The Cable

Our President is Too Busy for a War Crimes Trial, Kenya Tells U.N.

The African Union and Kenya have formally asked the U.N. Security Council to suspend an International Criminal Court prosecution of the Kenyan President Uhuru Kenyatta and his deputy on the grounds that it is undermining the Kenyan leaders' efforts to fight terrorism.

"In light of the peace and security situation in Kenya and the region, the African Union Member States would like to submit a formal request for a deferral of the proceedings initiated by the ICC against the President and the Deputy President of the Republic of Kenya," according to a statement from African Union that was presented today to the 15-nation council by Kenya. The suspension, the letter added, would provide Kenya's leaders with the "time required for the enhancement of the effort aimed at combating terrorism and other forms of insecurity in the country and the region.

The Kenyan leaders have benefited from the public outpouring of support from regional leaders following the devastating terrorist attack by al-Shabab militants on civilians at the Westgate Mall in Nairobi, killing at least 67 people over several terror-filled days.

But the Kenyan request to the U.N. encountered sharp criticism from human rights advocates and supporters of the court, who claimed that Kenya's leaders are seeking to use their power to skirt justice for their alleged crimes. "This request comes from out of bounds; the Kenyan president seems determined to forestall his day in court," said Richard Dicker, an expert on the court at Human Rights Watch. "The Kenyan president wants impunity. Full stop."

The Kenyan request comes amid a mounting backlash against the Hague-based court from African governments, who complain that international tribunal is signaling out only Africa leaders for mass atrocities while failing to hold world leaders accountable for rights abuses in other parts of the world. The African Union agreed in Addis Ababa on October 12 to ask the Security Council to postpone the prosecution of the two Kenyan leaders, but the request was only formally presented on their behalf by Kenya today.

The International Criminal Court first launched an investigation into alleged crimes during Kenya's bloody 2007 election, charging several Kenyans, including Kenyatta and deputy president, William Samoei Ruto, of orchestrating massive crimes against humanity.

So far, both men have proclaimed their innocence and cooperated with the court. Under the Article 16 provision of the Rome Statue, which established the International Criminal Court, the U.N. Security Council can for the ICC to defer and investigation or prosecution for a period of up to one year, renewable, if they deem it a threat to international peace and security. The Security Council has never deferred a case.

The prosecution of Kenya's leaders poses a "threat to the peace...in light of the prevailing and continuing terrorist threat existing in the Horn [of Africa] and East Africa," Kenya's U.N. ambassador Macharia Kamau wrote to the Council on Tuesday. Kenya, he said, "seeks a decision that no investigation or prosecution shall be commenced or proceeded" against Kenya's leaders."

One Security Council diplomat said that there was virtually no hope that the U.N. Security Council would be able to reach agreement on the African request. (The council declined to approve a similar request by Kenya two years ago.)

Dicker said that council should give the request  "an appropriate airing and hearing, bearing in mind that the council has already considered this more than two years ago." They should then decide, he added, that there is no basis to assent to Kenyan request."

A delegation from several African countries -- including Kenya, Senegal, and Uganda -- are scheduled to visit New York next week to press the Security Council to defer the case. But one Security Council diplomat said there is no chance the African will prevail. "What is sure is that there is not going to be an agreement" in the council to defer, the diplomat said.

The diplomat said the court has already found an alternative means to address the Kenyan's concerns that a trial will undermine their ability to address their countries crisis. Earlier this month, the court ruled that Ruto would be permitted to attend only the beginning of his trial so that he could return home to govern the country, leaving his lawyers behind in the Hague to represent him. The decision has been appealed by Ruto's lawyers. A final ruling is expected later.  A similar arrangement, according to the diplomat, could be used in the president's trial.

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