Why Kenya Won’t Withdraw from the ICC

by Kevin Jon Heller

There has been much consternation and hand-wringing about the Kenyan parliament’s decision to table a motion to withdraw from the ICC. I understand the fear; Kenya’s withdrawal would obviously be a sign that Kenyatta and Ruto no longer intend to cooperate with the Court. Withdrawal could also encourage other African states to leave the ICC, which they have not seemed particularly keen to do, despite their incessant protests that the Court is little more than a neo-colonial instrument of the West that is (in one memorable description) “hunting” Africa.

That parade of horribles, however, presumes that Kenya will actually withdraw from the ICC. I strongly doubt it will, for one basic — and seemingly underappreciated — reason:

Kenyatta and Ruto will very likely be acquitted.

As Thomas Obel Hansen points out in the comments to a recent post by Mark Kersten at Justice in Conflict, “Kenya’s Treaty Making and Ratification Act 2012 makes it clear that it is the prerogative of the executive branch of government to initiate ratification as well as denunciation of international instruments.” The decision to withdraw from the ICC thus rests squarely on Kenyatta and Ruto’s shoulders. And why would they want Kenya to withdraw — at least at this point? As Mark notes in another recent post, withdrawing from the Court will neither terminate the cases nor eliminate Kenya’s obligation to cooperate with the Court. As a result, the ICC would almost certainly respond to a decision to withdraw by immediately replacing Kenyatta and Ruto’s summonses with arrest warrants. Kenyatta and Ruto would likely find it relatively easy to avoid arrest. But arrest warrants would make it much more difficult for the two men to function as Kenya’s heads of state — a problem that would be even more significant for them, newly elected, than for a head of state like Omar al-Bashir, who was in power for nearly two decades before the ICC brought charges against him.

If Kenyatta and Ruto were likely to be convicted, the costs of withdrawing from the ICC would almost certainly be worth it. But does anyone think conviction is likely? The “Ocampo Six” quickly became the “Bensouda Four,” with the Pre-Trial Chamber refusing to confirm the charges against Henry Kosgey, the Industrialisation Minister, and Mohammed Hussein Ali, the former police commissioner. And it seems that hardly a day goes by without another prosecution witness or two deciding not to testify. Nothing would be better for Kenyatta and Ruto — both domestically and internationally — than to be acquitted after cooperating fully with the ICC. So why would they withdraw from the Court now, when the cases against them seem to be falling apart? Why not at least wait until their conviction seems more likely? Withdrawal now would simply be bad strategy.

Mark my words: Kenya will not withdraw from the ICC.

Yet.

http://opiniojuris.org/2013/09/06/kenya-wont-withdraw-icc/

3 Responses

  1. A bigger problem with such a conclusion, is that Kenya is blatantly disregarding its obligations to cooperate with investigations by failing to effectively prevent witnesses, and in the worse case enabling them to be intimidated or killed.
    The alternative would be for witnesses to all be relocated and placed within the protection of the ICC – cf Darfur case where the OTP moved witnesses into Chad. However, such an approach is highly disruptive for witnesses who are then permanently identified as witnesses, making them unlikely to be able to ever return home.
    Clearly other State Parties should be decrying the lack of witness protection measures, i.e. a break of Kenya’s obligations, rather than Kenya leaving the ICC, as it is within its right under national legalisation and the Rome Statute (Art 127).

  2. @Luke, you obviously have not read the statements of multiple witnesses who have publicly come forward, given their identities and issued statements noting harrassment and coaching by officials of the OTP. Just this week one of the few witnesses citing anonymity explained how his statement was altered to state that he was at the home of the now deputy president where the purchase of guns was introduced. When tens of witnesses not just one or two keep harping about more or less the same scenario of witness coaching, promises of relocation to western countries and confinement against their will, it only lends credence to the fact that this case is a sham. On the other hand if witnesses have been bribed or intimidated, why hasn’t the OTP sought arrest warrants against errant witnesses or the parties threatening them? Is it because they would present damning and incriminating evidence against the OTP? Once a witness is dead, naming them has no consequence, has the OTP named a single dead witness or is this yet another fictitious tale to save face when a case is crumbling? The OTP spends their time busy harping about witness issues but never filing concrete evidence in court, they are endlessly seeking new witnesses, or are they really seeking to coach new witnesses. The outcome of the cases will certainly bring to the light whether these prosecutions were justified, meanwhile the real suspects who committed actual crimes continue to roam free. 

  3. The withdrawing witnesses have started speaking out publicly regarding witness coaching by the OTP. This particular witness withdrew in March 2013, the OTP threatened them with prosecution if their withdrawing affidavit went public. Which ever way it happened, it is now part of the public domain. Are these the witnesses the OTP has branded as bribed simply because they have exposed the modus operandi of the OTP in the Kenya cases?
    Kimeli Kosgei affidavits & correspondence – disavowal of testimony to ICC Prosecutor
    The witness alongside another witness have now offered a recorded interview on the coaching methods and evidence fabrication methods of the OTP. The OTP has had since March 2013 when the affidavit went public to initiate prosecutions or seek the arrest of the witness but it has not. Where there is smoke, there is bound to be fire.
    Published on Sep 11, 2013
    Two former ICC prosecution witnesses have revealed details of how they were coached by the Office of the Prosecutor (OTP) to give false accounts against Deputy President William Ruto and his co-accused Joshua arap Sang.
    http://youtu.be/mOxt1pPCXxE 

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.