The Cable

The Cable goes inside the foreign policy machine, from Foggy Bottom to Turtle Bay, the White House to Embassy Row.

“They Enslaved and Colonized Us, and Now They Want to Judge Us”

The African Union came to the U.N. Security Council last week in search of a showdown. But its representatives left with little to show for their effort, having failed to persuade the United States and other Western powers to suspend the International Criminal Court’s (ICC) prosecution of two African leaders, Kenya’s President Uhuru Kenyatta and ...

By
ICC-CPI
ICC-CPI
ICC-CPI

The African Union came to the U.N. Security Council last week in search of a showdown. But its representatives left with little to show for their effort, having failed to persuade the United States and other Western powers to suspend the International Criminal Court's (ICC) prosecution of two African leaders, Kenya's President Uhuru Kenyatta and Deputy President William Ruto, who stand accused of orchestrating a frenzy of mass murder during the country's post-election violence in 2007 and 2008.

Securing a delay in the trial, however, was hardly the point of the exercise. The African sponsors of the resolution, including Ethiopia, Kenya, Rwanda, and the five members of the African Union's ICC contact group -- Burundi, Mauritania, Namibia, Senegal and Uganda -- knew going in that they lacked the votes to prevail in the Security Council. Opposition from the Britain, France, and the United States all but ensured that the initiative was doomed from the start.

The real aim of the AU's offensive was twofold: to register Africa's dismay over the council's refusal to defer to the region's leaders on a highly sensitive issue and to reinforce Kenya's bargaining position on the eve of negotiations at the Hague over possible amendments to the ICC treaty that would prevent Kenyatta and Ruto from having to sit in the Netherlands for a lengthy trial. The Kenyan government is proposing that its leaders be permitted to sit out their trials entirely, leaving their lawyers to represent them instead. (Here's a confidential copy of the main amendments under consideration.)

The African Union came to the U.N. Security Council last week in search of a showdown. But its representatives left with little to show for their effort, having failed to persuade the United States and other Western powers to suspend the International Criminal Court’s (ICC) prosecution of two African leaders, Kenya’s President Uhuru Kenyatta and Deputy President William Ruto, who stand accused of orchestrating a frenzy of mass murder during the country’s post-election violence in 2007 and 2008.

Securing a delay in the trial, however, was hardly the point of the exercise. The African sponsors of the resolution, including Ethiopia, Kenya, Rwanda, and the five members of the African Union’s ICC contact group — Burundi, Mauritania, Namibia, Senegal and Uganda — knew going in that they lacked the votes to prevail in the Security Council. Opposition from the Britain, France, and the United States all but ensured that the initiative was doomed from the start.

The real aim of the AU’s offensive was twofold: to register Africa’s dismay over the council’s refusal to defer to the region’s leaders on a highly sensitive issue and to reinforce Kenya’s bargaining position on the eve of negotiations at the Hague over possible amendments to the ICC treaty that would prevent Kenyatta and Ruto from having to sit in the Netherlands for a lengthy trial. The Kenyan government is proposing that its leaders be permitted to sit out their trials entirely, leaving their lawyers to represent them instead. (Here’s a confidential copy of the main amendments under consideration.)

The International Criminal Court was established in 2002 with the aim of prosecuting the world’s most egregious crimes, including crimes against humanity and genocide. The Hague-based tribunal initially enjoyed broad African support, but has since faced scorching criticism in the region following its pursuit of African leaders in Sudan, Libya, and Kenya. Rwanda, which drafted the Security Council resolution requesting at least a one-year delay in Kenyatta’s trial, has been among the most vociferous critics of the court, characterizing it as a modern form of Western imperialism.

"They have enslaved us, colonized us, beaten us, killed us, discriminated [against] us, exploited us, and now they want to judge us?" Olivier Nduhungirehe, Rwanda’s deputy U.N. ambassador, tweeted over the weekend. Nduhundgirehe also dismissed the court’s prosecutor, former Gambian jurist Fatou Bensouda, as a collaborator with Western powers. In response to a comment suggesting that some Africans had been complicit in the slave trade, Nduhungirehe answered: "True. As I was telling another tweep, we always had ‘Bensoudas’ in Africa."

