Problems with the I.C.C. go far beyond the specifics of the Kenyatta case. Although holding political leaders accountable under international law for odious acts they may have committed is desirable in theory, there are major drawbacks regarding the I.C.C. and similar bodies.
For one, threatening to prosecute dictators and other offenders creates a powerful incentive for them to cling to power, even when a diplomatic deal might get them to go quietly into exile. There may be difficult tradeoffs between securing justice for victims and hastening the end of a brutal regime, but I.C.C. supporters tend to ignore that dilemma.
Even more troubling are the many due process deficiencies in the I.C.C., including the admission of hearsay evidence and testimony from anonymous witnesses. The willingness of international tribunals to reach verdicts and impose long prison sentences based on a simple majority vote is another alarming feature. That situation is exacerbated when a panel sometimes consists of no more than three judges, as in the recent conviction of a Congolese warlord by a two‐to‐one vote. At a minimum, larger panels should be required, along with a unanimous vote for conviction.
A related defect is that there are insufficient protections against bias, even blatant bias, on the part of judges. Individuals assessing the guilt or innocence of a defendant may be appointees of a government that is an adversary of the defendant’s government or political movement. A bedrock principle of due process is that members of a tribunal ought to be objective, but the makeup of I.C.C. panels can violate that fundamental requirement.
The United States is not a participant in the International Criminal Court. Given such problems, it is unsurprising that American leaders have been wary about embracing it. That wariness is warranted and should continue.