The war crimes trial of Kenya’s President Uhuru Kenyatta could be suspended for at least a year under a diplomatic deal to be put to the United Nations.
Western diplomats are preparing a UN Security Council resolution that would put the International Criminal Court (ICC) case on hold after the African Union lodged objections to the trial.
Sources said the resolution was to avoid a damaging stand-off between the court and African states over charges faced by Mr Kenyatta of orchestrating post-election violence that killed more than 1,000 people in 2007-08.
Mr Kenyatta has said he is reluctant to attend the opening of his trial in The Hague on Nov 12 after judges agreed to alternate his appearances with the hearing for William Rutto, the vice-president, who is also charged.
However, an extraordinary summit of the African Union on Saturday issued an ultimatum to the court to stop the case, warning judges that Mr Kenyatta must not be compelled to face trial.
Mr Kenyatta, who was elected last year, welcomed the decision and criticised the court. “It stopped being the home of justice the day it became the toy of declining imperial powers,” he said. “Africa is not a third-rate territory of second-class peoples. We are not a project, or experiment of outsiders.” Diplomats fear the trial could create a impasse in which the Kenyan leader either pulls out of the process at the last minute or African states start withdrawing from its jurisdiction.
“Uhuru is not an indicted figure who is defying the court like Sudan’s president (Omar) Bashir. He is someone who is working closely with the West in a region in chaos that needs to tackle a very worrying terrorist situation,” a senior European diplomat said. “A solution must be found that avoids a breakdown in relations with Kenyatta or the court’s authority.”
Mr Kenyatta’s trial comes just weeks after Kenya faced its biggest security crisis in recent memory as al-Shabaab terrorists took over Nairobi’s Westgate shopping mall. Sixty-seven people were killed in a bloody seige as Mr Kenyatta personally oversaw the security operation against the hostage-takers.
The Telegraph understands that European officials have sought to adopt measures to ensure Mr Kenyatta is not forced to leave the country in the wake of the Westgate incident.
All of the active cases before the ICC are against Africans, prompting claims by polticians that the tribunal is unfairly targeting the continent.
An official close to Mr Kenyatta confirmed the shift in his approach to the charges and suggested it was possible he would stop cooperating. “We have been talking about the double standards of the court for some time,” the official said. “What the president told the AU was simply an extension of that.”
Unless the ICC prosecutor or the court asks its member countries to endorse a postponement, the only authority that can intervene is the UN Security Council. As the US is not a member of the court, it has fallen to British and French officials to push forward a resolution, which could be adopted by the end of the month.
A spokesman for the ICC said it had no scope to object if the Security Council invoked international security issues to suspend the case. “The Security Council can adopt a resolution to impose a suspension based on the protection of peace and security in world,” said Fadi al-Abullah, the ICC spokesman. “In that case it would be out of the hands of the prosecutor as the ICC has no role to advise the security council in these matters.”
A spokesman for the Foreign Office said Britain had not changed its position that Mr Kenyatta and the other defendents should cooperate with the ICC.
Bill Cash, the Conservative MP and chairman of the All-Party Kenya Group, called on the Government to support a suspension of the trial in a House of Commons debate last week.
“The events in Kenya were horrific but the president was democratically elected by a significant majority in full knowledge of the case. That must give rise to questions over the continuation of the original application to the ICC,” he said !!