WHEN BID TO DEFER ICC COURT CASES OF KENYA LEADERS FAILED

An almost evenly divided Security Council, lacking the requisite nine affirmative votes,  today  ( 15^th  November)  failed to adopt a resolution seeking a one-year delay in International Criminal Court proceedings against the President and Deputy President of Kenya.

Seven Council members voted in favor of the text (Azerbaijan, China, Morocco, Pakistan, Russian Federation, Rwanda, Togo), none voted against, and 8 abstained (Argentina, Australia, France, Guatemala, Luxembourg, Republic of Korea, United Kingdom, United States).  The draft was, therefore, not adopted.

Had it passed, the Council would have requested the International Criminal Court, under Chapter VII of the United Nations Charter, to defer the investigation and prosecution of President Uhuru Muigai Kenyatta and Deputy President William Samoei Ruto for 12 months, in accordance with Article 16 of the Rome Statute, which established the Court.  By other terms, the Council would have decided that Member States would take no action inconsistent with their international obligations.

Following   today’s   action  delegates explained the differences of opinion reflected in their respective actions.

The representative of the United States said the Assembly of States Parties to the Rome Statute, which oversaw the Court’s administration, would meet next week to help address outstanding issues.  Since the Court and the Assembly were the proper venues for addressing the concerns of Kenya and the African Union, the United States had abstained rather than voting against the draft resolution.

France’s representative said the vote had been unnecessary when the Council was in the midst of consultations with African States.  The United Kingdom’s representative stressed that the sponsors had failed to establish the Charter VII threshold beyond which the Court’s proceedings against the Kenyan leaders would pose a threat to international peace and security.

Guatemala’s representative said it was offensive to suggest that those who had not voted in favor of the draft were somehow against Africa.  However, today’s vote had erected a “barrier of distrust”.  That some countries had submitted a draft resolution in full knowledge that it would not be adopted did not accord with the goal of promoting Council unity, he emphasized.  Today’s exercise had left a balance of losers, he said, adding that the vote was detrimental to the African Union, which perceived its proposal as having been rejected; to the Court, whose aspiration for universal membership was under assault; and to the Council, which now appeared divided.

The Russian Federation’s representative said African countries had presented compelling arguments at a critical time for Kenya, whose military was playing a key role in Somalia.  Their request did not undermine the integrity of the Rome Statute, and there had been no attempt to turn them against the Court.  The application of Article 16 would have increased the credibility of the international system of justice among African countries, showing its readiness to address “complicated and ambiguous” situations, he said.

Council President Liu Jieyi ( China), speaking in his national capacity, said Africa’s request was a matter of interest to the entire continent.  It was well grounded and based on the principles of the Charter.

Pakistan’s representative said Kenya’s case rested on sound, solid strategic, political and legal grounds, adding that its logic was compelling.  From a strictly legal standpoint, the principle of complementary must respect national jurisdiction, he said, noting that the functioning of the offices of the President and Deputy President was under question.  A provision on deferral was already available in the Rome Statute, he pointed out.

Rwanda’s representative emphasized that the Council was indeed the proper place to discuss today’s issue, and expressed his delegation’s deep disappointment at what had transpired.  “Let it be written in history that the Council failed Kenya and Africa on this issue,” he stressed.  Today’s vote undermined the principle of sovereign equality and confirmed the long-held view that international mechanisms were manipulated to serve select interests.  Article 16 had never been meant to be used by an African State; it appeared to be a tool used by Western Powers to “protect their own”, he added.

The representative of Ethiopia spoke in that country’s capacity as current Chair of the African Union, stressing that the Rome Statute’s Article 16 gave the Council authority to defer cases under the Court’s remit for 12 months.  The African request could not be rejected on legitimate grounds, and abstention under the circumstances amounted to rejection, he added.

Kenya’s representative noted that some Council members had chosen to tie the denial of the African Union’s request to a paranoid fear of imaginary possible future abuse of Article 16.  “Indeed, our understanding is now clear.  The Security Council is no institutional destination for solving complex and fluid international security and political problems,” he said, adding that the Rome Statute had failed its first crucial test.

Also speaking today were representatives of Luxembourg, Argentina, Morocco, Azerbaijan, Australia, Republic of Korea and Togo.