Enforcing the Rome Statute: Evidence of (Non) Compliance from Kenya

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If the ICC's powers are as strong in practice as they are on paper, should we not expect more promising findings? This Article examines Kenya's relationship with the ICC for evidence of whether the ICC is effective at holding states accountable to their commitment to the Rome Statute and the stated goal of ending impunity for mass atrocities. Kenya has a history of poor human rights practices and violent domestic conflict. Yet it joined the court in 2005 and became the subject of the ICC's prosecutor's first proprio motu prosecution. Examining the Kenya case *9 should provide insights about the strength of the prosecutor's powers in practice and the prospects for future compliance with the ICC's proprio motu investigations--namely, those investigations that the prosecutor is empowered to commence without waiting for a state or United Nations Security Council referral. To the extent that the evidence shows an ICC without strong enforcement powers in practice, this timely study should aid policy makers and states in finding ways to ensure that this new institution can make the positive contribution to international justice its creators intended it to make. This Article describes Kenya's commitment to the ICC and the subsequent ICC investigation into the Kenyan situation. The next section outlines the literature addressing the design of international human rights law treaties and their effectiveness in inducing compliance and positively influencing behavior. The Article then turns to describing methodology and examining the evidence of compliance (or lack thereof) with treaty terms and demands in the context of the ICC's case against Kenya. The Article concludes with some observations about the evidence and its implications regarding the ICC's enforcement powers.