Justice for victims and an end to impunity for international crimes was what the the International Criminal Court (ICC) was established to do achieve. While the court has over ten years of experience, it seems the prospects of justice for victims has not really improved.

The Assembly of State Parties (ASP), an annual gathering of states party to the ICC, is now meeting in New York to discuss the progress of the ICC. The meeting comes only days after the ICC’s chief prosecutor, Fatou Bensouda, dropped her case against the president of Kenya, Uhuru Kenyatta, and it will be a downbeat affair indeed.

After all, the ICC’s Rome Statute obliges the court’s members to investigate and prosecute international crimes – and their efforts have lately been coming up short indeed.

Aftermath

Kenyatta was charged for crimes against humanity (including murder and rape) committed in the aftermath of Kenya’s presidential election in 2007-2008. During the violence more than 1,200 people were killed, hundreds were raped and hundreds of thousands were displaced from their homes.

But the Kenyatta case collapsed due to insufficient evidence. Bensouda stated that her office faced “severe challenges” investigating the crimes in Kenya, which is putting it mildly; witnesses died, were too terrified to testify, or radically changed their accounts. The Kenyan government also refused to hand over key records.

As a result, as Bensouda put it: “those who have sought to obstruct the path of justice have, for now, deprived the people of Kenya of the accountability they deserve.” Similarly, the victims’ legal representative, Fergal Gaynor, said that the biggest losers of the Kenyatta case are the victims, of whom “thousands still live in abject poverty, uncompensated for the destruction of their homes and their families. They have received almost nothing from the entire ICC process”.

The impact of the case’s collapse will be most immediately felt in the case against Kenyan vice-president William Samoei Ruto and journalist Joshua Arap Sang for their part in the violence, which is struggling for the same reasons – but it also augurs ill for the justice system in general.

Impunity forever?

As commentators such as David Bosco and Mark Kersten have contended, Kenyatta has now written the manual on how to frustrate justice at the ICC and ensure impunity for those in power.

For states and NGOs attending the ASP meeting in New York, discussions should be focused on how to ensure states’ co-operation. Failure to address this issue jeopardises the legitimacy and future of the ICC as an impartial forum of justice for international crimes.

There is a lot of rhetoric around doing justice for victims, but it’s painfully unclear what it actually means in practice. The Rome Statute of the ICC permits victims to participate in proceedings, testify, present evidence, avail of protection measures, and claim reparations. But the ICC can only deal with a fraction of cases.

The court has limited resources, and can only investigate crimes committed after July 1 2002, when it was established.

That means the vast majority of victims of international crimes are left to rely on domestic justice for redress.

Payback time

Much of the discussion on state co-operation with the ICC has taken the form of complementarity, the principle that states are supposed to investigate and prosecute international crimes, and that the ICC only acts when a state is unable or unwilling to do so.

But victim-orientated complementarity would demand that states develop domestic access to justice for those most affected by international crimes. States should also ensure victims can participate and avail of protection measures in proceedings, as well as to allow them to claim reparations.

The sad fact is that many countries under investigation before the ICC, such as Uganda, the Democratic Republic of Congo and Kenya, simply have not developed comprehensive justice for victims to complement the ICC.

Police chasing protesters in Nairobi, 2007.EPA/Stephen Morrison

An International Crimes Division has been established in Kenya, but it has proved to be little more than window dressing: cases against 4,000 suspects were dropped by the Kenyan prosecution, and as things stand, only one case is continuing. All it has done is give the merest appearance that the government is doing something, while ensuring impunity for those responsible.

More substantive accountability and reparation mechanism where suggested under the Kenyan Truth, Justice and Reconciliation Commission, but there is as yet no sign they will actually be put into practice.

Kenya’s awful example shows how, instead of asking or expecting the ICC to do more for victims and prosecute more perpetrators, we should be focusing on the responsibilities of states under international law.

Duties neglected

There is some hope that a new way forward can be found. The Assembly of State Parties is an apt forum to monitor and enforce ICC members' duty to complement the work of the court, which they are mandated to do through investigations, prosecutions and remedies to victims.

At this bleak moment, the ASP must start trying to find ways to deliver justice more meaningfully to victims, not just to perpetrators, and to find a more effective ways to get them some domestic redress.

The Kenyatta case may have collapsed, but the ASP can put pressure on the Kenyan government to develop effective and meaningful domestic redress for victims. Otherwise states may need to take Kenya to the International Court of Justice to enforce its obligations, as Belgium did with Senegal over exiled Chadian Dictator Hissène Habré.

Justice from the ICC is a last resort for victims; their first recourse remains to their own governments. The ICC prosecutor may have failed to find sufficient evidence in the Kenyatta case, but governments like Kenya’s are failing their citizens every day by denying them justice for the violence they suffered. And with Kenyatta back in Nairobi seemingly for good, even the last resort is looking shakier than ever.

Luke Moffett does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.