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According to Kagwanja (2009),
thousands were displaced and dead in Kenyan 2007-08 post-election violence.
President Mwai Kibaki of the PNU or Party of National Unity in 2007 was
declared as the winner in a presidential race. Right after, widespread violence
started and it resulted in more than a thousand dead and six hundred thousand
displaced. Moreover, hundreds of men and women became the victims of sexual
assault along with destroyed property. The systematic and broad nature of
attacks against people together with the failure of authorities to ensure the
accountability seemed to prompt a global commission of enquiry and gradually,
the situation led the prosecutor of International Criminal Court to analyze the
situation. It was in November 2009 that the prosecutor of ICC used the powers
of proprio motu for seeking authorization and opening an investigation. It was
in 2012 when the cases against Sang and Ruto were approved by PTCII. After few
months, the defense challenges were rejected by the Appeals Chamber to the
jurisdiction of ICC over the situation of Kenya
Bekoe
and Burchard (2017) tell that in 2013, the prosecutor of ICC withdrew
all the charges that were against Muthaura while citing the issues with
recanting witnesses and limited cooperation of Kenya to assist in unveiling the
important evidence. In 2014, charges were drawn by the prosecutor against
Kenyatta while citing the same challenges. Then in 2016, most of the judges
concluded that there was insufficient proof for continuing the trial of Sang
and Ruto. While the proceedings were going on, Ruto and Kenyatta chose to run
together in the presidential election of Kenya in March 2013. Ruto was elected
as the deputy while Kenyatta was chosen to be the President and both were
claimed to use the cases against as a base for framing the interests of ICC in
Kenya. Meanwhile, at a global level, Kenya tried but failed in rallying the
support of UN Security Council to defer the PEV cases of ICC. In addition,
Kenya also appealed to the fellow members of African Union to pressure the
International Criminal Court and denounce it as a discriminatory institute
Oyugi (2006) explains that in the
first ten years, the prosecutions and investigations have concerned different
types of situations in Africa. Arrest warrants have been issued by the court
for 2 heads of state of Africa and has opposed the efforts by the government of
Africa for avoiding the International Criminal Court involvement in various
situations. In addition, ICC has declined to evaluate and investigate the
crimes which are allegedly committed by the soldiers of Britain in Iraq. Among
others, these actions have led to complex charges, especially among political
leaders of Africa that are being targeted by ICC inappropriately. For assessing
the authenticity of such charges, it is more than just a little important to
deconstruct the inappropriate term. Following the understanding of the
legitimacy term of Richard Fallon, the appropriateness of the focus of ICC is
considered on Africa along three different dimensions including sociological,
legal, and moral. However, it still threatens to undermine the perceptions of
fairness of Court
K. Clarke (2010) states that the
critics of actions of the ICC in Africa seem assert the claims on the basis of
sociological legitimacy, legality, and morality. First of all, ICC is accused
by critics of acting in an immoral way by discriminating against Africans and
Africa in choosing which situations should be prosecuted and investigated. For
such claims, the evidentiary basis is quite weak. The International Criminal
Court has actually invoked all of its jurisdictions in only a specific
situation. All other situations have come to the International Criminal Court through
referrals from the concerned states and the Security Council. Additionally, the
International Criminal Court has simply declined to evaluate the situations
which are outside Africa. This small number of decisions seems to provide an
inefficient basis to determine that the International Criminal Court is
discriminating in its specific practices. It has also been asserted credibly by
that its decisions have been made on the basis of the magnitude of situations. Secondly,
it is claimed by critics that the International Criminal Court has actually
failed in respecting the sovereignty of states of Africa. It is necessarily a
claim that is legal. The ICC is charged by critics of failing in respecting the
global principle which governs the immunity of head of state and it actually
prohibits the prosecution of stat heads even when it comes to global crimes. It
is also charged by them that the Court violates the provisions of Rome Statute
concerning the admissibility of different circumstances. Particularly, they
seem to asset that the International Criminal Court is not respecting the rule
of complementarity which prevents the court from prosecuting or investigating
the cases when states with jurisdictions are doing so in a good faith. Even
though the authentic guidelines of admissibility and the principle of immunity
for the nonparties are not clear, they have been translated by ICC and applied
in a very plausible manner
According to Brown and Raddatz
(2014), it is not wrong to say that the strongest argument concerning the
inappropriate focus of ICC on African states is a sociological one. It is
suggested by substantial evidence that perceptions of the fairness of ICC have
suffered in at least some audiences of Africa due to the concentration on Africa
but it is still unclear that if such perception are present primarily at the
level of government or are shared broadly among the populations of Africa. Although
the governments of Africa along with the African Union have voiced their
concerns about the fairness of ICC, the present evidence seems to suggest that
the civil society of Africa continue substantially for supporting the ICC’s
work
Arbour (2014) argues that ever
since the International Criminal Court started their operations in 2003,
situations have been investigated and cases have been prosecuted in the six
nations, all on the continent of Africa. Actually, four of these situations
were simply referred to the court by the states in the question – the situations
