It was reported last month that the Kenyan Parliament passed a motion calling on the government to withdraw from the International Criminal Court (see posts by Kevin Jon Heller at Opinio Juris – here and here - and the discussion by Charles Jalloh at International Criminal Law Ferment – here and here). This move followed the ICC Prosecutor’s successful application to the Pre-Trial Chamber for issuance of summons for six senior Kenyan officials accused of crimes against humanity in connection with the post election violence in that country (see previous EJIL:Talk discussion here). As Kevin Jon Heller noted in his second post (here ), that Parliamentary motion was then denounced by the Prime Minister. However, it has now been reported in the Kenyan Press that the Kenyan governments (or parts of it) are engaged in an effort to lobby other African governments to adopt a resolution at the African Union Summit at the end of January which would call for withdrawal by African States from the ICC.
On Tuesday 10 January, the Kenyan Weekly Standard reported that :
Kenya is laying ground for a motion to be tabled at the African Union Summit in Ethiopia that could trigger withdrawal of African states from the Rome Statute that founded the International Criminal Court.
Sources in Government told The Standard, the plot to instigate the pullout from International Criminal Court is being driven by a shuttle diplomacy by some ministers within African capitals ahead of the January 30-31 AU meeting in Addis Ababa. This meeting is expected to set the agenda for the main Summit attended by African leaders in July.
…The Government, it was further reported, has or is about to assign five ministers with the envoy role in this mission of lobbying African states …
The AU deal Kenya is pursuing entails backing a motion moved by a African Arab state that may see the Africa Union summit this July endorse a choreographed pull out from the manacle of the Rome Statute. Because of the indictment of al-Bashir, the use of an Arab state to float the motion would strategically be seen as taking Kenya out of the picture, and making her look like just part of the wave of Africa’s protests against alleged bias against the continent by ICC.
It is difficult to know how much truth there is to these reports. The same paper has since carried stories reporting denials by some of the key figures allegedly involved in this lobbying effort (see here and here), including a denial by Ben Kioko, the AU’s chief Legal Adviser who was alleged to have been asked to advise the Kenyan government.
This is not the first time that there have been calls for mass withdrawals by African States from the ICC. In 2009 after the indictment for Bashir was issued, there were similar musings of withdrawals by African States. Not only did this not materialise, the AU did not call for it. Much has been made by some of the alleged bias against Africa by the ICC. While all five situations before the Court are from the African continent it should not be forgotten that three of those five situations were referred to the Court by those countries. Also, although the Kenya situation is being investigated by the Prosecutor proprio motu, the Kenyan government and other African leaders supported the involvement of the ICC when it proved difficult to obtain prosecutions in a domestic special tribunal in Kenya (see also here and previous EJIL:Talk discussion here). So this situation is not at all like the Bashir case and it is difficult to see how it could galvanise African anti-ICC sentiment. Talk of withdrawal was very contentious even with regard to Bashir and only a small number of African States seemed to even contemplate that possibility then. I think it is very unlikely that the AU will adopt a call for withdrawal based on Kenya. But will they do so based on Bashir? I also doubt that. There is some frustration on the part of African States that the AU’s request to the Security Council for an Art. 16 deferral of the Bashir proceedings has not been responded to (see discussion of the here) but I don’t think there is evidence that African States are looking to abandon the Court.