Stand by the ICC

Eleven years ago the International Criminal Court was established to prosecute individuals for genocide, war crimes and crimes against humanity. It has been hailed as a tribunal that can bring tyrants to justice where national jurisdictions fail. Yet today its authority is being called into question.

Concerns have arisen because of the ICC’s prosecution of Uhuru Kenyatta, president of Kenya, and his deputy William Ruto. Last year the ICC announced it would prosecute them for helping to orchestrate violence after the disputed 2007 election, which saw 1,100 people killed. The two men contest the charges. Then last March, they were elected to the nation’s top government posts. Both ask how they can possibly face trial while running the country.

Last week the ICC came up with a compromise that allows the two men to miss some hearings at The Hague and give evidence by video link. But President Kenyatta and his deputy are also mounting a more wide-ranging attack on the court. They accuse the ICC of being “a toy of declining imperialist powers”. They argue that of the eight cases thus far brought by the court, all involve African countries. War crimes in Afghanistan, Sri Lanka and elsewhere have never been indicted by the ICC which, they argue, engages in selective prosecution.

Clearly, the ICC faces many restrictions. In broad terms, it can only conduct a prosecution in states that are a party to the ICC; or where there is a reference by the UN Security Council. This means many tyrants escape the net. Syria, for example, is not an ICC signatory and the Assad regime is unlikely to be referred by the Security Council because of Russian support. Other states with egregious records – North Korea, Sri Lanka, Zimbabwe, to name a few – have not joined the court.

The ICC’s prestige is weakened by the fact that the US is also not a member. That does not mean the court is wholly flawed. In five of the eight cases it has mounted, it was an African government that asked the ICC to indict its own nationals. Nor should we lose faith in the ICC because of its imperfections. It is a young legislative institution and all legal systems – national or international – take decades to develop.

Mr Kenyatta is assailing the ICC because he wants to undermine the court in the eyes of the Kenyan people. His campaign does not have the support of all African states. The ICC may have many faults. But Mr Kenyatta and Mr Ruto still have a case to answer.