Kenya, with African Union Backing, to Seek Again Deferral of the Cases Before the ICC?

In other ICC news…. It is being reported that a diplomatic deal is being struck to seek the postponement of the Kenyan cases through the Security Council. This follows on the heels of a specially-convened African Union summit dedicated to the Court.

By way of background, African states were staunch supporters of the International Criminal Court during its inception, forming a powerful bloc within the so-called Like-Minded States who sought a strong and independent court.  African states were also quick to join the Court when the treaty opened for signature.  As it stands, 34 of 54 African countries have ratified the treaty.  Four of the eight situations currently before the Court (the Democratic Republic of Congo, Uganda, the Central African Republic, and Mali) are the result of self-referrals, a route to jurisdiction not contemplated during the drafting of the ICC Statute on the assumption that states would not voluntarily subject events on their territory or their nationals to international jurisdiction.  The Darfur and Libya situations were referred to the Court by the Security Council with the support of the African members of the Council at the time.  The Kenya case is special, in that it stemmed from the Prosecutor’s first exercise of his proprio motu powers in 2010, although even this came after a long negotiation with the Kenyan authorities who agreed that Ocampo could move forward in the event that the government was unable to meet certain accountability benchmarks.  Côte d’Ivoire is also a proprio motu case.  CDI provided an ad hoc declaration pursuant to Article 12(3) of the Statute accepting the jurisdiction of the Court.  The declaration was later re-affirmed by the newly-elected Ouattara government, and then CDI officially ratified the treaty in February 2013.  Along the way, the Prosecutor sought and received authorization to open an investigation into the 2010 post-election violence.

This African affiliation with the Court began to sour when President Al-Bashir of Sudan was indicted for war crimes, crimes against humanity, and genocide in Darfur.  Bashir launched a campaign to rally African leaders around him, seeming to flaunt the Court by attempting to travel to ICC member states.  Relations became even more strained with the indictment of Uhuru Kenyatta, who was eventually elected President of Kenya, and his now Deputy President, William Ruto.  Notwithstanding that

  • the states themselves initiated many of these proceedings,
  • the Court enjoys strong support from African civil society groups, and
  • Africa is sadly home to several brutal conflicts,

this continental focus has led to criticism from some sectors that the Court is racist, neo-colonialist, and “the toy of declining imperial powers.”  The Kenya and Darfur cases are particularly sensitive in that they involve sitting heads of state rather than rebel leaders.  In both situations, efforts were launched in the past in the Security Council to obtain a postponement of the proceedings pursuant to Article 16 of the Statute, which states:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

The Council, however, has historically refused the bait.

The African Union convened an extraordinary session over the weekend devoted to Africa’s relationship with the ICC.  It was rumored that the AU would issue a resolution calling for de-ratification en masse of the ICC Statute.  In the end, the AU paid lip-service to accountability and decided only to seek the postponement of the Kenya and Sudan cases until the respective defendants are no longer in office, declaring that:

No charges shall be commenced or continued before any international court or tribunal against any serving head of state or Government or anybody acting in such capacity during his/her term of office. To safeguard the constitutional order, stability and integrity of member states, no serving AU Head of State or Government or anybody acting or entitled to act in such a capacity, shall be required to appear before any international court or tribunal during their term of office.

The AU also announced that the Kenyan president should not appear in The Hague on November 12, 2013, the day his trial is slated to begin, if the request for deferral is unsuccessful.  Sudan later expressed disappointment that the AU did not go farther.

It is now being reported that:

Western diplomats are preparing a UN Security Council resolution that would put the International Criminal Court (ICC) case [involving the President of Kenya] on hold. …  Sources said the resolution was to avoid a damaging stand-off between the court and African states over charges faced by Mr. Kenyatta of orchestrating post-election violence that killed more than 1,000 people in 2007-08.

No doubt Kenya’s critical role in counter-terrorism operations involving the horn of Africa and the recent Westgate Mall attack are also relevant considerations. That said, it is unclear whether the situation has changed appreciably enough to justify a deferral when the Security Council has with little angst refused such requests in the past—a sentiment apparently expressed by some diplomats. 

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Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).