Friday, October 18, 2013

International Law Meets National Sovereignty

The International Criminal Court based in The Hague, Netherlands plans to try Uhuru Muigai Kenyatta next month on a series of serious offenses including crimes against humanity that involve illegal deporting of a group, murder, rape, and persecution for political purposes.

While the ICC claims jurisdiction, its intended defendant can only be tried if he allows it.  Mr. Kenyatta currently serves as the President of Kenya.  Although the court would like for him to appear at the scheduled date in November, it is likely to defer to an African Union request to postpone the case until Kenyatta leaves office.  AU member Sudan's president also faces criminal charges.

Kenyatta faces accusations over violence in the post 2007 elections against the Orange Democratic Movement.  In turn, he asserts that the ICC's charges come from neo-imperialist mechanisms of manipulation.  Kenyatta called it "a toy of declining imperial powers."

Although 34 of the African Union's 54 nations signed up for the ICC, calls have increased lately for individual African nations and the AU itself to leave the international convention that established it.

Established in 2002, the ICC is meant to prosecute crimes against humanity when national courts and prosecutors refuse to act.

Under Obama, the United States has assisted the ICC, but has not moved to join.  With American military and diplomats operating in controversial fields throughout the world, serious concerns have prevented full US participation. African Union leaders call the US stance hypocritical, ignoring the constitutional divide between presidential action and the near impossibility of Senate assent.

African Union leaders specifically oppose the idea of prosecuting sitting presidents.  They believe that the ICC could be used as a diplomatic weapon to attack sovereign states.  This is similar to American concerns.  The fact that the leaders of Sudan and Kenya are likely guilty does not change the fact.

Another problem is that Kenya plays a key role in regional peacekeeping, disarmament, anti-terrorism, and stability efforts.  Kenya is a front line state fighting Islamicist terrorism. Its rapidly expanding population of Roman Catholic and Pentecostal citizens forms a faith bulwark against the infiltration of radical elements farther south.

Rule of law should be promoted and political rights defended.  On the other hand, pressure on Kenyatta could weaken Kenya's prestige in the region.

In any event, Kenyatta will likely not face trial and prosecution in Europe now, if ever.  The people of Kenya ultimately must make that decision on their own.

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