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Why Kenya’s terrorist attack might be the ICC’s saving grace

Business Day
By Nicole Fritz

SOME commentators, such as Michela Wrong writing in the Financial Times, have suggested that among the casualties in the Westgate attack in Nairobi is the International Criminal Court (ICC). They are wrong. Perversely, the attack, in providing for delay in ICC proceedings, may allow for the saving of the court.

The attack happened as the ICC trial of Kenyan Deputy President William Ruto neared the end of its second week. Judges at the court immediately granted his request that he return home to deal with the militant attack, adjourning the trial.

Kenyan President Uhuru Kenyatta’s own ICC trial is set to begin on November 12 but it is hard to see how the court will not give credence to his argument that his exceptional role and responsibilities as Kenya’s head of state do not permit his attendance.

More significantly, Kenyatta is likely to find support for this argument in the broader international community. Leaders such as US President Barack Obama, who had sought to keep their distance from Kenyatta because of the charges he faces at the ICC, have extended support and reaffirmed partnerships in the aftermath of the attack.

How might these developments save the ICC rather than consign it to irrelevance? Kenyatta’s and Ruto’s trials were, in any event, unlikely to reach conclusion. In recent weeks, Kenya’s parliament has voted to withdraw the state from the ICC and while this action would have little effect on the legitimacy of the trials, it signalled a clear hardening of obstructionist attitudes in Kenya against the ICC and an indication that the co-operation of Kenyatta and Ruto with the ICC was soon to run out.

More worrying still, the African Union (AU) has indicated that in response to the Kenya trials, and at Kenya’s instigation, it intends holding a special session next month to debate calls for the continent to withdraw en masse from the ICC. It is unlikely that such withdrawal could be secured — Mali and Cote d’Ivoire are two countries voluntarily seeking the services of the ICC at present. But this raising the stakes in the standoff between the ICC and the AU would result in a polarised deadlock that the beleaguered ICC would find hard to manage.

Western states would have shown only ambivalence: swearing adherence to the ideals and objectives of the ICC but unprepared to act against Kenya and allied African states by insisting on the continuation of the trials. The Kenya terrorist attacks could change their thinking, with the suspension of the trials now finding support outside the African bloc.

The Westgate mall attack gives the ICC an out: a plausible occasion to delay and in that delay to give proper consideration to the political consequences of the trials for its own survival. Courts cannot be more strident than the political consensus supporting their establishment allows.

To insist on the trials going ahead heedless of the AU’s most serious threat yet to withdraw, is to risk its own existence. Ironically, the Kenya terrorist attack only underlines this. The ICC is the product of a brief interregnum — a decade strung between the end of one totalising narrative of international relations, the Cold War, and the beginning of another, the war on terror.

The potential for international co-operation and co-ordination that seemed possible in the 1990s has been broken down in the decades since and the ICC needs to be mindful of this.

Delays in the trials might also allow the AU a reason to forgo its withdrawal debate and an opportunity for reflection — a recognition that damaging the ICC does little to advance its own long-term interests. Not only will withdrawal erode the intellectual investment Africa made in the ICC’s establishment but damage to the institution undermines claims African states seek to make at the international level.

As President Jacob Zuma indicated in his recent address to the United Nations General Assembly, failure to tackle historical inequalities in areas such as trade and climate change result in huge nontariff barriers for African states. But it seems unlikely that developed states will take seriously Africa’s call for accountability and redress in these areas when it tries to undo the most ambitious accountability initiative the international community has yet attempted — the ICC.

  • Fritz is the director of the Southern Africa Litigation Centre.

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