Is the Kenyatta Case the End for the ICC?

by Julian Ku

I haven’t had time to comment on the collapse of the ICC Kenyatta prosecution last week.  But friend of blog and Northwestern University law professor Eugene Kontorovich has some interesting thoughts over at National Review.  Read the whole thing, but suffice to say, Eugene thinks this is pretty big body blow to the whole idea that the ICC can be an effective institution at deterring international atrocities.  Not that it is exactly shocking that a head of state accused of atrocities would use every lever in his tool box to block his own prosecution.

In his requiem for the ICC, Eugene writes:

The ICC was born of a Whiggish belief that in the 21st century, a shared commitment to law could end impunity; that telecommunication makes people care more empathetically about distant tragedies; that bad guys will act like Western democratic leaders; and that impartial international bureaucrats could evenhandedly prosecute both sides.

The Kenyatta case reminds us that the alternative to victor’s justice is not super-neutral international justice, but rather no justice.


4 Responses

  1. Julian: one might suspect from this and prior iterations that you are not in favor of customary international law, human rights, an end to impunity, and the ICC. Could be wrong, but it is interesting how you approach such matters.

  2. “The end for the ICC”? Why not the end for the whole world, if prof. Ku is in the business of hyperbole.

  3. Surely international criminal law wouldn’t face such a legitimacy deficit in Africa if ‘bad guys’ and Western ‘democratic’ leaders (Bush, Blair, …) were treated alike.

  4. One needn’t engage in end of the world rhetoric to observe that: all African nations have rejected cooperation with the ICC; Carla Del Ponte’s memoirs already revealed non-cooperation of powerful nation-states made prosecutions of their allies impossible at the ICTY and ICTR; and, an “end to impunity” remains an unrealized dream in a domestic context as well, witness Ferguson, etc. This is a long, long-term project.

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