The International Criminal Court earlier this month suffered its biggest setback since its establishment at the turn of the century amid hopes that soft power and legalism could deter atrocities. The court’s chief prosecutor announced that she was shelving the prosecution of Uhuru Kenyatta, accused of abetting thousands of murders and rapes in Kenya’s 2007 interethnic election violence.
The prosecutor said the three-year-old case could not go on because Kenya’s government would not cooperate with requests for evidence. As it happens, Kenyatta is the country’s president (and son of post-colonial founder Jomo Kenayatta); his co-defendant, William Ruto, is the deputy president. They were democratically elected last year, having run for office while under the ICC indictment, cracking jokes about The Hague on the stump.
So the court decided to prosecute a sitting head of state in its most high-profile case to date and then packed it in when — surprise — Kenyatta’s regime decided to make its job difficult. It is an embarrassment of the highest order because the case is the first in which the court has sought to execute what many see as its core mission: prosecuting world leaders for mass atrocities.
The creation of a permanent international criminal tribunal with authority over public officials was a dream of cosmopolitan thinkers for much of the 20th century. The end of the Cold War created a unique moment when the dream seemed to have been achieved: The Rome Statute creating the court was ratified in 1998, with the court itself coming into existence a few years later. The court has jurisdiction over the territory and nationals of states that accept its jurisdiction, and it deals with war crimes, genocide, and crimes against humanity. Kenya is a member of the court; the U.S., Israel, Russia, and much of the Arab world and the major Asian powers are not.