When the Twin Towers fell in 2001, brought down by al Qaeda operatives, the relationship between the United States and the rest of the world changed. George W Bush declared a Global War on Terror, invaded Afghanistan toppling the Mullah Omar-led Taliban regime, and soon after invaded Iraq in search of weapons of mass destruction after Saddam Hussein refused to permit further inspections by UN team. But it is in America's prosecution of the war on terror that the United States came to be closely associated, especially in its secret programme of renditions and the incarceration of enemy combatants on the Island of Cuba at a US military facility, Guantanamo Bay, where the international rules of war were given short shrift and America was brought low by allegations of torture and victor's justice.
Some Kenyan commentators, including prominent lawyers and human rights activists have decried the US way of doing things, calling on the American government to change tack and adopt a more acceptable tenor in its prosecution of its wars against it enemies. Some have even gone so far as to call for the arrest and prosecution of American leaders, including President Bush and his Secretary of Defense, Donald Rumsfeld, for war crimes and crimes against humanity. In Kenya, where many are proud that Barack Obama, a democrat, is the president of the USA because his father was a Kenyan, the calls for the prosecution of George W Bush and his officials, who were Republicans, have only grown louder as Kenyans, some of whom are Muslims, have been caught in the US's net and have been shipped off to Guantanamo Bay to answer to charges of being material supporters or active members of al Qaeda.
Kenya is no stranger to terrorism attacks: the attack on US embassies in Kenya and Tanzania left hundreds of Kenyans dead and maimed for life; the attack by al Qaeda on an Israeli-owned beach hotel in Mombasa left more Kenyans dead too. Al Qaeda-affiliated groups in war-torn Somalia have brought their war on Kenyan territory, with dozens of Kenyans either killed or maimed in along its Northern border with that benighted country. It is for this reason that the glee with which Kenyans greeted the imminent prosecution of the Ocampo Six at the International Criminal Court at The Hague seems paradoxical, not so much that Kenyans support an international tribunal to try those suspected of bearing the greatest responsibility for the mayhem that was visited on this country in late 2007 and early 2008, but because of the things Kenya may have to do in order to assure its security and safety in the future.
American lawmakers and presidents have recognised this fact for generations and it is why they have never sanctioned the signing or ratification of treaties and conventions that would place American leaders, including military ones, under the jurisdiction of international courts or tribunals. Kenya may not have had a choice when it signed and ratified the Rome Statute, but the fact that it did makes it doubly difficult for it to engage in acts of aggression in order to assure its survival. This has been complicated by the fact that the Constitution, recently ratified by a majority of Kenyans, now makes international law, including international humanitarian law and the laws of war, part of Kenya's law.
The on-going Somali civil war and the Ugandan adventures in Lake Victoria make it difficult for Kenya to justify a war of aggression to sort out its border disputes once and for all or to pacify the restive clans in Somalia in the name of national peace and security. No Kenyan president will engage in a war of aggression knowing that to do so would be to invite the attention of the world and the use of international law through treaties it has signed, and international law it has incorporated in its Constitution, and the prosecution of those who knowingly and willingly led Kenya down that path. This attention may include the occupation of Kenyan territory by foreign powers and the complete negation of Kenyan sovereignty in the name of international peace and security.
Kenya's neighbours are constantly testing its military resolve and with the exception of Tanzania, have made tentative military forays onto Kenyan soil. Uganda's occupation of Migingo and Ugingo Islands in Lake Victoria is only the latest of a series of military acts of aggression since at least the mid-1970s. Ethiopia has allowed its tribesmen in the south to raid Kenyan villages in search of livestock, food and water. Toposa tribesmen have invaded parts of Pokot from territory controlled by the government of Salva Kiir, a former SPLA commander, in South Sudan, Africa's newest nation-state. Sooner or later, these incidents will have to be stopped. If diplomatic solutions cannot be found, Kenya will have no option but to launch pre-emptive military strikes in foreign territory to ensure its safety and security. Once that happens, it will open itself to the risk of international intervention, and intervention all but guaranteed by its ratification of treaties such as the Rome statute and the incorporation of international law in Kenyan law via the Constitution. Only then will Kenyans realise that what Bill Clinton, George Bush and Barack Obama have done was to protect American interests and that Kenya could also make the same argument.
It is time we critically assessed our foreign policy in order to draw the proper lessons from the American way of preserving its vital interests rather than viscerally joining in a chorus of acrimony against the likes of American presidents. The USA will never give up jurisdiction over its presidents or military commanders. The least we could do is demonstrate the same steely resolve and deny the ICC an opportunity to try the Ocampo Six. If they are to be punished, it is in our national strategic interest to try them here. If they are tried and convicted by the ICC, Kenya will cease to exist as a sovereign state.
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