Kenyan trial spells trouble for the ICC

  • The upcoming meeting of the member states of the International Criminal Court in The Hague promises to be heated, due to the trial of the Kenyan president.
  • The debate at the UN Security Council in New York has been robust.
  • The confrontation pits the West against African states, as well as China and Russia, who are supporting Rwanda and Uganda.

The very raison d’être of the International Criminal Court (ICC) may now be in play. Two weeks ago a delegation of representatives of African states met with the 15 members of the United Nations Security Council gathered in New York to urge them to delay the trial of current Kenyan President Uhuru Kenyatta and Vice-President William Ruto – scheduled for 5 February 2014 – by a year. The pair was elected in March, but they had been charged with crimes against humanity by the ICC in 2011, prior to taking up their governmental roles.

The reason? Physically bringing them to justice and removing them from power could present a serious security danger to the region. In September Somali Shebab insurgents with links to Al-Qaida carried out a horrific attack in the Westgate shopping mall in Nairobi, raising concerns about the Islamist threat in Kenya.

As far as the West is concerned, such a postponement is unacceptable because it would undermine the very principles underpinning the establishment of the ICC and leave certain “leadership crimes” unpunished. The issue, which has become extremely sensitive, will be dealt with as a matter of urgency by the 122 states parties to the Statute of Rome set to gather at The Hague from 20 to 28 November. According to diplomatic sources, the Security Council was a highly tense affair, with certain African representatives referring to “emotional blackmail” following the UN’s refusal to provide a favorable response to the Africans’ request. This was despite being able to do so under Article 16 of the Statute.

The representative of Rwanda, a non-permanent member of the Security Council, condemned a decision he described as “see-through”. The African nation has already lodged a draft resolution and threatened to bring about a vote. While the United Kingdom, France and the United States can count on the majority of non-permanent Council members to block such a resolution, the situation is constantly changing. Apparently, the states in favor of an adjournment, including China and Russia, require just one more vote to obtain a majority of nine votes. “A 12-month delay will not change the situation in any way,” points out a diplomat. “The immunity of the Kenyan president and heads of state is at stake, and if we grant this to Uhuru Kenyatta, what’s to stop others from demanding the same?”

At the African Union summit in Addis-Ababa on 12 October, Africans heads of state did indeed advocate immunity for current leaders. They even threatened to withdraw from the Statute of Rome. Distrust toward the ICC by African countries is not a new phenomenon. It dates back to the indictment of Sudanese President Omar Al-Bashir. And then, according to Paul Seger, Switzerland’s ambassador to the UN, “the case of Libya created much confusion. Security Council resolution 1970 appointed the ICC to investigate human rights violations under Gaddafi. Resolution 1973 authorized the use of force to bring an end to the violence. Some African states thought that the latter resolution set a precedent, authorizing future military action against African heads of state.” Today, the Kenyatta issue is the nadir of a crisis that certain African countries attribute to the West’s neo-colonialist policies. To date, all of the individuals accused by the ICC have been African. In the majority of cases, however, it is the nations themselves that have asked the Court to investigate.

The West refutes the idea that President Kenyatta is an ICC scapegoat. The day after the 2007 elections, at the end of which 1,200 people were violently killed, Kofi Annan, in his role of mediator, had already suggested handing the Kenyan case over to The Hague. “It is wrong,” adds Seger, “to claim that the ICC prosecutor has hurried the Kenyan case. Kenya has had months and months to develop its own jurisdiction. That did not happen. The principle of subsidiarity was respected.”

Despite the high levels of tension, many are striving to avoid a clash that could have serious consequences for the future of the ICC. Liechtenstein, Jordan and Botswana have just proposed modifying the rules of procedure so that the trial can be held by video conference. The Statute of Rome forbids this, insisting that all defendants be physically present. “It is in nobody’s interest to see the gulf widen between the African states and the other states parties,” concedes Ambassador Seger, who chairs the Rules of Procedure working group within the Assembly of States Parties and who will be in attendance in The Hague. Stefan Barriga, deputy permanent representative of the Liechtenstein Mission to the UN, points out that Nairobi is not inflexible: “Kenya is moving in a similar direction, although it wants to change not only the rules of procedure, but the Statute of Rome as well. That’s a positive sign. I’m hopeful that this will enable us to find some common ground.”  



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