Kenya’s cynical offensive against the ICJ | Opinions

When he was first elected in 2013, Kenyan President Uhuru Kenyatta, along with his running mate, William Ruto, were awaiting prosecution at the International Criminal Court. They had been charged with crimes against humanity in connection with the post-election violence that rocked Kenya following the December 2007 elections. Once in power, the duo embarked on an ultimately successful campaign using State resources to intimidate witnesses and to compel the court to drop charges against them.

Now in the last year of his final term, it appears Kenyatta is planning to end his tenure the same way he started it: with the country making another crisis on the international stage and trying to intimidate another. international tribunal.

Just days before the International Court of Justice delivered its judgment in a maritime border dispute filed by Somalia, the Kenyan Foreign Ministry announced that the country was “withdrawing its recognition of the compulsory jurisdiction of the Court”, declaring that he “would no longer be subject to an international court or tribunal without his express consent”. In doing so, Kenya becomes one of many UN member states, including the United States, that have withdrawn from the ICJ.

The withdrawal is the latest step in Kenya’s drive to impose its will on Somalia and prevent international settlement of the dispute over a narrow 100,000 km² (38,200 square mile) triangle of marine shelf that is said to contain significant oil and gas fields. After five years of attempts by both sides to negotiate a compromise, Somalia finally filed the case in 2014, causing a nervous breakdown from the Kenyatta administration.

In 2019, Kenya recalled its Somali ambassador after claiming that the Somali government had auctioned oil and gas in the disputed area at a conference in London, despite the fact that Kenya itself had sold. mining licenses to international companies in the triangle. The country has also threatened to close camps housing hundreds of thousands of Somali refugees and force them to cross the border, warning that “the patience of the Kenyan people is not endless.” He has embarked on a series of actions, including preventing Somali authorities from entering the country and stopping direct flights from Mogadishu to Nairobi in a bid to urge Somalia to withdraw the case.

Meanwhile, in court itself, things did not go well for Kenya, which in 2017 lost its challenge to the ICJ’s power to rule on the case on the grounds that the two countries had previously agreed to settle the matter amicably. Earlier this year, Kenya refused to participate in oral proceedings after the court rejected its request to delay hearings due to the COVID-19 pandemic. This was after the ICJ granted three previous requests for delays that had delayed the case for over a year.

Desperate attempts to stop the affair may have been an indicator of the weakness of Kenya’s affair. Clearly, Somalia seems the more confident of the two about its prospects in court, which is expected to deliver a verdict on October 12.

Kenyatta seems to dust off his playbook from his battle with the ICC, where he made history as the first sitting head of state in the dock. At the time, Kenya was engaged in a cynical effort to get the UN Security Council to postpone the prosecution, threatening to withdraw from the Treaty of Rome that created the tribunal and trying to organize a mass walkout. African countries, accusing the court of race-hunting.

This was accompanied by a home campaign to find and silence prosecution witnesses and refuse to cooperate with the court, which led to the collapse of cases. The campaign against the ICC was strewn with half-truths about the nature of the court’s prosecutions (many of which had been initiated by African countries), unsubstantiated claims that the Kenyan authorities were investigating Kenyatta and Ruto, and lies about them. Kenya’s constitution does not allow the prosecution of the president, which it does very clearly.

Similar efforts have been launched against the ICJ. Kenya has asserted that the presence of one of the 11 ICJ judges, Abdulqawi Yusuf, former president of the court and Somali citizen, on the bench, would necessarily skew the case. In addition, an alarmist and blatantly false account has been spread in the Kenyan press and on social media that a victory for Somalia will make Kenya a landlocked country.

But perhaps most pernicious is the amoral, cynical and transactional direction in which Kenyatta has driven Kenya’s relations with international institutions. Faced with organized civil society opposition to his ICC machinations, in the United Nations General Assembly, his administration was one of the few that chose to vote against a landmark resolution recognizing and protecting the role of human rights defenders.

At the African Union, he not only undermined the consensus against government officials’ impunity, but he also cynically pleaded for Israel to obtain observer status, despite its oppression of the Palestinians. And with the ICC and the ICJ, he exports his contempt for national courts when they don’t give him what he wants.

Ultimately, undermining international institutions comes at a price. The rowdy performances at the AU, the UN and The Hague have shattered many relationships that have taken (and will take) years to mend. Moreover, imperfect and limited as the international order may be, it provides an important framework for holding states (and the elites that rule them) to account and for resolving disputes between them without resorting to a dictatorship of the fittest. By limiting state action, international institutions help anchor international law and standards that can protect not only states, but, more importantly, the vulnerable human beings within them.

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

About Kristina McManus

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