in Cote D’Ivoire, Central African Republic, Democratic Republic of Congo, and
Uganda. Furthermore, the situations in Libya and Sudan, non-party states were
referred to the International Criminal Court by the Security Council of United
Nations acting under the power of Chapter 7 for maintaining and restoring
security and peace. The Prosecutor of International Criminal Court has
seemingly triggered the jurisdiction of Court with the authorization of
Pre-Trial Chamber in only a single situation: that of violence of post-election
in Kenya. The admissibility of that circumstance has been challenged by the
government of Kenya while stating that it is the objective of Kenya to carry
out the necessary prosecutions and investigations. Furthermore, the government
of Kenya has challenges likewise the authenticity of cases of International
Criminal Court stemming from the civil war of 2011
According to Oyugi (2006), recently,
a significant number of commentators and political leaders of Africa have
seemingly charged that the International Criminal Court is targeting states of
Africa without any authenticity. The critics have also gone to accuse the
International Criminal Court of neo-colonialism and acting as a method of very
powerful states. They all point to the exclusive focus on the situations of
Africa but also the decisions of ICC for issuing arrest warrants for the heads
of states of Africans. Particularly, the Africa Union have reacted in a
negative way to the decision of arrest warrant for the current president of
Sudan, Omar al-Bashir while actually urging he member states to not cooperate
with the International Court. Several commentators have played a role in
criticizing the decision of International Criminal Court of proceeding with the
prosecutions in the situation of Kenya in spite of the objections of the
government of Kenya. It has also been urged by some politicians that Kenya
should leave the regime of International Criminal Court
According to Bibas and
Burke-White (2010), The claim that the International Criminal Court is
discriminating against Africans and Africa in deciding which situations to
prosecute and investigate is actually a claim of inappropriateness in terms of
moral values. The argument is that the court is using discriminatory procedures
and yielding the outcomes which are unfair. Furthermore, the argument is rooted
in the procedural justice’s notions which are elaborated by scholars just as
John Rawls. The processes of decision making are required by procedural justice
to be structured in a manner which is consistent with the development of results
which are equitable. If such types of processes involve systematic
discrimination on the basis of invidious distinctions like class or race, they
harm the rules of procedural justice
In accordance with Bolton
(2000-1), it can be said that the most frequent procedural injustice’s charge
is that the International Criminal Court is targeting the situations in states
which are politically weak while ignoring the situations which involve states
that are more powerful. Some of these criticism seem to base on various
misunderstandings about the extent of jurisdictions of International Criminal
Court. On contrary, the International Criminal Court doesn’t have any universal
jurisdiction. Situations can be investigated by the court in non-party states
when the Council of Security refers the circumstances. The blame regarding the
failure of ICC to investigate the serious situations in the non-party states
hence lies with the Security Council and not with the International Criminal
Court. That is why, for example, it is the Council of Security that seems to
block the international investigation of the massive crimes which are committed
in Syria
Nyinguro
(1993) describes that the evidence which is related to the charges of
discriminatory selection of situations is that the International Criminal Court
has declined to begin any investigation in two situations outside the continent
of Africa; first one involving the allegation of crimes regarding humanity in
the area of Venezuela and the other one regarding the alleged war crimes of
British in Iraq. This size of sample is more than just a little small for
supporting the claim that the decision making of International Criminal Court
is on the base of invidious distinctions. For sure, various other situations
outside of the area of Africa remain under the preliminary examination and
might ultimately result in evaluations and investigations. Additionally, the
assertion of ICC that the situations of Africa were chosen on their gravity and
that the situations in Iraq and Venezuela were rejected on the similar basis is
quite credible. Even though the concept or theory of this gravity remains unfocused,
many people still consider the number of victims as an important factor and
indicator of the magnitude. Large number of victims are involved under the
investigation of African situations
That is why it is important for
the International Criminal Court to continue and increase its struggles for
combating such perceptions and ideas. Appointing a prosecutor from Africa was a
significant step in this direction. Meanwhile, others should be including broad
dissemination of the information concerning situations under the preliminary
investigation which are outside the continent of America. For sure, to the
possible extent within the limitations of morality and law, the International Criminal
Court should recognize such situations in the docket of Court in the near
future
Major (2015) says that Rwandan
memorials are quite compelling. In war memorials, the presence of remains of
humans is not that rare. However, the manner in which they are treated, stored,
and displayer is very rare, in relation to international and national memorial
landscapes. The mass grave exhumations of high profile and identification
projects have occurred in other areas of the globe, especially where important
presence of humanitarian has interfered in most of the post-conflict affairs of
public, just as it has been the case in Rwanda. When it comes to reconciliation
efforts of a post-conflict, the identification and recovery of remains are
considered as a major part whether they are led by the civil or state society.
