By Nicholas Kulish and Benno Muchler/ New York Times
NAIROBI, Kenya — The members of
the African
Union agreed on Saturday that no sitting head of state
should be prosecuted by an international tribunal and that the trial of Kenya’s
president at the International Criminal Court should be postponed, according to
the group’s chairman who spoke after the closed-door session.
But there was no resolution
demanding an exodus from the court over what many Africans see as unfair
treatment.
Pressure had been building for
African countries to withdraw from the international court en masse. But two of
the continent’s leading elder statesmen and Nobel laureates, Kofi Annan, the
former United Nations secretary general, and Archbishop Desmond Tutu, spoke out
strongly in favor of the court last week. So did many civil-society groups.
Relations between the court and
African leaders have deteriorated as the court has prosecuted only cases
against African states more than a decade into its existence. The issue has
come to a head as President Uhuru Kenyatta of Kenya is expected to stand trial
at The Hague next month — even as his country struggles to deal with the
aftermath of the siege of the Westgate mall, which claimed the lives of more
than 60 men, women and children.
The African Union organized the extraordinary
summit meeting at its headquarters in Addis Ababa, Ethiopia, on Friday and
Saturday to debate the future of relations between its members and the court.
The court has “continued to
operate in complete disregard of the concerns” of African governments, said
Prime Minister Hailemariam Desalegn of Ethiopia, the chairman of the African
Union.
African nations had joined the
court, the prime minister said, “convinced that the organization would promote
the cause of justice with a sense of impartiality and fairness.” But he added
that “the practice so far however leaves so much to be desired.”
Mr. Kenyatta and his deputy,
William Ruto, have both been charged with crimes against humanity, accused of
being involved in the violence that followed the disputed presidential election
in 2007, which claimed the lives of more than 1,100 people and displaced more
than 600,000. They deny the accusations.
Mr. Ruto’s trial began last
month, and he has been traveling back and forth between Kenya and The Hague.
Mr. Kenyatta’s trial is supposed to begin in a month, and there has been
growing speculation in the Kenyan news media that Mr. Kenyatta would not travel
to The Hague. The attack on Westgate has earned him more support abroad, both
in sympathy over the attack and in the way it highlighted the practical need
for heads of state to be at home to govern their countries.
“The elected leadership of
Kenya must be allowed to serve their term as mandated by the people of the
country,” said Nkosazana Dlamini Zuma, chairwoman of the African Union
Commission, in her opening remarks on Saturday. “They must be allowed to lead
the country in the consolidation of peace, reconciliation, reconstruction, democracy
and development as per the will of the Kenyan people, expressed in elections in
March this year.”
But she also said it was
“critical” that African countries not abandon the court.
On Saturday, the African Union
members said the court should not try heads of state until their terms of
office end. That would appear to cover President Omar al-Bashir of Sudan, who
was indicted in 2009, but has refused to cooperate with the court.
Mr. Kenyatta is the second
sitting head of state in Africa indicted by the court, after Mr. Bashir. The
court has also opened cases in Central African Republic, Ivory Coast, the
Democratic Republic of Congo, Libya, Mali and Uganda. The I.C.C. does have
investigations under way outside of Africa, including in Colombia and Afghanistan,
but they are preliminary.
The United Nations Security
Council has the power to refer cases to the I.C.C.
“The landscape on which this
court works is a very uneven one,” said Richard Dicker, director of Human
Rights Watch’s international justice program in New York. “The leaders of the
most powerful countries and those governments the most powerful countries
protect don’t find themselves facing arrest warrants from the I.C.C. That’s an
ugly reality, but it’s not the fault of the court.”
But he called that track record
“no excuse to deny justice to victims where it’s possible.”
The 1998 Treaty of Rome created
the I.C.C., and its jurisdiction went into effect in 2002; 122 countries, including
Kenya, have ratified the treaty. Of the African Union’s 54 members, 34 are
parties to the I.C.C.
The United States never
ratified the treaty. Some have called for Americans to be prosecuted over the
Iraq invasion, but because it is not a party to the court and holds a veto in
the Security Council, any action against Americans has been effectively
prevented. Russia and China, which also hold veto power, are also not part of
the court.
“African states were encouraged
by an international institution that wasn’t held hostage by the most powerful
states and the Security Council in particular,” said Mark Kersten, a researcher
at the London School of Economics and author of the blog Justice
in Conflict. “Over the last few years, the I.C.C. has built a much
closer relationship with the Security Council. That has instigated a lot of
uncertainty.”
Last year, Fatou Bensouda, a
Gambian lawyer, became the chief prosecutor, but her appointment has done
little to still criticism of the court as a neocolonialist, anti-African
institution.
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