NAIROBI, Kenya — Kenya’s Parliament
took the first step toward withdrawing the
country from the International Criminal
Court on Thursday, less than a week
before Kenya’s deputy president goes on
trial in The Hague.
The National Assembly passed a motion
urging Kenya to become the first of the
122 nations adhering to the court to leave
it. The vote was just the latest example of
the growing discontent here toward the
court, which is putting Kenya’s new
president, Uhuru Kenyatta, on trial as
well.
If the Kenyan government formally
withdraws, the cases against Mr. Kenyatta
and Deputy President William Ruto, who
have been charged with crimes against
humanity stemming from violence after
the 2007 presidential election, would
continue. But experts question whether
such a move might embolden the indicted
leaders — who are not in custody and have
agreed to participate thus far, avoiding the
need for arrest warrants — to begin
defying the court.
“While the legal consequence is nil at the
court, the practical consequence is
whether or not Kenyatta or Ruto continue
to respect the court’s authority despite the
withdrawal vote and still appear at trial,”
said David Scheffer, the director of the
Center for International Human Rights at
the Northwestern University law school.
With the world’s attention riveted on the
violence in Syria, the controversy in
Kenya threatens to undermine the
perceived standing of the court at a time
when some leaders, including members of
the Arab League, are calling for the
international prosecution of atrocities like
the chemical weapons attack in Damascus
that killed hundreds of civilians last
month.
Paola Gaeta, a director of the Geneva
Academy of International Humanitarian
Law and Human Rights, said that Kenya’s
withdrawal would be “another blow to the
court’s authority,” one that could lead
other nations to follow suit.
The country’s withdrawal poses the risk of
“a domino effect in the region,” Ms. Gaeta
said. Like every international criminal
court, she said, the court is a paper tiger
“whose teeth can be only those of the
states cooperating with it.”
More than 30 African nations adhere to
the court, but many have been critical of
it because all eight cases on the court’s
docket are from Africa.
Supporters of Mr. Kenyatta and Mr. Ruto
have rejected the cases against them as
politically motivated. Their arguments
have grown increasingly strident,
describing the court as a neocolonialist
institution infringing on Kenya’s
sovereignty.
“The sovereign state of Kenya, with a
functioning judiciary, with a vibrant
democracy, one of the best democracies in
Africa, is under threat,” said Aden Duale,
the majority leader in the National
Assembly, as he introduced the motion on
Thursday.
Mr. Ruto and Mr. Kenyatta were
opponents in the 2007 election but joined
forces for this year’s vote. The turnout for
them may have been bolstered by the
criminal case, a reaction to what was
widely viewed as meddling by outsiders in
Kenyan affairs. Now their coalition, called
the Jubilee Alliance, holds a solid majority
in Parliament.
Jakoyo Midiwo, a member of the
opposition in Parliament, said that
legislators would regret withdrawing from
the court “10 years down the line when
we get a rogue leader who will kill our
people.” The debate grew raucous with
repeated interruptions before most
members of the opposition walked out. The
motion later passed on a voice vote.
The prospect of a democratically elected
head of state standing trial in Europe has
reawakened memories of colonialism and
Western dominance here.
“I think it’s a pushing from external
forces,” said Tatenda Wangui, 20, a first-
year law student who supported the move
to pull out from the court. “Britain and
the rest, this is my opinion, still have
some power and want to maintain that
power that they had previously.” She
added: “We are a sovereign nation. We
have the capacity.”
Jeff Kirira, 18, also a first-year law
student, agreed: “The case is not frivolous.
It’s a legitimate case. It wasn’t brought out
of the blue. But it can be handled here as
well as it would abroad.”
Kenya did little on its own to pursue
senior figures suspected in the postelection
violence, and in the I.C.C. case, witnesses
have dropped out amid claims that they
had been intimidated by the leaders’
supporters.
But public support for the prosecutions
has dropped significantly since the case
was first opened. Surveys of 2,000 adults
by the pollsters Ipsos Synovate Kenya,
each with a margin of sampling error of
plus or minus two percentage points,
showed support for the International
Criminal Court case dropping by 20
percentage points in recent years. In
October 2011, 59 percent of Kenyans
surveyed supported trials at The Hague; by
June 2013, that number had dropped to 39
percent.
Some people say that they want to forget
or at least to move on. Others fear that a
conviction, particularly of Mr. Kenyatta,
could destabilize the country and lead to
more violence. “At the social level, I can
say that I am myself intimidated, not least
by my own friends, who think that what I
am doing is not noble,” said Wilfred
Nderitu, who represents victims before the
court. “That may not be coming from the
government, but it is the reality.”
Some supporters of the president and
deputy president have likened the
presidential election that they won in
March to a referendum on the case.
Dozens of members of Parliament who
plan to travel to The Hague with Mr. Ruto
as a symbol of their solidarity lined up
outside the Dutch embassy on Wednesday
to get visas. Mr. Kenyatta’s case is
scheduled to begin in November.
In May the African Union passed a
resolution accusing the court of targeting
Africans. The court’s prosecutor, Fatou
Bensouda, who is from the West African
nation of Gambia, repeatedly points out
that two of the cases, from Libya and
Sudan, were referred to her office by the
United Nations Security Council.
In most of the other cases — including
Mali, Central African Republic, Uganda
and the Democratic Republic of Congo —
the governments themselves asked the
court to open investigations. In Kenya, the
court’s prosecutor, Ms. Bensouda’s
predecessor, stepped in on his own accord.
There are preliminary inquiries in areas
outside of Africa, including Colombia and
Afghanistan.
“Every time the I.C.C. process inches
forward to deliver a justice denied
Kenyans by their own government, the
country’s political establishment scrambles
furiously to block the way,” said Elizabeth
Evenson, a senior counsel at Human
Rights Watch.
The 1998 Treaty of Rome created the I.C.C.,
and its jurisdiction went into effect in
2002. The United States never ratified the
treaty, a fact that was noted time and
again in the debate in the Kenyan
Parliament on Thursday.
Mr. Duale quoted the former American
ambassador to the United Nations, John
Negroponte, as saying, “No nation should
underestimate our commitment to protect
our citizens.”
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