The purpose is just that the deceased might be reunited with their family. Therefore,
the outcome of this work is striking as survivors of the genocide undertake it
Williams (2007) explains that in
the recent decades, the continent of Africa has been the hub of immense abuse
of human rights including humanity crimes, war crimes, genocide, and it is
still prone to intra-state violence. The failure of international and regional
actors in protecting civilians against the international crimes, illustrated
horribly during the genocide of 1994 in Rwanda. It prompted the members of UN
to adopt the rule of responsibility for protecting. It is provided by this
commitment that states are the ones primarily accountable for protecting
civilians from crimes, war crimes against humanity, war crimes, and genocides.
They should also help each other in fulfilling this specific responsibility. It
entails that if it is not fulfilled by a state, the international community
will come into action and use coercive actions if peaceful means seem to fail. A
legal basis has been provided by African states to the African Union for
intervening in situations of crimes and genocide on the basis of decisions by
the heads of states and government
According to Glas (2018), it is
explained that both the institutional and legal framework are positive
developments from the OAU’s inaction towards the machinery and norm of AU for
implementing the global rule of responsibility to protect. AU has been actually
more efficient in tracking massive abuses of human rights and conflicts on the
content. However, it still seems to struggle in intervening effectively. The
terminology of AU overlaps largely with the global rule which creates various
layers of responsibility at first on the state level and secondly on the global
and regional level. The AU is capable of making use of tools which are
developed at the level of UN for providing better guidance about what would
trigger the action of AU. This type of action has been prevented by the
insufficient resources for operationalizing the African Security and Peace
Infrastructure, and also by the limited will of politics by the heads of states
in taking an actions, particularly when their domestic situation or interest
are prevailed
According to BBC (2017), Burundi
has become the very first country to withdraw itself and its membership from
the ICC or International Criminal Court. ICC was accused by it for targeting
Africans deliberately for prosecution. Burundi’s government is accused of committing the crimes which are
against humanity. The Commission of Inquiry of the UN is generally urging the ICC to open or begin the prosecution
soon. Theoretically, it can be said that
its withdrawal from the International Criminal Council has almost no impact on
the ongoing investigations on the nation. A spokesman, Fadi El-Abdallah for the
International Criminal Court told the Newsday program of BBC that the 127th
article explains that the withdrawal doesn’t impact the ICC’s jurisdiction over
the crimes that have already been committed while the other nation was a member
Medani
(2012) describes that the withdrawal came
after twelve months when Burundi lodged an
official notice for quitting the organizations which have approximately a hundred and twenty-two
member countries, and thirty-four of them
are African countries. Burundi in 2015 observed major
unrest along with a crackdown by the forces of security after Pierre Nkurunziza; the President chose to operate the office for
almost a third time. It led to protests against the opposition which referred
it as unconstitutional. Anna Holligan of the BBC explains that the decision of
Burundi to leave the International Criminal Court is unprecedented. It is a
statement that if a nation doesn’t like the prosecutor’s focus, it can only go
the organization
Allison (2016) explains that the
claim regarding unfair targeting of Africans by the criminal court is gaining substantial traction right after the Gambia became the 3rd nation on the
continent for announcing the withdrawal from the tribunal that is based on Hague. Similar announcements are followed after the move from South Africa
and Burundi who informed the secretary general of UN, Ban Ki-moon, concerning
their decision to withdraw from the court, making them the first nations to
start the process of year-long exist in the history of the court. The parliament of Burundi has claimed
that a court is just a political tool
which is used by the foreign powers in removing whoever they want from the force on the continent of Africa. ICC had stated in April that it would be
investigating the outbreaks regarding violence in the Burundi country which has
been mired in a crisis in terms of
politics
Mpyisi
and Murithi (2017) say that South Africa had announced that it would be
withdrawing from the court on the same ground, discussing that the Rome
Statutes of ICC were not settling with its laws which were granting diplomatic
immunity to leaders. Other than that, there have been some complaints that the International Criminal Court is not working as
it should be and it is biased. Furthermore, some of the politicians have
denounced the tribunal as actually some of the instrument of colonial justice. Among the ten cases which the
court is investigating, nine of them involve African countries, and the arrest warrants of International
