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Africa Attacks the International Criminal Court

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Fred Ernst/AP Images
Luis Moreno Ocampo, then chief prosecutor of the International Criminal Court, and his successor, Fatou Bensouda, The Hague, July 2008

In prosecuting Kenyatta and his deputy president, William Ruto, the ICC has taken on more formidable opponents. In 2007–2008, Kenyatta and Ruto were senior members of opposing political parties in Kenya, Kenyatta’s grounded in the Kikuyu ethnic group and Ruto’s in the Kalenjin. Large-scale violence broke out between the two groups and others when allegations of fraud followed a closely fought election. Kenya has a long history of politicians who try to secure power by whipping up ethnic violence—and never face criminal charges. An emergency mediation effort established by the African Union and led by Kofi Annan negotiated an end to the violence. And for the first time, many nations, as well as the AU, pressed for prosecution of those responsible for the killings and other violence that took place during the election.

Because Kenya’s regular courts had a poor record of dealing with electoral violence, Kenya was asked by Annan and others to set up a special tribunal that would include international judges. But twice a bill to create the tribunal was voted down by the Kenyan parliament. Not only Kenyatta’s allies but Ruto himself led the opposition to the bill. They must have calculated that a Kenyan special tribunal posed a greater threat than what at the time seemed the distant prospect of prosecution by the ICC. They bet wrong.

In 2008, a Kenyan commission of inquiry handed to Kofi Annan a confidential list of people behind the violence. It asked him to give the list to the ICC if the government did not establish a tribunal. When it did not, Annan reluctantly handed the list to the ICC in 2009. Kenya’s president at the time, Mwai Kibaki, encouraged him to do so and promised his government’s support. In 2011 the ICC, in turn, summoned six Kenyans in connection with violent acts: Kenyatta and two alleged accomplices from one side and Ruto and two alleged coconspirators from the other.

Suddenly facing prosecution, Kenyatta and Ruto buried their political differences and formed the Jubilee Alliance—sometimes mockingly called the Coalition of the Accused. In a hard-fought election in March amid widespread allegations of fraud, the alliance was ruled to have prevailed with 50.07 percent of the vote, just above the majority needed to avoid a runoff.

Ominously, the alliance campaigned in part by denouncing the court, turning the charges against its leaders into a nationalist protest against interference in Kenya’s affairs. Kenyatta conveniently interpreted his narrow victory as a mandate to ignore the legitimate demands for justice of the victims and survivors of the 2007–2008 violence. That impunity continues to be a source of tension in Kenya’s Rift Valley, the center of the violence.

As a politician, Kenyatta is imposing. The son of Kenya’s founding president whose family has amassed an enormous fortune, educated at Amherst, he is savvy, articulate, and capable of deploying substantial resources in his defense. Now, as the elected president of one of Africa’s most advanced economies, he has used his new position to open an offensive against the court.

The prosecution, for its part, had already encountered problems with its case. The judges dismissed the charges against two of the six suspects charged by the former chief prosecutor. The new chief prosecutor, Bensouda, dropped charges against a third after a key witness proved unreliable. Seven potential witnesses have been killed and others have apparently recanted their testimony. In October, the ICC unsealed an arrest warrant for a Kenyan accused of being part of a network “devised by a circle of officials within the Kenyan administration” that was bribing witnesses to withdraw from the Ruto case. In addition, Bensouda said in a court filing in November that she has a telephone recording of an associate of Kenyatta attempting to bribe an important witness to withdraw testimony. The defendants, for their part, have accused people working on behalf of the prosecution of manipulating witnesses and interfering with their collection of evidence.

Meanwhile, Kenyatta has mounted a major political attack on the court. Both he and Ruto have made a point of officially cooperating with it, showing up in The Hague when required. Ruto’s trial began in September, and Kenyatta’s is scheduled for February, although the prosecutor has requested a delay of the Kenyatta case because of witness problems, suggesting the breadth of the challenges she faces. Aside from this, the two are doing everything they can to stop the prosecution.

A special African Union summit was convened in October amid speculation that African states might withdraw en masse from the court. When that fizzled—no one withdrew—Kenya was able to get the AU to ask the UN Security Council to defer the proceedings against Kenyatta, on grounds that he is a sitting head of state.

Rwanda, currently a nonpermanent member of the Security Council, led the effort there on Kenya’s behalf. Such African celebrities as Kofi Annan and Desmond Tutu, as well as Kenyan rights groups and many others, opposed the AU’s request. It failed when the Kenyans could not secure even a majority of the council’s fifteen votes, let alone the nine votes that would have required the US, UK, or France to use its veto, as at least one of them almost certainly would have.

Rwanda’s background illustrates some of the motives behind Kenyatta’s supporters. Its president, Paul Kagame, has been one of the most outspoken opponents of the court. Rwanda’s first encounter with international justice was with the International Criminal Tribunal for Rwanda, a separate court established by the Security Council in the aftermath of the Rwandan genocide. The Rwandan government’s relations with that tribunal have been frosty. Its judges did not trust Rwandan courts to deliver fair trials until 2011 and so insisted on trying genocide suspects themselves. The tribunal also threatened to prosecute members of Kagame’s own forces, the Rwandan Patriotic Front, for the murder of thousands of people during and after the genocide that the RPF halted. Since the RPF defeated the genocidal government, Kagame, initially as vice-president and defense minister and now as president, has run the country for the last two decades. There have been very few prosecutions of RPF members, most of those from lower ranks.

