Irony of America stance on Israel-Palestine ICC case vis-à-vis Kenya


This month the International Criminal Court opened what they are calling a ‘preliminary examination of the situation in Palestine’.

America, the world’s only super power and the country which has taken upon itself the responsibility of defining for the rest of us what is right or wrong, stated that they ‘will continue to oppose actions against Israel at the ICC as counterproductive to the cause of peace.’

America gave the (completely ridiculous) argument that because Palestine is not a State (according to them) then it is not possible for Israel to commit crimes against humanity on Palestinians. However they then immediately contradicted themselves by suggesting that the ICC needs to allow Israel (which they recognise as a State) and Palestine (which they do not recognise as a State) to engage, and insisted that the ‘the place to resolve the differences between the parties is through direct negotiations, not unilateral actions by either side.’

Let us compare this to the Kenyan situation.

On 3rd March 2010 the Office of the Prosecutor (OTP) released a press statement where the Prosecutor clarified that senior political and business leaders associated with the main political parties; PNU, which was in the government at the time of the violence; and ODM, which was the main Opposition party at the time; organised, enticed and financed attacks against the civilian population on account of their perceived ethnic and political affiliation pursuant to or in furtherance of a State or organizational policy.

The OTP then went on to argue that senior leaders from both PNU and ODM parties were guided by political objectives to retain or gain power, and that they utilised their personal, government, business and tribal networks to commit these crimes.

This statement by OTP underlines what has been the guiding principle behind the ICC Kenyan cases since inception. Moreno Ocampo (and now Fatou Bensouda) built and sustained the two ICC Kenyan cases on the argument that PNU and ODM had an organisational plan and structures to cause violence against the civilian populations of the other.

This is the reason they charged Uhuru Kenyatta, Francis Muthaura and Hussein Ali as ‘the PNU side’ and William Ruto, Henry Kosgey and Joshua Sang as ‘the ODM side’.

However when the ICC chose these six individuals and then dropped charges against the technocrats and left only the politicians (and poor Sang who I just cannot understand what he is doing in this case); they unknowingly changed the dynamics of what each person represented.

The ‘organisations’ they were roped into the case were no longer the PNU and ODM political structures, but the Kikuyu and Kalenjin ethnic communities. The ICC had somehow managed to turn what was initially a legal situation brought about by political differences, into a much more complicated ethnic conflict that no legal process can solve.

The PNU-now-turned-into-Kikuyu and ODM-now-turned-into-Kalenjin cases were dealt a further body blow when both sides did what America is suggesting ICC should allow Israel and Palestine to do. The Kalenjin and Kikuyu engaged in direct negotiations outside the jurisdiction of the ICC process and came to an understanding which led to the first-ever Kikuyu/Kalenjin political alliance in Kenya’s 50 years as a state. This was appropriately called the Jubilee alliance. The sheer audacity of this alliance transformed Kenya’s 2013 elections and propelled the leaders of the two tribes; who were each ICC-indictees; into the Presidency. (To understand what they achieved one would have to understand the significance of a Kikuyu ‘inheriting’ another Kikuyu into the Presidency in Kenya; with the support of the Kalenjin; against an aggressive challenge from an incumbent Luo Prime Minister & Kamba Vice President presidential ticket).

Now the case against ‘the Kikuyu’ has collapsed while the one against ‘the Kalenjin’ continues. The ICC, which admitted right at inception of the two cases that certain political realities had to be taken into considerations to ‘balance’ the political situation in Kenya now insists that the two cases are independent and that what happens to one does not affect what happens to the other. This is complete balderdash; and they know it.

Kenya is in a situation very similar to what the world is facing with Palestinians and Israel. It is no longer about who is right or wrong; or whose actions or reactions were caused by whom. It is about avoiding unilateral actions against either. This is how peace will be achieved, and prevail in Kenya. The Americans are right on this for Israel/Palestine; and it applies for Kenya’s internal politics as well.

This is the uncomfortable reality that the International Criminal Court must accept. Continuing to pursue a unilateral action against William Ruto after dropping the case against Uhuru Kenyatta is counterproductive to the cause of peace in Kenya. Political instability in Kenya would affect Africa. This is the message the African Union must send to the world from Addis Ababa this week.

(Wambugu is the Director of Change Associates – a Political Communications Think Tank)

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