The West, the ICC, and ‘mtu wetu’ in Israel

The arrest warrants for Israel’s Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant, issued by the International Criminal Court (ICC), have brought back not-so-fond memories to many Kenyans. More than a decade ago, then Kenyan President Uhuru Kenyatta and his deputy – current President William Ruto – became the first incumbent heads of state or government to actually face an ICC trial, having been indicted before they got into office.
However, while both Kenyatta and Ruto chose to cooperate with the court – at least on the face of it – and attended their trials, thus obviating the need for an arrest warrant, it is unlikely that Netanyahu and Gallant will be taking a trip to The Hague any time soon.
Kenyatta and Ruto were accused of being responsible for the violence that followed the country’s disputed 2007 election, in which more than 1,300 people lost their lives. The two had been on opposing sides of the conflict and were alleged to have organised and funded “tribal” militia to carry out killings.
To date, only a handful of people have ever been prosecuted for the murders, rapes and mutilation that led to the forcible displacement of 660,000 people, and it was only after the Kenyan state proved unwilling to act that the ICC stepped in.
Similarly, when he applied for warrants for the Israeli leaders in May, ICC Prosecutor Karim Khan – who coincidentally headed Ruto’s defence team – also indicated he would be happy to defer prosecution if Israel’s justice system shows any willingness to take action against Netanyahu and Gallant and “engage in independent and impartial judicial processes that do not shield suspects and are not a sham”.
The ICC judges have now agreed that there are reasonable grounds to believe the two bear criminal responsibility for the many crimes committed by Israel against the Palestinians during its ongoing genocidal assault on Gaza. With an official death toll of more than 44,000, Gaza has witnessed murders, rapes and displacement on a vast scale, as well as mass starvation, and the deliberate targeting of schools, hospitals and places of worship.
Many have complained about the seven-month-long delay in the ICC judges issuing the arrest warrants, but Kenyans had to wait for two years to have the ICC prosecutor send a request for an investigation and then another five months for the court to approve it. It then took another 12 months for the actual indictment of specific individuals – six of them – to be handed down.
Thus, by comparison, the Palestine cases have moved much faster.
Among the reasons for the delay in the Palestine case were the numerous briefs challenging the court’s jurisdiction and the admissibility of the allegations. There was also a lot of pressure put on the ICC by Israel and its Western friends.
There were Israeli attempts to intimidate the court even before the war started last year, with Khan’s predecessor, Fatou Bensouda, facing threats by the Mossad not to launch an investigation into Israel’s war crimes of 2021. Khan now himself faces accusations of sexual misconduct.
It is notable that few Western nations came to Kenyatta’s and Ruto’s aid. On the contrary, there was more than a subtle hint given to Kenyans that electing Kenyatta and Ruto would be a bad idea – that “choices have consequences”.
I am not saying they should have opposed the duo’s arraignment, but there is more than a whiff of double standards here. It does seem that there is more of an interest in seeing justice done when those in the dock are Africans, and not just anti-Western.
That point is driven home when one considers how the indictments of Israeli officials have been framed in the Western press. The Guardian, for example, described it as “the first time a western ally from a modern democracy has been charged with war crimes and crimes against humanity by a global judicial body”.
This account comes as a surprise to Kenya, which for well over six decades has considered itself a “Western ally” and which – having held regular elections throughout that time – can be described as something of a “modern democracy”, whatever that means. Unless, of course, these are euphemistic descriptors of more problematic relationships.
Kenyans have a name for this sort of thing: the “mtu wetu [our guy] syndrome”. Whenever our politicians find themselves being investigated or – God forbid! – charged with crimes, they try to rally their ethnic kinsmen around the idea that it is the “tribe” being targeted.
The mobilisation of an imagined identity is a political tactic that is very effective in scaring off prosecutors and intimidating judges both locally and internationally. “Mtu wetu” is how Kenyatta and Ruto were able to avoid prosecution at home and then instrumentalise their control of the Kenyan state to undermine their cases at the ICC.
It is why the ICC found itself accused of “race hunting” – of focusing on prosecuting Black Africans, an allegation that conveniently ignored the fact that most of the situations the court was pursuing had been referred to it by African governments.
“Mtu wetu” is why Netanyahu today accuses the court of anti-Semitism, suggesting his prosecution is an attack on all Jews. “Mtu wetu” is why suddenly Germany seems less keen on upholding its obligations under international law, and why US politicians are threatening all and sundry, even those in Canada and Europe who perhaps mistakenly thought they  would be always part of the tribe.
It is sadly ironic that on the 140th anniversary of the Berlin West Africa Conference – which set the stage for European colonisation of Africa and which subsequently introduced the scourge of tribalism to the continent – that the same irrational and totalising conception of identity is being weaponised in the West to defend people accused of some of the worst categories of crimes imaginable.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.