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- miltonlaw: Africa and the Concept of Positive Complementarity The answer to the allegation that Africa is inappropriately targeted by international criminal court could as well lie in the sui generis concept of positive complementary. My doctoral thesis research title is: The international criminal court and positive complementarity: Institutional and legal framework. I. Introduction It is the... (more)
- almariam: Saving the ICC: A Proposal for a Witness Protection Program Justice delayed, again? In late January of this year, I wrote a commentary entitled, “Kenyatta at the ICC: Is Justice Deferred, Justice Denied?” In that commentary I openly expressed my angst over the endless delays, postponements and backpedalling talk about “false evidence” and “lying witnesses” surrounding the Uhuru Kenyatta trial at The Hague. I felt there was perhaps... (more)
- almariam: Kenyatta at the ICC: Is Justice Deferred, Justice Denied? I am getting a little jittery over the repeated delays, postponements and all the backpedalling talk about “false evidence” and “lying witnesses” in the Uhuru Muigai Kenyatta International Criminal court trial. I don’t want to say I smell a rat but I feel like I am getting a whiff. Is the stage being set to let Kenyatta off the ICC hook? There has been feverish... (more)
- Marius_: How can we choose to hide behind claims of moral inappropriateness when - in fact - these crimes are indeed taking place on sacred African soil!? Yes! It is imperative that the ICC should, despite the influence of the 'Powers-that-be', focus on initiating proceedings on crimes within its jurisdiction taking place outside the African continent, so as to meet the dictates of fairness. But that is not to say that the ongoing cases in Africa are without their individual basis. The victims of those... (more)
- ecalmeyer: Mass African Withdrawal from the ICC: Far from Reality Introduction One hundred and twenty two countries are States Parties to the Rome Statute of the International Criminal Court (“ICC”).1 Thirty-four are in Africa, making African states the largest continental bloc of ICC signatory countries.2 Many African nations believe that the International Criminal... (more)
- John Litwin: The International Criminal Court and African Politics Introduction Given the recent vote by the Kenyan parliament to withdraw from the Rome Statute,1 it is necessary to examine the non-meritorious, political reasons that may be motivating the proposed African boycott of the International Criminal Court (ICC).2 Comprising over a quarter of all member-states,3 a withdrawal from the ICC by... (more)
- Jenevieve Discar: Potential ICC Responses to Kenya’s Proposed Withdrawal Introduction Kenya’s recent, precedent-setting vote to withdraw from the ICC highlights the critical nature of this debate; regardless of whether the ICC is actually unfairly biased towards Africa or not, the perceived bias is greatly affecting its reputation and its ability to operate effectively. Kenya’s withdrawal should... (more)
- emilygiven: Complementarity: Too Stringent a Test? While critics claim that the ICC’s focus on crimes committed in Africa is inappropriate, its defenders cite the Prosecutor’s preliminary examinations of non-African crimes as evidence to the contrary. Because the Office of the Prosecutor is evaluating situations outside Africa with an even hand, defenders argue, the Court exhibits no bias against Africa. Several preliminary examinations of non-African... (more)
- karen.kwok: Syria: a Case Study of the ICC’s Limited Jurisdiction Since its inception in 2002, all situations under investigation or prosecution have been in Africa. Critics have claimed that the ICC’s focus on Africa has been inappropriate. In particular, the ICC has been accused of having an African-bias in situation selection. However, such critiques regarding ICC’s unfair targeting of Africa... (more)
- kennygbite: The question “Is the International Criminal Court targeting Africa inappropriately?” is influenced obviously by the fact that all the cases so far being handled by the ICC fall within Africa as if crimes within the jurisdiction of the Court are not taking place in other continents. However, assuming Africans so far indicted by the Court actually committed these crimes, should the question still arise simply because their counterparts in other continents are not being investigated nor prosecuted... (more)
Comment on the Africa Question: “Is the International Criminal Court targeting Africa inappropriately?”
