Putting the ICC’s Kenya Cases on Ice

(Cartoon: Esther Wandia, The Star)

(Cartoon: Esther Wandia, The Star)

Kenya wants the United Nations Security Council to halt the trials of President Uhuru Kenyatta and Deputy President William Ruto. With the African Union at its side, Kenya has asked the Security Council to temporarily defer ICC prosecutions through the invocation of Article 16 of the Rome Statute. Doing so will undoubtedly lead to accusations that the Security Council is actively endorsing impunity in Kenya. But will that stop them?

Recent reports have suggested that Western diplomats are busy drafting a Security Council resolution to defer the Kenya cases. This is significant. Presumably ‘Western’ powers – especially the US and ICC member-states France and the UK – are the key to any resolution passing. A veto from any of them would ruin Kenya’s chances at a deferral – although it should be noted that such a resolution is unlikely to ever come to a vote unless it is guaranteed to pass in advance.

This isn’t the first time that the Security Council has seriously contemplated a deferral of ICC prosecutions. The possibility of a deferral arose in the case of Sudanese President Omar al-Bashir, as a reward for allowing South Sudan to secede peacefully in 2011. The UK supported a deferral but it was eventually kiboshed by the US. Just a few months ago Kenya asked the ICC to defer the cases against Kenyatta and Ruto but made little-to-no headway. So what has changed?

Here’s what one Western diplomat had to say:

“He is not like Sudan’s President Omar al Bashir. He is someone who is working closely with the West in a region in chaos that needs to tackle a very worrying terrorist situation. A solution must be found that avoids a breakdown in relations with Kenyatta or the court’s authority.”

(Photo: Simon Maina / AFP / Getty Images)

(Photo: Simon Maina / AFP / Getty Images)

The above statement suggests two primary reasons for a deferral. First of all, the Westgate mall tragedy has dramatically changed the political landscape in Kenya. The horrific attacks in Nairobi by al-Shabaab have put the need for stability and order in Kenya under the international community’s microscope. They have also had the effect of bolstering the argument of those who maintain that Kenyatta and Ruto cannot attend trials in The Hague and effectively run a country at the same time. Ruto himself used the tragedy to suggest as much. Crucially, the Security Council powers can now claim that a deferral of the Kenya cases is a matter of international peace and security. This is essential if an Article 16 deferral is to pass.

Second, Western states want to continue ‘normal’ diplomatic relations with Kenya. The country is a key regional economic and political power as well as a partner in the ‘Global War on Terror’. Kenyatta understands this. He has been quite deft at playing chicken with the international community over his trial. While maintaining that he will continue cooperating with the Court, Kenyatta has also had his allies suggest he would do otherwise. If he refuses to show up for his trial (scheduled to begin November 12), he’ll immediately be booked with an arrest warrant by ICC judges. At that point he’ll quickly become a pariah, perhaps not on the level of Bashir, but nonetheless someone who cannot travel freely or shake hands with many, if not most, of the world’s political leaders. This is something he undoubtedly wants to avoid. But Western states who see Kenya as a valuable ally also want to avoid this scenario. When they say “Kenyatta is not Bashir”, they aren’t comparing the two leaders’ records when it comes to atrocities; they are saying: “we still want to deal with him.” While the focus has been on what will happen to Kenyatta’s travel plans and Kenya’s diplomatic relations if an arrest warrant is issued by the Court, Western states are just as worried that their own diplomatic relations will be disrupted. A deferral would avoid all that.

But how can the Security Council justify this decision?

First, as noted above, Security Council states will claim that any deferral is a response to a genuine threat to international peace and security. Second, those Security Council member-states that are also members of the ICC could argue that a deferral is a good thing for the Court, that a deferral will protect the Court from growing controversy over its role in Kenya and the African continent more broadly. At this point, no situation has produced as much controversy nor so deeply embroiled the ICC in political machinations as Kenya. Many pro-ICC observers may be inclined to agree that a time-out in the Kenya cases wouldn’t be such a bad thing for the Court.

(Photo: AP)

(Photo: AP)

While understandable, the problem with this view is two-fold. First, it disregards the experience of victims and their expectations that justice be served. As one ICC official told The Economist, “The deferral suits everyone apart from the victims”. Secondly, it isn’t clear that a deferral would, in fact, protect the Court. Yes, taking a breather would give it some space from a contentious and hyper-political case. But it would also act to further entrench a very troubling trend, namely the tethering of Security Council prerogatives with the Court’s mandate. It will bring the politics of the Security Council and the justice of the ICC even closer – something which is at the very root of the ICC’s perception crisis.

