Kenya Moves Closer to Withdrawing from the ICC

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.