Kenya became the first country to approve a motion to withdraw membership from the International Criminal Court (ICC) yesterday. While the potential withdrawal will not affect the charges already brought against leaders in Kenya, it sets a bad precedent for other countries party to the ICC, increases the likelihood of impunity, and leaves no recourse for future victims of violence.
The ICC – established by the Rome Statute in 1998 – is meant to prosecute four egregious international violations: genocide, crimes against humanity, war crimes, and crimes of aggression. Kenya’s president, Uhuru Kenyatta, and deputy president, William Ruto, have both been charged with committing crimes against humanity during the 2007 post-election violence in which more than 1,200 people were killed and 600,000 others displaced, while an estimated 3,000 faced sexual violence.
African nations have expressed concern over the operations of the ICC, citing the disproportionate prosecution of African leaders. However, the court’s docket is based on the makeup of states that are party to the Rome Statute, cases that are referred to the court, and the existence of other international tribunals that have jurisdiction over mass atrocities committed elsewhere. For example, four out of the eight situations that the ICC is currently handling were initiated at the request of those countries themselves. Furthermore, international courts other than the ICC have carried out prosecutions in many other countries. Prior to the founding of the ICC, the International Criminal Tribunal for the former Yugoslavia prosecuted war crimes committed during the conflict in the Balkans in the 1990s and the International Military Tribunal at Nuremberg worked to provide justice for the victims of the Holocaust. Currently, the Extraordinary Chambers in the Courts of Cambodia is prosecuting those responsible for crimes committed during the Khmer Rouge regime and the Special Tribunal for Lebanon is holding trials for an attack in Lebanon in 2005 that killed 23 people including the country’s former prime minister.
However, continued distrust of the ICC among some nations combined with Kenya’s potential withdrawal may lead additional African countries to follow Kenya and reconsider their memberships. Kenya’s action sets a bad precedent for countries involved in activities prohibited under international law. With countries refusing to pursue justice through the one permanent option available, it’s a dreary picture for victims and their family members.
Many countries recovering from such atrocities do not have the means, or are otherwise unwilling, to deliver justice to victims. The ICC offers people an avenue to justice when in-country courts are unable or unwilling to do so. By withdrawing from the ICC, Kenya’s leaders are telling victims of violence that they will not provide justice locally and will do everything in their power to stop international actors from pursuing justice as well.
Kenya’s leadership is taking the country a step backwards and perpetuating a culture of impunity. While the current prosecutions in Kenya will continue, future victims may not have the jurisdiction of the ICC to help make things right. The lack of cooperation from Kenya, and possibly other African nations, can only disrupt and delay the delivery of justice to victims.