Envoy: US will veto deferral of Kenyan ICC case

Jennifer Muiruri | NATION
Outgoing US ambassador Michael Ranneberger during the interview with the Sunday Nation. He said the US would not back deferral of the Kenyan case at the ICC.

What you need to know:

  • Ranneberger asserts that the Obama administration does not back any delay in the case against the Ocampo Six and their trials would be crucial in fighting impunity and ensuring accountability

The Obama administration will block any attempts to halt trials of post-election violence masterminds at The Hague, a decision which means government efforts to get the process deferred at the UN are almost certainly doomed to failure.

Outgoing US ambassador Michael Ranneberger told the Sunday Nation Washington would not back any delay of ICC action.

“The American position is that we want the ICC process to proceed expeditiously. We do not want to see the process delayed. We think that carrying through with the trials is absolutely crucial to fighting impunity and to ensuring accountability.”

The US holds veto power in the Security Council and a rejection of the petition by any one of the five permanent members of the Council means the appeal would stand defeated. Highly placed diplomatic sources also indicated that Britain and France were unlikely to support the Kenya bid for deferral.

Mr Ranneberger stopped short of stating that the US would apply its veto power when the deferral request comes up at the UN. But he said the Obama administration wanted The Hague process to continue without interruption.

“We never say in advance what our positions are to be (at the UN) so obviously I can’t say that we will veto. What I would say is that we do not see this effort to seek deferral as positive and we support a continuation of the process and we want to see the process move ahead expeditiously.”

Vice-President Kalonzo Musyoka and a number of ministers have spent the past few weeks shuttling around the continent to seek support for Kenya’s bid to stop the trial of six suspects at The Hague.

They won the backing of the African Union two weeks ago but last Wednesday came under criticism from MPs who said the effort was a waste of taxpayers’ funds because the only institutions that can defer trials are the UN Security Council and the ICC.

The US ambassador said he had not been approached by any government officials with the request to defer trials. But he said such a request might not be approved adding that he believed the coalition was not united on the request for suspension of the ICC process.

“These are efforts by a section of the government,” he said. “What I understand is that the Prime Minister has made it clear that he does not support a request for deferral. And of course this is a coalition government under the National Accord and the National Accord is written into the Constitution. This is not a united Government of Kenya position as I understand it.”

But in an article in the Sunday Nation, Mr Musyoka says the international community should back Kenya’s efforts to try the suspects locally because the nation is not a failed state and the endorsement of a new Constitution had breathed new life into local institutions.

“The new Kenya comes with a new judicial setup that can deliver justice right here at home,” says Mr Musyoka. “If the post-election crisis was caused by weak institutions surely the solution must lie in strong institutions. We cannot strengthen our institutions by going around them. This is surely the only way to underwrite the stability of our nation and why the Cabinet resolved to support the establishment of a local tribunal here in Kenya to try suspected perpetrators of the 2007/2008 atrocities and deliver justice for victims.”

Sent ripples

ICC chief prosecutor Luis Moreno-Ocampo sent ripples through the political scene on December 15 last year when he released the names of suspects he believes bear the greatest responsibility over the wave of unrest in 2008 that left more than 1,000 people dead, many more injured and about 350,000 uprooted from their homes.

President Kibaki’s key aide, Francis Muthaura, his political ally Uhuru Kenyatta and former police commissioner Hussein Ali are among the suspects.

Others are two figures that were key ODM campaigners in the election period, William Ruto and Henry Kosgey and journalist Joshua arap Sang.

The disclosure of the names has accelerated political realignments and seen a stepping up of efforts to have the trials deferred.

Article 16 of the Rome Statute, states ICC action can be deferred by the Security Council for a renewable period of one year during which no investigation or prosecution should be carried out by the ICC.

This provision is usually applied in the interests of international peace but a lawyer at the ICC who would not speak on the record said Kenya’s request for deferral was unlikely to succeed because holding the suspects to account posed no threat to regional peace.

Some in government have warned that taking the suspects to The Hague may endanger stability because some of their supporters may take up arms. Mr Ranneberger said the US rejects this view.

“We believe the opposite. That not taking action will endanger peace. It is best in the long term that there is a process to bring the suspects to justice. Individuals should bear responsibility and not hide behind ethnic communities.”

Kenyan officials, including Mr Musyoka, argue that the ICC is a “court of last resort” and under the legal principle of complementarity it should only take up the Kenya case if there is no effort to set up a local judicial process to try the suspects.

But Mr Ranneberger said a local tribunal would be open to manipulation and the fact that no witness protection programme had been set up would further undermine such an entity. He also waded into the controversy on nominations to constitutional offices, including the Chief Justice, saying the right procedure was not followed.

“The (nomination) process was obviously not transparent. The National Accord and the Constitution call for consultation between the two principals. And clearly there was not adequate consultation.”

Sunday Nation: Isn’t that a subjective view? There’s no consensus on whether consultation occurred or not.

Mr Ranneberger: Well, that’s the view I’m expressing.

The ambassador refused to comment on President Obama’s nomination of Scott Gration to replace him in Nairobi, saying he would address the matter “at some point”. Attention now turns to the Pre-Trial Chamber of the ICC which is expected to render its verdict on whether the trials should proceed some time next month.

ICC judges Ekaterina Trendafilova (Presiding Judge), Hans-Peter Kaul and Cuno Tarfusser have rejected several attempts by the suspects to halt the process but the key moment will come when they rule on whether the chief prosecutor has gathered enough evidence to support his view that the case merits trial at the ICC.