In the New Yorker, Steve Coll has a thoughtful essay on recent real-world challenges to those of us who believe that the arc of international humanitarian law is bending toward more justice for war criminals. He cites Assad’s continued brutality in Syria and the prospect of Uhuru Kenyatta winning the Kenyan elections as evidence that international justice is loosing some momentum.

I’ll grant him Syria. But I take issue with this:

In Kenya, Uhuru Kenyatta, who has been indicted for crimes against humanity, is ahead in initial Presidential voting. I.C.C. prosecutors have accused Kenyatta and his running mate of organizing militias that killed more than a thousand people after the last Presidential election, in 2007. Kenyatta has coöperated with the international court so far, and has asserted his innocence; his trial is scheduled to begin next month. It is possible that this week’s voting will be force him into a runoff, but, even so, Kenyatta might well become the first democratically elected alleged criminal on that scale in history.

The Obama Administration has warned of unspecified “consequences” if Kenyatta takes office, but Kenya is a frontline country in the effort to contain Islamist militias in Somalia; it also serves as a regional diplomatic center and has an important economy. It is hard to imagine that Obama or the European Union would risk destabilizing the country, even if they have to find a way to accommodate a government led by an international fugitive.

During his Presidential campaign, Kenyatta actually cited his indictment as a way to whip up support—presenting it as evidence of enduring Western colonialism. That is also the messaging strategy of Sudanese President Omar al-Bashir, who defiantly travels in Africa and some parts of the Arab world despite being the subject of an I.C.C. arrest warrant. The warrant was issued because of Bashir’s crimes against humanity in the Darfur conflict, which remain unpunished.

The comparison to Bashir is totally off. Omar al Bashir is a wanted war criminal, who is in open defiance of the ICC. Uhuru Kenyatta is an indictee, but is cooperating with the court. He is not wanted for arrest. Rather, he is preparing his defense, and has pledged to appear in the Hague when the trial commences this summer.

To be sure, we will have to wait an see if Kenyatta follows through with his promise; and key players like the USA should condition their relationship with Kenyatta on his cooperation with the ICC. But should he become president and still defend himself at the ICC, the international justice community would be elated.

Having a head of state voluntarily submit to trial at the ICC would be a huge triumph for international justice. This is exactly how it is supposed to work.

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