Kenya Should Reconsider Proposed Withdrawal from the ICC

JURIST Guest Columnist Charles C. Jalloh, of the University of Pittsburgh School of Law says that Kenya's opting to withdraw from the International Criminal Court poses major risks for minimal gain ...
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On September 5, 2013, a majority of Kenya's National Assembly voted in favor of a motion, introduced by the Leader of the Majority Party, Aden Duale, urging the government to "urgently undertake measures to immediately withdraw" the influential East African nation from the Rome Statute which established the International Criminal Court (ICC). The motion claimed that there has been a "fundamental change in the circumstances relating to the governance" of the country given that President Uhuru Kenyatta and Vice-President William Ruto, both of whom are under indictment by the ICC for alleged involvement with crimes against humanity, were "lawfully elected" under the Constitution of Kenya [PDF] on March 4, 2013.

The motion, which also resolved to soon table a law that would repeal the country's International Crimes Act, which domesticated the Rome Statute, raises several important issues at the intersection of law and politics. I argue that there are compelling legal reasons why the Kenyan government should not heed what the opposition party has described as an "ill considered" recommendation urging the executive branch to make Kenya the first and only country to withdraw from the ICC.

I submit that the reputational and other costs of withdrawing from the ICC regime for Kenya far outweigh the largely symbolic political benefits that might be gained from any such withdrawal. This is all the more so because such a move will have no legal effect on the ongoing cases against the three Kenyans indicted by the Court.

Context: Kenya Failed to Investigate and Prosecute

Before turning to my main argument, I should recall that the ICC is today involved in efforts to prosecute those allegedly responsible for fomenting the post-election violence in Kenya, from December 2007 to February 2008, because Kenyan authorities initially failed to pursue those responsible. Yet, according to the Commission of Inquiry into the Post Election Violence (CIPEV) [PDF] which was tasked with investigating the crimes, over 1,100 Kenyans were slaughtered in about two months. Thousands more were injured, while over half a million others were displaced. Many of the attacks targeted innocent victims based on their ethnicity, presumed political affiliation, or both.

The CIPEV concluded that there was historically a chronic lack of domestic capacity, but even more importantly political will, to prosecute powerful people when they instigated such election-related offenses. It therefore recommended the establishment of a Special Tribunal for Kenya (STK) [PDF], staffed by a mix of nationals and internationals, to prosecute those most responsible for the offenses. However, the government sponsored draft bill to establish the STK was defeated in parliament on January 29, 2009. A Kenyan delegation subsequently met with the ICC Prosecutor on July 9, 2009 and agreed to investigate the crimes through a special tribunal or another suitable judicial mechanism, or failing that, to refer the situation to the Court. Regrettably, it appears that the same powerful persons, among whom were those later indicted by the ICC after the Pre-Trial Chamber authorized the Prosecutor to investigate the situation on March 31, 2010, succeeded in sabotaging progress on a hybrid or domestic prosecutions option. A valiant private members bill, aimed at resuscitating the STK idea, also failed to garner meaningful support on August 29, 2009.

Fortunately, besides Kenya's July 2009 agreement with the ICC Prosecutor, the CIPEV anticipated a Plan B in its final recommendations. It therefore had entrusted a sealed envelope containing names of alleged leaders behind the post-election violence to former UN Secretary-General Kofi Annan, the chair of the African Union's Panel of Eminent African Personalities, who had helped the rival political camps reach a peaceful political settlement. The ultimate failure of the previous government to pass the law to create the STK was the trigger for Annan to transmit the list and evidence to the ICC Prosecutor who thereafter sought judicial permission to investigate the situation.

Though the Prosecutor eventually requested charges against six Kenyans, after his preliminary investigations, only four were approved. Summonses were issued on March 11, 2011 for Kenyatta as well as Ruto. Charges were confirmed on January 23, 2012. One case, involving Francis Muthaura, was withdrawn at the prosecution's request on March 11, 2013. Besides Kenyatta and Ruto, only one other Kenyan, Joshua Sang, is currently answering charges before the ICC. His case, along with Vice-President Ruto's, just opened in the Hague this week while that of President Kenyatta is scheduled to begin on November 12, 2013.

