This chapter examines the Court’s attempts to prosecute sitting Heads of States, and their repercussions, to establish the extent to which the ICC is failing or dysfunctional. In examining the cases, the chapter highlights aspects of ICC process which, perhaps unexpectedly, give reasons for optimism for the Court’s ability to uphold human rights in future, as well as discussing the challenges it continues to face. I argue that, while the OTP would clearly have preferred to be able to move forward in its prosecutions of Presidents Bashir and Kenyatta, its failure to do so demonstrates the ways which the Court is maturing. It is turning into a flexible and pragmatic institution whose key player, the Prosecutor, is developing an understanding of how and when to exercise the legal and political powers of the Court to greatest effect. This said, the power politics of international justice remain a substantial threat to human rights protections, and the Court may be forced to tolerate a devil’s bargain on immunity for sitting Heads of State to avoid losing influential States Parties. However, the stalling of the Bashir and Kenyatta cases should be seen more as failures of States Parties to the Rome Statute to stand behind their own human rights commitments than failures of the Court itself. This conclusion is far from positive – the failures to prosecute in these cases may have far-reaching repercussions in undermining any deterrent effect that the ICC can generate, particularly at the highest levels of government – but it does at least identify where efforts to strengthen the system should focus
