Opposing International Justice: Kenya’s Integrated Backlash Strategy against the icc

Abstract

The government of Kenya has employed a wide range of strategies to undermine the recently-dismissed prosecutions of President Uhuru Kenyatta and Deputy President William Ruto before the International Criminal Court (icc). This Article argues that these strategies are part of an integrated backlash campaign against the icc, one that encompasses seemingly unrelated actions in multiple global, regional and national venues. We identify three overarching themes that connect these diverse measures—politicizing complementarity, regionalizing political opposition, and pairing instances of cooperation and condemnation to diffuse accusations of impunity. By linking its discrete acts of opposition to these three themes, the government ultimately increased the effectiveness of its campaign against the Court. Our findings provide insights for analysing other instances of backlash against international courts and institutions.

The populist challenge to the European Court of Human Rights

“…Most importantly, it tends to decrease the social legitimacy and authority of a court, as the recent exit-talk surrounding the ICC exemplifies. 149 Moreover, if one state realizes the exit option, or even seriously considers it, this may spread and encourage other states to do so. 150 In addition, exit can lead other states parties to restrict the jurisdiction of an IC in order to prevent future exits.…”

Institutional leadership during tough times

“…Backlash is observable when courts themselves (and not just their rulings) are contested by anti-multilateralist governments representing societies in which local grievances against globalization and international institutions take center stage in domestic politics. Examples of this include cases of African regional courts, the International Criminal Court, the European Court of Human Rights, and the WTO Appellate Body (Alter et al, 2016;Caserta and Cebulak, 2018;Helfer and Showalter, 2017;Madsen et al, 2018;Nathan, 2013;Sandholtz et al, 2018;Voeten, 2020). The case of the Southern African Development Community (SADC) Tribunal is illustrative in that regard.…”