Criminal Court have been issued only for the residents of Africa. Although there might
be a good reason for it, 5African nations have referred themselves to
ICC. Due to it, the court is suffering from a coordinated revolt
According to Meernik (2015), the
International Criminal Court has a worldwide scope when it comes to its
prosecutions and investigations that might get to various states beyond the
ones that party to the Statue of Rome. Alleged crimes which are committed by
the states parties’ nationals fall under the court jurisdiction. The security
council of the United Nations has the
capability of referring cases to the International Criminal Court. The politics
of the Security Council, however, will
stop many cases from referring to the court. Besides,
the rule of complementarity promotes the states to be accountable for the
prosecution of crimes. The author also explains that perhaps the theory’s
ultimate test of state commitment to the international and the domestic rule of law would be if the International Criminal Council researches the
states with strong standards of responsibility or not. If these
commitments are being taken seriously, then the possibility of an actual investigation of ICC should be analyzed
International Criminal Court (ICC)
International Criminal Court (ICC
or the court) was developed in 2002, according to Gregor (2002). The purpose
behind creating ICC was to put an end on the crimes which can range from
national to international levels. It was a prime step to put an end on growing
serious crimes. Main aim was to stop this evil growing from the society and
minimize and finally eradicate the risk of such crimes. The ICC has authority
to arrest and take all the actions necessary against a criminal despite of his
location that means no matter what is the location of a criminal if he is in
notice of ICC all the legal actions will be taken against him which can leads
towards arrest and prosecution. ICC cannot any legal or valid action against an
individual who is not the citizen of the states without involving United
Nations Security Council (UNSC). Olympia Bekou, Miwa Hirono, Adam Morton, Mathew Rendall, Ben Holland and
Devon Curtis are thanked specially for their comments on the last draft of this
article. A special thank you goes for the editor of this draft. The British
Academy funded a project titled as, “Armed Groups and Post conflict Peace
building in Africa” and the main idea of the article revolves around the theme
of this project. The Article 12 of the British Rome statue revolves around Rome
Statue of the International Criminal Court. According to Jurisdiction which is
known as ratione temporis, the Court
is solely allowed to take actions against crimes committed before July 1, 2002. It is when the ICC has come to
existence and function
Bull (2012) says that the main
aim of ICC is to prevent the crimes and punish he criminals although it does
possess an agenda of human and ethical rights. The ICC is not always dedicated
to states, organizations and people it can vary. As seen from 2013, it can be seen that
majority of countries or states of world have given legal permission to
practice and imply Rome Statue which established the institution. ICC possess
power over punishing particular set of crimes, the list includes crimes
committed against humanity, genocide, war crimes and in 2017 it has acquired
ability to punish crime of aggression which are usually committed by one state
of the world into another. This change will require about 30 ratifications so
it can be implemented and brought into practice. The ICC claims and argues that
these types of crimes are serious and great threat to the peace, betterment and
well-being of the world and security. Somehow, the terms such as “peace” and
“justice” are not defined in the Preamble presented by the ICC as the peace and
justice to one state can be complete opposite to the another state of the world
According to Clark (2011), there
are limited contributions by ICC worldwide as there are some states which
question its legitimacy and thus do not accept it or hold it accountable for
implication of peace and justice. Another reason can be that some states wish
to seek peace at their own by their own practice of bringing peace as the ICC
might be trying to obtain control and reinforce their power. So in order to
reject the concept the states reinforce power of their own and run
investigation on their own. Apart from this, there are several other states who
accept the legitimacy of the ICC and hold it accountable as power. The ICC got
recognition and power because of the selection of cases contain conflict in all
parties and possess high rate of case success. The person of criminals they
catch or investigate the people who are always found guilty of the crime by the
end
Hampshire (2001) explains that
the ICC has aims which are quite ambitious and have mission of implicating
justice as well as peace all around the world. Some researchers disagree on the
fact that tribunal can implicit peace. Some theories presented by theorists
suggest there are two purposes of peace and suggest which can be contradictory
as moving along and cannot function alongside each other. This is why when ICC
fails to prevail peace when it maintains justice and vice versa. Firstly, peace
depends upon justice and cannot exist without justice. There are two counties where peace prevails
due to functioning of ICC and implication of rules. These two countries are