More recently, however, Rwanda may have come to fear prosecution by the ICC over its support of a series of violent rebel groups in eastern Congo. Rwanda never joined the ICC, but Congo has, so the court would have jurisdiction over Rwandan officials if it could be shown that they aided and abetted mass atrocities on Congo territory. That is the crime for which still another internationally established tribunal convicted Liberia’s former president Charles Taylor in 2012 for his direct support of the rebel group Revolutionary United Front, in neighboring Sierra Leone. That group was notorious for cutting off limbs.

Kenya has been making two main arguments in its defense, and it is increasingly backed by the African Union, which is acting more like its predecessor, the Organization of African Unity—often dubbed a Dictators’ Club—than an organization committed to the democratic and human rights principles on which it was founded in 2000.

First, Kenya contends that the court’s so-far exclusive focus on African crimes is unfair, a modern-day form of colonialism. As Kenyatta put it in a speech at the AU summit in October, the ICC “stopped being the home of justice the day it became the toy of declining imperial powers.” African leaders, many of whom have their own reasons to dislike a precedent of holding heads of state to account for their crimes, have been particularly receptive to that view. It is hardly surprising that the strongest backers of Kenya have been Ethiopia and Rwanda—which have never joined the ICC and have a history of impunity for serious crimes—and Uganda, whose President Museveni has become increasingly autocratic in his twenty-eight-year reign and whose own forces have a long history of violent abuses.

That war criminals still run free where the court cannot act is hardly reason to refrain from prosecution where it can. Yet on a continent whose people have suffered under colonialism, the charge that they are subject to an international standard of justice that no one else actively faces—not in Afghanistan or Iraq, not in Sri Lanka or Israel—resonates among African leaders and some of their constituents. And while most European governments have accepted the court’s jurisdiction, it doesn’t help that some of the world’s most powerful nations—the United States, China, Russia, and India, to name a few—have not.

The charge of selective prosecution receives less support among the African people who are the victims of ruthless leaders. Members of African civil society have been quick to point out that the ICC, which under its statute must defer to genuine national prosecutorial efforts, is merely responding to Africa’s failure to prosecute its own mass atrocities. The alternative to ICC prosecution in the cases it has taken on would be no prosecution at all—no justice for the countless Africans who have been murdered, tortured, raped, or forced to become child soldiers. To this day, Kenya has not made good on its promises to launch its own prosecutions. Instead, its current leaders want the issue simply to go away.

A second argument put forward by Kenya—and strongly supported by some members of the African Union—is that a head of state should be exempt from prosecution for the duration of his term. Kenya has used the September attack of the Islamist armed group al-Shabaab on the Westgate shopping mall in Nairobi to support this argument. Kenyatta contends that he should not have to be diverted by an ongoing prosecution in The Hague from his important duties combating terrorism at home. His argument also contains an implicit blackmail—Western nations should not count on Kenya’s assistance in containing al-Shabaab if they continue to support bringing Kenya’s leaders to justice.

However, a central purpose of the ICC is to prosecute government leaders who might otherwise use their positions of power to secure impunity for their crimes. In line with international law and practice since the Nuremberg Trials, the ICC’s governing statute—the Rome treaty, which all members including Kenya have ratified—provides that “official capacity as a Head of State or Government…shall in no case exempt a person from criminal responsibility.”

Kenya’s own constitution, while granting other limited forms of presidential immunity, denies such immunity for crimes under an international treaty like the ICC’s. Other heads of state have been pursued by international tribunals, including Bashir, Taylor, Libya’s Muammar Qaddafi, and the former Yugoslavia’s Slobodan Milošević. Moreover, a policy of refusing to prosecute sitting heads of state could easily become an incentive for leaders facing criminal charges to do whatever it takes to remain in office, including committing more of the mass atrocities that the ICC is supposed to be helping to prevent.

The standoff between Kenya and the ICC remains unresolved. Kenyatta and Ruto continue to make a show of cooperating with the court in order to avoid the issuance of arrest warrants and the ensuing pariah status now faced by Sudan’s Bashir. Legislation in the Kenyan parliament urging Kenya to withdraw from the ICC has not been acted upon. Yet that thin veil of cooperation barely masks the frontal attack that Kenyatta and Ruto have launched on the court. So far all that Kenyatta and Ruto have obtained for their efforts is a relaxation of the requirement that they attend their trials, if the judges approve. But they are pressing for more. Meanwhile the ICC prosecutor is struggling to curtail the apparent witness-tampering that could destroy its cases—partly through a witness-protection program and the revived threat of prosecution, and partly by a new rule that permits introduction of a witness’s “prior recorded testimony” if he is no longer available because of intimidation or death. It remains to be seen what happens in the Kenya cases, but perhaps the most important battle for the ICC will be in African countries, particularly if the African Union makes immunity for sitting heads of state a battle cry.

Until now, most African leaders’ support for Kenya’s position has been limited to sympathetic rhetoric. They have done nothing to repudiate the court that is conducting the prosecution. Yet with their political futures and personal liberty at risk, Kenyatta and Ruto appear to have no qualms about trying to bring the court down. If they could orchestrate a mass African defection, they undoubtedly would, and this could be devastating for international justice. The court’s future now rests to a large extent on the battle being waged between African leaders with little interest in justice and those Africans, including many activists and victims, who see an end to impunity for mass atrocities as essential for Africa’s future. One can only hope that the welfare of African people takes precedence over the perceived interests of African leaders.

—January 8, 2014

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