US, Britain… who will cast the first ‘ICC Stone’ at Kenya?



Can an American be guilty of crimes against humanity? Is it possible that some American individual, or group, can be involved in the kind of offences that constitute a serious attack on human dignity, and/or a grave humiliation or degradation of human beings, as part of an ‘organised’ system? Can Americans be involved in torture; rape; political, racial or religious persecution, or other inhumane acts, as part of a widespread or systematic practice, as the International Criminal Court defines as crimes against humanity?

Does ‘Gitmo’ apply; the military prison located within Guantanamo Bay Naval Base, Cuba, established in 2002 by the American government to detain extraordinarily dangerous prisoners, interrogate them in an ‘optimal setting’, and to prosecute such prisoners for war crimes.

Most of the ‘captives’ in Gitmo are from Afghanistan, Iraq, Horn of Africa and Southeast Asia. (We understand there might even be some Kenyan prisoners there). So, does what goes on in ‘Gitmo’ fall under crimes against humanity? Is there a system that conducts forced displacement, torture, murder, etc? Does what America has done in Afghanistan, Iraq, etc, fall under the definition of crimes against humanity?

But, this argument is actually moot.

No American can be charged at the ICC, first because America has veto powers on the UN Security Council (UNSC) and would not allow it. However should a way be found around that veto, America also has the ‘American Service-members’ Protection Act (better known as the ‘Hague Invasion Act’), a law that allows the US to use “all means necessary and appropriate” to bring about the release of any US or allied personnel detained or imprisoned by or on the request of the International Criminal Court.

The US also has bilateral immunity agreements known as “Article 98 agreements” with several ICC-compliant countries stating that they cannot surrender any US citizen to the ICC. Basically, if an American was charged with a crime at The Hague, America has laws allowing it to literally go to war with the court. The ‘land of the free and the home of the brave’ will not allow any of its citizens to be hauled before the ICC.

However, in some duplicitous way, America has a problem when Kenya fights against its citizens being accused in the ICC. It argues that Kenya ratified the treaty; the same treaty they themselves are on record saying “has insufficient checks and balances on the authority of the ICC prosecutor and judges” and “creates a self-initiating prosecutor answerable to no state or institution other than the Court itself” and where “without such an external check on the prosecutor, there is insufficient protection against politicized prosecutions or other abuses.”

Can a Briton be guilty of crimes against humanity? They have been fighting civilians in Ireland for decades; they went to Iraq with America; their own courts found them culpable of gross crimes against Kenyan Mau Mau, even instructing the British government to compensate the survivors. However as ICC is structured, you cannot take Britain to court for crimes committed by ‘organized systems’, during colonialism.

Britain also holds veto powers on the UNSC; the one organ where the ICC derives its authority from. In fact, as their Foreign and Commonwealth Secretary Robin Cook famously said on live international television in 2003 (BBC) “… this is not a court set up to bring to book Prime Ministers of the United Kingdom, or Presidents of the United States’.

So the one thing we have learnt since the ICC came into Kenya is that the court really is not an ‘an international court of justice’. As President Uhuru Kenyatta stated at the AU summit, somehow we are expected to be accountable to a court where ‘America and Britain do not have to worry about accountability for international crimes’. And you wonder why some say the ICC is ‘race-hunting’!

This does not mean that I do not believe crimes were committed in Kenya in 2007; no one disputes this fact. But we can only learn from our past; we cannot live in it. As we gradually get pushed to the point where as Kenyans we must chose who to entrust the future of our country with, let me remind us that it was not the ICC that stopped us from destroying our nation in 2007; it was us, the Kenyan people, who stopped at the edge of the precipice, looked down, said ‘NO’, and drew back.

Shortly we must choose between the ICC; a judicial system that so far has only managed to turn Kenyans against each other, re-introduce a fear of the state that we thought we had finally put behind us, and complicate our domestic and foreign relations; Or, our ‘Kenyaness’; that capacity to sort out our own issues in our own ways, that do not necessarily fit ‘international justice’ but build Kenya, and move us forward as a nation. The best choice looks obvious, but some relatively smart Kenyans will still surprise us.

(Wambugu is the Executive Director, Change Associates Trust)

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