Namibia and Mozambique. It is assumed that ICC should stop functioning in
countries and region of greater conflict, as it can give rise to rebellion
which is not healthy or required and neither is a vital solution. Secondly,
there are some commentators who argue about the fact that peace is a priority
and second comes the justice. In northern Uganda it is a common motif and can
be stated as, “Peace first, justice later”. Thirdly, justice can be a threat to
peace. As long as the discussion of justice goes internationally, does it
matter when peace is subverted and world perishes? Some of the researchers claim that tribunals
that exist internationally are not contributors to peace. Moreover, the
conditions under which ICC functions make peace difficult to be achieved.
State (2018) states that diplomatic
relations between Kenya and the United
States were established in 1964,
following independence in December of
1963 from the UK. Kenya and the United States have enjoyed relationships which were cordial along with an
enduring partnership since the liberation
of Kenya. After the democratic transition of Kenya, relations became closer, and improvements occurred in the civil
liberties. Mutual interests at long terms in the area and cooperation on
security and economic issues underpin a robust
and flexible bilateral relationship. As present in the largest economies of
East Africa, Kenya is a growing and expanding business, transportation, and
financial hub for the area and the investment of US in Kenya along with the
bilateral trade are significant factors of the relationship that exists between
Kenya and US. However, political divisions by
ethics, interference, impunity, and corruption have contributed to posing issues and challenges to the
democracy of Kenya
According to Chomba (2017), it is further explained that the United States exhibits a strategic interest
in the stability and security of Kenya. This commitment is reflected in the partnership on worldwide and regional issues of
safety. There are four security help
objectives of the United States in Kenya. These objectives include
professionalizing the military forces, increasing counterterrorism and
bordering the capabilities of security, increasing security awareness, and
improving the skills of keeping the peace. Furthermore, as a crucial assisting partner
in East Africa, Kenya is an essential
recipient of the foreign assistance of the United States. It is sought by the
United States to advance the economic
prosperity and national security by helping Kenya in strengthening the financial stability education, and environment.
There is another objective of combatting the trafficking of wildlife
However, Clarke (2012) has
explained that the involvement of the International
Criminal Court in Uganda started in July
of 2003 with the Prosecutor of ICC identifying Uganda as a concerning
situation. Right at that point, the OTP or Office of the Prosecutor began to analyzing conditions in Uganda with a higher
security, In November 2003, the former Minister of State, Betty Bigombe had started to meet with the top members of LRA in
an attempt to get to a peaceful settlement to the issue prevalent in northern
Uganda. These tasks resulted in a seven-day ceasefire which is geographically bounded between the UPDP or
Ugandan Peoples Defense Forces and LRA in 2004. Moving
on, it was continuously renewed in
an expectation regarding the agreement of general ceasefire that would be
easily be reached by the ending of the year. President Museveni in December
2003 referred to the situation of Uganda
to the International Criminal Court. Then, the agreement of peace was disrupted, and
the hostilities appeared again in the area
Kersten (2016) says that problems
around the social location were more or less central to the issue. One grouping
was living under the conditions of pure survival. Meanwhile, the other was
representing the conditions of judicial aspirations and privilege for
eliminating the violence. It was understood by people that there a significant
gap between the stakes and the social location. Even though Kony’s prosecution
might have been necessary for this process, still many Ugandans felt that
it must not occur at the expense of a victim who wanted to get to back to home
and start living again. It can be said
that these depictions of justice aren’t
mutually exclusive. The two concepts of peace and justice usually are bandied around as if they are opposite of each other and must be handled by different types of entities. Here,
the presumption is that one treats
politics while the other seems to deal with the law, and these two should be maintained as different. However, the truth
is that concentrating on criminal responsibility in the middle of violence’s
systematic conditions plays an essential
role in the neglecting of political foundations for justice
Power dynamics of International Criminal Court (ICC)
According to Whitaker (2010),
lately it has been observed that there are several African countries that stand
against dictatorship of United States of America. The political leaders of the
regions feel proud to stand against US and achieving independence, it is a
moment of pride for them. Honestly, these countries are not the only one to
think or act like this. Latin American politicians gained fame and were part of
several headlines due to their criticism on policies designed by Americans.
