Kenya votes to leave the International Criminal Court, but what does this mean for the ICC?

Calum Young is studying for a masters in European Law at the University of Leiden, having previously studied both Law and German.

Due to the developing crisis in Syria over the use of chemical weapons, it has been suggested in some quarters that one solution could be to refer Assad to the International Criminal Court (ICC) in The Hague. Advocates of this position highlight its advantages over a military strike, and describe it as being ‘multilateral, inclusive and legally rigorous’. However, the very body they hold up as having the requisite strength to deal with this firmly-entrenched dictator recently suffered a significant blow, one which is a textbook example of the court’s inherent structural weaknesses.

This week, parliamentarians in Kenya passed a motion on leaving the Rome Statute establishing the ICC, with legislation to follow soon. This is primarily as a reaction to the ICC charging both the current Kenyan president and deputy president with war crimes.

After disputed elections took place in Kenya in 2007, widespread violence broke out across the country, causing the deaths of more than 1000 people, and resulting in the displacement of more than 600,000. The two of them were charged with involvement in the organisation of the violent action of a specific politico-religious group.

The withdrawal from the ICC is, to an extent, a direct reaction to the ICC charging the two most significant members of the Kenyan government currently in office. Given their popularity within the country, as indicated by the recent presidential election results, the charges were met with much criticism of the court’s role, and eventually led to withdrawal. This process reflected wider views across Africa on the court’s perceived intrusion into the domestic affairs of African countries, and its unequal focus on Africa at the expense of human rights’ violations committed elsewhere. No other African country has yet withdrawn from the convention, but several months ago, the African Union accused the ICC of ‘hunting’ Africans because of their race.

The Kenyan withdrawal clearly demonstrates one of the fundamental structural weaknesses of the ICC, namely that countries are free to either accept or reject the court’s jurisdiction at will. This has resulted in 3 members of the United Nations Security Council refusing to accept it, namely Russia, China, and the USA. The fact that these three major countries have consistently refused to accept the court’s jurisdiction is used by further countries to justify their own non-participation. A prominent African country removing itself from the court very publicly will further undermine the court’s status, both within Africa and the wider international community.

Secondly, it undermines the court’s strategy of bringing charges against suspects who still remain in relevant positions of power. This has previously been employed against Muammar and Saif Al-Islam Gadaffi, Charles Taylor, Omar Bashir as well other suspects. Whilst there are logical reasons behind the court’s previous actions, they do still retain the risk of such a backlash, and negative effects on the court’s ability to act in the future.

Given the example recently set by the actions of Kenyan MPs, states will be far more inclined to merely withdraw from the jurisdiction of the ICC if their much supported leader comes under risk of prosecution whilst still in office. The combination of this precedent, as well the already large number of countries not subject to the court’s jurisdiction leaves it in an ever-weakening position. Unfortunately for advocates of an internationalised justice system, and especially for those who seek such an action as a move towards a solution to the situation in Syria, the ICC suffers from significant structural problems that vastly limit its ability to usefully contribute at any given time.

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