The time to review our impression of the International Criminal Court has come. When the Court, in a two-to-one majority, to allow the Deputy President to attend only part of his trial, there was no longer doubt that the Court can be manipulated by political events. It is apparent that the trials of the President and Deputy President are different from those of Charles Taylor (who was tried by a special tribunal looking into the Senegal imbroglio) and Thomas Lubanga (the only person convicted so far at the ICC.) Mr Lubanga was not a state official either before or during his trial and neither was Mr Taylor. Mr Kenyatta and Mr Ruto were not state officials when they were charged, but they are today, before their trials commence.
George Kegoro, writing in the Saturday Nation, seems either angry or surprised that the Court has been influenced by politics (Ruto trial waiver proves to African leaders that political pressure pays, Saturday Nation, 22/06/13.) Despite the atrocious record of the Court so far, Mr Kegoro should be willing to accept that the Court must adapt to the changing political environment. When African governments signed up to the Rome Statute, and ratified it, they were under immense pressure to persuade the West that wars of aggression, civil wars and military coups were in the past and that they were prepared to live the international rules largely established and enforced by Western governments.
There is a strange statistic that points to the unusual relationship of the Court with African governments. Many of the wars fought in Africa were proxy wars between two members of the United Nations Security Council, the USSR and the USA. Many of the arms supplied in these wars are manufactured by the permanent members of the Security Council. The ICC was an initiative promoted by the Western members of the Security Council, though the USA refused to ratify the Rome Statute because it did not get waivers from the other member states. These waivers would have exempted US citizens from the purview of some of the provisions of the Rome Statute and, by extension, from the ICC. So even before the ICC was created, it was already being influenced by politics. It is therefore, understandable that the African Union wold seek to influence the ICC. If the governments that have funded the wars in Africa are not to be held to account for their part in the humanitarian crises they engendered, why shouldn't the African Union attempt to influence the relationship between African governments and the Court?
It is a fallacy that courts are never influenced by non-court matters. When the influence is ostensibly for the greater common good, that influence is always accepted as good. Therefore, the AU's attempt to offer cover to President Kenyatta and Deputy President Ruto should come as no surprise. If the two are rail-roaded by the Court, members of the AU fear that some of them may suffer a similar fate.
The Court ceased to matter seriously when the two Kenyan accused were elected to high office. Their chances of co-operation with the Court relied entirely on their goodwill and not the power or prestige of the Court. The judges of the Court realise this and to preserve whatever shred of authority they retain over the Kenyan cases, they have no choice but to be seen to accommodate the wishes of the Court's highest profile suspects to date. The Kenyan cases are no longer about the victims; they are about the survival of the ICC. The fate of the victims, as before, lies in the hands of the Government of Kenya.