Kenyatta's Trial at the International Criminal Court

By: Joseph LoCascio

I. Introduction

Nobody pays attention to the proceedings of the International Criminal Court. It tries very few cases and takes a puzzlingly long time to do even that. Thus it appears that Western media ignore the ICC both because it rarely produces developments to cover, and, when it does, because the developments are legalistic procedures that comprise agonizingly drawn-out judicial processes. But sometimes, just sometimes, the International Criminal Court is part of some controversy that really does warrant attention. Take the ICC’s current trial of Kenya’s Uhuru Kenyatta. It would seem, at first glance, that there is nothing remarkable here: after all, the ICC usually tries Africans, and the lugubriousness of the trial certainly fits with precedent. These facts miss the point, however, as trying such an individual makes history for both the ICC and for international law in general for two reasons: first, Uhuru Kenyatta is a sitting Head of State, and second, his state, Kenya, has withdrawn itself from the Rome Statute, which established the ICC. Is the accused immune considering these unique circumstances? No, though there is a highly theoretical argument that shows the opposite.

The opening blog posts of this series will take the following form. First, I will introduce the case, the history behind it, the accusations, and the proceedings so far. Second, I will examine and refute the argument that Kenyatta is not immune from ICC prosecution. Third, I will make the difficult claim that the Court should not be trying Kenyatta. This series of posts will continue as new developments in the trial emerge.

II. History

In late 2007 and early 2008, around 1,300 Kenyans died after an election. William Ruto, head of the Kalenjin tribe, and Uhuru Kenyatta, head of the Kikuyu tribe, are accused of goading their respective groups into performing this massacre on one another. The killing campaign was tinged by overtones of ethnic cleansing: there is much tribal conflict in Kenya. Confusingly, the two men accused then united in 2012 to win the Kenyan presidential election. Kenyatta currently serves as president, Ruto as his vice-president.

The events were brutal, but not uncommon. The ICC adds legal oddness, however. During Kenya’s previous government, the state asked the International Criminal Court to investigate and ascertain who was responsible for the violence. On his own motion, an ICC Prosecutor then initiated the investigation.[1] The Court first summoned Uhuru Muigai Kenyatta to appear on the 8th of March, 2011.[2] Kenyatta is alleged to be “criminally responsible as an indirect co-perpetuator” in crimes against humanity, which include murder, deportation, rape, and persecution.[3]Part of the great conundrum, of course, is that since the charges against him were brought, he has been elected president of Kenya, in part by means of inciting national and tribal feeling against the international meddling of the ICC.[4]

The trial, though it has not really happened yet, has already endured a tortuous existence. Originally set to commence in mid-September, 2013, the Kenyan parliament voted on September 5, 2013 to withdraw from the Rome Statute.[5] Then in October of that year, international activists alleged that witnesses for the prosecution had been bribed and coerced into testifying.[6] Next, on October 12, 2013, the African Union formally urged the ICC to defer the trial, stating that sitting heads of governments should enjoy immunity from such charges, and railing against the apparent inequity in the ICC’s typical targeting of Africans for investigation.[7] Since then, a former chief prosecutor of the International Criminal Court has condemned the hearings,[8]. They have since been delayed, first to February 5, 2014 and then until October 7, 2014. The second delay resulted from the Kenyan government’s failure to provide documents subpoenaed by the prosecution.[9]

III. Kenyatta Is Not Immune

I establish now an argument for why the International Criminal Court does have the authority, even now, to try Uhuru Kenyatta. The crucial issues here are whether Kenyatta’s position as president provides him immunity or whether Kenya’s withdrawal from the ICC deprives the Court from jurisdiction in this case.

Usually, when one discusses the immunities of officials, one discusses their immunity from local prosecution; in other words, if a Tanzanian diplomat is abroad in Mongolia, the Tanzanian cannot be charged for a crime there under Mongolian law. The theory behind this is that, since communication between and among nations is so vitally important to a functioning international system, to curtail such communication through prosecution would be dangerous. After all, international cooperation is the fount “from which political, economic, social, and cultural benefits flow.”[10] And thus reciprocity in not prosecuting foreign officials results from governments’ desire for reciprocity, as it were. The key agreement in this area is the 1961 Vienna Convention on Diplomatic Relations (VCDR).[11]

