No going back

Kenya is awaiting a response from the United Nations Security Council, after it sent an official request for charges of crimes against humanity facing the country's newly elected leaders to be dropped. The letter, dated May 2, 2013 and stamped 'confidential', is the first such official request for the cases to be abandoned.

"What this delegation is asking for is not deferral; what this delegation is asking for is for the immediate termination of the case at The Hague." Kenya's ambassador to the UN, Macharia Kamau, wrote in a letter to the Council.  "The implications of Kenyatta's trial for the viability and continuity of the state should be self evident," the letter said. Kamau argued that a lot had changed since the ICC confirmed the charges in 2010, and that Kenya now had the "capacity to offer a homegrown solution." He also reiterated Kenya's commitment to "continue cooperating with the court."

Unstoppable case

However diplomats from the Security Council who discussed the request said even the world's most powerful body could not stop the proceedings. "The letter from the Kenyans is slightly bizarre because they are actually asking the Security Council to do something that it has no authority to do," a senior council diplomat told Reuters news agency.

The Security Council is only able to defer International Criminal Court proceedings for one year under article 16 of the Rome Statute, which established the Hague-based court a decade ago. "No formal response has been made yet, but the Kenyans will be told their request is going nowhere," one diplomat said on condition of anonymity. The UN Security Council would need to adopt a resolution to have the Kenyan case deferred.

International legal experts view the letter which criticizes the court's legal process, as "neither impartial nor independent", but as a political appeal to drum up support among allies rather than a practical step towards dropping the ICC charges. "I think they are hoping to get enough pressure on the ICC to drop the case," Leslie Lefkow, deputy director for Human Rights Watch's Africa Division, told DW in an interview. "They argue that because the two leaders were elected, this is evidence for the case to be dropped. But if you follow that logic, then what you are saying is that anyone who is elected should be immune from prosecution."

Rwanda, currently a temporary member of the 15-nation Security Council, raised the Kenyan case in a meeting with ICC prosecutor Fatozu Bensouda on Friday (10.5.2013). Eugene Gasana, Rwanda's ambassador to the UN, said Kenya's letter contained "a compelling case against the methods of work of the office of the (ICC) prosecutor on the Kenya cases."

ICC 'not politicized'

 Bensouda hit back at suggestions that her office was politicized. "The ICC has always and will always continue to respect the sovereign equality of all states, Bensouda said. She warned that she will not "shy away from investigating individuals for any alleged crimes irrespective of their status." Bensouda, who admitted she had not officially seen the letter, gave a strong reaction to the Rwandan envoy's comments saying they were "unfounded and incorrect."

"It is a backdoor attempt to politicize the judicial processes of the court," Bensouda said. ICC judges have so far rejected suggestions to move the court to another country. Human Rights Watch's Leslie Lefkow believes that Kenya's case is different because up until now "both men have voluntarily presented themselves for proceedings." However she says Kenya's letter gives cause for alarm. "It needs to be met by a strong and united response from the international community."

Uhuru Kenyatta, 51, who was recently sworn in as Kenya's fourth president, his deputy William Ruto, 46, and another six suspects were initially charged by former ICC prosecutor Luis Moreno Ocampo with orchestrating tribal violence after the 2007 election. Kenyatta and Ruto both deny the charges. Should the charges against Kenyatta stand, he will become the first-ever president to have to travel to The Hague for a trial that could last at least two years.

Some 1,200 people were killed during the post-lection violence of 2007-08. The clashes shattered Kenya's image as a beacon of regional stability and plunged the East African nation into its worst wave of violence since independence in 1963.