Kenya's Credible Commitment to Keep its Date with the ICC

Abstract

Louis Moren O'Campo, the ICC Prosecutor has named six Kenyans suspected of committing crimes against humanity. He seeks to have an ICC Pre-Trial Chamber confirm these planned indictments early in 2011. Subsequently, the Kenyan Parliament voted to have Kenya withdraw from the Rome Statute.

This vote will not affect the planned indictments since a notification for a country's withdrawal from the Rome Statute would have to have been in place much earlier to stop the investigation and possible indictments. In any event, O'Campo will have no easy task to prove that crimes against humanity were committed in Kenya. Unlike with Kenyan Parliamentarians, the Kenyan public is overwhelmingly in favor of O’Campo proceeding with the prosecutions. At the Hague, these high-ranking Kenyans will have no control over the prosecutor’s case in the same way that Kenya by repeatedly frustrating the establishment of a local tribunal to try post election violence offenders. The moment for accountability for those most responsible for the violence in the highest echelons of the government is best guaranteed at the Hague.

This short article argues that there is perhaps no better example exemplifying one of the most credible theories of compliance with international law than the Kenyan government’s commitment to cooperate with the ICC, (that is notwithstanding the aforesaid Parliamentary vote), since credible domestic prosecutions are a near impossibility. In short, weak domestic institutions are anchored or backed up by international institutions as an alternative. The only other possible explanation is that when Kenya ratified the Statute of the ICC, it did not believe that its own leading politicians would land before the ICC. Yet, the evolving scenario so far suggests that the intended prosecutions not only make up for the inability of Kenya to have its own credible ones, but will also likely help Kenya avoid future violence and to consolidate a durable peace. Clearly, there are outcomes that cannot easily be achieved in the absence of treaties and it seems Kenya’s ratification of the ICC statute, Parliament's subsequent enactment of implementing legislation and the incorporation of international law as a source of Kenyan law in the widely ratified 2010 Constitution, clearly foreswore Kenya to resort to the ICC in the event of the kind of post-election violence following the 2007 General Election.

Keywords: Kenya, Rome Statute, Compliance, International Law, Crimes Against Humanity