Will withdrawal from the Rome Statute halt Ruto’s ICC case?

January 29, 2016 4:33 pm


Of the 123 members of the Rome Statute, African States enjoy majority of the membership with 34 of them being signatories/FILE
Of the 123 members of the Rome Statute, African States enjoy majority of the membership with 34 of them being signatories/FILE
NAIROBI, Kenya, Jan 29 – Like stench that refuses to go away, the International Criminal Court (ICC) continues to anger Kenya and other African states that have now heightened a threat to pull out of the Rome Statute.

Come Saturday, African states which form majority of the ICC membership will make their threat real if they adopt a report that is recommending them to withdraw from the Rome Statute under the collective body of the Africa Union (AU).

READ: AU Summit to endorse mass ICC walkout by Africa

Of the 123 members of the Rome Statute, African States enjoy majority of the membership with 34 of them being signatories.

With Kenya taking the lead, some of the African members have accused the ICC of targeting African states in its investigations.

Mark Kersten, a researcher at the University of Toronto’s Munk School of Global Affairs and the creator of Justice in Conflict says the fact that all the 23 cases the ICC is investigating are in Africa is already problematic as Africa perceives it to be biased only towards the continent.

“There is no point denying it. The International Criminal Court (ICC) has a problem with its relationship with African states. Well over a decade into its existence, the ICC has never opened an official investigation outside of the African continent.

Kenya has tabled several issues touching on the ICC process against Deputy President William Ruto and Journalist Joshua arap Sang.

The country has complained that the Kenyan case lacks credibility and even accused the ICC Prosecution of coaching and bribing witnesses to hold onto a weak case.

South Africa and Uganda are the other two countries that have serious beef with the court and have also voiced their displeasure and threatened to join Kenya in its bid to ditch the Rome Statute which founded the court of the last resort.

South Africa’s trouble with The Hague based court stem from a row that ensued in October last year when South Africa refused to arrest Sudanese President Omar al Bashir as expected by the ICC.

READ: Ruling party wants S.Africa to pull out of ICC

Legal experts have advised that it is important to listen to the issues raised by African states and dialogue to reach a meeting point to expose ills that have led to a sour relationship with the court.

During the 14th Assembly of State Parties, Wayamo Foundation launched an Africa Group for Justice and Accountability to among other issues enhance ‘cooperation between Africa and the ICC’.

READ: Poor relation between Africa, ICC in focus

But even as debates go on and Kenya and other states insist on pulling out of the Rome Statute, will the case facing Ruto and Sang be terminated after a withdrawal?

How fast is it to walk out of the ICC?

According to the Rome Statute of the ICC, only a state party can pull out of the statute.

The Kenyan Parliament passed a bill seeking for withdrawal from the ICC.

This means it does not add any weight to the country’s interest in pulling out because Article 127 of the Rome Statute is specific that only a state party can withdraw by notifying the United Nations.

“A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute,” (Article 127).

After writing a letter informing the UN of the intention to withdraw, the state party will have to wait for a year before it’s relieved of its membership from the Rome Statute.

But despite a withdrawal, the state still is obliged to cooperate with the court in ongoing investigations.

In the case of Kenya, the government will be required to continue cooperating with the court until the case against Ruto, Sang and those being investigated for alleged interference with witnesses are concluded.

According to Article 127 (2), ‘Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.’

Kenya and other countries that pull out will also be required to honour financial obligations they had when they were members.

Article 127 (2) of the Rome Statute says; ‘a State shall not be discharged by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued.’

Even if Kenya withdraws from the Rome Statute, it means proceedings against Ruto and Sang will still be determined by the ICC judges irrespective of the withdrawal.


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