Why Does The ICC Only Prosecute African Leaders? Kenyan Snub Reignites Debate

In Kenya's capital city of Nairobi, "sovereignty" is the word of the day. The East African country set a precedent on Thursday when it voted to withdraw from the International Criminal Court, a global tribunal based in The Hague.

Leading officials in Nairobi, backed by much of the populace, accuse the ICC of meddling in Kenya's affairs. President Uhuru Kenyatta and Vice President William Ruto, who won a national election in March, have been charged with backing violent militias in the aftermath of the 2007 presidential election, when clashes killed at least 1,200 people and displaced hundreds of thousands. Ruto's trial is set for this month, while Kenyatta is set to appear at The Hague in November. Both assert their innocence.

Outsiders may see the ICC withdrawal as a ploy to keep Kenyatta and Ruto safe from prosecution, but the issue is much broader than that. This pivotal case has grown more and more divisive on a continental -- and global -- scale. Many top African officials have long accused the ICC of targeting their continent, and now those voices have rallied around Kenya's cause.

An African Problem?

The ICC calls itself "an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes," and is meant to serve as a judiciary of last resort if states are unable or unwilling to handle cases on their own.

Western officials may dismiss claims that the ICC targets Africans unfairly, but ICC detractors can point to some clear evidence: The court currently has eight active investigations, which have so far brought a total of 18 prosecutions, on its docket. All of the investigations are in African countries.

To be fair, only two of the court's current investigations were pursued independently by the ICC prosecutor: those in Kenya and the Ivory Coast. Another two, in Libya and Darfur, were handed over by the U.N. Security Council. The remaining four -- in Mali, Uganda, the Central African Republic and the Democratic Republic of the Congo -- were submitted by the countries themselves. In addition, the ICC is also pursuing preliminary investigations in a more diverse set of countries: Afghanistan, Honduras, South Korea, the Comoros [an island in the Indian Ocean], Colombia, Georgia, Guinea and Nigeria.

The current court prosecutor, Fatou Bensouda, is herself African; she hails from Gambia. But most current investigations were opened under Luis Moreno Ocampo, a native of Argentina, whose nine-year term ended in June last year.

The people indicted by the ICC include some notorious characters, like Joseph Kony, the leader of Uganda's Lord's Resistance Army, which has waged a campaign of killing, pillaging, rape and abduction; or Bosco Ntaganda, a rebel commander in the Democratic Republic of the Congo who most recently held a leadership position in M23, a militia that has been accused of human rights abuses including sexual assaults, summary executions and the recruitment of child soldiers.

Kenyatta and Ruto may also be behind some serious violations of human rights, but their position at the head of government in a democratic, fast-growing country makes the stakes of this case quite high.

A War of Words

A chorus of criticism against the ICC is nothing new; it has been rising for years, led by none other than the African Union, or AU, which is based in Ethiopia's capital city of Addis Ababa. At the organization's 50-year anniversary summit in May, Ethiopian Prime Minister Hailemariam Desalegn had some harsh words for the international court.

"The African leaders have to come to a consensus that the process the ICC is conducting in Africa has a flaw,” he said. “The intention was to avoid any kind of impunity, but now the process has degenerated into some kind of race-hunting.”

The ICC is fully aware of these accusations, and responded promptly to Desalegn's charges with a statement of its own. "Decisions are taken independently on the basis of the law and the available evidence and are not based on regional or ethnic considerations," it said, adding that "it must be recalled that cases before the ICC are not only about the suspects or the accused; they also concern the thousands of victims affected by the events under the ICC’s jurisdiction, many of whom are represented in the various proceedings with the help of legal assistance provided by the Court."

The court was established in 2002, in accordance with the Rome Statute, a treaty first adopted in 1998. Today, 122 countries are parties to the treaty -- excluding some notable heavyweights like the United States, China and Russia, which are not under the court's jurisdiction. Indeed, African countries make up nearly one-third of all ICC members, and these joined states voluntarily.

Kenya has not yet formally withdrawn from ICC; that's pending a bill expected to be introduced in parliament this month. But even if it withdraws, ICC officials say the move wouldn't have any bearing on the Kenyatta/Ruto case since it's already in motion. In addition arrest warrant for those gentlemen wouldn't be out of the question should they become necessary.

A Vote In Favor

In the past, both Kenyatta and Ruto have pledged to cooperate during trial proceedings. But they, too, have lashed out against the court for overstepping its bounds, arguing that the Kenyan judiciary is capable of handling this issue on its own. In fact, many analysts saw this appeal to national sovereignty as a key factor in Kenyatta's victory in the recent election.

The controversy has strained relations between Kenya and some of its Western allies, including the United States, the country's top aid donor and major defense partner. In 2011, American assistance to Kenya amounted to $484.5 million, and another $8 million was devoted to counter-terrorism efforts. Despite this largesse, and even though the US is not party to the Rome Statute, U.S. Assistant Secretary of State Johnnie Carson made a thinly veiled reference to Kenyatta’s impending case in response to a journalist's question about Washington’s stance on Kenya's then-upcoming election.

“Choices have consequences,” he said. “We live in an interconnected world and people should be thoughtful about the impact that their choices have on their nation, on the region, on the economy, on the society and on the world in which they live."

Even former UN Secretary-General Kofi Annan, a Ghanaian, jumped into the fray, telling the BBC that "when you elect a leader... who will not be free or will not be easily received, it is not in the interests of the country and I'm sure the population will understand that."

At the time, Kenyatta had an alternative interpretation. "If Kenyans do vote for us, it will mean that Kenyans themselves have questioned the process that has landed us at the ICC," he said, according to Al Jazeera.

It seems Kenyatta, now presiding over a nation of 42 million and one of the world's fastest-growing economies, was right. The ICC has been growing less and less popular on the continent where all of its investigations are unfolding, leaving the world to wonder what will unfold as Kenyatta's appointment with The Hague draws nearer.