Later, Nduhungirehe told Foreign Policy, "Those are tweets were posted in a very personal capacity." "They do not," he added, "reflect the official position of Rwanda or of its [deputy permanent representative] to Rwanda."

The latest African gambit was portrayed by some critics as a destructive bout of grandstanding that masked the goal of several African countries, particularly Kenya and Rwanda, to protect their leaders. Rwandan President Paul Kagame, a former rebel general who ousted the government responsible for the country’s genocide in 1994, also faces accusations that his forces have engaged in massive war crimes. "One wonders whether the governments which pushed the resolution did so in a bid to ward off the possibility of their own officials being prosecuted for crimes in the future," said Richard Dicker, an expert on the court at Human Rights Watch.

Dicker and other supporters of the court have argued that it still enjoys broad support in Africa. In fact, a recent poll in Kenya showed that the overwhelming majority of respondents — 67 percent — want their president to stand trial. But experts like Dicker say the structure of the African Union makes it susceptible to being hijacked by a small numbers of states who oppose the court. "Those who have the most extreme views… get their day; but the large majority falls in line [and] lets it happen," said a European diplomat.

Still, these critics concede, the blow up in the Security Council was not merely symbolic; it highlighted the erosion of trust between Africa and the West, putting on display the raw emotional feelings that continue to dog Africa’s relations with its former European colonial masters and the United States.

In a series of statements, representatives from Rwanda, Kenya, and Ethiopia — the current chair of the African Union — complained that the council’s rebuff had humiliated African leaders, sending the message that they are "not to be trusted" to manage the region’s affairs. The Security Council’s actions, the representatives warned, would have long-term repercussions for one of the body’s most important relationships. "They are wrong; and they have offended Africa," Takeda Alemu, Ethiopia’s permanent representative to the United Nations, told the council.

If only to drive home their point, African envoys roundly applauded China and Russia for having backed their request.

African representatives have argued that it is reckless to send Kenya’s leaders to the Hague while the continent in the midst of an existential battle against terrorism. They see the refusal of the council’s key Western powers to approve their request to postpone the trial as patronizing and hypocritical, a clear single that the Africans cannot be trusted to manage their own problems.

"For Africa, the message is that we need only stay within the African family to solve unusual and complex political problems…and that is just alright by us," said Kenya’s U.N. envoy, Macharia Kamau. "Our engagement here has been met with derision, suspicion, impatience and even irritation. At every turn the boogie man of impunity and dictatorship is dragged out to devastating effect."

Kenyatta and Ruto, who have cooperated with the ICC’s investigation so far, stand accused of orchestrating a massive campaign of post electoral violence in Kenya in 2008. The Kenyan politicians — who had not yet been elected to high office at the time of the alleged crimes — have since requested that the Security Council invoke a provision of the ICC treaty, known as Article 16, suspending the trial for an initial 12 months, so that they can carry out their constitutional duties, including the prosecution of the war on terror in the region.

But the West blocked the Rwandan resolution that would have triggered the one year deferral. Australia, Britain, France, Guatemala, Luxembourg, South Korea and the United States all abstained on the vote, denying Rwanda and its backers the nine votes they needed for approval in the 15-nation council.

"The families of the victims of the 2008 post-election violence in Kenya have already waited more than five years for a judicial weighing of the evidence to commence,"  said Samantha Power, the U.S. ambassador to the United Nations, who cast the Obama administration first abstention in the Security Council. "We believe that justice for the victims of that violence is critical to the country’s long term peace and security."

In highly emotional language that occasionally invoked Europe’s colonial legacy, Rwanda’s U.N. ambassador, Eugene Gasana, said that Kenya and other African nations are shedding their blood in the fight against terrorism in Somalia and the Horn of Africa on behalf of the Security Council. In return,
the West should "be grateful," he said. "President Kenyatta and deputy president William Ruto should be respected, supported, empowered." They should not, he added, be "undermined."

"Let it be written today in history that the Security Council failed Kenya and Africa on this issue," said Gasana. He recalled that Western powers, particularly France, had initially proposed that the Security Council be granted the right to defer prosecution: "Article 16 was never meant to be used by an African state or any other developing country. It was conceived as an additional tool for the big power to protect themselves and to protect their own."

