Putting ICC credibility and accountability on the dock

Rwanda, among a number of African states, is not party to the Rome Statute that established the International Criminal Court (ICC). As things stand, Kenya is set to join them by withdrawing from the ICC. The country’s Parliament, and now the Senate, passed motions demanding that the Kenyan government begins the process to withdraw from the court. Whether it is a reason or not, it’s not lost that this is against the backdrop of the on going ICC trial of Kenya’s Deputy President William Ruto, with that of President Uhuru Kenyatta to follow in November this year. Both are accused of being the masterminds behind the 2007/2008 post-election violence and the resultant deaths and displacements of thousands of people in its aftermath, charges which the president and his deputy deny. The ICC was set up with the noble aim to prosecute individuals for crimes against humanity. But it is tarnished, accused of lacking credibility. The office of the ICC Prosecutor has not only been accused of not being accountable “to no one”, but also politicised. Jendayi Fraser, the former US Assistant Secretary of State for African Affairs during the Bush administration had this to say: While “it is right and necessary that those responsible for the violence are held accountable,” she wrote in Kenya’s Daily Nation just after the March 2013 elections that saw the election of Kenyatta and Ruto, “the ICC was initially used (unsuccessfully) as political leverage to get Kenya’s Parliament to set up a domestic special tribunal to address the post-election violence.” (see ICC has fallen from high ideals of global justice, accountability). Fraser was affirming the universal legal imperative of the presumption of innocence that allows an individual to run for public office, despite a pending trial. Yet, she wrote, “the ICC was politicised when used to warn Kenyans about whom to vote for in their 2013 elections.” The irony – or rebuke, depending on how one may look at it – was not lost that she was referring to the memorable “choices have consequences” remark of her successor Johnnie Carson under the Obama administration. The US is not party to the Rome Statute. There is also the matter of accountability, or lack of it, also touched upon by the Kenyan Senators even as they moved to press the government to withdraw from the ICC. It may be a truism to say that the ICC lacks democratic accountability to voters. But an argument has been advanced that necessary checks, political or otherwise, are either greatly attenuated or entirely absent in the Court and Office of Prosecutor. They are, according to this line of thought, effectively accountable to no one. According to one presentation to the Federalist Society on why the US should not be party to the ICC, “the Prosecutor will answer to no superior executive power, elected or unelected. Nor is there any legislature anywhere in sight, elected or unelected, in the Statute of Rome. The Prosecutor is answerable only to the Court, and then only partially, although the Prosecutor may be removed by the Assembly of States Parties.” There is no gain saying that the African nations not parties to the Rome Statute believe in justice and the rule of law and in accountability for crimes against humanity and genocide. But looking at the international intrigues and power plays on the Syria question, mainly between the US, on the one hand, and Russia on the other, one is inclined to be persuaded by Jendayi Fraser when she notes how “the West’s often quiet role but strong political influence on who the court targets for indictment tarnishes the court as a tool of geopolitical influence, not balanced global justice.” Perhaps the Kenyan legislators have a point in their push to withdraw. The author is an analyst on Rwanda and regional affairs