Potential ICC Responses to Kenya’s Proposed Withdrawal
Introduction
Kenya’s recent, precedent-setting vote to withdraw from the ICC highlights the critical nature of this debate; regardless of whether the ICC is actually unfairly biased towards Africa or not, the perceived bias is greatly affecting its reputation and its ability to operate effectively. Kenya’s withdrawal should not affect the case against President Uhuru Kenyatta and Vice President William Ruto—since legal proceedings have already begun, under article 127 of the Rome Statute, Kenya still has a legal obligation to fully cooperate with the case. However, after Kenya’s withdrawal comes into effect, the ICC will be unable to respond to any future atrocities in Kenya, absent a Security Council referral. The situation may be even more critical, with talk of an anticipated AU proposal for all its members to withdraw from the ICC. In the face of rising tensions, how could the ICC respond, if it were to actively seek to retain Kenya and any other African state party that may seek withdrawal from the ICC?
Four Potential ICC Responses
1. Notably, the ICC is very limited in its capacity to respond; it cannot, for instance, allocate more resources to investigating conflicts outside of Africa or push forward preliminary investigations in conflicts outside of Africa in an effort to repair relations with African members, since the ICC cannot politicize investigations. Furthermore, even if the OTP could reallocate resources outside of Africa or focus on other conflicts, such a move would likely prove insufficient to appease African members, since the OTP is already conducting preliminary investigations in Afghanistan, Colombia, Honduras, South Korea, and other member states.
2. It may be possible for the OTP to suspend the Kenyatta/Ruto case in the interest of justice, recognizing Kenya’s pending withdrawal from the ICC, along with recent decreases in violence in Kenya. The ICC could suspend the case temporarily as a show of good faith to help repair relations with Kenya. However, it is unclear whether the OTP has the authority to suspend a case that is already being tried. Also, in the interest of fairness to the accused, it may be preferable to dismiss rather than suspend the case.
3. In order to protect the ICC’s legitimacy, the UN Security Council may propose to suspend prosecution for a year, which it is empowered to do in order to “maintain or restore international peace and security.” Under article 16 of the Rome Statute, the UN Security Council can pass a resolution under its Chapter VII authority to defer an ICC investigation or prosecution for a renewable period of 12 months. Of note, however, the UN Security Council has never before invoked the article 16 provision. Additionally, this may not do much to repair relations between the ICC and its African members more generally; even if a suspension were to prevent Kenya from withdrawing, such an act may cause other members to similarly refuse to cooperate with ICC investigations in the hopes of having their own cases suspended, particularly those involving government heads.
4. Alternately, the OTP could release a public statement declaring that the chemical attacks in Syria constitute a war crime—essentially, parroting Secretary-General Ban-Ki Moon’s statement. This could turn attention away from Africa and substantiate claims that the ICC is concerned about conflicts outside of Africa. However, releasing such a statement is outside of the official authority of the ICC. Additionally, this would be seen as engaging in politics, which may result in further criticism from the international community.
Conclusion
Significantly, if the ICC were to respond with any sort of action, it may lend weight to the argument that the ICC had, in fact, formerly been biased towards Africa; if there had not been any bias, some may argue, the ICC would not have felt any need to rectify that perception. Additionally, any response from the ICC may also cause the ICC to further lose credibility and legitimacy for engaging in politics.
Kenya’s actions may set a dangerous precedent, inciting other African members to withdraw from the ICC. It seems that, at this point, there is little that the ICC could do to appease Kenya and other African member states without acting politically; in the end, it may be necessary for the ICC to engage in politics in order to retain the African member states and continue to function effectively. Of the options contemplated above, the one that is most justified and least likely to draw criticism from the international community would be a statement from the OTP voicing concern over Syria. While releasing such a statement appears political, it is within the ICC subject matter jurisdiction and, given Ban-Ki Moon’s recent statement on the issue, it is unlikely to be controversial.