When kings are criminals: Lessons from icc prosecutions of African presidents

Abstract

The attempts by the International Criminal Court (ICC) to prosecute sitting heads of state have proven to be one of the thorniest issues for this new institution. These rest on the claim that there are crimes of such magnitude for which perpetrators should be prosecuted, regardless of their status. While it seems easy to sympathize with such claims, pragmatic considerations are often lost in debates of moral imperatives. This article derives insight from a comparative analysis of Sudan and Kenya. It unveils the existence of a triadic relationship between the ICC, governments under its scrutiny and local political contestants and nongovernmental organizations (NGOs). This indicates that when the ICC attempts to prosecute a sitting head of state, it not only fails to deliver, but also endangers local political contestants and NGOs. The solution to this impasse might be abandoning the idea of prosecuting sitting heads of state. However, this requires a reconsideration of the moral imperatives underpinning the idea of punitive justice that the ICC embodies.