International Criminal Court


tendance; instead, the lack of a subpoena power was cited as a procedural weakness in regards to its enforcement powers. The Trial Chamber’s rul- ing may be a major shift in the Court’s direction from an institution of “last resort” that derives its authority wholly from state parties, to one with a mind of its own.20


The ICC was not established to


be a “phantom” institution, casting a long shad- ow over the field of international law. Instead, in its inception, the Court was granted the authority to make law to strengthen its own capacity and, ultimately, enforce compliance with its mandate.


State cooperation may be both an obstacle and a solution. The Rome Statute could potentially be amended to include enforcement mechanisms, such as referral to the UN Security Council for sanctions and suspension, or expulsion from the Assembly of Parties, but the effectiveness of these methods depends on cooperation from oth- er member states. Even if the Court uses these tools, their existence may be enough to enforce compliance in the long run. Still, the Assembly of State Parties must first clarify the scope of the Court’s enforcement powers, such as by adopt- ing amendments to the Rome Statute—far easier said than done.21


Soon, the ICC will put the effectiveness of its newfound subpoena power to the test. On Sep- tember 20, 2014, the ICC announced that it sub- poenaed President Kenyatta to appear at a status conference on October 8. If he shows up, this will mark the first time that the Kenyan President has graced the Court with his presence since the trial commenced.22


Yet, even if he is a no-show, the


ICC’s decision to issue a subpoena for a sitting president is a landmark development in the field of international criminal law. The ICC settled the question of whether it can compel state officials and witnesses to testify.23


Yet, as evidenced by


recent developments in Kenyatta and Ruto, its ability to enforce this power is still up in the air.


Endnotes for International Criminal Court 1


The State Parties to the Rome Statute, INT’L CRIM. CT.


(last viewed Sept. 21, 2014), available at http://www.icc- cpi.int/en_menus/asp/states%20parties/Pages/the%20 states%20parties%20to%20the%20rome%20statute. aspx.


2 See Rome Statute of the International Criminal Court art.


17(1)(a), July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002) [hereinafter Rome Statute].


3 Id. at art. 13. 4 See Vienna Convention on the Law of Treaties, May 23,


1969, U.N. Doc. A/Conf. 39/27 at art. 2 (1969), 1155 U.N.T.S. 331 [hereinafter Vienna Convention or Convention].


5 See Valentina Bau, Five Years On: Identity and Kenya’s


Post-Election Violence, OPEN DEMOCRACY (Jan. 18, 2013), available at http://www.opendemocracy.net/opense- curity/valentina-ba%C3%BA/five-years-on-identity-and- kenyas-post-election-violence; see also Kenya: Impact of the ICC Proceedings, INT’L CRISIS GRP. (Jan. 9, 2012), at 9, available at http://www.crisisgroup.org/~/media/Files/ africa/horn-of-africa/kenya/B084%20Kenya%20----%20Im- pact%20of%20the%20ICC%20Proceedings [hereinafter ICG Report].


6 See ICG Report, at 4. 7 See generally COMMISSION OF INQUIRY INTO THE


POST ELECTION VIOLENCE, Report of the Commission of Inquiry into Post Election Violence, at viii (2008), available at http://www.kenyalaw.org/Downloads/Reports/Commis- sion_of_Inquiry_into_Post_Election_Violence.pdf.


8 See Thomas Obel Hansen, Transitional Justice in Kenya?


An Assessment of the Accountability Process in Light of Domestic Politics and Security Concerns, 42 CAL. W. INT’L L.J. 1, 6 (2011).


9 See Douglas Dunbar, ICC Pre-Trial Chamber Approves


Prosecutor’s Investigation into the Kenya Situation, AM. NON-GOVERNMENTAL ORGS. COALITION FOR THE INT’L CRIM. CT., at 1 (May 7, 2010), available at http://am- icc.org/docs/Kenya_Decision.pdf.


10 See Situation in the Republic of Kenya, Case No. ICC-


01/09, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 83 (Mar. 31 2010), available at http:// www.icc-cpi.int/iccdocs/doc/doc854287.pdf.


11 See Nzau Musau, Uhuru’s ICC Case Collapsing, THE


STAR (Apr. 2, 2014, 0:00 AM), available at http://www.the- star.co.ke/news/article-161310/uhurus-icc-case-collapsing; see also Prosecutor v. Kenyatta, Case No. ICC-01/09-02/11, Decision on the Prosecution’s Applications for a Finding of


ILSA Quarterly » volume 23 » issue 1 » October 2014 23


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