Getting Away With Murder

It was an open secret that one of the Democratic Republic of Congo's worst tormentors, Bosco Ntaganda, lived on Avenue des Tulipés until 2012, crossing into Rwanda now and then despite a travel ban. Rich off the proceeds of the illegal tax revenues he imposed on local mines, he served as a general in the Congolese army.

For a wanted fugitive, the man nicknamed "the Terminator" lived a comfortable and unencumbered life.

Six years before, a warrant for his arrest had been issued by the International Criminal Court (ICC) for his role in recruiting child soldiers. Goma, the capital of Congo, is still trying to reintegrate these former combatants: boys now in their teens who were forced to become killers before they had reached puberty and now struggle to be seen as victims.

A second warrant for Ntaganda, issued in July 2012, added four more counts of war crimes and three more of crimes against humanity. But no one wanted to move on Ntaganda. It was widely acknowledged he was useful – an important interlocutor in a region that is perpetually about to slide back into violence.

Ntaganda's apparent impunity was a neon sign that the ICC's reach and relevance, 12 years on from its creation, were weak and waning, and that justice for war criminals remains subordinate to global realpolitik.

Now, a cynical, targeted attack on the ICC by two Kenyan leaders charged with crimes against humanity has lifted the hood on the flaws in the global "court of last resort". Through what one experienced court insider calls "a dirty-tricks campaign," the two killers are attempting to discredit and dismantle a system that, while far from perfect, metes out justice to victims of warlords and those responsible for state-sanctioned abuse.

"There has been a very intensive effort to tarnish and delegitimize the court," says Richard Dicker, director of Human Rights Watch's international justice program, who led the group's campaign for the creation of the ICC in the 1990s.

Ntaganda is now in custody. In March 2013, having left the Congolese army and returned to militant insurrection, he walked into the U.S. embassy in Kigali and asked to be extradited to The Hague. It is unclear what drove him to surrender. One theory is that his Rwandan allies had been pressured by Washington, which was at the time pushing Kigali to resolve the ongoing hostilities in the Great Lakes region.

His strategic relevance had disappeared. He was no longer protected, and he came to the conclusion that surrender to the ICC was a better option than trying to negotiate the treacherous shifting allegiances of the Eastern Congo. His confirmation of charges hearing is set for February next year. His arrest and appearance before the court is one of the ICC's very few qualified successes.

Most of those on the ICC's wanted list remain at large, although in a strange footnote to the unfolding tragedy of the Central African Republic (CAR), the leaders of the country's junta made a bold offer to the international community: the surrender of one of Africa's most wanted, Joseph Kony.

Brought back to the attention of the Western media in 2012 by a charity campaign, Kony still leads the cult-like militant movement that began in Uganda and terrorized the region, abducting young boys as child soldiers – and young girls into a life of sexual slavery. As many as 60,000 Ugandan children are thought to have been conscripted over the course of two decades.

Survivors of Kony's attacks were found mutilated – the calling card of the group was severed lips, ears and noses, permanently scarring their victims. Kony is wanted on 12 counts of crimes against humanity and 21 counts of war crimes. His arrest warrant was issued by the ICC in 2005, but since then he has remained international justice's white whale, hiding in the bush in the CAR as the country descends into a hell of sectarian violence, the forced conscription of child soldiers and the brutal murder of civilians.

Last summer, Melinda Taylor, a lawyer at the ICC, was arrested in Libya and accused of passing secrets to a foreign power. Taylor had been assigned to defend Saif al-Islam Qaddafi, son of the former dictator Muammar, who was detained for crimes against humanity. All conventional notions of legal privilege were abandoned in a country that wanted retribution for the crimes of the despotic family who ruled over them for so long. It is unlikely that Qaddafi will ever reach The Hague for a fair trial.

The biggest name on the ICC's wanted list is not only at large, but running a petro-state. Omar al-Bashir, the president of Sudan, was referred to the court in 2007 for crimes against humanity in Darfur. Although his international travel has been curtailed, to some degree, he remains a regular visitor to Addis Ababa and to regional summits in Africa and the Arab world.

Today, the ICC wanted list is an identity parade of yesterday's villains, each accused of unimaginable crimes – genocide, recruiting child soldiers, mass rape. But after more than a decade, the ICC has secured just one conviction – the Congolese warlord Thomas Lubanga. The court's critics claim this shows the court to be hopelessly inefficient, its high ideals of holding the powerful responsible for crimes against the weak hobbled by the realities of international politics.

Many African leaders like to paint the court as discriminatory and a tool of neocolonial oppression. (It has only ever prosecuted Africans.) There have been regular grumblings that the court selects its cases according to a political agendas; that it is profligate in its spending but simultaneously underresourced; that its lawyers and prosecutors are substandard; that its evidence-gathering is flawed and its witnesses too easily tampered with.

