Divided We Fall: How the International Criminal Court Can Promote Compliance with International Law

Tatiana Sainati received her J.D. and LL.M. from Duke University School of Law. Ms. Sainati’s Article discusses the important role of interaction between regional courts and the International Criminal Court.

Kenya’s 2007 presidential elections inflamed deep-seeded ethnic tensions in the country, sparking violence that left thousands dead and more than half-a-million civilians displaced. After the bloodshed, Kenya failed to investigate, prosecute, and punish those responsible for the atrocities. The Prosecutor for the International Criminal Court (ICC) launched an investigation into the Kenyan situation, acting under his statutory authority, and eventually brought charges against six high-ranking Kenyans, including President Kenyatta. After years of investigations, the Prosecutor ultimately withdrew the case against the Kenyan President—a potentially fatal failure heralded by some as the death knell of the ICC.

During the course of the ICC proceedings, Kenyatta lobbied to expand the jurisdiction of the regional East African Court of Justice (EACJ) in order to try the accused more locally. Kenya’s move to transfer the cases to the regional court has been largely overlooked in the commentary on the situation in Kenya. Nevertheless, Kenya’s strategy raises important questions about the role of regional courts in the ICC’s efforts to combat impunity that have gone too long unanswered: What criteria should be used to determine when a regional court provides a better forum than the ICC? Can the ICC support the efforts of these regional courts? Should it? In considering these questions, this Article argues that, if the ICC is to fulfill its promise, its role in ending impunity should not be limited solely to pursuing cases. Instead, the ICC should defer to regional courts where such courts are supported by transnational social movements— networks of civil society groups, legal and political activists, and local human rights activists. Regional courts supported by such movements are better equipped to further the ICC’s goals by promoting compliance with international law at home and domesticating international human rights principles so that they resonate locally.