WORLD

Kenya’s condemnable attack on ICJ


When he was first elected in 2013, Kenyan President Uhuru Kenyatta and his colleague William Ruto were awaiting trial at the International Criminal Court. They were charged with crimes against humanity in the wake of post-election violence in Kenya following the December 2007 elections. Once in power, the two witnesses launched an ultimately successful campaign using state resources to intimidate and discourage the court from withdrawing charges against them.

Now in the last year of his final term, it seems Kenyatta plans to end his term the way he started it: the country has thrown another blow into the international arena and tried to threaten another international court.

Just days before the International Court of Justice ruled in Somalia’s maritime border dispute, Kenya’s foreign ministry announced that the country was “withdrawing recognition of the court’s compulsory jurisdiction” and that it would “no longer be subject” to an international court or tribunal without its explicit consent. By doing so, Kenya became one of the UN member states, including the United States, withdrawing from the ICJ.

Kenya’s latest move is to impose its will on Somalia and to prevent an international trial over a dispute over a 100,000-square-kilometer (38,200-square-mile) sea shelf that is believed to have significant oil and gas deposits at the center. After five years of trying to reach a compromise between the two, Somalia finally filed the lawsuit in 2014, fitting a whisper from the Kenyatta administration.

Kenya withdrew its ambassador from Somalia in 2017 at a conference in London demanding to auction oil and gas in the disputed area, Kenya itself sold mining licenses to an international company in Triangle. The country threatened to close the refugee camps of millions of Somali refugees and send them back across the border, warning that “the patience of the Kenyan people is not infinite.” It is involved in a series of activities, including barring Somali officials from entering the country and trying to arm Somalia to withdraw the lawsuit, blocking Somali officials from entering the country and shutting down direct flights from Mogadishu to Nairobi.

Meanwhile, in court itself, not everything is going well for Kenya, which lost its challenge to the ICJ’s right to rule on the case in 2017, on the grounds that the two countries had previously agreed to settle the matter out of court. Earlier this year, Kenya refused to take part in oral proceedings after a court rejected an application to delay a hearing due to the Kovid-1 pandemic epidemic. This happened after the ICJ granted three previous requests for a delay that kept the case pending for more than a year.

Desperate steps to move the case forward are probably indicators of the weakness of the Kenyan case. Clearly, the two seem more confident about their chances in a Somali court, which is expected to give a verdict on October 12.

Kenyatta is seen dusting off his playbook from his battle with the ICC, where he made history as the first head of state to dock. At the time, Kenya was engaged in a reprehensible attempt to suspend the UN Security Council trial, the court threatened to pull out of the established Rome Treaty and tried to become a public transport engineer by African countries, accusing the court-hunting.

It was linked to a campaign at home to find and silence prosecution witnesses and to stop cooperating in court, which led to the cases breaking down. The campaign against the ICC was mixed with half-truths about the nature of the prosecution adopted by the court (initiated by many African countries), baseless claims that Kenyan authorities were conducting investigations into Kenyatta and Ruto and that the false Kenyan constitution allowed a lawsuit against the president. No, that’s what it most clearly does.

Similar efforts have been made against ICJ. Kenya claims that the presence of one of the ICJ’s 11 judges, the court’s former president and Somali national Abdulkawi Youssef, must be biased in the case. In addition, a frightening and blatantly false narrative has been propagated in the Kenyan media and social media that Somalia‚Äôs victory will effectively portray Kenya as a landlocked country.

But perhaps the most damaging is the ethical, brutal, and transactional aspects that have driven Kenyatta’s relationship with international organizations. When faced with opposition to the ICC conspiracy from organized civil society, his administration at the UN General Assembly was among a handful of people who decided to vote against the historic proposal to recognize and protect the role of human rights defenders.

In the African Union, he has not only denounced connivance against the impunity of government officials, but he has also jokingly pressured Israel to grant observer status despite the persecution of the Palestinians. And with the ICC and the ICJ, he is inflicting his contempt on domestic courts when they do not give him what he wants.

In the end, the devaluation of the international organization comes at a price. The volatile performances of AU, UN and The Hague have broken many relationships that have taken years (and will take) to mend. In addition, as flawed and limited as the international order is, it provides a strong framework for the states (and their governing elites) to hold them accountable and resolve disputes between them without resorting to the strongest dictatorships. By limiting state functions, international organizations help to enter into international laws and norms that can protect not only states, but more importantly, vulnerable people among them.

The opinions expressed in this article are those of the author and do not necessarily reflect the views of Al Jazeera.





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