JURIST Guest Columnist Jess Kyle, University of Maryland Francis King Carey School of Law Class of 2015, discusses the International Criminal Court’s African involvement in light of Kenya’s withdrawal…

Ideally, the operations of the International Criminal Court (ICC) toward justice would reinforce the domestic politics of conflict and post-conflict states by promoting peace through deterrence and strengthening accountability norms. Yet, since its 2002 inception, the ICC has frequently been accused of being, on the one hand, insensitive to local political exigencies and, on the other, biased by its own invidious political agenda. Kenyan parliamentarians who recently voted for ICC withdrawal appealed to similar concerns for support, and Kenya’s move toward withdrawal has prompted reinvigorated criticism of the ICC by a number of African countries. A hasty embrace of Kenya’s withdrawal circumstances as representative of key concerns about the ICC’s African involvement, however, risks undermining the productiveness of such debates, rewarding political opportunism and encouraging the institutionalization of impunity in Kenya and elsewhere.

Kenya President Uhuru Kenyatta, Deputy President William Ruto and radio executive and journalist Joshua Sang face charges of crimes against humanity at the ICC. The charges pertain to their roles in the post-2007 election violence in Kenya in which 1,200 were killed and hundreds of thousands displaced. On September 5, 2013, shortly before the trial of Ruto commenced, the Kenya National Assembly passed a motion for withdrawal from the ICC. The Senate passed an expanded version of the motion on September 10. Pending notification of withdrawal by the Kenyan government to the UN (which would take effect after one year), Kenya may be the first state to withdraw from the ICC.

Kenya’s withdrawal vote was followed by the announcement of an African Union (AU) special summit for discussion of a possible bloc withdrawal from the ICC. The summit is to be held October 13, 2013 and countries purportedly open to this extreme measure include Uganda, Rwanda, Zimbabwe and Eritrea. Thirty-four of a total of 54 AU members are ICC signatories. In addition to the special summit call, aggressive criticism of the ICC at the UN by some African leaders has continued.

One apparent thread of the withdrawal argument is that the ICC is insensitive to the need for countries to stabilize politically and move forward peacefully. The withdrawal motion itself included references to “the fundamental changes in the circumstances relating to the governance of the Republic” and the fact that “the Republic conducted its general elections … at which the President and Deputy President were lawfully elected.” During his severe criticism of the ICC at the UN, Uganda’s President Museveni also pointed to the status of Kenyatta and Ruto as elected leaders and stated, “Kenya is recovering. Let her recover.” Further, a recent AU letter to the UN cited the concern that ICC trials were impeding effective governance of Kenya.

There are times when weighty political considerations might point against the ICC’s pursuit of justice. For example, a prominent case from the ‘peace versus justice’ debates that has been used to show the problem of political insensitivity in the timing of indictments was the 2003 indictment of former Liberian president Charles Taylor. His indictment occurred in the context of sensitive peace talks, and has been blamed for a resurgence of violence in Liberia and additional deaths. Greater sensitivity to local political demands might have averted these consequences

In the case of Kenya, however, Kenyatta, Ruto, and Kenyan voters were aware of the ICC charges going into the March 2013 elections. Kenyatta and Ruto have consistently pledged their cooperation with the ICC, and the ICC has shown flexibility in staggering the leaders’ trials and adjourning Ruto’s trial so he could deal with the Westgate terror attack. The particular context of the ICC’s involvement in Kenya does not seem to contribute much to arguments about the ICC’s insensitivity regarding domestic political affairs. Further, it is unclear why the drastic measure endorsed by Kenyan politicians, withdrawal, is a positive step in the name of the growth and stability of Kenya’s democracy. Rather than a proposal for a short-term peace-justice trade-off, it is a long-term return to impunity likely to invite future violence.

A much louder criticism heard in Kenya’s withdrawal motion debates was the allegation of ICC neocolonialism and political selectivity. National Assembly majority leader Adan Duale emphasized the need to protect the sovereignty of Kenya against attempts at politically motivated interference. In the Senate, majority members characterized the ICC’s involvement in Kenya as “an attempt to recolonize Africa” and portrayed the Prosecutor as a rogue actor who can destroy individuals’ reputations and lives at will.

There are cases, and also some plain facts, that should raise concerns about political interests promoted (intentionally or unintentionally) by the ICC or about how it chooses its cases. For example, the heat-of-conflict timing of the June 2011 indictment of Muammar Gaddafi not only played a role in thwarting peace efforts but also gave a boost to the controversial intervention by France, the UK and the US. As for facts about the ICC’s case selection that have been subject to criticism, it has hardly gone unnoticed that all current ICC cases are in Africa. Criticisms of the ICC’s focus on Africa are not without response, but can be expected to subject the ICC’s case selection to scrutiny.

The ICC’s cases against Kenyatta, Ruto and Sang, however, do not lend much support to accusations of the ICC’s “hunting” of Africans. The cases only ended up in the ICC as the outcome of a Kenyan government-sponsored commission and multiple failed efforts to create a Special Tribunal or other alternative to ICC prosecution. These failed efforts were the agreed upon trigger for ICC referral of the situation in Kenya. The names of those suspected most responsible for the post-election violence were provided by the Kenyan investigative commission. It is not clear, then, why the ICC’s Kenya cases should raise familiar concerns about the ICC’s fairness in initiating cases, even to the extent of catalyzing a movement for mass ICC withdrawal.

It is important to dis-aggregate the many African-based ICC cases with an eye to whether criticisms of them advance substantive debates about the ICC-Africa relationship or instead look like attempts to capitalize on these debates for political gain. Kenyatta and Ruto apparently succeeded in using their indictments to their benefit in the spring election, casting themselves as protagonists of an anti-imperialist struggle. After the election, and well before the parliamentary withdrawal motion the new Kenyan government reached out to other countries for additional support of it ICC-discrediting campaign.

Although withdrawal would formally have no effect on the leaders’ trials, steps toward it seem calculated to position President Kenyatta and Ruto for future non-cooperation. It has also led to increased calls, including by China, for transfer of the trials to Kenya. Any political gains secured by the two leaders from so easily moving the issue of Kenyan withdrawal to the center of much broader debates about the ICC’s record of involvement in Africa will come as rewards for the dubious and opportunistic use of serious points of debate. They may also carry the cost of an institutionalization of impunity that begins with the derogation of Kenyan victims’ rights to justice.

Update: A previous version of this piece stated that the ICC indicted Charles Taylor. Taylor was indicted by the Special Court for Sierra Leone.

Jess Kyle has a Ph.D. in Philosophy from Binghamton University. She is a member of the Maryland Law Review and in the past has published on the topic of military humanitarian intervention.

Suggested citation: Jess Kyle, Kenya’s ICC Withdrawal: The Wrong Face for ICC-Africa Relationship Debates, JURIST – Dateline, Oct. 8, 2013, http://jurist.org/dateline/2013/10/jess-kyle-kenya-icc.php.