Western powers face ICC dilemma

Members of the UN Security Council face hard choices on whether or not to defer the cases against President Uhuru Kenyatta and his deputy William Ruto.

“Damned if they do, damned if they don’t. In the former case, yielding to impunity, in the latter, manifesting arrogance,” lawyer Charles Kanjama described the tricky position facing the Security Council members.

Rejection of the deferral could further distance them, particularly the US, Britain and France, from the Kenyatta administration which has continued with his predecessor Mwai Kibaki’s legacy of looking East, especially China for major trade deals.

China, which holds the rotating presidency of the Council this month, has signalled it will support the deferral.

“We fully understand the concerns of the African Union and also the concerns of the Kenyan government,” said China’s ambassador to the the United Nation Liu Jieyi said at the UN headquarters in New York. “China supports the Security Council in actively and positively responding to the call of the AU and the Kenyan government.”

VETO-WIELDING MEMBERS

Voting in the Security Council requires that at least nine out of the 15 members support a resolution including the concurrence of the five veto-wielding members. Other veto-holders are US, Britain, France and Russia.

The temporary members of the council are Argentina, Australia, Azerbaijan, Guatemala, Luxembourg, Morocco, Pakistan, South Korea, Rwanda and Togo.

In the Horn of Africa Kenya remains important to the West in the fight against terrorism, especially in the defeat of the Al-Shabaab as well as piracy in the Indian Ocean coastline because of its vantage position to Somalia.

The deferral bid of October 21 had raised this (national and regional security situation) as the core reason for seeking the council’s intervention on the cases.

The request is based on Kenya’s role in the fight against terrorism in the region as well as the strides the country has made in constitutional and institutional reforms since the 2007 election chaos will be hampered if the Security Council fails to intervene.

“In light of the peace and security situation in Kenya and the region, the African Union member States would like to submit a formal request for a deferral,” the letter of the African States to the Security Council states.

“The security situation in Kenya is very complex. There are at play important dynamics and tensions of politics, peace, justice, and the rule of law, regional and national security as well as a very acute sense of ethnicity that cannot be wished away or swept under the carpet.” 

On the other hand, the plight of the victims of the 2007/08 post-election violence and securing justice for them looms large on the Security Council members.

“They are between a rock and a hard place. If they accede to AU’s request, it will be seen as proof that ICC is a political process. If they don’t, it will be seen as proof that the ICC trials are in the interests of foreign powers, particularly Western nations, and are therefore an assault on our sovereignty and proof of neo-colonialism,” Mr Kanjama said.

Supporters of the ICC however argue that the council would not want to interfere with the independece the ICC.

According to Prof Makau Mutua of the State University of New York, the AU is seen more as a political tool that African leaders are using to flex their muscles to escape accountability.

“The US, France and UK are unlikely to agree to a deferral, as they have indicated. That’s because it would simply kill the ICC, and both France and the UK are signatories. Kenya is important to all three — US, UK, and France, as is the fight against terror — but they won’t sacrifice the ICC to save Kenyatta. Kenyatta will have to face the ICC, or he will attract an arrest warrant. There is no way I can see a win for the AU or for Kenyatta and Ruto in this,” said Prof Mutua.

WESTERN POWERS FACE ICC DILEMMA

Mr Ndung’u Wainaina concurs with Prof Mutua, adding that council members, especially US, Britain and France would want African states to take the politics of ICC to the Assembly of State Parties to the Rome Statute.

The Assembly of State Parties takes place in The Netherlands from 20 – 28 November 2013. And going by the grievances of Kenya/Africa against the ICC during the Extraordinary Summit on October 12 in Addis Ababa, the assembly promises to be very explosive if African countries attend.

POLITICAL vs JUDICIAL DECISIONS

According to Mr Wainaina, the Assembly of State Parties is the right forum for African leaders to plead their case and not at the Security Council.

“Security Council members are guided by certain core values and systems. They will let the court proceed with cases. They will separate political decisions from judicial process,” he added.

Even then, Mr Wainaina added, the outcome of the Assembly of State Parties will not affect cases before The Hague-based court.

On the other hand, Nick Kaufman, the ICC Defence Counsel representing journalist Walter Barasa who has been slapped with an arrest warrant argues that Article 16 of the Rome Statute exists for a purpose and Kenya and the AU request is anchored on this.

The article provides that the ICC is required to cease any investigation or prosecution once the Security Council adopts a resolution for at least 12 months with a possibility of renewal.

“It is hard to see how a democratically elected Government can be criticised for resorting to a mechanism which will allow its leaders to maintain their respect for the ICC process while attending to their essential role in fighting terror and maintaining international peace and security.

The US suggestion that a Botswana proposal for an amendment to the ICC rules of procedure may serve as an adequate substitute for deferral has been, quite simply, diplomatic bluff,” said Mr Kaufman.

According to Mr Kaufman, US and UK fully appreciate the importance of continual vigilance in the fight against terror.

“These two countries will no doubt think twice before hampering the functioning of the Kenyan leadership who they view as a useful ally in East Africa,” he said.

As for France, Mr Kaufman said, one cannot but hope that the security council will be aware of the blatant conflict of interest presented by the current involvement of Beatrice le Fraper du Hellen and expect that France should abstain from voting on the resolution in order to avoid the perception of bias.

Ms Hellen, the current adviser to the French permanent representative was Luis Ocampo’s former chief adviser. And together with Mr Ocampo, brought the charges against Mr Kenyatta and Mr Ruto.