ICC exit shelved as Kenya takes reforms to UN

On 18 November 2015, the President and the Prosecutor of the International Criminal Court presented the annual report to the Assembly of States Parties to the Rome Statute.Photo/COURTESY

Kenya has now spelled out the full extent of reforms that it wants at the International Criminal Court in exchange for shelving its threat to withdraw.

In early May Foreign Affairs CS Amina Mohammed indicated that Kenya was working on proposed amendments to the ICC Statute but Kenya’s UN Permanent Representative Macharia Kamau on May 14 told the UN General Assembly exactly what Kenya wants.

“Might does not make right,” Kamau said. He told the Assembly that all member states should be treated equally instead of creating artificial divisions that “depicted one group as owners and gallant defenders of the Court, and the other as its subjects.”

“This artificial dichotomy has not achieved much, and there is need to see a radical change of heart and mind, and reformation to ensure a level playing field for all States. The survival of the ICC very well depends on our forward movement in this regard,” Kamau said.

The General Assembly was debating the report of the ICC for 2014/2015. By consensus it adopted the report and encouraged further dialogue between the ICC and the UN.

Kamau expressed scepticism over the push by some countries to have the UN take over from the Assembly of States Parties to the Rome Statute in making changes to the ICC.

“There is a worrying trend where powerful states who have little or no regard for the primacy of the principles of international law, seek to – when and where it suits them – skew the interpretation and implementation of international law and practice as we know it,” Kamau told the Assembly.

Kenya said that African states had failed to engage constructively with the ICC which insisted on protecting its independence.

“A complete overhaul of the negotiation process was needed, expressing hope for agreement on a text of improved quality and relevance. Peace and justice cannot be achieved by a deeply flawed institution that creates false hope among millions of people,” Kamau said.

The UN General Assembly discussed the negotiated Relationship Agreement of 2004 that governs relations between the UN and the ICC.

Many delegations expressed disappointment at the “technical rollover” that extended the agreement without modification.

The draft General Assembly resolution recognised the ICC as an independent judicial institution and welcomed the cooperation provided to it by member and non-member states, the UN and other organisations.

The Assembly also called upon all states to cooperate, especially with arresting suspects, providing evidence, protecting victims and witnesses, and enforcing sentences.

The ICC has issued arrest warrants for seven Kenyans accused of interfering with the witnesses in the ICC cases brought against Uhuru Kenyatta and William Ruto.

The Assembly resolution indicates that many world states still support the ICC and Kamau was reacting to that in the debate.

Two weeks ago CS Mohamed told the Star that Kenya is working on a raft of amendments to transform the ICC.

Without revealing the specific amendments, she said that Kenya has been leading a group of African ministers drafting the amendments to be presented for adoption later this year. She said Kenya is not keen on leaving the court but rather in reforming it.

“If that is not doable, then it means we are being asked to leave and will have to make a decision on how to proceed,” she said.

“After many years and having been so close to the court we are clear on the changes needed to make the court better,” she said.

In April the African Union Ministerial Committee on the ICC resolved to push for mass withdrawal from the ICC if Kenya’s proposals are not accommodated.

In particular the AU wants immunity for sitting heads of state and senior government officials.

Via star




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