Max and I have written an article for upcoming South African Yearbook of International Law that discusses the developments in the stormy relationship between the ICC and African states in 2010. It follows on from our contribution to last year's SAYIL. The article's introduction is below, the full text is available here.
Naturally, we would appreciate your comments and criticisms."In our contribution to these pages last year we suggested 2010 held promise of a rapprochement between the International Criminal Court (ICC or the Court) and African states. The source of our optimism was the ICC’s inaugural Review Conference, taking place in June on the shores of Lake Victoria in Kampala, Uganda. It presented an opportunity for states to “take stock” of the Court’s work and for African states raise their concerns regarding the Court’s structure and operation. There was also the small matter of the crime of aggression, the definition and jurisdictional aspects of which could not be agreed upon in Rome. On this issue we were less optimistic, suggesting that an agreement on aggression in Kampala was “improbable”.We were wrong on both counts. To be sure, 2010 was about Kampala, but not in the way that many had hoped. Against expectations, the definition of aggression, and the jurisdictional regime governing it, was agreed on (although it will not become operational until 2017, at least). But that positive development insofar as Africa-ICC relations is concerned was soon overshadowed by a very different “Kampala moment”, that would cast a long shadow on the year to come: a second decision of the African Union (AU) urging non-cooperation in the arrest of Sudanese President al-Bashir (al-Bashir). In the result, the trajectory of the Court and Africa remains unchanged. What was novel in the year past was Kenya, previously a model ICC State Party, coming to the fore as the battleground for the ongoing “struggle for the soul of international law”.Kenya’s inglorious “fall from grace” is the result of two self-agitating but distinct developments.The first is the ongoing controversy over the ICC Arrest Warrant for al-Bashir and the AU’s decision that its member states shall not cooperate in the execution thereof. It is a decision that sits both legally and politically uncomfortably with Kenya’s obligations under the Rome Statute and risks threatening its relationship with the Court. The decision of Kenya to invite al-Bashir to the launch of the country’s new Constitution in August was the low water-mark of this relationship, resulting in the first ever “decision” of the Court on non-cooperation in its history, against Kenya. This is a remarkable step back for a country that remains one of only three of the 31 African ICC member states to have adopted domestic legislation to implement (and expand) its obligations under the Rome Statute.The second, and potentially more ominous development, is the backlash in Kenya against the ICC’s investigation into the violence that took place in the aftermath of the December 2007 elections in Kenya that left over 1000 people dead, caused around 400,000 to flee their homes, and brought Kenya to the brink of civil war. The ignominy of being under investigation, and the profile of the suspects named by the ICC Prosecutor in December 2010, has drawn the fire of many (including senior, albeit partisan, government members) for the investigation domestically, concluding 2010 with the motion by Kenyan Parliamentarians on 21 December 2010 to walk Kenya out of the Rome Statute. Worse still, political acumen has turned this domestic discontent into a regional African position in opposition to the ICC’s investigation and fuelled a more general anti-ICC sentiment within Africa, further isolating those voices of support for the Court on the continent.In this paper we will consider the legal aspects of the events of 2010 that have brought Kenya (and Africa’s) relationship with the ICC to this point. We will then go on to consider the year to come and (tentatively) offer a few thoughts on how these difficulties might be addressed"