“The ICC has been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims. It stopped being the home of justice the day it became the toy of declining imperial powers.” – Kenyan President Uhuru Kenyatta at a recent African Union summit
In class last week, Professor Tiemessen mentioned the current trial of President Uhuru Kenyatta of Kenya. Kenneth Roth, in a recent New York Review of Books article, investigated the case and what it means for the future of the ICC.
President Kenyatta is accused of directing violence during contested elections in 2007 and 2008. An estimated 1,100 people were killed and as many as 650,000 were forced to flee their homes. Kenyatta, now on trial at the Hague, is fighting vigorously against the ICC; however, rather than relying on proof of his innocence, his focus seems to be on de-legitimizing the process and cause of the international court.
Kenyatta’s trial has showcased several issues haunting the ICC since its inception especially its authority (or lack thereof) as an international court and its politicized nature given the whims and motives of member and non-member states. Beyond this, Roth provides interesting commentary on the historical trajectory of the ICC as it has attempted to create legitimacy around its mission and institutional processes. “In its initial years, perhaps in an effort to establish itself and build political support, the ICC seemed to focus on widely despised figures who lacked a powerful constituency—people like the child-kidnapping Kony or the warlords of eastern Congo.” But what happens when the ICC goes after heads of state who might be powerful and powerfully supported in their home region?
Now as the ICC turns to prosecuting such heads of state, and moreover sitting heads of state, its work faces increasing resistance not only from the individuals themselves but from the states in which such individuals wield power. Kenyatta’s trial provides an example of this. As Roth explains, “Ominously, the alliance campaigned in part by denouncing the court, turning the charges against its leaders into a nationalist protest against interference in Kenya’s affairs.” Kenyatta has removed the focus of his trial from his criminal past and towards the role and function of the ICC.
As Roth writes, “Kenya” (notably not Kenyatta) “has been making two main arguments in its defense.” Kenya argues that (1) the court is Africa-centric in its work to identify and condemn perpetrators of human rights atrocities, and (2) a head of state should not be put on trial until after he has served out his term in office.
The reasoning behind this second point is to maintain state-wide stability and allow officials to carry out their imminent duties. (In Kenyatta’s case, coordinating resistance against local terrorist groups like al-Shabaab.) This second point goes directly against the ICC’s governing statute which declares that heads of state are in no way exempt from immediate criminal prosecution. This defense, I believe, provides the most interesting detail of Kenyatta’s trial because Kenyatta’s defense largely ignores his own criminal acts and rather relies heavily on accusations against the legitimacy of the ICC. What does Kenyatta’s trial mean for the future of other ICC cases? Will Kenyatta’s trial shift the focus or scope of ICC action? How might his defense influence the defense of future accused leaders? Roth’s article presents many of these questions (and more) and provides an interesting read on challenges faced by the ICC as it enters its 12th year.