Last Friday the UN Security Council (UNSC) rejected the African Union’s (AU) demand – put forward by Rwanda, Togo and Morocco – that the cases against Kenyatta and his deputy William Ruto for alleged crimes against humanity after the 2007/8 elections should be deferred under Article 16 of the Rome Statute governing the ICC. States parties to the Statute on the UNSC argued that the proper place to discuss the AU proposal was in the ICC itself, and particularly the annual gathering of the Assembly of States Parties (ASP) to the Rome Statute which would be meeting this week in The Hague.
Britain’s ambassador to the UN, Mark Lyall Grant, told the UNSC that the ICC had already addressed the AU’s (ostensible) central concern that the ICC cases should not distract Kenyatta and Ruto from governing Kenya, especially at a time of heightened terrorist threat illustrated by the Al-Shabaab attack on Nairobi’s Westgate shopping mall in September. Grant recalled that the ICC had thrice postponed the start of Kenyatta’s trial, until February 2014, and had agreed to schedule the two trials so that the two leaders were never in The Hague – i.e. out of Kenya – at the same time.
Grant also said that at this week’s ASP meeting, a number of amendments to the ICC rules would be proposed to further address the AU concerns, including the proposal that sitting leaders like Kenyatta may be ‘present’ at their trials in The Hague by video conferencing. This would allow Kenyatta to remain in Nairobi, greatly reducing the distraction from his official duties.
Ottilia Anna Maunganidze, a researcher at the Institute for Security Studies, notes that Kenya has proposed that sitting heads of state and government should be immune from prosecution by the ICC. This would no doubt fully satisfy the AU which adopted a resolution to that effect in October and prompted the ASP to conduct a debate today on the impact that indicting sitting leaders could have on peace and security. But Maunganidze doesn’t think Kenya’s proposed amendment to the Rome Statute has a chance, as there is no consensus on the issue. In order for such an amendment to pass, in the absence of consensus, a two-thirds majority of states parties would have to support it, and then a seven-eighths majority would need to ratify it.
The UK video link proposal and a similar amendment jointly submitted by Botswana, Jordan and Lichtenstein have a much better chance of being adopted as they would only entail amending the ICC rules of procedure and evidence which requires a two-thirds majority. It’s not quite as simple as that, though, she explains, as the proposed amendments to the rules must be consistent with the Rome Statute which takes precedence. The Rome Statute, for instance, requires suspects to be ‘present’ at their trials, and some countries will surely argue that a live video image of Kenyatta in the courtroom will not make him ‘present’ as the Rome Statute requires.
Probably quite a few governments will agree with Human Rights Watch and other activists that the ICC should not make special exceptions for sitting presidents as this would violate the principle of equality before the law. And in any case the video proposal, even if accepted at the present meeting, would still take considerable time to wend its way through the protracted ICC approval process.
Some observers suspect, though, that the proposal may have been submitted as a means to placate the African lobby and justify not taking action on the UNSC. But if we assume, for the sake of argument, that it is a sincere attempt to reconcile the competing interests of universal justice and effective government to deal with security threats in particular, then it could well be adopted at some point. And one could also assume, perhaps, that if the necessary support is visibly mustered at the current meeting in The Hague, the approval process could be fast-tracked.
We have already seen the ICC bend the rules for Kenyatta and Ruto, a sign that it is feeling the growing pressure being put out by the AU. And, strategically, the ICC probably needs to adopt this proposal, in order to avoid alienating Africa even further and possibly provoking a future withdrawal by some of the 34 African signatories to the Rome Statute, which would deal a very damaging blow to international justice.
But if the Western and other countries boxing in the international criminal justice corner really back the proposal and want it to go through in time for the Kenyatta trial, what about the AU side?
Some African governments seem rather non-plussed by the proposal. The South African Department of International Relations and Cooperation’s response to it has been to insist that the government’s official position is still for a deferral by the UNSC of the cases against the two Kenyan leaders. Yet in the same breath, it does not rule out supporting the video link proposal. Maunganidze confirms that right across government, there seems to be ambivalence about it.
That may be because in a sense the video proposal has called South Africa and Africa’s bluff. If they are really concerned that ICC indictments will fatally distract Kenyatta from his government responsibilities, this proposal addresses that concern, not fully but sufficiently. But if the Kenyan case is really just a vehicle for the AU’s resentment that the ICC is picking on Africa and for a self-serving desire by leaders for blanket immunity, then they will be inclined to reject it. Some answers to these questions should start emerging from the ASP meeting.
Peter Fabricius, Foreign Editor, Independent Newspapers, South Africa
Originally posted by the Institute for Security Studies