Kenyan President’s ICC Trial is a Big Mistake

A diplomatic push by African nations last week failed in its attempt to have the UN Security Council postpone the International Criminal Court trials of the Kenyan President, Uhuru Kenyatta and his deputy, William Ruto.

The arguments put forward in favour of the deferral do not wash. No-one should be able to escape justice on the basis that they have urgent government business to conduct or that they were democratically elected. The business of the ICC is, by its very nature, of such importance that it transcends the needs of any one nation and enters a realm whereby all nations have an interest in seeing justice served. The African Union’s position that sitting heads of state should not be liable to prosecution is laughable.

Yet, the Security Council was still mistaken in allowing the trials to proceed. The Kenyan pair is charged with the orchestration of violence in the wake of Kenya’s 2008 disputed election. These are serious allegations and the evidence in favour of a conviction is strong. But, for such actions to fall under the jurisdiction of the ICC (under the specific charge of crimes against humanity) stretches the mandate of the court far beyond its intended purpose and risks damaging the reputation of a much needed, but still fledgling institution.

The ICC is a worthy idea that faces a huge credibility crisis. The convictions of Liberia’s Charles Taylor and Serbia’s Slobodan Milosevic in other Hague-based courts were boons for the international justice system. However, the ICC has failed to build on these successes. It has yet to secure a meaningful conviction and is dogged by complaints of selective prosecution and anti-Africanism.

These complaints are starting to gain tangible momentum. Earlier this year, the African Union used the occasion of its 50th anniversary to formally criticise the ICC and promote the withdrawal of African nations from its jurisdiction. In August, the Kenyan Parliament passed a resolution in favour of Kenya’s exit from the ICC (although this has yet to take effect). The lack of support from former proponents calls the Court’s very existence into question. At least as concerning is the boost that this gives to others being pursued by the Court, notably Sudanese President Omar al-Bashir, who is wanted for crimes against humanity, war crimes and genocide, but yet who is now riding with glee on the back of mounting opposition against the trial of the Kenyan leaders’ far lesser crimes.

The ICC would be far more potent if it pursued only the most grievous of charges. This would give greater opportunity for the international community to isolate the indicted few and lessen the claim that it is a euro-centric court seeking to impose its values and solutions on Africa.

The charges against Kenyatta and Ruto should never have been brought in the first place. Reversing that damaging decision, though, is not so easy. To withdraw the indictments would unhelpfully confirm the truism that international justice is, in fact, subject to the whims of international diplomacy. To continue with the trials would – in the event of guilty verdicts – compound the credibility problems these indictments have already caused or – in the event of acquittals – do lasting damage to the ICC’s respectability as a result-getting institution.

The better option would have been deferral. This would have taken the sting out of unhelpful accusations against the Court, whilst avoiding the Security Council’s riding roughshod over its judicial independence. Kenyatta and Ruto deserve little sympathy in all of this (even the majority of Kenyans believe they should stand trial), but the ICC is far too important an institution to risk its already fragile reputation over such a dubious case.