Uhuru Kenyatta is not a diplomat, however. Nor is he being prosecuted by the government of another state. The jurisdiction of the International Criminal Court is delimited by the Rome Statute, and this statute includes an explicit provision “to the effect that the official capacity of an individual shall in no case exempt him from criminal responsibility.”[12] Thus, the fact that Uhuru Kenyatta became president after the ICC charged him changes nothing. The International Criminal Court can prosecute anyone, regardless of his or her title. The crucial piece of precedent here is The Prosecutor v Omar Hassan Ahmad Al Bashir. Al Bashir, a Sudanese Head of State, was accused of various obscene crimes consistent with the purview of the ICC, and was therefore pursued by the Court, even though he had been, at the time, serving as the president of Sudan.[13] The International Criminal Court stated that it had disregarded any claimed immunity stemming from Al Bashir’s position for a number of reasons, chief among which are the following: first, because “putting an end to impunity was a core goal of the Rome Statute;” and second, because “Article 27 of the Rome Statute sought to give effect to this goal with specific language limiting exemptions and immunities attaching to persons by reason of their office.”[14] Thus precedent strongly favors the ICC in the Kenyatta case, despite his status as the sitting Kenyan president.

Another argument against the ICC’s jurisdiction in this matter flows from Kenya’s having left the International Criminal Court. Kenya withdrew from the Rome Statute—and for its people to be bound by it, a state must first consent, must first have ratified the treaty.[15] Membership in the ICC is consensual. The United States itself, the anchor of the international order that saw the vast proliferation of international law in the 20th century, is not a member. Robert McNamara was never detained in The Hague for his part in the American bombings of civilian targets in Vietnam, and nor was Curtis LeMay for his role in firebombing Japan.

This argument cannot succeed after a more than cursory overview of the history of international jurisprudence. Indeed, there are two effective retorts to the above contention that Kenya’s withdrawal grants Kenyatta immunity. First, the case was brought before the ICC when Kenya was still a member. This is what matters: it makes little difference whether Kenya is a member for the rest of the proceedings; and withdrawals from Rome cannot retroactively grant immunity. And what is more, it takes a year to disengage from the ICC, so Kenya is still currently considered a ratified member, and will continue to be so for some time.[16]

Second, Kenyatta cannot be considered immune, since his country implicitly signed a waiver that voids any immunity. I argue that when the Kenyan government, before his election to the presidency, requested that the International Criminal Court investigate Kenyatta’s role in the post-election violence, it—the Kenyan state—thereby implicitly waived any immunity that he might have enjoyed. Such waivers are provided for in the Rome Statute, and a binding resolution from the Security Council of the United Nations has the same effect.[17] There is precedent here, too, though, admittedly, there is no precedent involving the ICC itself. Indeed, international law saw such an implied waiver in the Pinochet case. The British House of Lords decided that the abusive leader could be tried despite his status as a Head of State and as a foreigner, because the Chilean state had provided an implied waiver in the form of a signature on a relevant international treaty.[18]

IV. Kenyatta Should Be Immune

Many arguments as to why Kenyatta should be immune have already been considered and demolished: granting immunity based on the Kenyan’s status as a diplomat; granting it based on his position as a Head of State; the fact that Kenya withdrew from Rome; etc. Perhaps he could better make the case, on legal grounds, that he cannot be justly tried by the ICC after his country has completely disengaged from the ICC. Until then, however, his legal options are nil. Let us examine the situation from another, less legal point of view, constructing a more normative, theoretical argument for why the leader should not be tried.

There are certain similarities between this trial and the Eichmann case, so eloquently, if controversially, discussed by Hannah Arendt in her series for The New Yorker. The charges levelled against Kenyatta are “crimes against humanity” under the Rome Statute. As with Adolf Eichmann, Kenyatta probably cannot be rightfully charged with such crimes qua crimes against humanity, and therefore is outside the jurisdiction of the International Criminal Court. If the alleged crime was one against humanity, then the ICC can rightfully claim international jurisdiction, based on the doctrine of hostis humani generis—Kenyatta would then be a purported enemy of the human people, and the Court could do whatever it likes with him.[19] There is a problem here. Even if Kenyatta is guilty, he would be guilty of arranging the murder of only Kenyans. Of course, it is not that the Kenyans are not part of humanity. The crucial point is that there is nothing international, nothing affecting all of humanity in the crimes—they are exclusive, particularistic, not universal, as humanity is. Universal jurisdiction, therefore, claimed, theoretically, by the ICC, cannot hold. Kenyatta must be tried in Kenya. Just as Arendt argues that Eichmann could not rightfully be charged in Jerusalem for crimes against humanity, since his alleged crimes were only against the Jewish people,[20] so I posit that the ICC, theoretically, has no valid claim to prosecute the Kenyan leader on this charge.

