NAIROBI, Kenya -- The members of the African Union agreed on Saturday that no sitting head of state should be prosecuted by an international tribunal and that the trial of Kenya's president at the International Criminal Court should be postponed, according to the group's chairman, who spoke after the closed-door session.
While the African Union has no official standing to effect change at the court, the African countries' stance could complicate the tribunal's work by providing backing for heads of state who refuse to cooperate. Most immediately, the request to postpone the trial of President Uhuru Kenyatta of Kenya could provide him with additional political cover should he choose to skip his court date.
Still, despite African countries' longstanding unhappiness with the court over what is seen as an unfair treatment, there was no resolution demanding an exodus from the tribunal.
Pressure had been building for African countries to withdraw from the international court en masse. But two of the continent's leading elder statesmen, Kofi Annan, the former United Nations secretary general, and Archbishop Desmond Tutu, spoke out strongly in favor of the court last week. So did many civil-society groups.
The combination added to reservations among African countries and whittled away at support for such a strong move.
Relations between the court and African leaders have deteriorated as the court has prosecuted only cases against African states more than a decade into its existence. The issue has come to a head as Mr. Kenyatta is expected to stand trial at The Hague next month -- even as his country struggles to deal with the aftermath of the siege of the Westgate mall, which claimed the lives of more than 60 men, women and children. With Mr. Kenyatta's future in question, the African Union organized the extraordinary summit meeting at its headquarters in Addis Ababa, Ethiopia, on Friday and Saturday to debate his case and the future of relations between its members and the court.
"We have agreed that no charges shall be commenced or continued before any international court or tribunal against any serving heads of state or government," said Prime Minister Hailemariam Desalegn of Ethiopia, the chairman of the African Union. President Omar al-Bashir of Sudan, who was indicted in 2009, has refused to cooperate with the court.
Earlier, the African Union chairman criticized the court for continuing "to operate in complete disregard of the concerns" of African governments. African nations had joined the court, he said, "convinced that the organization would promote the cause of justice with a sense of impartiality and fairness." But he added that "the practice so far, however, leaves so much to be desired."
Mr. Kenyatta and his deputy, William Ruto, have both been charged with crimes against humanity, accused of being involved in the violence that followed the disputed presidential election in 2007, which claimed the lives of more than 1,100 people and displaced more than 600,000. They deny the accusations, and before the attack, both said that they would work with the court.
Mr. Ruto's trial began last month, and he has been traveling between Kenya and The Hague. Tedros Adhanom Ghebreyesus, the Ethiopian foreign minister, told reporters at the end of the summit meeting that if the request for a deferral of Mr. Kenyatta's case was not answered, the Kenyan leader should not appear before the court.
The attack on Westgate has earned him more support abroad, both in sympathy over the attack and in the way it highlighted the practical need for heads of state to be at home to govern their countries.
"The elected leadership of Kenya must be allowed to serve their term as mandated by the people of the country," said Nkosazana Dlamini-Zuma, a top African Union official, in her opening remarks on Saturday. "They must be allowed to lead the country in the consolidation of peace, reconciliation, reconstruction, democracy and development as per the will of the Kenyan people, expressed in elections in March this year."
According to a copy of Mr. Kenyatta's speech released Saturday night, the court "has been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims," he told the closed session.
"It stopped being the home of justice the day it became the toy of declining imperial powers," he said.
The statement by the African Union chairman on Saturday appears to cover Mr. Ruto as well, since he acts as head of state when Mr. Kenyatta is out of the country.
Mr. Kenyatta is the second sitting head of state in Africa indicted by the court, after Mr. Bashir. The court has also opened cases in Central African Republic, Ivory Coast, the Democratic Republic of Congo, Libya, Mali and Uganda. The I.C.C. does have investigations under way outside Africa, including in Afghanistan and Colombia, but they are preliminary.
"The landscape on which this court works is a very uneven one," said Richard Dicker, director of Human Rights Watch's international justice program in New York. "The leaders of the most powerful countries and those governments the most powerful countries protect don't find themselves facing arrest warrants from the I.C.C. That's an ugly reality, but it's not the fault of the court."
But he called that track record "no excuse to deny justice to victims where it's possible."
The 1998 Treaty of Rome created the I.C.C., and its jurisdiction went into effect in 2002; 122 countries, including Kenya, have ratified the treaty. Of the African Union's 54 members, 34 are parties to the I.C.C.
The United States never ratified the treaty. Some have called for Americans to be prosecuted over the Iraq invasion, but because the United States is not a party to the court and holds a veto in the Security Council -- which can refer cases to the I.C.C. -- any action against Americans has been effectively prevented. Russia and China also hold veto power and are not part of the court.
"African states were encouraged by an international institution that wasn't held hostage by the most powerful states and the Security Council in particular," said Mark Kersten, a researcher at the London School of Economics and author of the blog Justice in Conflict. "Over the last few years, the I.C.C. has built a much closer relationship with the Security Council. That has instigated a lot of uncertainty."
Nicholas Kulish reported from Nairobi, and Benno Muchler from Addis Ababa, Ethiopia.world
This article originally appeared in The New York Times. First Published October 12, 2013 2:01 PM