Kenya Moves Closer to Withdrawing from the ICC

by Kevin Jon Heller

This according to the BBC:

Kenyan MPs have voted overwhelmingly for the country to pull out of the treaty which created the International Criminal Court in The Hague.

The move comes a week after the ICC prosecutor named six Kenyans he accuses of being behind post-election violence.

The prosecutor’s list included senior politicians and civil servants.

The MPs do not have the power to effect any immediate change in relation to the ICC but they have sent a message to government to start withdrawing.

Article 127 of the Rome Statute permits Kenya to withdraw from the Court, but doing so would have no impact on the OTP’s investigation of the six government suspects.  A state’s withdrawal only becomes effective after one year, and Article 127 specifically provides that withdrawing “shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

Kenya keeps insisting that the six suspects should be tried in a domestic tribunal.  Perhaps, instead of undermining the Court — which it fully supported until it found itself in the OTP’s crosshairs — the government might consider actually creating one.  After all, there is a certain Article 17 in the Rome Statute designed for just that situation…

ADDENDUM: Does Moreno-Ocampo even read the Rome Statute?  Here is what he said to a reporter about the MPs’ motion:

Even if Kenya should pull out of the Rome Statute, it would not halt the ICC probe into the six suspects due to the one year’s notice needed to pull, according to Moreno-Ocampo.

‘I don’t think there is any way to change the case,’ he told VoA’s Straight Talk Africa on Wednesday evening. ‘According to the law, if Kenya withdrew from the system it would be one year, so it would be late for this case.’

As noted above, an investigation commenced before a state’s withdrawal becomes effective continues to be valid even after that date.  So the Kenyan investigation would continue to be valid even if Kenya could withdraw immediately from the Rome Statute.  The one-year delay is only relevant to the withdrawing state’s other statutory obligations.

http://opiniojuris.org/2010/12/23/kenya-moves-closer-to-withdrawing-from-the-icc/

6 Responses

  1. Thanks Kevin for posting this. Parliament’s motion to have Kenya withdraw from the Rome Statute will not I believe lead Kenya to actually withdraw.

    Parliament has had an opportunity to establish a domestic tribunal to try suspects following violence in the late 2007 General Election and repeatedly failed to do so.

    The Kenyan public overwhelmingly supports the planned prosecutions in the Hague and that support has increased in the run up to O’Campo’s recent announcement. The public also overwhelmingly approved the 2010 Constitution that effectively makes Kenya a monist State in August and does not share the political class’ outrage about the potential for some in the political class to be held accountable in a process it cannot control.

    The broader context here is that close to two decades now there has been election related violence that has not seen much in the way of prosecution particularly of those most thought to be responsible.

    Finally, President Mwai Kibaki and Prime Minister Raila Odinga (likely the next President after the 2012 elections) fully support the planned Hague prosecutions. As such, it  is very unlikely any Parliamentary motion will result in a change of policy in the Executive Branch that has been closely working with O’Campo to date.

    I have a forthcoming essay that delves into these issues a little more in the Nairobi Law Monthly posted on ssrn yesterday and you can find it here http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1729813

    James Gathii
    Albany Law School

  2. James,

    Thanks for the information.  I was skeptical that the motion would lead anywhere, so it is nice to know that I was not completely misreading the situation.  I look forward to reading your essay!

  3. In as much as the move does not stop the current case,it does not sound good for the court.There is growing uneasiness that the court is being used as a tool  against Africans only.Those who know Kenyan politics will tell you this is the first salvo in a long fight similar to the one Bashir is having against the ICC.So far the ICC has had little effect against Sudan and Kenya joining those ranks at atime when its geopolitical importance in the regions with a posible south sudan/north sudan war.

    Handing over of Uhuru Kenyatta son of Kenyans founding father and leaders of the majority Kikuyu is unlikely to happen. The state will most likely do everything to protect him.Raila Odinga the second principal in Kenya’s coalition  will most likely support the ICC and like it will not survive the fight against it and the ICC

  4. All of the six Kenyans, including Uhuru Kenyatta,  that O’Campo is applying to have indicted have announced their intention to cooperate with any indictments that may be handed down. See http://www.standardmedia.co.ke/InsidePage.php?id=2000024824&catid=4&a=1 And for Henry Kosgey see http://www.nation.co.ke/News/politics/Kosgey%20says%20ready%20to%20work%20with%20ICC/-/1064/1073474/-/clvbgj/-/index.html
    The Executive Branch has set up a cabinet committee to coordinate with the ICC’s investigation and there is no indication howsoever that the President or Prime Minister would want to protect either Uhuru Kenyatta or Ambassador Francis Muthaura, a close confidant and Secretary to the Cabinet from those prosecutions if they are permitted.
    There is therefore yet to be an issue of handing anyone to the ICC unlike in Bashir’s case. I think Parliament’s motion to withdraw from the ICC is in part explicable on a very predictable momentary bubbling over of passion and a collective sense of an attack on Kenya’s sovereignty that gripped many but certainly not all parliamentarians.  This is particularly the case when one looks at the cross-ethnic alliances that the motion garnered since O’Campo is seeking to indict politicians in two large and highly politicized communities (the Kikuyu and the Kalenjin) that have experienced a spate of violent post and pre-election violence for two decades.
    More significantly I think, O’Campo will have a series of legal skirmishes like he has never seen before including the one presaged in the dissent in his application to investigate by Judge Kaul and this more than anything is likely to imperil the role of the ICC in Africa if he has not marshaled sufficient evidence to allow the indictments to be handed down, see http://www.nation.co.ke/oped/Opinion/Why%20ICC%20could%20be%20the%20loser%20in%20Kenya%20case%20/-/440808/1074458/-/q09bsa/-/index.html
    And how do both points tie together: There is lots of fundraising organization currently going on for the legal fees at the Hague and the organization is being planned largely along ethnic lines.
    Parliament now stands adjourned indefinitely and as these MPs go home for the holiday break, they may well be pondering the results of a new poll that finds that more than half of them would not be returned to Parliament if elections were called today. http://www.nation.co.ke/News/politics/-/1064/1077618/-/79nrq9/-/index.html
     

  5. Political and legal halabaloo… If you think Ocampo is a trbal(satire in case you missed it) then please do not discourage the selection that was a followup on a list Made in Kenya. Give him eveidence for the ones he missed and do not expect ICC to let go of one fish just because they cant catch the whole school.

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