasingly vocal in denouncing the ICC for its glacial deliberations, and for the unhappy truth that it has so far only managed to bring charges against Africans (a fact which allows disgruntled national leaders to accuse the Court of racial bias and selective justice). On October 18th, the court excused Mr Kenyatta from any obligation to maintain a “continuous presence” throughout his trial. Whether such a concession will mollify the president, or if the proposed Security Council resolution will put an effective end to his trial remains unclear. It seems however that the Court desperately needs to find some way to bolster its legitimacy, and an orderly, successful trial for Messrs Kenyatta and Ruto would be a good start.