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Kenya’s threat to withdraw from ICC will undermine spirit of international law

By DrNjenga Solomon | February 22nd 2016

The recent attempt by African leaders to withdraw Africa from the Rome Statute was not only selfish but also archaic! Indeed, the Rome Status carries with it a lot of many other co-joined efforts to help Nations in the World caution themselves from any extreme eventuality. It’s true that the relations between Kenya and the ICC could not be worse than the current state of affairs.

Now, the ICC is perceived as being anti-African. Some African leaders are also thought to be fearful of the ICC. The AU has expressed its grave concerns about the ICC and subsequently decided not to cooperate with the ICC. Kenya ratified the Rome Statute on 15th march 2005 and was among the first African nations. Ratification of the Statute allowed the international criminal court jurisdiction over war crimes, crimes against humanity, and genocide committed by Kenyan nationals and any other nation. Under the provisions of international law captured in the 1969 Vienna Convention on the Law of Treaties, Kenya must comply with obligations, including that of cooperating with the ICC as a requirement under the Rome Statute, arising from the subject matter inquiry before the trial chambers. Those are norms that apply to any international treaty and withdrawal from being a signatory to a treaty does not automatically or immediately release a state from all obligations relating to the treaty. A state can choose to disentangle itself from a commitment it willingly made to the letter of the law in an international treaty, but it is not as easy to be free from the spirit of the law.

The preamble to the Rome Statute captures the very essence of the treaty, which Kenya is bound to as a state party and further bound inseparably by customary international norms; the international community recognizes that millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity. This idea of a limited view of sovereignty ‘which brings moral value to order’ is also reflected in what Jones, a notion that sovereignty entails obligations and duties to one’s own citizens and to other sovereign states.

To be certain, despite the fact that the withdrawal from the Rome statute will affect the jus cogen norms such as prohibition on the use of force; the law of genocide; principle of racial non-discrimination; crimes against humanity inter alia, the withdrawal from the ICC will worsen and hurt Africans more than the ICC. With the highest incidence of systemic and human rights violations globally, Africa, more than any other continent, needs the ICC. As the largest bloc to ratify the ICC Rome Statute, Africa showed its staunch support for the ICC. Indeed, many Africans genuinely believe that they want an end to genocide, war crimes and crimes against humanity. The ICC can help in deterring political forces from committing these terrible crimes. That is the reason why one- third (34) of the 122 states parties to the Rome Statute are member states of the African Union.  


Dr. Njenga, Solomon

Lawyer Mark Mumo

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