What Next for Kenya and the ICC?

The vote passed by Kenya’s parliament last month to withdraw from the International Criminal Court (ICC), has caused much hand-wringing among supporters of international justice. Of course both President Kenyatta and Vice President Ruto are under trial at the court for their alleged role in the 2007-2008 post-electoral violence and crimes against humanity in Kenya.

It is feared that the withdrawal of Kenya would represent a significant setback for the ICC – fundamentally challenging its legitimacy and reinforcing the perception that the ICC is not a court for Africans. Before weighing these claims let us first deal with the process of a Kenyan withdrawal from the ICC.

Kenya has not yet withdrawn from the ICC. According to Kenyan law (Article 17 of the Treaty and Ratification Act) all withdrawals from international treaties need to be initiated by the cabinet secretary after preparing a memorandum indicating the reasons for the proposed withdrawal. The withdrawal must then receive parliamentary approval. This procedure has not been followed in Kenya to date. The International Crimes Act (2008) would also need to repealed.

This act covers all aspects of the implementation of the statute including cooperation with the court, so the repeal of the act has the potential to place witnesses against the president and vice president under further jeopardy. There has already been widespread intimidation of witnesses appearing in the Kenya cases – Kenyan journalist Walter Barasa was recently charged by the court with several offences against the administration of justice relating to alleged witness tampering.

States may withdraw from the ICC under Article 127 of the Rome Statute by providing written notification to the United Nations Secretary General. This withdrawal will only take effect one year after the receipt of this written notification and will not affect any ongoing cases. Therefore, even if Kenya were to officially withdraw from the ICC tomorrow the ongoing trials would not be effected, nor would Kenya’s obligations to cooperate.

Of course state cooperation is not just a legal challenge but a political one and it seems likely that a de factoKenyan withdrawal (i.e. cessation of cooperation) would be enough to effectively halt the Kenya cases. Thus far the government has continued to provide the court with at least a degree of cooperation.

Prosecutor Bensouda is also attempting to reach out to Kenyans in the wake of the Westgate terror attack by stating that such a case could be tried at the ICC. This is far from straightforward as such a trial would require an extension of the temporal period covered by the Kenyan situation (currently 2005-2009) and the authorisation of the Pre-Trial Chamber. The substantive law involved is also not completely clear – the attacks might be considered crimes against humanity on the basis of being widespread or systematic and pursuant to an organizational policy (of the al-Shabab militia).

The Kenyan situation illustrates well the difficulties that the court will face in trying sitting heads of state. For such trials to take place two scenarios are possible:

  1. The international community intervenes to execute the arrest warrants. This intervention could come through such measures as direct military action or arrests in a third state. Economic and political pressure may also play a role if those charged with offences lose power and are under the protection of a new regime.
  2. Prosecutions effectively wait until the regime has changed.

The court requires more than just the execution of arrest warrants – the entire range of cooperative measures is necessary including investigative assistance and witness protection. In situations of non-cooperation the role of other state parties and the broader international community becomes determinative of success. If states are serious about using the court as a tool to actualize global justice, and not just a political tool, then they must place significant and sustained pressure on non-cooperating states.

The potential withdrawal of Kenya is more than a case of the hypocrisy of African leaders, who support international justice but not when it affects them, it is also sign that the court needs to redouble its political efforts on the continent and elsewhere. The Court has to do more to reach out to Africans and to ensure that prosecutorial policy speaks to local realities.

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