Rarely, though, has the court been attacked on all of these fronts at once, and never since its inception has it faced an adversary as politically connected and diplomatically influential as Kenya's new president, Uhuru Kenyatta, and his deputy, William Ruto.

Their cases stem from familiar fault lines in Kenya. Powerful Kenyan political families have often exploited their position to reallocate or promise land to people of their own ethnicity, and in the post-colonial democratic system this has translated into loyalty at the ballot box.

Being caught in the crossfire of these battles between the rich and powerful is nothing new for Kenyans. There is a popular folk saying in the country: "Wapiganapo tembo nyasi huumia" – "When elephants fight, it is the grass that gets trampled."

In Kenya's 2007 elections, Kenyatta backed his kinsman, Mwai Kibaki; Ruto threw his weight behind the challenger Raila Odinga. Exit polls showed Odinga in the lead; the electoral commission declared Kibaki the winner. Rumors spread that the election had been rigged. Kenyans took to the streets.

What followed were pitched battles between rival factions and incidents of startling brutality. In Kiambaa, on New Year's Day 2008, 28 Kikuyu died when a church was set on fire. In retaliation, Kalenjin were pulled from buses and attacked with machetes. When the smoke had cleared, 1,200 were dead and 250,000 had fled their homes.

Ruto was accused of exhorting his followers to "root out weeds" and Kenyatta of directing violent attacks against his opponents. No one ever faced trial. Eventually, a list of names was passed to the ICC, which opened proceedings against six men, including Ruto and Kenyatta who agreed to cooperate with The Hague.

This year, Kenyatta and Ruto joined forces to run for election, though the U.K. and U.S. both warned there could be serious consequences should they be elected. Kenyatta and Ruto stormed to victory – and the whole tenor of the court case against them changed.

The ICC has been dismissed as a Mickey Mouse court and there have been concerted official efforts to either delay the case indefinitely or force its collapse.

Steven Kay, who defended the Serbian president Slobodan Milosevic at his war crimes trial, is advising Kenyatta. He claims that a lack of detailed forensic examination of crime scenes and expert witnesses and a "total reliance on oral sources" has fatally compromised the prosecution's case.

Kenyatta's defense team have made a series of abuse of process arguments, such as false testimony from a key witness, and say the case should be halted.

At the same time, the Kenyans have aggressively pursued a diplomatic offensive in Africa and at the U.N. and employed western public relations firms to present their case.

One result has been the African Union declaring that sitting heads of government should not face trial while in office. They argued it to be a practical consideration to allow leaders to get on with running their countries; their opponents say it encourages the guilty to remain in power at any cost.

After pressure from the African Union, the U.N. Security Council ended the requirement that heads of state attend their trials in person.

It seems that world leaders are reluctant to upset African leaders who sit on substantial untapped mineral resources. Located on a geopolitical fault lines and one of the world's last untapped oil reserves, Kenya is too strategically important to alienate.

Africa as a whole is experiencing sustained economic growth, which Western companies want to access but find themselves struggling to compete with the huge influx of Chinese money.

"We now have a situation where it now suits the West for [Kenyatta and Ruto] to be acquitted," says Courtenay Griffiths, a criminal lawyer who defended the Liberian leader Charles Taylor at his war crimes trial. "They're trying to put pressure on the court to affect the outcome. That's not justice as I understand it."

Within months of his election, Kenyatta was in London attending a conference on Somalia and holding bilateral talks with David Cameron, the British prime minister.

Other powerful countries have also stepped back.

Some never stepped up. Not wanting to be bound by a legal obligation to arrest influential political leaders or to hand over their own leaders for trial, the U.S., China, and Russia backed out of the Rome Statute treaty that set up the ICC in 1998. All three sit on the U.N.'s Security Council, which can refer cases to the ICC and has a power of veto over the court.

Mukesh Kapila witnessed the aftermath of atrocities in the Balkans, Sierra Leone, and Sudan. As U.N. resident coordinator in Sudan, he was instrumental in referring the Sudanese president Omar al-Bashir to the ICC. He is adamant the attacks on the court must be resisted.

"If the purpose of justice is to prevent future atrocities and future crimes against humanity, then...the International Criminal Court is one of the blazing successes of the current generation. We are completely on a different footing from where we were a decade ago," he says.

For Kenyans, this is all starting to read like the same old story: that those with power and money can get away without facing justice.

"The victims want the cases to move forward. There has been no justice on the ground. The root of grievance in Kenya has not been dealt with. Not land, not inequality on ethnic grounds," said Muthoni Wanyeki, former executive director of the Kenyan Human Rights Commission. "You can't put issues of grievance permanently under the carpet. It will explode."