Meanwhile, Kenya's attempt to invoke the complementarity principle and claw back the ICC cases was denied on August 31, 2012. The Court ruled that there had been no active investigations of the same persons for substantially the same conduct to render them inadmissible.

Withdrawal Now Has No Effect on Ongoing Cases in the ICC

Contrary to what the majority of the parliamentarians implied through their vote, Kenya's withdrawal will not stop the cases against Vice President Ruto, President Kenyatta, Mr. Sang, or for that matter, in respect of any one that might additionally be indicted by the ICC Prosecutor.

First, it is true that under Article 127(1) of the Rome Statute, a State Party may, by notifying the UN Secretary-General, who is the depository of treaties, "withdraw" from the statute. So, although I hope that this does not happen, Kenya has the sovereign right to withdraw because of the consensual nature of international law. However, the withdrawal would take effect no earlier than one year after the date of receipt of the notification. More fundamentally, for our purposes, withdrawal cannot be used to undermine the ICC's ongoing investigations and prosecutions. Thus, a withdrawing state is not "discharged, by reason of its withdrawal, from the obligations arising from" the statute during the time it was a party.

Second, and perhaps more strikingly, even if the ICC Prosecutor were to decide to commence additional cases before the date that the one-year withdrawal becomes effective, those proceedings would also entail a continued duty for Kenya to cooperate with the court.

Fortunately, the drafters of the Rome Statute also anticipated what the court could do if a withdrawing state fails to abide by its legal undertakings. Thus, where it "fails to comply with a request to cooperate by the Court" contrary to the statute, "thereby preventing the Court from exercising its functions and powers", the court, either of its own motion or at the Prosecution's request, "may make a finding to that effect and refer the matter to the Assembly of States Parties [ASP]," the guardian angel of the ICC.

Plainly, international law skeptics might counter that a finding of non-cooperation and reporting a matter to the ASP is hardly robust sanction. But the reasons why states obey international law, a horizontal legal system wherein reciprocity and good reputation play a strong role in inducing compliance, generally differ from the sheriff at the door logic some associate with individual compliance with laws in vertical domestic legal systems. In any case, the full ICC membership is represented in the ASP, along with other powerful and presumably interested observers such as the US, which now refreshingly plays a more constructive support role for the ICC under President Barack Obama.

Viewed against this backdrop, the Rome Statute empowers the ASP to prescribe measures against a recalcitrant state. Article 112(2)(g) mandates it to "perform any other function consistent with" the statute. Presumably, this would enable it to goad a non-cooperating state to act, and by analogy to Article 33 of the UN Charter, to even seek creative solutions through negotiation, enquiry, mediation, conciliation, arbitration, resort to international (say the UN) agencies or regional arrangements (such as the African Union), or other peaceful means of its choice. For its part, assuming follow through in the ASP, Kenya, as the anchor finance and trade hub for the East African region, would risk assuming "impunity friendly" haven status among the community of nations - a status that would also be inconsistent with its long term interests as a largely agriculture and tourism based economy.

International Treaty Law Does Not Help Kenya Either

The Rome Statute does not demand that a country explain its motivations for withdrawal. However, the withdrawal resolution attempted to offer a justification for the proposed termination. It asserted that there has been "fundamental changes of circumstances relating to the governance of the Republic" since the March 2013 elections. And although it is unclear whether the motion's drafters invoked "fundamental changes of circumstances" deliberately, or inadvertently, such language in the motion does not resonate with the Rome Statute but certainly does with international treaty law.

The background rules from the Vienna Convention on the Law of Treaties (VCLT) [PDF], which entered into force on January 27, 1980, covers such situations. Kenya was one of the original signatories to the VCLT, on May 23, 1969, but much like the United States, it has not ratified it. Nevertheless, most aspects of the treaty on treaties are now widely considered customary international law. Furthermore, and in any event, the general rules of international law in the VCLT all appear to form part of Kenyan law pursuant to Section 2(5) of the 2010 Constitution.

Under the VCLT, every state has the duty to act properly in the performance of its treaty obligations. Thus, under the pacta sunt servanda rule, "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith." This classical principle applies per force to Kenya in relation to the Rome Statute. An important corollary is this: a state may not invoke the provisions of its internal law as justification for its failure to perform a treaty, as the National Assembly seems to suggest through its motion.

