It was on 9th of April 2013 that Uhuru Kenyatta became Kenya’s new president and at the same time, he became the second sitting head of state that faces charges at the ICC, the other one being Sudan’s president al-Bashir, a well debated person in the ICC context. But besides the fact that both are incumbent presidents accused of, amongst others, crimes against humanity, there is a fundamental difference between these two situations. Sudan always opposed the ICC and refused to become a member state, contrary to Kenya that seemed quite supportive of the ICC in its initial years. This is indicated by the fact that Kenya signed and ratified the ICC’s underlying treaty, the Rome Statute. Furthermore, the Kenyan government publicly rejected to sign a U.S. “Bilateral Immunity Agreement” (BIA) due to its commitment to the ICC, despite of large economic penalties imposed by the USA.
However, Kenya’s strong commitment changed after the ICC started official investigations in its own country related to the post-election violence in 2007 and the government became very creative in stopping the ICC from investigating. For instance, it claimed that the prosecutions will threaten international peace and security, that the country is already holding trials on a domestic level and that the ICC has no jurisdiction over it or that the prosecutions are partial. Until now, none of these claims were approved by the ICC or the Security Council.
Kenya’s opposition to the ICC heated the ongoing debate on an African disengagement from the Court. The Kenyan government states that the ICC is “hunting” Africans as until now all charges were against Africans. What might seem as a plausible explanation for the growing contestation at first glance, does, however, not exactly reflect reality.
Let’s take a look at the other ongoing ICC situations. Until now, there have been official investigations in the Republic of Uganda, Democratic Republic of Congo (DRC), Central African Republic (CAR), Republic of Sudan, Libya, Republic of Côte d’Ivoire and the Republic of Mali.
For a comparison with Kenya as a member to the ICC, let’s concentrate on the countries which also signed and ratified the treaty: Uganda, DRC, CAR and Côte d’Ivoire (Mali is a quite relatively new situation, so I leave it for now). Comparing these situations, the most interesting fact is that all of them referred their situation to the ICC themselves, meaning they asked the prosecutor to start investigations in their own country (a so called “self-referral”).
For clarification, in the official version the referral in Côte d’Ivoire was initiated independently by the ICC, but in fact Côte d’Ivoire did ask the ICC to initiate investigations. The reason that the country could not itself refer its case to the ICC is that, at this time, it had not yet been an ICC member state. It is therefore called “(another) kind of self-referral”.
Thus, it is not plausible to claim that the Court is wrongfully only targeting African states as these countries wanted the ICC to investigate on their territories. But why does Kenya oppose the ICC’s investigations? I consider two reasons:
First, Kenya is the first case in which both sides to the conflict have been prosecuted and the government did not profit from the investigations. Quite the contrary, in Uganda, only members of the rebel group “the Lord’s Resistance Army” have been prosecuted, not politicians of the current government. Similar in DRC, until now only members of rebel groups, e.g. the “Patriotic Force for the Liberation of Congo” are prosecuted and no action has been taken against high-ranking individuals in the government. In CAR, only a political opponent, who fought under the outgoing government’s side, was prosecuted while political leaders in the government were spared. As well in Côte d‘Ivoire, where only the former president is prosecuted whilst sitting politicians were not considered. Accordingly, the governments have been very cooperative as these investigations had been in their interest and one might come to the same conclusion as Dr. Phil Clark, who argues that “African governments have become very effective in manipulating international institutions to their own political aims” and leaves a bitter taste of “victor’s justice”, namely judging only the losing side.
Second, in the Kenyan situation there have been serious legal controversies whether the situation really falls within the jurisdiction of the ICC, that means if (i) it had been grave enough for the ICC to investigate and if (ii) the crimes fall within the definition of “crimes against humanity”.
(i) “Gravity” is an aspect that estimates if a case is grave enough to justify the involvement of the ICC, a main indicator being the number of victims. It should not be neglected that the crimes committed in Kenya have been very serious, but compared to the amount of victims in civil wars such as e.g. the DRC, it might seem relatively low and therefore not as grave as in other situations. So it remains disputable if an International Criminal Court is the right institution to investigate.
(ii) Furthermore, to define a crime as being “against humanity”, five criteria need to be fulfilled, one being that the crime must be committed by an organizational policy. In Kenya, it was ambiguously debated if this has really been the case. Peter Kaul, one of the ICC judges, argues that entities such as “criminal gangs”, “youth militias” or even local policemen, who sympathized with political groups in carrying out attacks in the Kenyan situation, cannot be considered as state-like organizations and therefore it remains ambiguously debated if the crimes are “crimes against humanity”.
These two aspects, the legal controversies and even more the fact that the Kenyan government does not profit from the ICC investigations, might explain Kenya’s non-compliance.
Kenya, the first ICC member state that refused to cooperate with the Court, will remain a critical case. On the one hand, it shows that there are still legal controversies on definitions etc. that have to be debated and discussed as the Court grows. On the other hand, the more important question is if the ICC will be able to ensure the cooperation willingness of its member states, even if the investigations are not in their interest.