Why Kenya Won’t Withdraw from the ICC

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.