John Campbell

Africa in Transition

Campbell tracks political and security developments across sub-Saharan Africa.

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Kenya and the International Criminal Court

by John Campbell
October 11, 2013

A general view shows the opening session of Heads of States and Government of the African Union on the case of African relationship with the International Criminal Court (ICC) in Ethiopia's capital Addis Ababa, October 11, 2013. (Stringer/Courtesy Reuters) A general view shows the opening session of Heads of States and Government of the African Union on the case of African relationship with the International Criminal Court (ICC) in Ethiopia's capital Addis Ababa, October 11, 2013. (Stringer/Courtesy Reuters)

Significant African opinion appears hostile to the International Criminal Court at The Hague (ICC). In Kenya, President Uhuru Kenyatta and Deputy President William Ruto, both under ICC indictment for crimes committed during post-election violence in 2007-2009, included in their campaign rhetoric that the ICC was a tool of Western imperialism. This view is shared by many.

Others argue that the ICC is somehow “unfair” because its current cases all involve Africa. In Kenya, the parliament has called for the withdrawal from the Treaty of Rome that established the ICC. The African Union has called for the Kenyatta and Ruto cases to be referred back to the Kenyan judicial system. A special African Union (AU) summit meeting is convening in Addis Ababa on October 11-12 to discuss the Union’s relationship with the ICC. Some hope that the AU member states will withdraw as a block from the Treaty of Rome, though few expect that will actually happen. Misunderstandings, even outright lies, about the ICC and the Kenyatta and Ruto cases in particular are underpinning much of this current anti-ICC sentiment in Kenya and elsewhere.

Under those circumstances Human Rights Watch (HRW), a distinguished non-governmental organization based in the United States, has performed a service by publishing a short primer on October 7 entitled Perceptions and Realities–Kenya and the International Criminal Court. It sets out eight common perceptions about the Kenyatta and Ruto ICC prosecutions–and then demolishes them. Along the way it shows that the Kenyan judicial system does not have the capacity to prosecute Kenyatta and Ruto and that it has failed to hold perpetrators of electoral or political violence accountable throughout its post-colonial history. It also exposes a lack of substance to the Kenyan government’s cooperation with the ICC in the Kenyatta and Ruto cases–despite the two’s formal cooperation with The Hague court. The HRW primer is the first place to go when looking at the alleged legal arguments for delaying the trials, either by transferring them to Kenyan jurisdiction or through UN Security Council action.

HRW also discusses the consequences for the future of Kenya’s failure to hold accountable perpetrators of human rights violations. Impunity in the past implies impunity in the future.

Archbishop Desmond Tutu has also weighed in on the key role of the ICC in ensuring that perpetrators of violence are met with justice not impunity. In an op-ed published in the New York Times on October 10, Tutu states that “without this court, there would be no brake on the worst excesses of these criminals.” He also highlights the fact that while the ICC has so far prosecuted only African cases, the ICC could also “not be more African if it tried.”

The United States is also a signatory of the Treaty of Rome, but it has never been ratified by the Senate. U.S. policy is, however, highly supportive of the International Criminal Court. In light of non-ratification, many African critics view U.S. support for the ICC as fundamentally hypocritical.

Post a Comment 2 Comments

  • Posted by Chike

    An angle that this article has failed to consider:

    How on Earth is a sitting African president supposed to deal with issues as weighty as the Nairobi Mall Massacre – while attending an ICC show trial in the Hague?

    That alone diminishes the relevance of the ICC & will feed the perception that it is a tool of “Western Imperialism, out of touch with reality”.

  • Posted by Hank

    It is significant that cases are not being brought against non-African leaders. For example, the military generals ruling Myanmar were responsible for slave labor, disappearances, extra-judicial murders and much else. Why were they not indicted? Indonesian leaders perpetrated terrible atrocities in Aceh, Timor, and West Irian. Why were they not indicted. The argument that only Africans are indicted has merit.

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