These leaders are talking out loud in Africa and most of them dismiss the
American policies. Although they reject initiatives of American policies they
still tend to be very close association of United States among the whole
continent.
During the issue of International
Criminal Court (ICC), the leaders of Africa boldly dismissed US’s demands. As
they suspected ICC to be practicing with political aims, then came the Bush
government and his administration negotiated upon bilateral immunity with
different countries of the world. The “Article 98 agreements” which includes
the relevant part of the Rome Statue, it deals with the protection of both the
countries and turn towards ICC for punishing the crimes and standing against it
(Whitaker, 2010). [xxviii]
According to Materu (20150, in
2002, the American Service Member’s protection Act (ASPA) needs the removal of
some categories of US military help and economic to the states of the world who
have approved Rome Statue but did not sign the agreements of Article 98. In
this kind of pressure, more than 100 countries of the world signed the petition
and the figure also includes 43 countries of Africa. There are 6 African
countries, i.e. Tanzania, Kenya, South Africa, Namibia, Mali and Niger who have
approved Rome Statue but did not sign the agreement of Article 98.17Due to law
of 2002 programs which were funded by US were dropped out, the leaders came out
with the their view that they are not going to give in to US policies, no
matter what.18 During 2008 and 2009, the US policy makers were concerned about
the punishments, due to which important allies came to existence. As a result,
Congress nullified the related sections of the ASPA and allowed the expiration
of Nethercutt Amendment, this step led to restoration of partnership and association
with the countries which refused and did not signed the agreement. Under the governance
of Obama, he had the administration who was on different terms with the ICC
than the administration that existed before his. Although, there is no pressure
on any country or Africa to sign the Agreement 28
According to Arbour (2008), it
might be a little odd to advocate doctrines that seem to envisage full
engagement of the global community in discussing the brutality, at the time
when the different lessons from Iraq actually are prompting countless in the US
and in other nations to reassess the sensibility of intrusion in foreign lands.
It is encouraging that a poll which is recent on Global Affairs seemed to
believe that the Security Council of United Nations has a responsibility of
intervening for preventing several violations of human rights like genocide. The
debate had started merely to crystallize when the reasons in favor of humanity were either assumed or
offered as a section of the rationale for the interference of India in East Pakistan. None of the succeeding intrusions
also had been authorized by the Security Council of United Nations, even though
executors claimed extreme necessity as a
legitimate foundation for the action, a sentiment that was shared by many in
the global community. But with the intrusion of Tanzania in Uganda as an
exception, condemnations were quite quick in following on the part of the ones
who considered these as actual pursuits of the self-interests of a nation in
the harm of the second article of United
Nations Charter that sets the non-intervention’s norm. Therefore, such types of
interventions were recognized as an arrogation
of power and illegal by the strong ones to weaken the sovereignty of ones with
no power (Arbour 2008)[xxx].
Mamdani (2009) states the rule of
non-interference in the domestic affairs of a sovereign State came under quite
a strong stress as extreme events like
the Rwandan genocide took place. It became clearer that sovereignty doesn’t
play a role in shielding perpetrators from punitive
measures. With the failure of prevention, the Security Council of United
Nations made a prime intrusion into the State sovereignty’s fortress by
creating tribunals of ad hoc for the Rwanda and Yugoslavia. However, the
conceptual basis of rights to interfere along with the criminal record of recourse for forcing in the rescue missions
seemed to continue the generation of controversy. For starters, the right to
interfere is discretionary according to the definition
Tucker 2001 explains that the US
has a long history when it comes to the commitment towards the rule of
accountability right from the involvement in the tribunals of Nuremberg that
brought the criminals of Nazi war to justice to the leadership in an effort for
establishing the Tribunals of International Criminal for the Former Rwanda and
Yugoslavia. Today, the action sustains that moral
leadership. In the process of signing, it was made clear by the
president that the United States of America was not turning back from its
worries over the critical gaps in the
treaty, the flaws which led the nation to vote against it. it was also what
seemed to prevent him from recommending the successor
submits the agreement to the Senate for consent advice. However, the signature
was still the right action as the president
argued it. He believed that a properly structured and constituted ICC or
International Criminal Court would make a significant and impactful
contribution in preventing abuses of human rights over the globe. Furthermore,
that signature seems to raise the opportunities for interactive and productive
arguments with other governments for advancing these aims in the future.
