Kenya is set to be the fourth African country to lose military aid from the United States following its refusal to sign an Immunity Agreement…
The Immunity Agreement exempts US nationals and soldiers from the jurisdiction of the International Criminal Court (ICC).
Tanzania, South Africa and Namibia have also refused to sign the agreement and as a consequence lost military aid.
The US government has decided to suspend aid pledged to the Kenyan Armed Forces amounting to over $10m on account of Kenya’s refusal to abide with agreement.
The US decision is anchored on the American Service-Member Protection Act (ASPA) and a subsequent amendment to it, the Nethercutt Amendment, which obliges the US government to deny military and economic assistance to countries which join the ICC but fail to sign immunity agreement in favour of Washington.
The US has however sought to negotiate non-surrender agreements with all the countries worldwide whether or not they are member states to the ICC.
But the US’ decision has been met with harsh reactions from Kenyans with many terming it as absurdity taken to new heights and total abuse of the sovereign rights of Kenya in joining the ICC.
Kenya Human Rights Network was the first to oppose the American Ambassador to Kenya William Belamy’s interpretation of Article 98(2) of the Rome Treaty to allow the negotiation of a non-surrender agreements saying that the article was inserted at the behest of the United States in order to retain its involvement in the ICC project.
The US ambassador has been reported by a local daily newspapers saying "the bilateral agreement sought by Washington are in fact contemplated under the Rome Treaty."
The US officially repudiated the treaty of the International Criminal Court in 2002 allowing Washington to eliminate any underlying rationale for a bilateral agreement, as the Bush administration would refuse to surrender an American suspect to the ICC even if the court were to find that a United States investigation or prosecution was a complete sham.
Kenyan legislators have also threatened to introduce a motion in Parliament soon to block the Kenya government from signing the agreement criticising the US government for arm-twisting Third World countries into signing the Article 98, which would prevent Americans from being turned over to the ICC.
They want the Kenyan government not to compromise the country’s sovereignty in exchange for financial "handouts", saying South Africa and Tanzania had declined to sign the agreement.
Led by the chairman of the Liaising Committee of Parliament, David Musila, and David Mwenje, the chairman of the Parliamentary Select Committee on National Security and Local Authorities, the legislators claimed that Americans had committed atrocities against the world, which was why the US government was "paranoid" about the international court.
Recalling the 1980s saga of an American soldier who killed a Kenyan woman but got off with a KSh500 or $5 fine and repatriation back to his country, the law makers urged Kenyans to stand firm and safeguard their country’s sovereignty.
If Kenya was to sign and adhere to such a treaty, they say "it will prevent the court from stepping in if the US proves unwilling to conduct an appropriate investigation or prosecution."
Opposition to the ICC is not limited to the United States, other populous countries such as China, India, Indonesia and Russia have become party to the statute on account of their ambitions of projection of power, which the statute is seen to potentially constrain.
According to political observers, some of the countries face the possibility of internal strife and instability and are thus concerned of interference in their domestic affairs.
They believe the United States opposition stands out because it reflects an ideology absent in any other major power.
Fears of the court being turned into the arena for political vendetta against the US they say are the least unwarranted and over dramatised.
The Bush administration is reported to have cut off military aid to 35 friendly countries worldwide, Kenya included.
This is in retaliation for their support of the international war crimes court and refusal to exempt US soldiers from the court’s jurisdiction.
The cuts will mostly affect countries in Latin America, the Caribbean, East and Central Europe and sub-Saharan Africa.
White House secretary Ari Fleischer was quoted as saying the new law "is a reflection of the United States’ priorities to protect the men and women in our military."
Fleischer said Washington hoped "to continue working with governments to secure and ratify Article 98 agreements that protect American service members from arbitrary or political prosecution by the International Court."
Under Aspa, the US president is empowered to use all necessary means to free American servicemen held by the ICC.
In addition, the US president is empowered to "waive" sanctions on other countries if it serves the national interest.
The administration is also obliged to cut off military aid to countries that have ratified the ICC unless they are Nato allies or specially designated non-Nato allies, such as Argentina, Australia, Japan, South Korea, the Philippines and Israel.
The Bush administration wants governments signing the so-called Article 98 agreements with the US, committed not to transfer any American soldier to the international war crimes court. Such countries would qualify for sanction waivers.
Under the 1998 Rome Protocol, which has been ratified by 90 countries including Washington’s closest Nato allies, the ICC was set up to investigate and prosecute war crimes against humanity.
It would also deal with genocide in cases where countries with direct ties to such crimes were not able or willing to prosecute the culprits.
Former US President Bill Clinton signed the protocol in December 2000, just a few weeks before Bush took office. But in May last year, the Bush administration renounced Clinton’s signature and withdrew from all negotiations to set up the court.