An oped written by Riara Law School student, Niven Simuyu featured in today’s daily nahttp://www.riarauniversity.ac.ke/wp-admin/post.php?post=4814&action=edittion where he talks about the implications of divorcing the ICC.You can find the oped below courtesy of the Daily Nation.
African states were at the forefront of the establishment of the International Criminal Court.So far, 34 African states have accepted the jurisdiction of the ICC and full international obligations arising from the Rome Statute.In March 2005, Kenya ratified the Statute.But on September 5 and 10 this year, the National Assembly and Senate respectively passed a motion which paves the way for a Bill to initiate the process of withdrawing from the Rome Statute.
Article 127 of the Rome Statute allows a state party to withdraw from the ICC.However, the provision of the second limb of the Article binds any withdrawing state.Therefore, even if Kenya withdraws from the ICC, the cases will run their course.The big question is whether, in the future, Kenyans accused of committing crimes against humanity will be subject to the demands of international law.The Constitution has canons that would address any such injustices even if Kenya withdrew from the Rome Statute.
Article 2(5) of the Constitution states: “The general rules of international law shall form part of the law of Kenya.”Such ‘rules’ of international law do not require domestication by way of legislation as in the former constitutional dispensation.In principle, this constitutional provision seeks to ensure that Kenyans enjoy greater protection of international law with respect to human rights.The pursuit of international criminal justice is not new.
Customary international law and peremptory norms binds states automatically.This has long imposed obligations on states to either prosecute perpetrators of international crimes or send suspects to other states that are capable of prosecuting them.Defiance to this requirement amounts to breach of international custom.Furthermore, Kenya is a party to the Protocol for the Prohibition and Punishment of the Crime of Genocide, crimes against humanity, war crimes, and all forms of discrimination as adopted by the International Conference of the Great Lakes Region in 2006.
This Protocol calls upon member states to cooperate with the ICC in the investigation and prosecution of international crimes.Under article 12, it rejects immunity of state officials.Invariably, the Convention for the Prevention and Punishment of the Crime of Genocide imposes the obligation to punish such crimes.States have accepted that genocide is an international crime punishable either by national competent courts or international tribunals.
In this regard, failure to cooperate with the ICC would amount to a breach of international law, not only under the Rome Statute, but also the Genocide Convention.This means that despite the move by the Legislature to withdraw from the Rome Statute, obligations that Kenya has accrued in the international sphere will still be binding.Taking a rigorous look at international law as enshrined in our Constitution, the general rules of international laws and treaties ratified by Kenya will guard against any injustices that may befall us in the near future.
Mr Sululu is a student at Riara Law School (firstname.lastname@example.org.)