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Home EJIL Analysis Is Kenya Pushing for a Mass African Withdrawal from the ICC?

Is Kenya Pushing for a Mass African Withdrawal from the ICC?

Published on January 14, 2011        Author: 

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.

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5 Responses

  1. Thomaz Santos

    Dear Dapo,

    Besides the Kenyan Weekly Standard, are there any other sources that also mention the possibility of mass withdrawal from the ICC? Any within the AU itself?

    Concerning the alleged bias against Africa by the ICC, it has already been said that Moreno-Ocampo’s conduct as Chief Prosecutor is the main reason for the anti-ICC sentiment.

    In this sense, since a new prosecutor will soon have to be elected, couldn’t the African members of the ASP push for someone more “in tune” with their political and legal concerns? That being said, do you know of any candidates already campaining for the job?

    Best regards,

    Thomaz Santos

  2. Dapo Akande

    Thomaz,

    The reports about the Kenyan lobbying effort for an AU resolution to call for withdrawal from the ICC were carried by a number of different Kenyan media organizations early this week. They have since been picked up by the international media (see reports at the ICC Observers blog). I don’t know whether these reports are from multiple sources are not. I also don’t know if there are any AU sources that would confirm this. As I said in the post, Ben Kioko, the AU Legal Adviser has denied that he has been asked to advise Kenya on this. However, I do know that the NGO community (internationally and in Africa) is taking the matter seriously and are themselves engaging in an advocacy campaign to counter this call for withdrawal.

    The term of the current ICC prosecutor comes to an end in 2012 and a new prosecutor should be elected at the upcoming 10th session of the ICC Assembly of States Parties. African States constitute the biggest regional group in the ASP so they should have significant influence in choosing the new prosecutor. I am sure that there will be many readers with a better idea of who is in the running to be the new ICC prosecutor than me. I have heard it said that the current ICTY prosecutor Serge Brammetz , who was Deputy Prosecutor at the ICC, is in the running. One would also expect that there will be a move to have an African prosecutor, perhaps the current Deputy Prosecutor or as has been rumoured, the current Attorney General of Botswana (which has taken a very pro-ICC stand) in the AU.

  3. Thomaz Santos

    Dapo,

    Thank you for your reply.

    I agree with you that it is unlikely that a mass withdrawal will occur, but the mere rumour is enough to raise concerns.

    On the election of the new prosecutor, of the names you mentioned, I think Bensouda and Brammetz may have better chances given their current involvement in international criminal justice, although Molokomme is also a great choice, even more so if we take into consideration her experience and activism with women’s rights .

    Best regards,

    Thomaz Santos

  4. [...] the fact and fiction of Kenya’s and the ICC. Dapo Akande, Is Kenya Pushing for a Mass African Withdrawal from ICC?, [...]

  5. Chris

    Dapo,

    As a stronger supporter of ICC, Iam disappointed that Ocampo and his friends have really politicised this Court. US despite being the non member and its earstwhile enemy seems to call the shot as to how this Court works. And dont forget the weakleaks revelation which seem to suggest that Ocampo takes instructions from Washington. I honestly think ICC is a great institution but sadly the way it conducts itself confirms our fear that ICC is being used to score some cards especially against the weak.

    As an African, I strongly support that dictators should be punished whether in the Hague or Arusha. But we have to wake up to the reality that its high time international community realized that even we Africa/ns are sovereign countries deserving a portion of respect. Crimes are being committed everywhere and it is on Ocampo to clearly be objective as much as possible. I would not support massive withdrawal. But the Court has really to change its approach of treating Africa as a Guinea Pig. And I can assure you, ICC has done itself a damage..it has lost credibility among African governments. Whatever way you look at it…These are the governments we have..so hate them or like them..they are there and they have to be listened to. NGOs cant replace African governments. Thats the reality we have to contend with.

    As to the next Prosecutor, AU is clear that the next one should come from Africa. Yet, this again confirms our fear that this Court soon or later will be a political organ. I hear Jallow (ICTR Prosecutor) is in the running. and he has a strong support from US and its Ambassador for WAR Crimes (Stephen Rapp (who is a former colleague of Jallow in ICTR). So we will see how again US calls the shot and unfortunately..unless we really get to be serious ICC wont be the Court most of us expected.