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ICC move in Ruto case violates legal norms

By Dr Duncan Ojwang | Sep 21st 2015 | 4 min read

NAIROBI: The international law and courts are a creation of international political systems through voluntarism and the international norm of state consent.

Whether it is the UN, ICC, Westphalia, East Africa Community, Versailles or even the Rome statute, they are bound by the norm of state consent.

An international body that goes beyond its scope of authority given through states’ consent threatens its very foundation of existence and legitimacy.

Courts must therefore at all times consider the limitation placed on them by the state parties; they are constrained by norms.

Thus, the ICC ruling admitting recanted evidence on Ruto’s case on the basis of the new rule 68 violates the international normative foundation on state sovereignty and independence. The amendment was consensual among the state parties during their 12th session.

The above norm is what informed the Defence position that as part of the consensus to pass the amendment, the African State Parties were all assured it was non-retroactive and could not apply to Ruto’s and Sang’s cases.

The understanding on non-retroactivity found its way to the preamble of the amended rule 68 document before the court. The actual word used in Article 24 of the Statute provides: 1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.

Therefore, the judges’ reasoning that they could not give much emphasis to the language of the preamble might be incorrect. The judges admitted that they could have obeyed the state parties if they had clearly stated that the amendment couldn’t apply retrogressively, but not merely stating that amendment cannot prejudice the existing defendants’ rights. This might be a matter of putting form over substance and simply splitting hairs.

Underlying legal reasoning on using amended article 68 of the Rome Statute to that extent violates the norms of state consent. Only when we appreciate the legal dimension of international law as normative, can we start understanding the glaring error of the court.

Most important of all is that it is a norm for states and international institutions to adopt statements of understanding even in non-binding legal context as long as it is proof of consent.

This norm does not elevate form over substance and maintains that any source, even if it is “soft law”, is to be considered. These agreements contained in the text remain binding because of the normative principle of pacta sunt servanda or good faith.

Because of the principle, the mode of adoption of that agreement whether in text or “preamble”, does not matter because of the principle of good faith, which is one of the tenets of the Vienna Convention on interpretation of law of treaty.

 This makes the agreement, draft and speeches given assuring Kenya that the amendment could not be used in existing cases binding on the court, which enforces laws made by the Assembly of State Parties.

The two fundamental international norms that were arguably violated by the decision are; the Kenya state and African nations consent and the second one is the principle of utmost good faith.

International community and international courts are simply governed by norms.

The majority of literature maintains that international law, international courts and bodies simply get their legitimacy on the basis of the member states consent.

State consent is the only authority of legitimacy in international bodies, including ICC.


It is an element of states sovereignty to consent to their jurisdiction. State consent is the key norm of international law.

The Vienna Convention on the law of treaties adopts state voluntarism as the basis of making the peremptory norm so important that there is no derogation by any state.

Article 53 of the Vienna Convention on Law of Treaties provides that peremptory norms that are the most important are still based purely on a state consensual regime.

This is the reason the USA has refused to join the court based on the principle that a country is bound by agreement when they consent.

Except in the Sudan case, which is unique, the consent to take President Al Bashir to ICC was not based on their ICC membership but on their voluntary membership to the United Nations.

The importance of norms is that they go beyond any judge’s personal perception or temptation to privilege some ideas.

It is what gives courts their legitimacy and authority to their decisions. It is a delegated authority, just like the moon borrows light from the sun.

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