But, even more problematic for Kenya's situation, the VCLT is unequivocal that a fundamental change of circumstances cannot be invoked as grounds for withdrawing from a treaty. This is so if the fundamental change is the result of a breach by the party invoking it of an obligation under the treaty. This rule is applicable here. The change of circumstance arising from the general elections, and any withdrawal it leads to, would entail a breach of the obligation to investigate and prosecute crimes under the Rome Statute. It is the failure to comply with that obligation that in turn triggered the ICC's jurisdiction and indictments. The country must now necessarily facilitate the work of the Court, as required by Part 9 of the treaty.

It follows that Kenya cannot, under international treaty law, rely on a fundamental change of circumstances to terminate the obligations contained in the Rome Statute; obligations to cooperate that are explicitly anticipated by the lex specialis rules of the ICC regime as being of a continuing nature (even after a state party decides to withdraw).

Conclusion

As the Kenyan Government mulls over last week's parliamentary recommendation, it should keep two things in mind. Firstly, the ICC is working for the people of Kenya, not against the people of Kenya. By that I mean the hundreds of victims of the post-election violence whose families deserve to get a measure of justice. This includes the 371 Kenyans who currently have formal victim standing and thus a voice in the ICC proceedings, rights that they would not enjoy in domestic trials. Admittedly, the court also needs Kenya, as it seeks to prove itself to the world as a fair and competent court of law. So the relationship is a mutually beneficial one, a win-win, as I have argued more fully elsewhere in respect of the court's relations with African States.

Secondly, the Kenyan leadership should remember that the ICC has, in recognition of this unprecedented situation resulting from the March 2013 elections, acted both pragmatically and flexibly. As part of this, it has continued the liberty of the accused and granted the defendant requests for important accommodations for the trial phase. These would enable the president and his deputy to balance their official functions with their right to appear, consistent with the presumption of innocence, before the court to defend their good name.

Consequently, it is against the interests of those personally accused to at once be before the ICC protesting their innocence and pledging unconditional cooperation with the judicial process, only to subsequently endorse measures that would undermine the tribunal's adjudicative function. As demonstrated here, irrespective of whether Kenya withdraws from the ICC, its obligations to support the crucial justice process started under the Rome Statute will subsist. The cases will continue, so at best, Kenya would only score political points from any retreat from the battle against impunity at this stage.

Finally, stepping back to frame a bigger picture for average Kenyans, I note that Messrs. Kenyatta and Ruto enjoy fundamental fair trial rights under Article 67 of the Rome Statute. Foremost, among these, they are presumed innocent until proved guilty before the court in accordance with the applicable law. Therefore, it is not up to the accused President Kenyatta, Vice-President Ruto or Mr. Sang to prove their innocence. Rather, it is Gambian Chief Prosecutor Fatou Bensouda's job to prove their guilt, if she can proffer convincing evidence to that effect. The burden on her is high, as the law rightly demands that a majority of three experienced judges of Trial Chamber V, presided over by Judge Chile Eboe-Osuji of Nigeria, independently evaluate that evidence to establish their guilt beyond a reasonable doubt for indirectly co-perpetrating crimes against humanity. It is only if such a finding is reached that penalties, and the provisions of the 2010 Constitution that permit the impeachment of leaders, would become an issue.

By the same token, as the defendants have insisted throughout this post-election violence saga that they are innocent, they must also be very confident that they can raise a reasonable doubt about the Prosecutor's allegations. Doing so, in turn, would lead to their inevitable acquittals. Thus, Kenyans must insist that the government exercise restraint and let the ICC justice process take its natural course.

Charles C. Jalloh is currently a Visiting Associate Professor at the FIU College of Law and an Assistant Professor at the University of Pittsburgh, School of Law. A guest columnist for JURIST on issues of international criminal law, he has worked in the Rwanda and Sierra Leone Tribunals and has been a visiting professional at the International Criminal Court. He has published widely on issues of international criminal justice in Africa. His most recent work is an edited book, The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Law, from Cambridge University Press (2013).

Suggested citation: Charles C. Jalloh, Kenya Should Reconsider Proposed Withdrawal from the ICC, JURIST - Forum, September 13, 2013, http://jurist.org/forum/2013/09/charles-jalloh-kenya-icc.php.


This article was prepared for publication by Dan DeRight, an associate editor for JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

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