With the emergence of the ICC,
the US will have to determine the type of behavior that it should take towards
the court. No useful purpose can be served by a hostile approach, especially if
the big states of Europe are still willing to support and be helpful towards
the court (Tucker 2001)[xxxii].
According to Isanga (2012), over
two thirds of the members of the AU or African Union are parties to the treaty
which establishes the ICC Rome Statue. However, with the passage of years, AU’s
assembly has actually adopted several resolutions which are critical of the
International Criminal Court along with its practices. Most of the states of
Africa at a time supported the International Criminal Court. In the negotiation
of the Statue, they were quite active in the late 1990s. It can be said that
this was a good time of optimism, specifically due to the support of not only
African governments but also the NGOs of Africa. In 2000, the turning point
came when an arrest warrant came for the minister of foreign affairs at that
time, Abdoulaye Yerodia Ndombasi. It wasn’t received very well in Africa and it
started to sour the relations between Europe and Africa over the sovereign
immunity issue. In 2008, Rose Kabuye, President Paul Kagame was arrested in the
Germany pursuant to an arrest warrant which was French in a connection with the
shoot down of the plane of former president that seemed to trigger the genocide
of 1994 (Isanga 2012)[xxxiii] .
There is actually a question
regarding the sensitivity of cases of President Ruto and Kenyatta which are
sufficient for making Africa challenge the authority of court. The Kenyan
government in 2013, lobbied the members of AU for adopting a resolution while
calling for the cases to be referred to Kenya for national proceedings instead
of being left to the International Criminal Court. All states actually
supported the resolution with Botswana being an exception
What should Kenya do for International Criminal Court (ICC)?
At last Klopp and Zuern (2007)
explain that the perception of International Criminal Court bias against Africa
and the absence of fairness and consistency in the way court is applying global
criminal justice might not correspond with reality but it can also not be
eliminated by just ignoring. There are some serious problems that must be
addressed in a cooperative, constructive, and serious manner though simple and
honest discussion. It can be said that the tendency by some on the side of AU
to paint the International Criminal Council as a neocolonial project and a
method of western imperialism to get Africa is actually misplaced and genuine
support is undermined by it that two-third of member states of AU have
exhibited by ratifying the Rome Statue. Meanwhile, the temptation by the
International Criminal Court and some of its supports to ignore the complaints
of AU are just as misguided. For sure, the International criminal Court
shouldn’t be blamed for the reluctance that the Security Council exhibits to
listen to the voices of Africa. It is important that a discussion takes place
between the two but Kenya should be careful in every step that it takes
regarding leaving or staying with the International Criminal Court
References International
Criminal Court (ICC)
Allison, Simon. 2016. African revolt threatens
international criminal court's legitimacy. Oct 27.
https://www.theguardian.com/law/2016/oct/27/african-revolt-international-criminal-court-gambia.
Arbour,
Louise. 2014. "The relationship between the ICC and the UN Security
Council." Global Governance: A Review of Multilateralism and
International Organizations 20 (2): 195-201.
Arbour,
Louise. 2008. "The responsibility to protect as a duty of care in international
law and practice." Review of International Studies 34 (3): 445-458.
BBC.
2017. Burundi leaves International Criminal Court amid row. Oct 27.
https://www.bbc.com/news/world-africa-41775951.
Bekoe,
Dorina A., and Stephanie M. Burchard. 2017. "The contradictions of
pre-election violence: the effects of violence on voter turnout in Sub-Saharan
Africa." African Studies Review 60 (2): 73-92.
Bibas,
Stephanos, and William W. Burke-White. 2010. "International idealism meets
domestic-criminal-procedure realism." Duke Law Journal 637-704.
Bolton,
John R. 2000-1. "The Risks and Weaknesses of the International Criminal
Court From an American Perspective." Virginia Journal of International
Law .
