By Kimberly Dobyns
Kenyan Ambassador to the United Nations has asked the Security Council to have the ICC its case against President Kenyatta and Vice President Ruto. The African Union has also stepped in an attempt to have the cases dropped.
Murder constituting a crime against humanity. Deportation or forcible transfer of a population constituting a crime against humanity. Persecution as a crime against humanity. These are some of the charges that current Kenyan President Uhuru Kenyatta and Vice President William Ruto are facing before the International Criminal Court ( ICC).  In 2010, the ICC opened an investigation into post 2007-2008 election violence that left more than 1,000 people dead and forced hundreds of thousands to leave their homes. Both Kenyatta and Ruto have been cooperating with the ICC in their respective cases.
On May 2, 2013, Ambassador Macharia Kamau, the Kenyan Permanent Representative to the United Nations, sent a letter to the United Nations Security Council asking the council to terminate the ICC cases against President Kenyatta and Vice President Ruto. In the letter, Kamau argued that peace and security would be endangered in Kenya if Kenyatta and Ruto were to leave, and then ultimately be prosecuted by the ICC.  After the letter was written, Vice President Ruto and Kenyan Attorney General Githu Muigai stated that Ambassador Kamau’s letter was not prompted by the Kenyan government and that Ruto will continue to cooperate with the ICC.
A big question surrounding Ambassador Kamau’s letter is why he would send it to the Security Council because it does not have the authority to terminate an ICC case. The only action the Security Council can take is to ask the ICC to defer the case for 12 months under Article 16 of the Rome Statute. Outside of that face that the Security Council does not have the authority to terminate and ICC case, Ambassador Kamau should have known that it was highly unlikely the Council would act on this request because it failed to defer the case in 2011.
The African Union (AU) has now stepped in and asked the ICC to drop the crimes against humanity charges against Kenyatta and Ruto and transfer the case back to Kenya. They believe the ICC is unfairly targeting Africa on the basis of race since only African leaders have been charged with crimes before the ICC.  The AU’s claim that the ICC is targeting African countries for crimes is an excuse by member countries to avoid holding responsible those people on the African continent who have committed grave atrocities. First, the ICC only has jurisdiction to investigate and prosecute crimes that have taken place since July 1, 2002. If a party ratified the Rome Statute after that date, then the court can only investigate and prosecute crimes after the date when the state became a party. Generally speaking, the majority of war crimes, crimes against humanity, and genocide which have occurred after July 1, 2002, have occurred in Africa. Second, the ICC can only exercise jurisdiction over states which are a party to the Rome Statute. Africa leads the world with the most countries that are party to the Rome Statute with 34. Kenya signed the Rome Statute in 1999 and ratified it in 2005, giving the ICC jurisdiction to investigate and prosecute anyone within the country who has committed crimes. Additionally, the Kenyan Constitution created by the government in 2010, states “[a]ny treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”  This statement seems to imply that the Rome Statute is now a part of Kenyan domestic law, thereby granting the ICC jurisdiction to put Kenyatta and Ruto on trial.
Third, there are currently eight active cases before the ICC. In four of those cases- Uganda, the Democratic Republic of Congo, Central African Republic, and Mali – the countries referred themselves to the ICC. In addition, the ICC is currently in the preliminary examination stage of looking into atrocities in Afghanistan, Colombia, Korea, Honduras, Korea, Nigeria, Guinea, and Georgia. 
Finally, the ICC is a court of last resort, meaning it will only act if a state is not able or unwilling to prosecute people for crimes. Kenya has argued that its new constitution has strengthened the Kenyan judicial system and the country will be able to “investigate” Kenyatta and Ruto without international interference. The country was supposed to set up a tribunal to investigate the post 2007-2008 election violence, but failed to do so. The state still has not taken any steps domestically to hold accountable those who committed atrocities. Furthermore, it will be virtually impossible for a three year old judicial system to investigate and have a trial for such heinous acts. It will be interesting to see the outcome of these cases.
1 Francis Kirimi Muthaura and Joshua Arap Sang are also facing similar charges before the ICC.
2 Xan Rice, International criminal court to investigate violence after 2007 Kenya election, The Guardian (March 31, 2010), http://www.guardian.co.uk/world/2010/mar/31/international-criminal-court-kenya-violence.
3 It is believed by some Ambassador Kamau sent the letter to the Security Council at this time because the Permanent Representative of Togo is now the President of the Security Council for May 2013.
4 Kenya asks UN to halt ICC charges against Kenyatta, BBC News (May 9, 2013), http://www.bbc.co.uk/news/world-africa-22472242. See also Mancharia Kamau, Why I insist that ICC cases against Kenya leadership should be dropped, Daily Nation, May 20, 2013, http://www.nation.co.ke/oped/Opinion/ICC-cases-against-Kenya-leadership-should-be-dropped/-/440808/1858012/-/item/0/-/10yypoc/-/index.html.
5 Patrick Mayoyo, Ruto denies bid to halt ICC trials, Daily Nation, May 9, 2013, http://www.nation.co.ke/News/politics/Ruto-disowns-bid-to-stop-ICC-cases/-/1064/1847692/-/us85v0z/-/index.html; Julius Sigei & Kevin J. Kelly, Mystery of ICC letter as prosecutor answers Uhuru, Daily Nation, May 9, 2013, http://www.nation.co.ke/News/politics/Mystery-of-ICC-letter-as-prosecutor-answers-Uhuru/-/1064/1848820/-/3p4dp7z/-/index.html .
6 Article 16 of the Rome Statute states : “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council , in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”
7 Kenya’s ICC deferral bid at the UNSC comes to an unhappy end, Sudan Trib., March 19, 2011, http://www.sudantribune.com/spip.php?article38328.
8 News Wires, African Union asks ICC to transfer Kenyatta Case, France24.com (May 27, 2013), http://www.france24.com/en/20130527-icc-hague-rejects-african-union-kenya-president-kenyatta.
9 Jurisdiction and Admissibility, International Criminal Court, http://www.icc-cpi.int/en_menus/icc/about%20the%20court/icc%20at%20a%20glance/Pages/jurisdiction%20and%20admissibility.aspx (last visited May 31, 2013).  Some may argue that the United States has committed similar crimes in Afghanistan and Iraq since July 2002. But, the United States is not a party to the Rome Statute; therefore, the court does not have jurisdiction over the United States, nor is it likely that the United States would give the ICC jurisdiction to investigate such crimes.
10 Rome Statute of the International Criminal Court art. 12, July 17, 1998, 2187 U.N.T.S. 3 (entered into force July 1, 2002).
11The States Parties to the Rome Statute, International Criminal Court, http://www.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx (last visited May 31, 2013).
12 Kenya, International Criminal Court, http://www.icc-cpi.int/en_menus/asp/states%20parties/african%20states/Pages/kenya.aspx (last visited May 31, 2013).
13Constitution, ch. 1 § 2(6) (2010)(Kenya).
14Office of the Prosecutor, International Criminal Court, http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/Pages/office%20of%20the%20prosecutor.aspx (last visited May 31, 2013).