Still, there remains a real possibility that deferral will pass. In the week since the proposition was first reported, the response of NGOs, political actors and the media has been (largely) muted. There has been no mass public outcry. For Western states, this is crucial – it suggests that the reputational costs of allowing a deferral to pass aren’t too high to bare.

The stakes are high for all parties involved – Kenya, the Security Council and the ICC. The ‘winner’ may end up being the party that loses the least. Who will that be? Right now, it’s anyone’s guess.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Article 16, International Criminal Court (ICC), International Criminal Justice, Kenya, Kenya and the ICC, UN Security Council and tagged , . Bookmark the permalink.

12 Responses to Putting the ICC’s Kenya Cases on Ice

  1. Selemani says:

    This might be spin. Read this article where Francois Hollande is qouted as saying France would not support any moves that would further impunity. Interesting to note the tone of the statement given that this was less than 24 hours after the extraordinary summit. http://www.jeuneafrique.com/Article/ARTJAWEB20131014145244/

  2. Obie says:

    Selemani, the article you shared has some statements missing. The full context of what Hollande and his Foreign Minister had to say follows:
    Hollande did not answer directly. But he did say that France was ready, to discuss with the AU a “simplification” of the procedures for trying the two Kenyan leaders.
    Hollande said that France could not accept any impunity and was committed to the ICC. But France would consider ways of striking a balance between the two principles at stake here; international justice and the right of states to be respected.
    French Foreign Minister Laurent Fabius confirmed in an interview that France hoped a solution could be found which avoided impunity but also ensured Kenya “did not come to paralysis”.
    Here is video of Hollande starting at 45:25 http://www.youtube.com/watch?v=5ffDQ08gm_8&feature=share&t=45m25s

  3. Alexander says:

    I would consider this a severe misrepresentation of the actual diplomatic situation, Mark.
    But the more interesting question is why such a disinformation campaign was started on 27th September, lateron utilizing poor Mike Pflanz, and now still being continued e.g. in the Economist.
    Somebody who is a lot closer to U.K. than you, “Obie” :-), told me: “to appease the noise-makers”.

  4. Mark Kersten says:

    Many thanks for these comments.

    Alexander – I appreciate that you think otherwise (and I have since been told by some good sources that there may be less to this story than meet the eye). But if this post is a misrepresentation of the actual diplomatic situation, as you say, could you explain what you think (or know) the real situation to be?

  5. obelhansen says:

    Interesting piece, Mark, though I agree with Alexander that you may be overstating the likelihood of a UNSC deferral. It seems clear that US, UK and France are all looking for some form of compromise which will allow them to maintain relatively normal relations with Kenya, which will be very difficult both if the trials go on with the two accused forced to be in The Hague, but also if Kenyatta fails to appear for his trial and an arrest warrant is thus issued. On the other hand, it is my understanding that these states (but possibly to varying degrees) remain strongly opposed to invoking Article 16 – to bring the provision into play for the first time, and doing so under this form of pressure. Should it happen, this will surely have serious implications for perceptions of the Court’s independence, as you point out, Mark, but arguably also for the credibility of those of the P-5 that have so far been clear that the Kenyan cases must go on; that “choices have consequences”; and so forth. It is hard to see how reference to what happened at Westgate could give credibility to a fundamental change in these positions, in part because the Court was being flexible and adjourned the hearings to allow Ruto to return to Kenya while the crisis was ongoing.

    Though a UNSC deferral may still be a possibility, the most likely outcome may after all be some other sort of compromise which reaches out to Kenya, the AU and other critics of the Court, while maintaining the credibility of the UNSC members in question and avoiding a further politicization of ICC processes.

    What might such a compromise entail? Well, let’s see how, on Friday, the Appeals Chamber will rule on the Prosecutor’s appeal of the Trial Chamber’s decision to grant Ruto’s request for excusal from continuous presence at trial. Should the AC uphold TC V(a)’s decision that Ruto does not need to be present, this could very well be the sort of compromise that satisfy both Kenya, the AU and the UNSC members in question (of course, such a ruling not only means that Ruto is excused from continuous presence at trial, but also that TC V(b)’s decision to grant Kenyatta’s request not to be present will stand). A careful reading of the AU resolution recently adopted could suggest that – well aware that a UNSC deferral would be very difficult to obtain – this was perhaps what the AU actually aimed at achieving (“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 capacity, shall be required to appear before any international court or tribunal during their term of office”).

    On the surface of it, such a solution has the advantage that it implies that legality prevails. In reality, however, the biggest problem with such “compromise” is that the AC will indeed be breaching provisions in the Statute, specifically Articles 27 and 63(1), and thus in a sense heavily politicize the process of Statutory interpretation itself. As I argue here: http://www.cjicl.com/uploads/2/9/5/9/2959791/hansen.pdf, it takes a very creative approach to the interpretation of the Statute to reach a conclusion that the Chamber may generally excuse an accused person from presence at trial on the basis of his official capacity.

