Kenya: Is ICC withdrawal down to court’s “lack of respect” for Kenyan cooperation and trial relocation requests? – By Sabine Hoehn
On Thursday last week Kenyan parliamentarians voted to withdraw from the Rome Statute that established the International Criminal Court (ICC). This is the first time that a states party to the Statute has decided to renounce its ratification. The decision comes after a long standoff between Nairobi and the court about the impending trials against Kenya’s president Uhuru Kenyatta and vice-president William Ruto.
The office of the prosecutor at the ICC had been complaining for months that Nairobi’s assistance with investigations was tardy and hindered the timely finding of witnesses and assembly of testimonies. The Kenyan government, however, has rallied African support behind its accusation that the ICC was an imperial court that unduly targeted Africans, with the current chairperson of the AU Haile Mariam Desalegn accusing the ICC of “race hunting”.
Although the withdrawal has no legal effect on the on-going trials, it sends a strong message to the ICC and will have a big political impact on the future relations between the Court and Africa. Nairobi has been actively trying to influence the ongoing proceedings in The Hague. The Kenyan government has campaigned to transfer the trials to an African Court, at times favouring the East Africa Court of Justice or floating the idea of the African Court of Human and People’s Rights taking over. Both options would be extremely problematic.
The East African Court of Justice has so far only arbitrated disputes between states, so Kenya’s suggestion that it extend its jurisdiction to hear international criminal cases would stretch the court’s mandate beyond its capacity. This would have a detrimental effect on its ability to arbitrate cases. Although the ICC is designed as court of last resort, it is highly unlikely that it would transfer the cases to such an ill-prepared regional body.
Transfer to the African Court on Human and Peoples’ Rights (ACtHPR) would be even more problematic. Although the protocol to establish the court entered into force in 2004 (judges taking office in 2006), the court did not hear a single case in its first three years of operation. Additionally, plans by the AU to merge the court with the African Court of Justice, to form a new African Court of Justice and Human Rights (ACJHR), would require a new round of ratifications. By 2010 only 3 of the 53 Member States had ratified the “˜merged court’ protocol. Once the court is established it will remain unclear whether it can deliver its ambitious agenda – the ACJHR will be the first court to combine state level jurisdiction and individual human rights complaints.
So far the ICC has not deemed any regional or continental African human rights court to be sufficiently capable of hearing the cases brought before the judges in The Hague. It remains doubtful that this will change in the near future.
Even if the ICC does not relent to transfer the cases to a regional or continental court, the proceedings could still be relocated. The defence teams of Kenyatta and Ruto have asked for the ICC cases to be heard in East Africa, in order to accommodate the busy schedule of their clients and to bring court proceedings closer to the affected communities. The arguments about the benefit for victims were well received by the ICC judges, but the defence motion marginally missed the required quorum. A decision of that order requires ten judges, a 2/3 majority of the bench, to vote in its favour, but only 9 supported a relocation of the trials.
The court also denied the application of vice president Ruto for a staggered schedule of his hearings. Ruto had asked for a two week hearing followed by a two week recess to allow him to attend to his duties as deputy head of state. The judges granted that right but the prosecution appealed and the appeals chamber overruled the decision, requiring Ruto to attend trial hearing continuously between the 10th September and 4th October 2013.
The vote to withdraw from the Rome Statute might have partly been motivated by the government’s experience that none of its campaigns to influence the location, the schedule or the responsible court for the trials were successful. This will have contributed to the general perception of having to accept the terms of justice from the ICC. One Kenyan MP said that the “reason for the Motion [to withdraw from the Rome Statute] is that despite cooperation, the ICC has not reciprocated with respect and even appeals are denied”.
The decision to withdraw from the Rome Statute has again showed clearly the political nature of supporting and criticising the ICC, both internationally and domestically. At home, President Kenyatta needs the support of William Ruto and his party to hold a majority in parliament over the oppositional Orange Democratic Movement of Raila Odinga. At the same time, Ruto’s case at the ICC is believed to be much stronger than Kenyatta’s. The clear demonstration of defiance towards the ICC might thus be an important signal of solidarity with Ruto and his followers in domestic politics.
Internationally, the parliamentary vote is in line with the general reorientation of Kenya’s foreign policy. The new Kenyatta government has set out to strengthen its continental ties and extend its close cooperation with its regional neighbours. Since Kenyatta took office Kenya has hosted several regional business summits and a high level meeting of the Heads of States from the East African Community. Kenyatta’s first travel abroad took him to Moscow and Beijing instead of the traditional route to Washington or London.
The parliamentary vote certainly does not reflect the wishes of the victims of the 2007 post electoral violence who still prefer proceedings in The Hague to trials at home. Despite the slow pace of ICC proceedings and the repeated delays in trial preparation, these victims still want the trials to be heard at the International Criminal Court and proceedings to take place in The Hague rather than Arusha or Nairobi. But the parliamentary vote will make it even more difficult to publicly support the hearings in The Hague.
Meanwhile, supporters of the Court fear that if Kenya can withdraw from the Rome Statute, so can others. Kenya had been a very strong supporter of international justice until the cases against Kenyatta and Ruto and its U-turn gives reason to worry. It follows the recent trend of the African Union to turn up the volume on its complaints about imperial justice and the ICC hunting down Africans. A mass exodus of African states, with 33 ratifications the second strongest continental bloc of supporters for the ICC, would seriously question the global claim of the court and indicate that if states do not agree with prosecution strategies they can just withdraw from the Statute.
Sabine Hoehn is a British Academy post-doctoral fellow at the School of Social and Political Science, Edinburgh University.