A Dangerous Moment for Justice at the International Criminal Court

Thursday, Dec. 11 2014, The Globe and Mail

The early 20th century Shakespeare scholar, A.C. Bradley, argued that the tragic hero must possess an inner flaw which will become the inevitable source of his failure. The higher his worldly status, the more poignant his downfall. This week, 100 years later, the member states that make up the International Criminal Court and oversee its administration are meeting in New York. They are discussing the budget, electing new judges, instituting mechanisms for paying reparations to victims, and inaugurating a policy on sexual and gender-based crimes. But there’s an elephant in the room: Kenya – the country whose actions have highlighted a similar flaw at the heart of the ICC.

Last week, Fatou Bensouda, the chief Prosecutor, was forced to abandon her case against Kenya’s current president, Uhuru Kenyatta. In 2011, two years before he was elected president, Kenyatta was indicted by the ICC for orchestrating murder, rape and deportations following the earlier elections of 2007. More than a thousand people died during that melee. For years, the government promised to hold national trials. When they failed to deliver, the ICC stepped in.

But when the prosecution tried to build its case against Kenyatta, Kenya obstructed the process. Key witnesses were bribed, intimidated, or killed. Court-protected identities were made public. The government blocked access to key documents. Eventually, the ICC judges concluded there was simply insufficient evidence available to convict Kenyatta. Ms. Bensouda really had no choice. “Today is a dark day for international justice,” she lamented.

The ICC is informed by the Rome Statute, an international treaty that details every structural element, from the Prosecutor’s jurisdiction, to the role of the judges, and everything in between. Most important, the Statute articulates the obligations of member states to co-operate with the tribunal; in particular, to arrest indicted individuals, whether nationals or visiting foreigners, and to support fair trials by providing the tribunal with the evidence it needs.

And there’s the rub. The flaw at the heart of the Statute is its fundamental inability to compel ICC member states to fulfil these obligations. Without a police force or army, the Prosecutor must rely on good will. Her only tool is rhetorical: to underline the promised commitment of each of the 122 member states to pursue accountability at the highest levels.

Kenya (a member state since 1999) has exposed this weakness. For years, Uruhu Kenyatta undermined the court with language calculated to incite racial hatred. The ICC is ‘biased,’ ‘colonialist,’ and ‘western-imperialist,’ he proclaimed. The Prosecutor is a “race hunter” (never mind that she’s a Gambian lawyer, or that many cases were brought to the ICC by African heads of government ).

Kenya’s most pointed efforts to damage the ICC were contained in two recommendations its delegates brought to New York this week. The first was a direct incitement to attack the integrity of the ICC Prosecutor and possibly others associated with the court. The second was a proposal that all sitting heads of state be immune from prosecution for purported criminal acts.

Since both these suggestions were inherently extreme, the chances of either passing muster was, and remains, next to nil, but their presence on the order sheet shocked the delegates into placing the need to enforce co-operation near the top of the agenda. Unfortunately, since there are no mechanisms for coercion, few concrete proposals have emerged so far.

Should Kenya’s slanders, judicial interference, and attempts to legalize impunity for sitting heads of state be ignored; and should no instrumental strategy be adopted to compel member-state co-operation with the court, Uruhu Kenyatta will have effectively won. Kenya will have limited the jurisdictional reach of the ICC.

The worst losers would be the abused women, child soldiers, and other victims of major international crimes whose last hopes lie with the International Criminal Court.

It’s a dangerous moment for the ICC. The delegates meeting in New York this week must renew their commitment to the future of international criminal justice – and uphold the integrity of the court.

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