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 recentlydismissed 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 new evidence to analyze others instances of backlash against international courts and institutions.

The International criminal court in Africa: A motion for continued constructive engagement

“…38 The AU and the African leadership have since accused the ICC for signaling out or targeting Africans. 39 President Uhuru Kenyatta joined in the bashing of the ICC by calling it a "court a 'farcical pantomime' which was no longer a home of justice." 40 What generated the loudest outcry from leaders in Africa were the prosecutions of two sitting heads of state: President Uhuru Kenyatta of Kenya, over election violence in 2007, and Mr. President Al Bashir of Sudan.…”

Populism and Backlashes against International Courts

“…Scholars have used the term backlash to describe resistance against investment arbitration (Waibel 2010;Caron and Shirlow 2016); NAFTA dispute settlement (Krueger 2003); the Court of Justice of the European Union (CJEU) (Alter 2000); international human rights courts (Sandholtz, Bei, and Caldwell 2017); the European Court of Human Rights (ECtHR) (Madsen 2016); the Inter-American Court of Human Rights (IACHR) (Helfer 2002); African regional courts (Alter, Gathii, and Helfer 2016a); and the International Criminal Court (ICC) (Helfer and Showalter 2017). There is a good deal of consistency in how scholars use the term.…”

Understanding South Africa’s Changing Positions on International Criminal Justice: Why the country wanted to withdraw from the International Criminal Court (ICC) and why it may remain in the ICC for the time being?1

“…It was the year that African countries began to seek to withdraw from the Court (Magliveras, 2019). Three African countries (South Africa, The Gambia and Burundi) began the process to leave the Court, and a number of others, including Uganda, Namibia and Kenya (Helfer & Showalter, 2017) were seen to be moving in that direction.…”