By Security Council Report, New York 30 October 2012

Tomorrow (31 October), Council members will hold an interactive dialogue with an AU high-level contact group and Kenya regarding the AU request that the Security Council defer International Criminal Court (ICC) proceedings against President Uhuru Kenyatta and Deputy President William Samoei Ruto of Kenya. (Article 16 of the Rome Statute of the ICC allows the Council to defer a situation for one year through the adoption of a Chapter VII resolution, for reasons relating to the maintenance of international peace and security. The AU contact group consists of the foreign ministers of Ethiopia, Mauritania, Namibia and Uganda and the deputy foreign minister of Burundi. The foreign minister of Kenya will also be participating.)

 

Since late 2010, Kenya has been pursuing a deferral of the ICC proceedings and has intensified its efforts since Kenyatta and Ruto were both elected on 4 March. Moreover, the Ruto trial began on 10 September, while the Kenyatta trial is scheduled to commence on 12 November.

Although Kenya is not on the Council’s agenda, the issue of a deferral for ICC proceedings has been discussed a number of times through the use of the interactive dialogue process and during informal consultations. Council members first addressed this issue on 18 March 2011 when they held an interactive dialogue with Kenya to discuss the request for a deferral under Article 16. However Council members were unable to agree on taking action on the deferral. Kenya then requested the Council to hold an open debate on the issue (S/2011/201) but this was not taken up by the Council. Further consultations on the deferral were held on 8 April 2011 and were again not followed by any Council action, as several Council members felt that Kenya essentially had raised issues of complementarity between the ICC and domestic proceedings, rather than issues relating to peace and security. (Kenya filed an application before the ICC under Article 19 of the Rome Statute, claiming that it was capable of trying its own nationals and therefore requesting that the case be dropped by the ICC. The request was rejected by the Court on 30 May 2011 and the decision was upheld by the Appeals Chamber on 30 August 2011).

Another interactive dialogue with Kenya was held on 23 May 2013 after Kenya asked that the Council terminate definitively (rather than just defer) the ICC proceedings. While some Council members expressed sympathy towards Kenya, several Council members were still opposed to a deferral, let alone a decision to terminate independent judicial proceedings, which they viewed as a legal impossibility.

Council members also met with the members of the AU Peace and Security Council in Addis Ababa, , as well as AU Chair Nkoszana Dlamini Zuma, on 8 October on the concerns of AU members over the preponderance of ICC proceedings pertaining to Africa, and in particular that of Kenya. Zuma indicated that a new AU deferral request may be imminent to which several Council members responded that while they would consider such a request, there is little chance of Council agreement to act on the issue.
On 12 October, the Assembly of the AU adopted a decision [Ext/Assembly/AU/Dec.1(Oct.2013)], expressing concern over “the politicization and misuse of indictments against African leaders by ICC as well as at the unprecedented indictments of and proceedings against the sitting President and Deputy President of Kenya”. It decided that:

  • no proceedings against serving AU heads of state should be undertaken by international courts;
  • the trials of Kenyatta and Ruto should be suspended;
  • to engage the Security Council anew over AU concerns about the deferral of the Kenya and the Sudan situations;
  • Kenya should send a letter to the Council requesting an Article 16 deferral;
  • Kenyatta will not appear before the ICC until the AU concerns have been addressed; and
  • to seek the amendment of the Rome Statute.

As with other recent AU decisions on the ICC, it places great emphasis on the Kenya deferral while making only passing reference to the pending arrest warrant against President Omar Al-Bashir of Sudan. This is a shift from earlier AU decisions that strongly advocated for a deferral of the Sudan situation (e.g., Assembly/AU/Dec.482 (XXI) of 26-27 May 2013) despite the fact that the substance of the AU decisions equally applies to both situations.

In accordance with the AU decision, Kenya sent a letter to the Council (S/2013/624) requesting a deferral, in order not to further aggravate the security situation in Kenya. The AU also sent a letter, signed by a large majority of AU states, emphasising that proceedings against Kenyatta and Ruto at this time will distract and prevent them from fulfilling their national and regional tasks and commitments in fighting terrorism. The AU letter stresses that Kenya is a frontline state in the fight against terrorism as demonstrated by the tragic attack that took place on 21 September in the Westgate Mall in Nairobi, which claimed the lives of 67 people.

Consistent with the message conveyed to the AU in Addis Ababa, Council members agreed that an appropriate venue for a discussion with the AU and Kenya on this issue should be found. Following past practice, Council members decided that another interactive dialogue would be the proper format, allowing for an informal exchange of views. However, it seems that despite the recent terrorist attacks that took place in Nairobi and the election of Kenyatta and Ruto, opinions within the Council on the question of a deferral have not shifted since the last interactive dialogue.

While some members may express sympathy towards the AU position, several members will continue to maintain that the Council should not intervene in the proceedings against Kenya, particularly as Kenya, unlike Sudan, was not referred to the ICC by the Council. They maintain the position that the proceedings do not pose a threat to international peace and security and that the grievances against the ICC would be best addressed directly with the ICC. Furthermore, Council members are aware of the fact that any decision to defer the situation in Kenya may reignite a request for a deferral of the Sudan situation, which several are highly opposed to and do not wish to reengage in.

It is unclear if there will be any sort of follow-up action after the interactive dialogue session. A draft resolution authorising a deferral for the Kenya situation has been in the works by some African states, but it seems that such a draft would be unlikely to fly due to the absence of nine affirmative votes as required by Article 27(3) of the UN Charter. (The current composition of the Council consists of seven states parties to the Rome Statute, plus the US, which have been ill-disposed to considering deferrals in the past.) However, with some Council members, like Rwanda, taking a keen interest in the issue of the ICC in relation to African countries, it is possible that there may be some attempt to introduce this draft to the larger Council in the near future. However, some Council members, particularly the states parties, may prefer to continue to discuss this issue in regular interactive dialogue sessions in order to better determine the possible options.

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