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.
Get more stuff like this
Subscribe to our mailing list and get interesting stuff and updates to your email inbox.