Let us consider another argument. In the realist paradigm of international relations, international institutions, of which I consider the ICC one, constitute very minor checks on state behavior. These checks reflect the interests of the states that have influence in the international system—the states that have great military power. Viewed this way, the ICC is merely an instrument of the powerful club of states today, comprised mostly by the West, particularly (and ironically, seeing as it is not a ratified party to the Rome Statute) the United States. The ICC does, after all, employ international law that smacks strongly of Western human rights norms. Other cultural conceptions of human rights have little sway with the ICC. More collective-oriented, Confucian thinking, for example, manifests itself very little in international law, though its tenets are held probably by well over a billion people.

Thus, is a disinterested international tribunal trying Kenyatta, or are the people of the West trying him with laws grounded entirely in Western morality—laws that cannot reasonably be applied to those outside Western citizenries? Is he being tried as just another human being, or as someone from a state that was not privileged enough to write the rules when the United States was reorienting the post-WWII international order? The United States won that war—its efforts placed it in a position to divvy out justice to weaker entities. To paraphrase Thucydides, the strong do what they will, and the weak suffer what they must. There is a case to be made that the ICC applies victors’ justice, that the West is legibus solutus, above the law,[21] and that the rest get what they get. After all, Africa, a continent without much sway in international affairs, is far-and-away the region with the most international criminal investigations. This is one reason why, as discussed earlier, the African Union has complained to the ICC recently. It is easy to see the Kenyatta trial as “victors’ justice applied to vanquished, weak…peoples, with the collusion of international institutions”[22]

To conclude, there is a normative, theoretical case to be made for Kenyatta’s immunity. Viewing the ICC’s international jurisdiction as faulty in this instance, and recognizing the inherently skewed nature of international law today provide two compelling vantages from which it seems that the ICC should not be trying the Kenyan president.

Joey LoCascio is a third-year in the College majoring in Political Science.

  1. Robert Cryer, “International Criminal Law,” in Malcolm Evans, ed., International Law 775 (2010).  ↩

  2. Prosecutor v. Uhuru Muigai Kenyatta, ICC Dock. Sht. (2014), online at  ↩

  3. Id.  ↩

  4. The Economist, Sep. 7–13, 2013.  ↩

  5. David Smith, Kenyan MPs Vote to Quit International Criminal Court, Guardian (Sep. 5, 2013), online at  ↩

  6. Catrina Stewart, ICC on Trial Along with Kenya’s Elite Amid Claims of Bribery and Intimidation, Guardian (Oct. 1, 2013), online at  ↩

  7. Shane Hickey, African Union Says ICC Should Not Prosecute Sitting Leaders, Guardian (Oct. 12, 2013), online at  ↩

  8. Daniel Howden, US Prosecutor Condemns Hague Trials of Kenyan Leaders, Guardian (Oct. 18, 2013), online at <>.  ↩

  9. Kenyatta Case: Trial Adjourned Until 7 October 2014, ICC (Mar. 31, 2014), online at  ↩

  10. Chanaka Wickremasinghe, “Immunities Enjoyed by Officials of States and International Organizations,” in Malcolm Evans, ed., International Law 382 (2010).  ↩

  11. Id., at 384.  ↩

  12. Id., at 404.  ↩

  13. Id., at 405.  ↩

  14. Id.  ↩

  15. Id., at 404.  ↩

  16. Simon Allison, Kenyan Trial Represents a Triumph for the ICC—with Several Caveats, Guardian (Sep. 10, 2013), online at  ↩

  17. Chanaka Wickremasinghe, “Immunities Enjoyed by Officials of States and International Organizations” at 405 (cited in note 10).  ↩

  18. Id. at 402.  ↩

  19. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil 261 (2006).  ↩

  20. Id.  ↩

  21. Danilo Zolo, Victors’ Justice: From Nuremberg to Baghdad xiii (2009).  ↩

  22. Id. at xii.  ↩