Is the ICC losing its clout?

2013-05-05 14:00

International diplomacy muddies the waters for The Hague’s criminal prosecution

An indictment at the International Criminal Court (ICC) used to mean diplomatic isolation, but now it appears to depend on who your neighbours are.

Charged by the ICC in The Hague, the Netherlands, for Uhuru Kenyatta, Kenya’s new president, Uhuru Kenyatta, has been wooed by Britain and invited to attend next week’s Somalia conference in London.

Having a troublesome neighbour may have helped salvage diplomatic ties, bringing relief to both sides.

The meeting is part of a major push to rehabilitate a nation bruised by years of bloodshed and build on the progress of the past year.

Somalia now has its first elected president in two decades and political stability looks like a possibility.

Yet privately, some are questioning whether Britain is “going cold” in its support for the ICC, where Kenyatta faces charges that he helped fund ethnic violence that saw more than 1 300 people killed and about 250 000 displaced in 2008.

The trial of one of his co-accused has already been dropped and Kenyatta’s lawyers have been fighting for his case to go a similar way.

John Githongo, a Kenyan governance campaigner, argues that for Kenyatta’s supporters, the invitation to London “is undoubtedly a triumph”.

Others say this is simply an exercise in realpolitik.

A little more than a month ago, diplomatic relations between Kenya and its former colonial master were strained, to say the least.

Britain bristled at the prospect of Kenyans voting for a leader who could expect to spend time clearing his name at The Hague. The Americans were more explicit and warned of “consequences”.

Kenyatta’s election campaign whipped up anti-foreigner sentiment in a way not seen since independence in 1963.

Now with the elections over and Kenyatta occupying the top post, Britain’s Prime Minister, David Cameron, has invited his counterpart to London.

It is the first glimpse at what Britain’s stated policy of maintaining “essential contact” means in practice.

“Kenya is a vital partner in Somalia,” a foreign office spokesperson explained.

Kenya provides nearly 5 000 troops in Somalia, so clearly excluding them from such a high profile event was “not an option”, according to the diplomatic chatter in the Kenyan capital, Nairobi.

But many in the human rights world fear the invitation will “embolden” Kenyatta and his apparent attempt to thumb his nose at the ICC.

Publicly, Kenya is cooperating with The Hague. This is what makes it different to Sudan.

In 2009, the ICC issued an arrest warrant for Sudanese President Omar al-Bashir for war crimes and crimes against humanity.

Sudan does not legally recognise the ICC, but Kenya does.

By extending a diplomatic hand to Kenya at next week’s conference, Britain may be inadvertently undermining the ICC. That is the fear of Ndung’u Wainaina from Kenya’s International Centre for Policy and Conflict.

Britain clearly needs to maintain ties with its most important

east African ally. But Wainaina questions how history will judge this delicate diplomatic dance.

Security was among the most pressing issues for voters when Kenyans went to the polls back in March. Insecurity in Somalia is clearly a threat and Kenyatta has promised to address that.

For Britain, the concerns are about militant links to Al-Qaeda. For Kenya, Somalia’s troubles have spilled on to its own streets with a string of grenade attacks claiming Kenyan lives.

So will this be seen as the moment when Britain “betrayed the rule of law in Kenya” for the sake of global security, or will it still remain steadfast in its ICC ideals?

The evidence against Kenyatta has still to be tested in court. Many privately wonder whether a trial will actually happen.

» Allen is a BBC correspondent in southern Africa

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