The Multilateralist

Can Kenya ditch the ICC?

Ever since the prosecutor of the International Criminal Court identified six prominent Kenyans he is targeting for indictment, Kenya’s political class has been exploring ways to extricate the country from the court. Last week, despite the protests of human rights activists and a number of mostly European governments, the Kenyan parliament overwhelmingly passed a resolution ...

Ever since the prosecutor of the International Criminal Court identified six prominent Kenyans he is targeting for indictment, Kenya’s political class has been exploring ways to extricate the country from the court. Last week, despite the protests of human rights activists and a number of mostly European governments, the Kenyan parliament overwhelmingly passed a resolution calling for the country to withdraw from the court.

By itself, that measure has little effect. The Kenyan government itself would have to formally notify the court of its intention to withdraw from the Rome Statute, which it has not done (and may not). Moreover, the Rome Statute provides that a withdrawal will not take effect for one year and will, in any case, not affect ongoing investigations. The ICC is very unlikely to abandon the ongoing investigation, which is the first initiated by the prosecutor himself rather than  a member state or the UN Security Council.  Kenya’s prime minister, at least, appears to understand that even formal withdrawal probably won’t short circuit the process.  

But in the broader sense, the opposition of Kenyan lawmakers matters.  It increases the chances that the Kenyan authorities will actively impede the investigative work still to be done and oppose the enforcement of formal arrest warrants.  As important, it sharpens the already pronounced animosity between African leaders and the court. During the parliamentary debate last week, key Kenyan officials openly endorsed a neocolonial interpretation of the court. "It is only Africans from former colonies who are being tried at the ICC," one minister was quoted as saying. "No American or British will be tried at the ICC and we should not willingly allow ourselves to return to colonialism." 

That rhetoric resonates on many parts of the continent. And if Kenya does become the first member country to leave the court, its move could trigger a broader exodus in Africa. 

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