In Summary
  • Justice is a noble ideal — but when abstraction collides with pragmatism, the latter generally prevails. Such is the case with the International Criminal Court today, scarcely 12 years old and already failing.
  • In Kenya, the case against President Uhuru Kenyatta and his deputy, William Ruto, has degenerated into farce.

Just before the turn of the new millennium, a prominent human rights advocate stopped by to brief me on his efforts to create an international criminal court. The world needed an impartial, truly global tribunal to prosecute crimes against humanity. How else would we punish — and in the future deter — perpetrators of such horrors as Rwanda and the former Yugoslavia? 

I admired the man’s zeal and his idealism. Yet I was wary. Such crimes are almost always shaped by context and seldom occur in the abstract. What of Winston Churchill, I asked, the wartime British prime minister responsible for the gratuitous fire-bombing of Dresden? Or Harry S. Truman, who ordered the bombing of Hiroshima and Nagasaki? The answer was unambiguous: Both were war criminals who should be in the dock.

ALREADY FAILING

Let us be realistic: There is a deep disconnect here. Justice is a noble ideal — but when abstraction collides with pragmatism, the latter generally prevails. Such is the case with the International Criminal Court today, scarcely 12 years old and already failing.

To date, 122 countries have signed the Rome Statute, including all of South America, most of Europe, and roughly half the countries of Africa. Notable among those who have not are the United States, Israel, Russia, China, and India. The court has been asked to investigate alleged crimes in 139 countries but, so far, has done so in only eight, issuing 36 indictments and 27 arrest warrants — all in Africa.

As for the proceedings themselves, the record has been decidedly mixed. The post-World War II Nuremberg tribunal tried two dozen top Nazi officials in less than a year. The contrast to today’s ICC is glaring. The court’s first case, concerning the Democratic Republic of the Congo, is still under appeal — two years after the accused was sentenced to 14 years in prison and eight after he was arrested. The defendant in a second case, also in the DRC, was acquitted, prompting an immediate appeal by the prosecutor, also indefinitely pending.

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