The Rwandan envoy also took an indirect swipe at the United States, comparing the request for a deferral to actions by an unnamed country that had passed laws sanctioning or threatening military action against states that cooperated with ICC, an apparent reference to the United States, where the U.S. Congress passed the American Servicemember’s Protection Act, which authorizes U.S. presidents to use all means necessary to secure the release of American soldiers held by the court.

The Rwandan initiative infuriated some Western diplomats, who maintain that African leaders are playing on European guilt over colonialism to ram through an initiative that would undermine the global quest to hold accountable perpetrators of the worst crimes imaginable. They noted that it was African governments that initially insisted that the Rome Statue, which established the international tribunal, include language ensuring that heads of state not be granted immunity from prosecution.

France’s U.N. envoy, Gerard Araud, said Rwanda’s decision to force the council, with "unnecessary haste," into a vote on a resolution that was destined to fail risked setting the stage for an "artificial and dangerous confrontation between the African Union and the Security Council."

"France is a partner of the African Union," he said, noting that French diplomats and troops have worked closely with African states to restore stability in Mali, Somalia, and now the Central African Republic. "France has lost soldiers in the defense of these populations."

Britain’s ambassador to the United Nations, Mark Lyall Grant, said today’s clash over the ICC was unnecessary, given the fact that the Hague court’s judges had already shown willingness to address African concerns by permitting several delays in the opening of Kenyatta’s trial, which was originally scheduled to begin in October.

On Nov. 20, a gathering of ICC member states is scheduled to consider a series of proposals aimed at accommodating Kenyatta’s need to govern while the trial proceeds. But Lyall Grant said his government had tabled a proposal to allow the Kenyan politicians to testify by a video link: "Nobody, least of all the United Kingdom, underestimates the gravity of the security challenges in the Horn of Africa," he said. "But the question before the council today is whether or not continuing with the ICC’s proceeding constitutes in itself a threat to international peace and security. In our view, it does not."

Outside experts agree that Kenyatta is unlikely to be allowed to appear via video link. "My view is the Africans don’t have a good case," said David Kaye, a former State Department lawyer, who noted that most ICC investigations have been undertaken at the request of African governments. "I don’t see it as the court going after Africa because it’s an easy target, and that’s how African leaders are putting it. If the Kenyans made the slightest bit of effort to conduct domestic trials I don’t think you’d see a case in Kenya. This is a much more complex situation than a neocolonial attack on Africa."

Still, Kaye said that the ICC prosecutors have not done themselves any favors by failing to prosecute rights abusers beyond the African continent. Nor, for that matter, has the U.N. Security Council, where three of the council’s permanent members are not even members of the court.

Follow me on Twitter @columlynch

Colum Lynch was a staff writer at Foreign Policy between 2010 and 2022. Twitter: @columlynch

More from Foreign Policy

A Panzerhaubitze 2000 tank howitzer fires during a mission in Ukraine’s Donetsk region.
A Panzerhaubitze 2000 tank howitzer fires during a mission in Ukraine’s Donetsk region.

Lessons for the Next War

Twelve experts weigh in on how to prevent, deter, and—if necessary—fight the next conflict.

An illustration showing a torn Russian flag and Russian President Vladimir Putin.
An illustration showing a torn Russian flag and Russian President Vladimir Putin.

It’s High Time to Prepare for Russia’s Collapse

Not planning for the possibility of disintegration betrays a dangerous lack of imagination.

An unexploded tail section of a cluster bomb is seen in Ukraine.
An unexploded tail section of a cluster bomb is seen in Ukraine.

Turkey Is Sending Cold War-Era Cluster Bombs to Ukraine

The artillery-fired cluster munitions could be lethal to Russian troops—and Ukrainian civilians.

A joint session of Congress meets to count the Electoral College vote from the 2008 presidential election the House Chamber in the U.S. Capitol  January 8, 2009 in Washington.
A joint session of Congress meets to count the Electoral College vote from the 2008 presidential election the House Chamber in the U.S. Capitol January 8, 2009 in Washington.

Congrats, You’re a Member of Congress. Now Listen Up.

Some brief foreign-policy advice for the newest members of the U.S. legislature.