The First Cut is the Deepest? Kenya’s move to withdraw from the ICC could have a deep impact on them both

By Abhilaksh Grover, Assistant Contributor

On October 12, 2013, the members of the African Union (“AU”) converged at its headquarters in Addis Ababa, Ethiopia to debate the future of Africa’s relationship with the International Criminal Court (“ICC”). The extraordinary summit was called in accordance with AU rules after Kenya’s request for the summit garnered a two-thirds majority vote.  Although the eventual decision of the AU was not in favor of the withdrawal of African states from the ICC, this is yet another sign of the strained relations between the ICC and the continent that makes up its largest constituency.

History

Ever since its inception in 2002, the ICC has been entangled in a myriad of controversies and accusations. The Court is often accused of having biased political agendas, so it was no surprise when politicians in African states accused the ICC of being a “western court to try African crimes” through a “neo-colonialist” approach.

The summit came in the midst of on-going cases against the newly-elected Kenyan President Uhuru Kenyata and Vice President William Ruto. Both are charged with crimes against humanity for the violence that followed the 2007 elections, which killed over a thousand Kenyans and displaced hundreds of thousands from their homes.

In compliance with the decision made at its summit in May 2013, The AU urged the ICC to refer the cases back to Kenya so that the leaders may be tried under Kenya’s national judicial process.  The ICC refused the request as illegal and commenced Ruto’s trial on September 2013.

The African movement against the ICC picked up speed when, on September 5, 2013, the Kenyan parliament passed a resolution for withdrawal of the Kenyan State from the Rome Statute (“Statute”), the treaty creating the ICC. This was the first time that a state renounced its ratification. The move for withdrawal in Kenya was primarily motivated by the ICC’s refusal to hold the trials at the time and location convenient to both Kenyatta and Ruto. There is a concern that the ICC may be incapable of dealing with such pressure tactics , which are often employed by parties to influence the outcome of the trials.

Procedure

The Kenyan case is the ICC’s fifth investigation and the first ‘proprio motu investigation under Article 15 of the Rome Statute without the referral of the United Nations Security Council (“UNSC”) under Article 16. According to Article 15, a prosecutor may initiate investigations on the basis of information on crimes within the jurisdiction of the court. The proprio motu investigation elicited strong opposition at the negotiation stage of the Rome Statute and remains a contested issue.

Kenya’s opposition to the ICC is also linked to the investigations under Article 15.  Kenya fears that the prosecutor might use proprio motu to improperly target its high profile leaders, leading to the politicization of the ICC.

Kenya ratified the Statute on March 15, 2005. The withdrawal procedure is governed by Article 127 and according to the Statute, withdrawal from the Statute will not affect the on-going trials. Further, Article 27 provides that a state’s withdrawal shall not hamper the duty to cooperate with the investigation. The cooperation requirements are elucidated in Articles 86 and 88 of the Statute in addition to the ICC’s Rules of Procedure and Evidence.

Although President Kenyatta and Vice President Ruto have formally pledged cooperation with the ICC, the parliamentary decision to withdraw from the ICC suggests the contrary. However, Kenya may only remove its request for withdrawal from the ICC after the President’s assent.

Implications

Kenya’s move to withdraw from the Statute and the ICC will have a huge impact on the court as well as the African continent. To begin with, the Kenya trial, which is already smeared with controversies and allegations, might result in a questionable decision. The pressure tactics employed by a few states also point towards the inability of the ICC to deal with such issues. On the other hand, most of the ICC trials deal with the African states and the rulers of these states might try and follow the Kenyan example.

Although the other parties to the ICC have not vocalized about their opinion on the current issue, Kenya’s action has indeed sent out a strong message to other state parties and the ICC itself. Furthermore, even though the move to withdraw from the ICC was thwarted by the AU at the extraordinary summit, it was decided that the case against the President and the Vice President should be terminated. In addition, the AU also proposed the amendment of Articles 27, 63 and 98 for protection of African leaders from trials at the ICC. The amendment if effective, will allow leaders to enjoy immunity from prosecution for war crimes, genocide and crime against humanity.

The greatest concern for the ICC now is its inability to guarantee that future African leaders will not be dragged into the ICC process, especially after the decision of the AU at the summit. Human rights organizations have come to the ICC’s rescue and urged the African nations to reject the call to withdraw from the ICC. Mr. Tamanda Hondura, Amnesty International’s Deputy Director of Law and Policy, was quoted, saying, that “[t]he ICC should expand its work outside Africa, but it does not mean that its eight current investigations in African countries are without basis. The victims of these crimes deserve justice.

Another area of concern is that states like Algeria, Angola, Cameroon, Egypt, Eritrea, Guinea Bissau, Mozambique, Sao Tome and Principe, the Republic of Sudan, and Zimbabwe, that have signed but not ratified the Rome Statute, may not ratify it or may even decide to ‘un-sign’ the Statute.

It will be interesting to see the development of the ICC and the extension of its cases to countries outside of Africa in the future. Kenya’s withdrawal, if it happens, will not only set a bad precedent for other countries but might also render the trial of the leaders ineffective.