Bas Czerwinski, Associated Press
NAIROBI, Kenya — In the aftermath of the attack on a Nairobi shopping mall, Kenya's president appears increasingly unlikely to attend his trial at the International Criminal Court where he is charged with crimes against humanity.
Even as heads of state prepare to gather for an African Union summit Saturday, where they could debate the possible exit of some African countries from the International Criminal Court, Kenyan officials are warning that President Uhuru Kenyatta might not show up in The Hague next month for his trial.
"He has cooperated fully with the court up until now," Foreign Minister Amina Mohamed told a news conference Wednesday held in front of the president's downtown Nairobi office. She was referring to past ICC hearings before Kenya's presidential election in March.
Mohamed underscored the contrast between then — when Kenyatta was the country's deputy prime-minister and a presidential candidate — and now, when he is president of East Africa's most powerful country, which faces a rising threat posed by Islamic insurgents.
"Are the circumstances different? Absolutely. Totally. Completely different. Before he wasn't the head of state of the republic. ... It's going to be the first time that a sitting head is brought before any court of any time, not just here but anywhere in the world," Mohamed said.
The ICC charges against Kenyatta and Deputy President William Ruto relate to Kenya's 2007-08 post-election violence that killed more than 1,000 people. Kenyatta has asked the court if he can attend the trial by video link. Judges have not yet ruled and have rejected that request from Ruto.
Herman von Hebel, an ICC executive, told reporters in The Hague on Wednesday that Kenyan authorities have so far fully cooperated with the case and he has not yet seen "any concrete element" to indicate that will change.
Privately, several members of Kenya's government have told The Associated Press they do not believe Kenyatta will report to The Hague. One official said tribal elders are urging Ruto not to return after finishing his current court session. All officials insisted on anonymity to speak freely about internal government deliberations.
Before this year's election, U.S. officials obliquely warned Kenyans that it wouldn't be a good idea to elect Kenyatta, the son of modern Kenya's founding father, as their president because of the charges hanging over him. Washington's assistant secretary of state for Africa said "choices have consequences."
Before this year's election, the top U.S. official for Africa obliquely warned Kenyans that it wouldn't be a good idea to elect Kenyatta as their president because of the ICC charges, saying "choices have consequences."
But the Sept. 21 mall attack has increased Kenya's — and Kenyatta's — value to the West in the war against terror. The Somali Islamic group al-Shabab claimed responsibility for the assault and said it was in retaliation for Kenya's sending of troops into neighboring Somalia.
If he decides not to attend the ICC trial, Kenya could become politically isolated and be sanctioned. But after the mall attack that killed more than 60 people, international repercussions may be lighter.
Officials at the U.S. Embassy refused to comment on the developments and the possibility that Kenyatta may snub the court.
"The already strong but now reinforced counterterrorism relationship between Kenyatta's administration and the U.S. and U.K. will likely diminish the impact of ongoing ICC cases against Kenyatta and his deputy," said Clare Allenson of the political consulting firm Eurasia Group.
She pointed out that the West's heightened security engagements with Kenya "will require more direct interaction and support of the Kenyatta administration at a senior level, including with the president himself."
Seth Jones, a terrorism analyst at the Washington D.C.-based Rand Corporation, said: "Kenya's importance as a counterterrorism partner should increase after the Westgate attacks."
At the African Union summit in Ethiopia's capital, African leaders could recommend a deferral of Kenyatta's case, or even seek to rebuke the court or sever the continent's relationship with it. Kenya's parliament in a non-binding vote last month voted to pull out of the Rome Statue, the legal mechanism that created the ICC.
The ICC faces a perception that it singles out Africans for prosecution even though many of the cases before the ICC were self-referred, said David M. Crane, a professor at Syracuse University College of Law.
"Politically I cannot see a head of state voluntarily being present in The Hague to stand trial," Crane said. "Legally I see no advantage for him to submit himself to the court. The bright red thread of modern international criminal law is politics. Politically this is a lose-lose situation, for both the ICC and the Kenyans."
The United States, which is not a party to the Rome Statute, says it supports the goals of the ICC and believes in promoting justice and ending impunity.
More than 1,000 people were killed in Kenya's post-election violence six years ago. Kenyan courts have prosecuted less than a half dozen people.
Associated Press reporter Mike Corder in The Hague, Netherlands contributed to this report.
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