Chatham House (London)

Kenya and the ICC - a Test for Both

analysis

Photo: ICC
Deputy President William Ruto to face first witness for the prosecution at the International Criminal Court.

The trial of Kenya's deputy president at the International Criminal Court (ICC) has been overshadowed by Kenya's decision to withdraw from the ICC.

William Ruto and his co-accused, Joshua Sang, are charged with crimes against humanity. Their trial began on 10 September at The Hague, and the trial of Kenya's president, Uhuru Kenyatta, is scheduled for 12 November. But on 5 September Kenya's parliament voted to withdraw its membership from the ICC. If a bill to that effect is adopted, Kenya will become the first state party to withdraw from the Rome Statute of the ICC.

As of May 2013, 122 states are state parties to the Rome Statute of the ICC. The Rome Statute allows a state party to terminate its ICC membership by written notification to the Secretary General of the United Nations, and withdrawal takes effect one year after. Importantly, the Rome Statute states that withdrawal does not discharge a state party from the obligations arising from the Statute while it is party.

Kenya's withdrawal would thus have no effect on the existing criminal proceedings against Kenyatta and Ruto. Kenya would continue to be under the obligation to fully cooperate with the ICC in connection with the trials of its two leaders. But as soon as a withdrawal comes into effect, any investigation and prosecution of future international crimes by the ICC would be precluded.

The ICC, unlike domestic courts, has no police force and so depends on states' cooperation. If Kenya had failed to comply with a request to produce the defendants for trial or otherwise cooperate with the ICC, the Court could refer the matter to the Assembly of States Parties for further action. However, all the Assembly could do in such a situation is recommend resolution of non-cooperation issues through diplomatic means such as a 'good offices' intervention by the President of the Assembly, the effectiveness of which remains questionable.

Limited cooperation

Kenya's decision to end its membership at the ICC is another attempt to prevent the Court from conducting effective proceedings against its leaders. While arguing that it has fully cooperated with the ICC, Kenya has interfered with the ICC's proceedings a number of times. Kenya successfully lobbied the African Union for its support to terminate proceedings at the ICC, and refer the cases for trial in Kenya. In May 2013, Kenya asked the UN Security Council to end the proceedings against its leaders, but the request has so far been ignored.

The ICC is also facing serious challenges in two other situations. Sudan and Libya have both been referred to the ICC by the UN Security Council. Sudan has persistently refused to arrest and surrender its President Omar Al Bashir, who is wanted for alleged war crimes. State parties such as Malawi and Chad have breached their obligations of cooperation by not arresting Bashir when he visited. ICC judges have formally reported the breaches to the Security Council, but no action has been taken. Similarly, the ICC's authority continues to be undermined by Libya's refusal to surrender Saif Gaddafi despite the Court's repeated reminders that it is obliged to do so.

Kenya's termination of its ICC membership will be of considerable significance. It could potentially encourage other states to consider withdrawing, particularly those states that currently have cases under preliminary examination by the prosecutor.

Ongoing controversies

The proceedings against Kenyatta and Ruto have been plagued by controversy. They are charged with crimes against humanity committed during Kenya's post-election violence in 2007 and 2008, which left more than 1,000 people dead and more than half a million displaced. Charges against three out of six original suspects were not confirmed or have subsequently been withdrawn due to a lack of evidence. The investigation has been bedeviled by problems of witness intimidation, bribery and disappearances. Due to security concerns, a number of witnesses have withdrawn their cooperation with the ICC. The accused, however, have been allowed to remain at liberty pending the trial.

The ICC is facing a difficult task: it must manage the conduct of the trials so that the leaders can perform their official functions at home, while also meet the requirements of justice. The accused have requested permission to be excused from continuous presence during the trial at The Hague. Until the ICC renders a final decision on the modalities of the trial, Ruto is required to be physically present during the trial. Once Kenyatta's trial begins, the sittings in the two trials may be organized alternately so that the accused leaders are not away at the same time.

If Kenya's efforts to undermine the proceedings against Kenyatta and Ruto prove successful, the two trials may weaken the ICC's authority and could damage the ICC's long-term ability to ensure international justice.

Miša Zgonec-Rožej is Associate Fellow, International Law at Chatham House.

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