UN ‘unlikely to agree’ to deferral of Kenya cases before ICC
THE African Union’s (AU) demand for the International Criminal Court (ICC) to defer trials against Kenya’s leadership is unlikely to get United Nations (UN) Security Council support but poses a dilemma for western powers, analysts say.
An AU summit last Saturday stopped short of withdrawing from The Hague-based ICC, but it urgently asked for the deferral of the cases against Kenyan President Uhuru Kenyatta and his deputy, William Ruto, so they can fulfil their duties to run the country.
“This declaration sends the wrong message, that politicians in Africa will place their political interests above those of victims of war crimes, crimes against humanity and genocide,” says Tawanda Hondora, an Amnesty International deputy director.
The Kenyan leaders have been charged with crimes against humanity for allegedly masterminding the ethnic violence that left at least 1,100 dead after disputed elections in 2007. Justice for the victims and a clear stand against immunity for heads of state would be among the key arguments against a trial deferral, analysts say.
“There is no chance that immunity would be granted. It is a core principle of the court: everyone must answer for his actions and especially those who are the most responsible,” says Herman van der Wilt, an international criminal law professor at Amsterdam University.
As for postponing the Kenyan trials, he says: “I can’t predict but I think it is very unlikely” because the permanent members of the security council can use their veto power and “France and Britain have always been very supportive of international justice”.
But now a new dynamic has entered into the debate that could influence the decision-making: the attack last month by the al-Qaedalinked Somali group al-Shabaab on a Nairobi shopping centre that left at least 67 people dead.
“The dynamic and the politics around Kenya have changed. The attack at the Westgate mall has probably shifted the priorities for two countries, France and Britain,” says, Institute for Security Studies MD Anton du Plessis in Johannesburg. Alex Vines, head of the Africa programme at the Chatham House think-tank, also points to the dilemma facing the western powers, who sit on the security council.
He says they find the Kenya case “uncomfortable”. “Kenya is economically and strategically important for western countries … (they) also can’t ignore that Mr Kenyatta was elected through a credible electoral process (in March),” Mr Vines says.
“This is new ground for western partners on how to navigate their interests versus values in this case.”
Kenya had tried unsuccessfully in May to get action from the security council, which can defer ICC proceedings for one year.
Kenyan newspaper the Daily Nation has argued that this time the request would get more attention as some African nations have accused the ICC of acting like a neo-colonialist institution that has singled out Africans. The court founded in 2002 has so far issued indictments related to conflicts in eight countries, all in Africa.
Mr du Plessis says he “would be very surprised” if the security council agreed to the deferral. But he said the AU summit did not go as far as to pull out of the court and recognised “that they need to follow legal routes”.
Still, it remains unclear what action the AU could take next if the security council does turn down its request. The bloc has warned it would support a noshow by Mr Kenyatta at the ICC — his trial date is November 12 — if a deferral is denied.