Attack on Kenya's Westgate Mall Sparks African Union's Battle with the International Criminal Court

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Amidst growing unhappiness with the International Criminal Court, the African Union now demands the trial of Kenyan President Uhuru Kenyatta be postponed following the Westgate Mall shooting in Nairobi, Kenya.[1] President Kenyatta and his deputy, William Ruto, are both charged with crimes against humanity.[2] The two are accused of being involved in violence that followed the disputed presidential elections of 2007 leaving over 1,100 people dead and more than 600,000 displaced.[3]

The International Criminal Court was established in 2002 when its founding treaty, the Rome Statute, entered into force.[4] The ICC was created to prosecute claims of genocide, crimes against humanity, and war crimes that were not being properly investigated in the countries where they took place.[5] Today, 122 countries have ratified the Rome Statute and submitted themselves to the ICC’s jurisdiction.[6] Of the African Union’s 54 members, 34 are parties to the ICC.[7]

The members of the African Union believe that no sitting head of state should be prosecuted by an international tribunal, and that the trial of President Kenyatta should be postponed as a result.[8] Pressure has been building for the African signatories of the Rome Statute to withdraw from the ICC en masse.[9] In fact, Kenya’s parliament has already passed a motion for the country to withdraw.[10] However, only a handful of African countries are publicly urging a pullout, namely Kenya and Sudan, whose president, Omar al-Bashir, has also been criminally charged by the ICC.[11] To pull out of the ICC, countries would have to pass legislation to reverse their ratification of the Rome Statute, notify the United Nations of their decision, and wait a full year for the withdrawal to take effect.[12] While no further charges would be brought against a nation’s leaders following withdrawal, it would have no legal effect on current cases before the ICC.[13]

Relations between the ICC and the African Union have deteriorated largely because the court’s eight formal investigations in over a decade of existence have all targeted Africans.[14] However, five of these cases—in the Democratic Republic of the Congo, the Central African Republic, Mali, Uganda, and Ivory Coast—were requested by the countries’ own governments.[15] The cases in Sudan and Libya were referred by the ICC Security Council with the support of the council’s African members.[16] The ICC prosecutor has also started investigations in several non-African countries, including Afghanistan, Colombia, and Georgia, though they are only in the preliminary stages.[17]

The African Union’s dissatisfaction came to a head following the recent siege on Westgate mall, which killed more than 60 men, women and children in Nairobi, Kenya.[18] Deputy Ruto was standing trial at The Hague when the Westgate attack occurred and was granted a one-week leave from his trial.[19] President Kenyatta is scheduled to stand trial in The Hague next month without delay.[20] Westgate has garnered the African Union’s mission more support, highlighting the practical need for heads of state to be home to govern their countries in times of need.[21] Yet solutions to the issue at hand seem limited. As mentioned previously, leaving the ICC is a possibility.[22] However, an exodus from the ICC “would serve no purpose except to shield from justice, and to give succor to people suspected of committing some of the worst crimes known to humanity,” said Tawanda Hondora, deputy director of London-based rights group Amnesty International.[23] African member states have also proposed the option of President Kenyatta attending his trial by video link.[24] The court has yet to rule on this seemingly more practical option.[25]


[1] See Faith Karimi, African Union accuses ICC of bias, seeks delay of cases against sitting leaders, CNN (Oct. 12, 2013), http://www.cnn.com/2013/10/12/world/africa/ethiopia-au-icc-summit/; Nicholas Kulish & Benno Muchler, African Union Urges International Court to Delay Kenyan President’s Trial, The New York Times (Oct. 12, 2013), http://www.nytimes.com/2013/10/13/world/africa/african-union-urges-delay-in-kenya-leaders-trial.html?_r=0.

[2] See Karimi, supra note 1; Kulish, supra note 1; Patrick McGroarty, South Africa Walks Fine Line Over International Court, The Wall Street Journal (Oct. 10, 2013), http://online.wsj.com/news/articles/SB10001424052702303382004579125251010452402; Gabrielle Steinhauser, The ICC and Africa Explained, The Wall Street Journal (Oct. 10, 2013), http://online.wsj.com/news/articles/SB10001424052702303382004579125550188681432.

[3] See Karimi, supra note 1; Kulish, supra note 1; McGroarty, supra note 2; Steinhauser, supra note 2.

[4] See Steinhauser, supra note 2.

[5] See id.

[6] See id. The United States is not a member nation of the International Criminal Court. See id.

[7] See Kulish, supra note 1.

[8] See Karimi, supra note 1; Kulish, supra note 1; African Union urges ICC to defer Uhuru Kenyatta case, BBC News: Africa (Oct. 12, 2013), http://www.bbc.co.uk/news/world-africa-24506006?print=true [hereinafter BBC].

[9] See BBC, supra note 8; Karimi, supra note 1; Kulish, supra note 1; McGroarty, supra note 2; Steinhauser, supra note 2.

[10] See BBC, supra note 8.

[11] See McGroarty, supra note 2.

[12] See Steinhauser, supra note 2.

[13] See id.

[14] See Karimi, supra note 1; Kulish, supra note 1; Aaron Maasho & Edmund Blair, African Union runs critical eye over ICC, Reuters (Oct. 11, 2013), http://www.reuters.com/assets/print?aid=USBRE99A0BS20131011; McGroarty, supra note 2.

[15] See Steinhauser, supra note 2.

[16] See id.

[17] See id.

[18] See Kulish, supra note 1; McGroarty, supra note 2.

[19] See McGroarty, supra note 2.

[20] See id.

[21] See Kulish, supra note 1.

[22] See BBC, supra note 8; Karimi, supra note 1; Kulish, supra note 1; McGroarty, supra note 2; Steinhauser, supra note 2.

[23] Maasho, supra note 14 (quoting Amnesty International Deputy Director Tawanda Hondora).

[24] See id.

[25] See id.


Posted by Emily C. Doll on Thu. November 7, 2013 8:00 AM
Categories: African Union, International Criminal Court, International Human Rights, Kenya

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