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BLACK AND WHITE JUSTICE? KENYA'S PRESIDENT KENYATTA, THE AFRICAN UNION, AND THE ICC

ANN GARRISONOCTOBER 22,2013

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Last week a majority of International Criminal Court judges ruled that Kenyan President Uhuru Kenyatta need not be present for much of his own trial for crimes against humanity, but that he must be present during the opening and closing statements, and victims' testimony.  If he's found guilty, they say he must also attend sentencing hearings and the delivery of sentencing, at which point he would presumably be taken into custody, and Kenya would be left to find a new president.  

Kenyatta says he's too busy, as Kenya's elected president, to attend his trial at the International Criminal Court in the Hague, and the African Union, in their recent gathering in Addis Abbaba, Ethiopia, passed a resolution that, as a sitting head of state, he not only shouldn't have to, but also shouldn't be indicted for war crimes, crimes against humanity, and/or genocide. The court indicted Kenyatta in March 2011, alleging that he organized violence rising to the level of crimes against humanity, after his party lost the Kenyan 2007-2008 election. He was nevertheless elected president two years later, in April 2013, and some commentators even suggested that the ICC had given his campaign a boost, because many Kenyans perceive the court as a racist, imperial institution that indicts and prosecutes only Africans, despite an abundance of Western leaders that much of the world considers guilty of war crimes, crimes against humanity, and/or genocide.

Kenyatta's rival, former Kenyan Prime Minister Raul Odinga, who is favored by the U.S., said he didn't know how Kenyatta could run the country via SKYPE from the Hague, but that problem seems to have been solved.

This is a curious and, to my knowledge, unprecedented situation. Sudan's Omar al-Bashir was the first sitting president to be indicted by the court, Kenyatta the second, but Sudan hasn't ratified the treaty that created the court or accepted its jurisdiction. President Omar al-Bashir has avoided arrest and extradition, in part due to the cooperation of other African heads of state, who have an obvious vested interest in not arresting him. During the UN General Assembly, he threatened to fly into New York City to attend, putting the U.S. in the awkward position of arresting him in accordance with a treaty that the U.S. refuses to ratify, as he does, and then extraditing him to a court whose jurisdiction the U.S. refuses to accept, as he does. The U.S. seems to prefer leaving organizations like Human Rights Watch and Amnesty International to call for Al-Bashir's extradition, even though they also call on the U.S. to accept the court's jurisdiction.  

Kenya, however, ratified the treaty that created the court, so Kenyatta's strategy appears to be withdrawing his country from the treaty and the court's jurisdiction before he can be convicted.  

Black Agenda Report Editor Glen Ford, like many other critics of the court, said, in a radio broadcast editorial, that Kenyatta's indictment is another example of the U.S. using the International Criminal Court as an imperial tool.  "It is a travesty of justice that the ICC only indicts Africans, but even more importantly, the International Criminal Court also only indicts those politicians that get on the wrong side of the United States and the former colonial powers in Africa. The ICC is a tool of U.S. foreign policy." Some say that the U.S. would like to see President Kenyatta convicted and locked up because he prefers to do business with China, and he did, in August 2013, sign deals worth five billion U.S. dollars with Chinese Premier Xi Jinping, to build a railway line, an energy project, and improve wildlife protection.  And a Christian Science Monitor contributor recently said that Kenya's oil reserves could soar past even Uganda's.

Archbishop Desmond Tutu, writing in the New York Times, said that African heads of state are effectively looking for a license to kill, main and oppress their own people by withdrawing from the court. Black Agenda Report Editor Glen Ford seems to agree, but to place more importance on the hypocrisy of U.S. collaboration with the very same African heads of state.  "And here lies the greatest irony. The very nations that most oppose the ICC have the blood of millions on their hands. Rwanda and Uganda are principally responsible for the death of six million Congolese over the past 17 years, an ongoing genocide armed and financed by the United States and Britain. The Ethiopian regime's brutality towards its Somali and Oromo ethnic groups has also been described as genocidal. But because the United States is also deeply complicit in these crimes, there is no threat of prosecution by the International Criminal Court."

African scholars writing in the Pambazuka News and Black Star News have agreed with Tutu, arguing that despite the court's obvious bias and imperfection, the threat of indictment and conviction serves to restrain the violence of African strongmen. And, that instead of rejecting the court out of hand, dissidents should demand that it live up to its stated ideals and all nations accept its jurisdiction.  

I have reported on the U.S. and its allies' hypocritical and political use of the court for years, while following events on the African continent, and I could not agree more with Glen Ford.But, what will be the real world consequence of African nations removing themselves from the court's jurisdiction?  That I can't answer, so, I'm still listening to everyone with a stake in this. Perhaps Glen Ford, who seems to have thought it through, will also propose a way forward.     

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