President Kenyatta is received by Erastus Mwencha, Deputy Chairperson, African Union Commission, in Addis Ababa, Ethiopia/PSCU
An AU summit on 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 on the African continent will place their political interests above those of victims of war crimes, crimes against humanity and genocide,” said 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 2007 elections.
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 said.
“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,” said Herman van der Wilt, an international criminal law professor at Amsterdam University.
As for postponing the Kenyan trials, he added: “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 two members, he said, “France and Britain have always been very supportive of international justice.”
‘New ground for Western powers’
But now a new dynamic has entered into the debate that could influence the decision-making: the attack last month by the Al-Qaeda-linked Somali group Shabaab on a Nairobi shopping mall that left at least 67 people dead.
“The dynamic and the politics around Kenya have changed. The attack at Westgate mall has probably shifted the priorities for two countries, France and Britain,” said Anton du Plessis, managing director for the Institute for Security Studies in Johannesburg.
Alex Vines, head of the Africa programme at the Chatham House think-tank, also pointed to the dilemma facing the Western powers, who sit on the Security Council. He said they find the Kenya case “uncomfortable”.
“Kenya is economically and strategically important for Western countries… (they) also can’t ignore that Uhuru Kenyatta was elected through a credible electoral process (in March),” Vines said.
“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.
The 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.
“The visible anger by African states during the (AU) meetings in Addis Ababa… (have) guaranteed to make the Security Council notice the application,” the paper wrote.
Du Plessis said he “would be very surprised” if the Security Council agreed to the deferral. But he stressed that the AU summit did not go as far as to pull out of the court and recognised “that they need to follow legal routes”.
“What is important is that the fears that some analysts had, that there might be more support amongst the AU body for a massive withdrawal (from the ICC), were perhaps exaggerated,” he added.
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 no-show by Kenyatta at the ICC – his trial date is November 12 – if a deferral is denied.
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