    One could imagine that some level of arm-twisting has been going on to have the Court rule in a manner that could (in all likelihood) solve the stand-off, though of course we won’t know till Friday when the AC delivers its ruling what will be the outcome of this.

  6. Alexander says:

    There was arm-twisting BEFORE, Thomas, that is correct. This arm-twisting and politicking influenced (or, in NGO jargon: “informed”) the trial chambers’ two decisions, and also the pre-agreed distribution of the two ayes and one nay. And anybody who as practitioner is used to read and evaluate the structure of a juridic sentence motivation can smell the enormous amount of bad conscience that carried Eboe-Osuji’s wording of the decision (he clearly was the one who drafted it); the Canadian-Nigerian judge perfectly knew how untenable his arguments (text as well as footnotes) were and are. For a judge to make a consciously wrong decision against the law, in order to achieve an ulterior motive, as honorable as that latter may (falsely) appear, is considered a crime, even a felony, in some national jurisdictions.

    It is clear that this judge was led (maybe not entirely by his own whimsy, let us word this speculation carefully), and not only by his impressive and ever-present scholarly vanity and desire for self-actualization in constant separate opinions — but also by an attempt to make legal politicks, even contra legem, and to support the beleaguered ICC, by trying to appease the African Union. One Kenyan journalist – surprisingly with that writer – did quite clearly recognize and explain this in an article. But exactly this was his fall from grace, which in my opinion might well carry and justify a recusal: because such politicking would be exclusively the aegis of the Assembly of State Parties, not of the chamber judges.

    In addition, behind-the-scenes but all the more effective and well-concerted diplomacy influenced the AU member states, so that Kenyatta’s loud bid ended in a major and hardly-veiled defeat, contrary to his expectations and demands. His team (one of whom contributes here) now try to sell this defeat to him, but I am not sure how credulous he remains. The price that the diplomats had to pay, was to offer a due and receptive forum for the various AU demands and criticisms during the forthcoming ASP meeting in November.

    Secondly, the ensuing Kenyatta decision was this time not drafted by Eboe-Osuji (whose participation was rather limited, but can be sensed clearly in one footnote, that is so much him, and so little Fremr), but by Czech judge Fremr. His clerks were not very much up to their task. In contrast, the brief dissent by judge Ozaki is concise, compelling and truly masterful in its legal precision and persuasive clarity.
    It was halfway expectable that trial chamber V(b) would not diverge from V(a), especially since the matter is already under appeal. However, some of us might have expected that they might wait with their decision until the appeals chamber has decided.

  7. Mark Kersten says:

    Thomas and Alexander – Very interesting observations. Thank you for sharing them.

    In the latest, forty African Union member-states have officially requested that the UNSC defer the cases. In their request, they have apparently relied heavily on Kenya’s role in combatting regional terrorism. I would expect some delegation to present their case to the relevant UNSC ambassadors in New York in the very near future.

  8. Mark Kersten says:

    Also, I should add that this piece was intended to be speculative and not suggest whether the UNSC would – or would not – invoke Article 16 and defer the Kenya cases. It was intended to suggest *how* this might happen, they key dynamics at play, and how such a decision might be justified if, indeed, it was taken.

  9. Alexander says:

    This is what I have just posted, as a follow-up on Opiniojuris. Very quick, and not yet quite developed in conciseness and style.
    * * *
    Added after today’s decision to vacate the commencement of the Kenyatta trial, and to shove it to February:

    1. A deferral by UN SC was never an option, not even remotely. But three of the P-5 states also wanted to avoid a use of their veto power, and wanted the ASP to exercise its prerogative to handle the grievances of African states with the ICC.

    2. The present temporary-tactical retreat of Bensouda (unexpected as it is), was due to high-level diplomatic pressure of some states parties directly on the Office of the Prosecutor, in the very last days.

    3. As you will note in her submission, she has retained and defended all her legal stance, and uses the Mungiki issue and the witness presentation decision of the trial chamber V(b) only as a pretext now. A weak pretext admittedly, but judge Eboé-Osuji more than gladly accepted this emergency valve, trying to evacuate some of the present pressure against the institution of the Court as such.

  10. Alexander says:

    The situation in the Security Council emerged exactly as predicted. One did not really need a crystal ball for that, it was pretty transparent before:


    There is still one obstacle in the course of justice though; and that is the presiding judge, Chile Eboé-Osuji. It is really high time for a recusal now. 😦

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