The International Criminal Court suffered a major setback earlier this month when it was forced to suspend its prosecution of Kenya’s President Kenyatta because of a lack of cooperation from his government.
A failed case against, say, a senator, would be a cause for reckoning in most district attorneys’ offices. A failed run at a sitting head of state is a big deal. As Omar Little would say, “You come at the king, you best not miss.”
Interestingly, international law commentators, usually quick to publicize on ruminate and the significance of every little move of the Prosecutor, have been fairly quiet about this one.
The Kenyatta case is notable in that it is the Court’s first against a sitting head of state, as opposed to deposed or defeated leaders. I explain the significance for international law in a new piece:
The ICC distinguishes itself from its predecessors, the “ad hoc” criminal tribunals such as Nuremberg and Yugoslavia, by claiming jurisdiction over sitting heads of state and ongoing conflicts. Until now, international justice was always a kind of victor’s justice, because it depended on the defeat of the accused. The conceit behind the ICC was that international law had grown strong and respected enough that it could take on the current leaders of actual countries without fighting them first.
Yet thus far in the court’s twelve years of operation, it has completed only three cases, with one resulting in an acquittal. The defendants it has dealt with have not been the high and mighty, but rather a motley crew of guerilla warlords and deposed despots. They all had one thing in common: They no longer held any power, and their prosecution was simply a coda to their military and political defeat by their enemies.
Kenya did what undefeated countries can do: It cleverly slow-walked its cooperation with the international community. If Iran can do it for much higher stakes in Geneva, why would others not be able to do it at The Hague? There have also been very serious allegations of intimidation of the prosecution’s witnesses. Kenya has full control over the “crime scene” and all the witnesses. All the prosecutor has control over is a staff in The Hague.
The only provision for dealing with recalcitrant states is a talking-to from the obscure “Assembly of State Parties,” which does not seem interested in dealing with the Kenyan debacle. African countries had long been outraged by the prosecution of the case, insisting against the rather clear language of the ICC treaty that heads of state should be immune. Indeed, Kenya has apparently suffered little to no diplomatic consequences from first electing candidates under indictment for mass atrocities and then having them use their new positions of power to shut down their prosecution in The Hague. There have not been popular protests or agitation by human-rights groups, threats of economic sanctions, or boycotts.
The Court’s failed run at Kenyatta reminds us that while victor’s justice sounds bad, there is simply no such thing as victim’s justice.