Brown,
Stephen, and Rosalind Raddatz. 2014. "Dire consequences or empty threats?
Western pressure for peace, justice and democracy in Kenya." Journal of
Eastern African Studies 8 (1): 43-62.
Bull,
Hedley. 2012. The Anarchical Society: A study of Order in World Politics.
Macmillan International Higher Education.
Buzan,
Barry. 2008. People, states & fear: an agenda for international security
studies in the post-cold war era. Ecpr Press.
Chomba,
Susan. 2017. "Choices have consequences: REDD+ and local democracy in Kenya."
Conservation and Society 15 (4).
Clark,
John F. 2011. "A constructivist account of the Congo wars." African
Security 4 (3): 147-170.
Clarke,
Kamari Maxine. 2012. "Kony 2012, the ICC, and the Problem with the
Peace-and-Justice Divide." Proceedings of the ASIL Annual Meeting
106: 309-313.
Clarke,
Kamari. 2010. "Rethinking Africa through its exclusions: the politics of
naming criminal responsibility." Anthropological Quarterly 83 (3):
625-651.
Dixon,
William J. 1994. "Democracy and the peaceful settlement of international
conflict." Democracy and the peaceful settlement of international
conflict 88 (12): 14-32.
Gegout,
Catherine. 2013. "The International Criminal Court: limits, potential and
conditions for the promotion of justice and peace." Third World Quarterly
34 (5): 800-818.
Glas,
Aarie. 2018. "African Union security culture in practice: African problems
and African solutions." International Affairs 94 (5): 1121-1138.
Hampshire,
Stuart. 2001. Justice is conflict. Vol. 7. Princeton University Press.
Isanga,
Joseph M. 2012. "The Constitutive Act of the African Union, African Courts
and the Protection of Human Rights: New Dispensation." Santa Clara J.
Int'l L. 11.
Kagwanja,
Peter. 2009. "Courting genocide: Populism, ethno-nationalism and the
informalisation of violence in Kenya's 2008 post-election crisis." Journal
of Contemporary African Studies 27 (3): 365-387.
Kersten,
Mark. 2016. Justice in conflict: the effects of the International Criminal
Court's interventions on ending wars and building peace. Oxford University
Press.
Klopp,
Jacqueline M., and Elke Zuern. 2007. "The politics of violence in
democratization: lessons from Kenya and South Africa." Comparative
Politics 127-146.
Major,
Laura. 2015. "Unearthing, untangling and re-articulating genocide corpses
in Rwanda: Déterrer, démêler et réarticuler les corps du génocide au
Rwanda." Critical African Studies 7 (2).
Mamdani,
Mahmood. 2009. "The New Humanitarian Order." Review of African
Political Economy 36 (122): 621-29.
Materu,
Sosteness Francis. 2015. The Post-Election Violence in Kenya. The Hague:
Asser Press.
Medani,
Khalid Mustafa. 2012. "The Horn of Africa in the shadow of the cold war:
understanding the partition of Sudan from a regional perspective." The
Journal of North African Studies 17 (2): 275-294.
Meernik,
James. 2015. "The International Criminal Court and the Deterrence of Human
Rights Atrocities." Civil Wars 17 (3): 318-339.
Mpyisi,
Kenneth, and Tim Murithi. 2007. "Conflict prevention and the
responsibility to protect in Africa."
Nyinguro,
P. 1993. "Peace and security in post-cold war Africa: safeguarding the
future." African Journal of Political Economy 119-148.
Oyugi,
Walter O. 2006. "Coalition politics and coalition governments in
Africa." Journal of Contemporary African Studies 24 (1): 53-79.
Oyugi,
Walter O. 2006. "Coalition politics and coalition governments in
Africa." Journal of Contemporary African Studies 24 (1): 53-79.
State.
2018. U.S. Relations With Kenya.
https://www.state.gov/r/pa/ei/bgn/2962.htm.
Tucker,
Robert W. 2001. "The International Criminal Court Controversy." World
Policy Journal 18 (2): 71-81.
Whitaker,
Beth Elise. 2010. "Soft balancing among weak states? Evidence from
Africa." International Affairs 86 (5): 1109-1127.
Williams,
Paul D. 2007. "From non-intervention to non-indifference: the origins and
development of the African Union's security culture." Edited by 253-279. African
Affairs 106 (423).
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