Why This Week is a Big Turning Point for the Future of the ICC

The International Criminal Court’s Assembly of State Parties (ASP) is meeting this week in New York. The annual meeting brings together members of the court to elect judges, decide on the next year’s budget and debate possible amendments to procedure and the Rome Statute. But this year’s meeting comes in the wake of the ICC prosecutor withdrawing charges against Kenyan president Uhuru Kenyatta last week. The current conclusion of the case may end a particularly contentious chapter in the ICC’s short history, but also leaves a lot of unanswered questions about what it means for the court.

The investigation and ultimate indictment of six defendants by the ICC for the 2007-2008 post-election violence that killed over 1,000 people and displaced more than half a million was ambitious from the start. Unlike other cases before the court, the Kenyan investigation did not come from a Security Council resolution or from self-referral by ICC member states; instead, the Office of the Prosecutor and then-Chief Prosecutor Luis Moreno Ocampo opened the investigation acting under its own authority. The created an unprecedented situation where the ICC was investigating a member state, but not at the invitation of that state. The result was the expectation of cooperation by the Kenyan government due to their obligations under the Rome Statute, but lasting bitterness from some over the ICC interfering in Kenyan affairs.

As Mark Kersten points out, it also created a focus on both sides of the conflict rather than just state actors, or just rebel groups. So far, this two-sided focus is unique in ICC history. While arguably it is a far more appropriate approach for the court, it was also bound to create more enemies.

In an odd turn of events, the two primary accused – Kenyatta and William Ruto, who stood on opposite sides of the ethnically charged conflict – joined forces to create the Jubilee Alliance that successfully won the 2013 election, albeit by a razor-thin margin. Thus, in another unprecedented development, a country democratically elected a president and vice president who both had open indictments from the ICC for crimes against humanity.

A lot can be said and probably will be said by scholars and justice advocates far into the future about these unforeseen developments. But it’s clear the election of Kenyatta and Ruto to the highest offices of the state changed the power dynamic between the Kenyan government and the court. As no arrest warrants were issues, the ICC still had to rely on the cooperation of the government. But with the accused now heading that government, there was a newfound disinclination to fully cooperate as required. That failure to cooperate is what led to the withdrawing of the charges, even though they may be re-filed in further evidence is found.

But perhaps more devastating is that Kenyatta and Ruto inherited the state tools and international platform to advance their own agenda outside of the courtroom. That agenda has the ability to impact the court far outside of Kenyan cases. Beyond fiery rhetoric in the media and the crafting of a narrative that turns the ICC into a neo-colonial institution bent on oppressing Africans, one strategy of the Kenyan government has been to actually change the laws and procedures of the court which would largely get them off the hook. This is done at the ASP. Even with the dropping of charges against Kenyatta, there are several proposed amendments tabled for debate. These include exempting sitting heads of states and their deputies from prosecution while in office, excusing a defendant from the requirement of attending their own trial, and extending the principle of complementary to regional criminal courts.

While sounding benign, that last proposal is a red flag for many human rights advocates. There are no regional courts in Africa that have criminal jurisdiction even though there has been talk of creating an African criminal court or extending the jurisdiction of the current East African Court of Justice to include criminal matters. But given the poor track record of other regional courts in Africa such as the SADC Tribunal and the African Court on Human and Peoples Rights, there are fears that extending complementary to regional bodies may provide governments a way out of prosecution for the worst crimes in the world. And if one region can do it, what is to stop others?

In the end, it may be the contention and controversy generated by the competing narratives of the Kenya cases that wind up being their legacy. It will be up to the ASP to decide how to go forward and navigate this aftermath. Even if the ASP decides to go forward with any of the proposed amendments, there is a long process to actually amend the Rome Statute, with no guarantee of success. But ideas are harder to manage .The narratives Kenyatta and Ruto have spun regarding the court resonate with many and still need to be dealt with. There are also concerns that Kenyatta may have shown the way to beat an ICC indictment through politics and not by trial. These are all important issues on the minds of the state representatives and civil society actors in New York this week, as the future of the court is debated and voted upon.