The deflated ASP balloon

Like Kenya and the International Criminal Court
Friday, November 27, 2015 - 10:57

By Janet Anderson

This last annual meeting of the International Criminal Court – the Assembly of States Parties - has left a lot of people disappointed.

First of all the activists: much of the debate and discussion was about efforts by the Kenyan delegation to get the ASP to discuss and agree on a rule concerning using witness testimony even when the witness has changed their mind. In fact, the hashtag #retainrule68 became one of the dominant hashtags of the event. For activists, that’s left a bad feeling. Shouldn’t the meeting be about more than that, about the victims who need justice and about getting the Court to run well?
Secondly, for the Kenyan delegation: they feel that they are struggling against a court that doesn’t respect their needs sufficiently.
And they use any means necessary to try to get their own way. This time that’s included flying a lot of MPs to The Hague, openly asking the ASP whether they’d prefer Kenya to leave, threatening to leave unless their needs are met.
Altogether a whiff of the toddler tantrum. Now there’s a claim of ‘victory’ because the issue of recanted witness statements is included in the ASP report. But it’s a hollow victory at best.
Thirdly, for other African delegations: they’ve supported Kenya – up to a point. But they haven’t wanted to be forced to leave the institution and suffer all the diplomatic fallout that would occur as a result. Even South Africa, whose ruling party had called on the government to withdraw, didn’t want or need to press its points. It got the ASP to debate the issue – in their case whether a head of state facing an ICC arrest warrant enjoys immunity even when visiting an ICC member – and a space where that technicality will be debated. At the end of the day, African delegates know that the Court is not targeting their continent. They keep on referring cases to the Court. Any real unfairness lies in the UN system where the Security Council is run by the world powers of 1945, not one of which is African. 
Fourthly, the rest of the delegations: they felt the debate was hijacked in less than useful directions, and the immense effort needed to satisfy Kenyan pride might not have been worth it. Maybe they should have been allowed to walk out instead, mused some ambassadors privately. That said, a typical diplomatic solution was found, which saved face for all.
The reiteration of the ASP’s view on Rule 68 – recanted testimony – is not legally binding. But the Kenyans could claim victory. 
This was in fact one of the liveliest and most interesting ASPs - confusingly hashtagged #ASP14 because it was the 14th edition even though it was held in 2015 - ever, but not because of the Kenyan diplomatic desperation. The Court opened up, appeared quite humble, discussed issues that really matter, both in formal and in less formal settings. (Justice Hub will cover those issues during next week). But the current bitter taste left in the mouths of many who attended the annual jamboree will take some time to disappear.


For more on reactions to the ASP, check out our sister site, The Hague Trials Kenya
Cartoon: Emanuele del Rosso/Justice Hub

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