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Kenyan President Uhuru Kenyatta was indicted by the ICC in 2012.
Kenyan President Uhuru Kenyatta was indicted by the ICC in 2012.(AFP/Getty Images)

The idea behind the International Criminal Court is that nobody should escape the rule of law, no matter how powerful. Unfortunately, it often illustrates just the opposite. Nearly all the people who’ve been indicted by the court are rebel leaders like Uganda’s Joseph Kony, or politicians who’ve lost power, such as Laurent Gbagbo, the deposed president of the Ivory Coast. Indeed, the court only has two sitting heads of state on its docket: Sudan’s president, Omar Bashir, who was indicted for genocide in the Darfur region, and Kenya’s president, Uhuru Kenyatta, who was accused of crimes against humanity for his alleged role in inciting the wave of post-election violence in 2007 and 2008. Both cases highlight a largely unanticipated dynamic: Being indicted by the international court gives defendants a strong incentive to cling to office — or to seek it.

Bashir, who refuses to show up at court hearings, has escaped justice because the court has no army to arrest him, and he only travels to countries that won’t turn him in. Kenyatta, who was indicted in 2012 and was elected president last year, attended hearings this month. But now that he is president, his decision to show up at The Hague illustrates his confidence that he can’t be convicted, rather than his willingness to be held accountable for a crime.

Numerous witnesses have dropped out of the trial, citing fears for their own safety. One potential witness reportedly admitted to receiving $8,000 in exchange for his silence. Meanwhile, prosecutors complain that Kenyan authorities have refused to hand over bank statements and telephone records they need to investigate the case. For now, prosecutors may have little choice but to put his trial on hold. But the court shouldn’t simply drop the charges — and it has a moral duty to protect the safety of witnesses.

Disturbingly, the court’s indictment may have contributed to Kenyatta’s election victory last year. As the son of Kenya’s first president and a leader of largest ethnic group in the country, Kenyatta already had a good chance of winning. But when the court filed charges against him, it raised the stakes. Kenyatta and his running mate, William Ruto, who has also been indicted, had no choice but to win. Had they lost, they might have been facing jail time. So they fought the court with politics. On the campaign trail, they portrayed the International Criminal Court as a colonial power seeking to subvert Kenya’s national sovereignty. It worked.

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His recent return from The Hague was marked by massive crowds welcoming him home. Even if the trial goes forward, Kenyatta has an excuse not to show up: He has a country to run. The situation offers a stark reminder that an international court, helpful as it can be, can never fully substitute for mechanisms of accountability in individual countries.

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