JURIST Guest Columnist Christopher Cardona, John Marshall Law School Class of 2014, discusses Kenya’s recent withdrawal from the ICC and what that could mean for other ICC member states…

On September 5, 2013, members of the Kenyan National Assembly voted on a measure designed to facilitate a withdrawal from the International Criminal Court (ICC). The vote, which passed by a comfortable margin, was followed by a similar motion in the Senate on Tuesday. These actions by the parliament have placed Kenya in the position of becoming the first country ever to withdraw from the ICC.

President Uhuru Kenyatta and first Deputy President William Ruto’s trials in the Hague will not be affected by this decision. Formal withdrawal from the ICC only occurs one year after a written submission has been presented to the UN Secretary General, and in any case, withdrawal does not remove a state’s duty to cooperate with ongoing criminal proceedings. Both men have been charged by the ICC Prosecutor with crimes against humanity, stemming from violence that erupted in Kenya following the election in December of 2007. Inter-party clashes resulted in the deaths of over 1,200 people, a great number of injuries and the displacement of more than 600,000.

While the parliament’s votes have made news internationally, their actions are not particularly surprising. For a number of years now, African states have expressed concern and criticism of the ICC. In many ways, the votes can be seen as a logical next step in what has become a protracted criticism of the ICC, both in Kenya and across the continent.

There have been repeated calls by critics in Kenya for a localized resolution to the tragic post election violence. However, these calls have been undermined by the inability of Kenya’s Parliament to devise a national tribunal to handle such an effort. Even with such failings, the country has resisted efforts by the ICC to fill the void, despite the fact that such procedures had been agreed upon while the situation was being mediated. The country has further shown its aversion to the ICC’s efforts by rallying around President Kenyatta and deputy Ruto, and propelling them to electoral victory despite the stigma of ICC charges hovering over them.

Similarly, the African Union (AU) has repeatedly made calls for member states to distance themselves from the ICC. In the past the AU has endorsed Kenya’s request to delay the trials. Also, both Kenya and the AU have latched onto arguments criticizing the ICC as neocolonialist and anti-African. This criticism has been a rallying cry for AU member states that question the true purpose of a court. They contended that it is distressing that the ICC has only ever brought trials against Africans, or as the AU described the investigations in May, “hunting” Africans. These critics have also latched onto arguments first brought forward by the US as justification for not ratifying the Rome Statute. These included concerns over state sovereignty and the protection of citizens from potentially political prosecutions. While these various criticisms of the ICC may not be new, the actions of Kenya’s parliament have highlighted that they may continue to be major obstacles to the ICC’s efforts to add additional member states.

The timing of the vote has been the focus of much attention. Given that it occurred only a day before deputy Ruto traveled to the Hague to begin his trial, it appears to be designed as a rebuke of the ICC. The timing has certainly not been lost on those reporting on parliament’s actions, many of whom have linked the two. However, it is these protracted structural concerns which parliament has cited as the bases for their actions. If these concerns remain unaddressed, the future role of the ICC will be further jeopardized. These concerns, which have been reiterated across the continent for a number of years, may very well come back to haunt the court.

In the past, ICC Chief Prosecutor Fatou Bensouda has been very direct in responding to criticism regarding the ICC’s investigations of Africans by stating, “[A]ll of the victims in our cases in Africa are African victims … And they are the ones who are suffering these crimes.” In direct response to the Kenyan Parliament’s actions, the President of the Assembly of States Parties, Ambassador Tiina Intelmann, has expressed a more general concern regarding the state’s actions, stating, “[I] hope that Kenya will remain within the Rome Statute and thus continue to contribute to the fight against impunity, which is a common endeavor of all states.”

This action has also evoked criticism from the Kenyan government’s opposition, human rights organizations such as Amnesty International and the Catholic church. These groups and others have rightly expressed disappointment and concern that Kenya was receding from its commitments to international human rights, and reducing the ability of victims of the most egregious rights violation to seek justice. This concern highlights one of the core benefits which ICC membership can provide. It is this protection of individuals’ rights by facilitating an end to impunity which is a crucial aspect of the court. Furthermore, the government’s actions are a major shift considering a few years ago many African states cited past failures of national structural protection of these rights as a basis for their support concerning the formation of the ICC. One of the interesting questions going forward will be whether any of Kenya’s neighbors follow their lead and continue to vent their frustration over the ICC.

President Goodluck Jonathan of Nigeria, whose own country ratified the Rome Statute in 2001 may be one such candidate. He certainly seemed sympathetic to parliament’s actions when he spoke recently to the Kenyan National Assembly. He stated, “I believe that laws, whether local or international, treaties or conventions, or institutions set up to manage those laws, treaties and conventions, are set up to solve problems, not to add to the problems.” While by no means an explicit endorsement of ICC withdrawal, this does highlight a continued banding together of AU states, even in spite of international criticism.

Only time will tell if the actions of Kenya’s Parliament are merely an isolated incident or the start of a larger regional rebuke of the ICC. It is clear that the criticism leveled against the court is not going away, and the ICC still has much work to do in order to retain support within its member states.

Christopher Cardona is currently the Coordinator of the Academic Enhancement Program at John Marshall Law, which is a program designed to help 1L students succeed during their first year of law school by organizing small weekly group study sessions. He has worked as a Project Member of the John Marshal Human Rights Project, which has worked to limit the use of solitary detention of civil detainees. His focus at John Marshall has been International Human Rights and Humanitarian Law.

Suggested citation: Christopher Cardona, Kenya’s Withdrawal from ICC, JURIST – Dateline, Sep. 26, 2013, http://jurist.org/dateline/2013/09/christopher-cardona-kenya-icc.php.