Kenyatta in The Hague

The unprecedented trial against the first sitting head of state before the International Criminal Court (ICC) has practically failed before it has begun. Only weeks earlier, Chief Prosecutor Fatou Bensouda had appealed for Uhuru Kenyatta's trial to be postponed indefinitely. There was too little evidence to back her case. The status conference on Wednesday October 8 - a hearing between the prosecution, the defense and the judges – seems to be a last attempt by the court to revive the case. And this time, the judges insisted on Kenyatta's presence.

The odds seem to have been against the prosecution's case from the start. The judges were divided about whether to take up the case at all. The recently deceased German judge Hans-Peter Kaul, for instance, was against a trial. In his opinion, the accused should have been tried by a Kenyan court.

Bensouda's predecessor, Luis Moreno Ocampo, already experienced massive difficulties during investigation into the 2007 and 2008 post election violence, which left over 1,000 people dead and half a million displaced. As time progressed, more and more witnesses disappeared, changed their accounts or simply refused to give testimony. Documents vital to the case were often not released or only released in part.

Now President Kenyatta announced that he would not appear in the court as a head of state, but instead as a private individual. He had previously used his presidency as mantle of immunity, but now he evidently hopes to avoid a possible international arrest warrant. On Monday, he temporarily handed over his presidential powers to his Vice President William Ruto, who also stands accused before the ICC.

Kenyatta's trial was postponed several times during the last year. He is charged for being an indirect co-perpetrator of crimes against humanity which include the murder, rape and persecution of Kenyans. Kenyatta repeatedly insisted that he and his government did all they could to cooperate with the court. He however refused prosecutor Bensouda's bid to disclose details of his financial transactions from the time of the crisis.

If the case collapses due to lack of evidence or is postponed indefinitely, this would not only be a strong blow to the ICC, but to international justice. The ICC was initially created to put a stop to impunity concerning crimes against humanity. 122 states, including Kenya ratified the Rome Statute, which established the court in 2002. Many African civil society groups helped to lay the foundation for the treaty because they did not want to see the crimes committed in their countries go unpunished.

Like all who stand before the court, Kenyatta remains innocent until proven guilty. But for human rights groups in Kenya, for the victims and the survivors, it would be terrible if the case is dropped due to lack of evidence. These victims had the rightful expectation, that the court would unveil the truth and do everything in its power to punish those responsible.

To this date however, the ICC's record is poor. Since its establishment 12 years ago, the court has passed three judgments, two guilty and one not guilty. Is the court a toothless tiger? Possibly, but it should not remain that way. The ICC must become better equipped financially and structurally, to address the problems that it has been facing from the start.

The court requires its own police force, which can investigate and arrest alleged perpetrators. Heads of state should not be immune to international justice. And the investigators should also have the financial means to protect their witnesses. They should be able to investigate cases on the ground without any hindrances and they need to be faster, more precise and more efficient.

There is no alternative to the International Criminal Court in The Hague. And war crimes or the incitement of violence should no longer go unpunished. Victims and their families must be assured that an independent and fair trial is guaranteed and that those responsible, no matter what their status, will be brought to justice.