State sovereignty and international criminal law: The case for Kenya and the ICC (2007 - 2012)

Abstract

The exercise of exclusive state sovereignty is generally the preserve of independent states. Since the end of the cold war, the world has experienced a gradual change in the notion of the exercise of state sovereignty and it has departed from that envisaged by the Treaty of Westphalia of 1648. The creation of non state actors in the form of judicial institutions and particularly the International Criminal Court (ICC) has impacted the manner in which some states, particularly in Africa are governed. By operation of international criminal law and universal jurisdiction of the ICC, a state such as The Sudan for instance, has a serving president against whom warrants of arrest have been issued by the ICC for crimes against humanity. His physical access to the world particularly in states which are willing to co-operate with the ICC in effecting the arrest is restricted. The research concludes that there is demonstrated impact of the operation of international criminal law through the International Criminal Court in some of African states’ exercise of sovereignty. Absolute sovereignty is therefore not realizable and domestic constitutional security of tenure of heads of states and government as well as other senior states officials cannot shield them from prosecution for crimes against humanity. Attention has been paid to Kenya and ICC cases and this paper seeks to examine whether the entry of the International Criminal Court into the Kenyan jurisdiction in order to try the suspects of the post elections mayhem of between December 2007 and February 2008 has interfered with its sovereign authority. The research is limited to events of between December 2007 and March 2011-from the beginning of post elections violence to indictment of suspects of the violence at the Hague in March 2011.While noting that the country (Kenya) is not on trial but individuals, the study concludes that pursuant to the entry of ICC in Kenya, there has been impact on politics, structures of governance and exercise of exclusive authority and Kenya’s international image both positively and negatively. This research concludes that political changes alone cannot be sufficient reason to conclude that Kenya’s sovereignty has been substantially undermined. Rather, the rule of law must be upheld and there must be accountability for crimes in the interest of justice.