AU Request for ICC Deferral of Kenyan Situation

On November 12, Council members held consultations on the AU request for the Security Council to defer for a year the International Criminal Court (ICC) proceedings against President Uhuru Kenyatta and Deputy President William Samoei Ruto of Kenya. (Article 16 of the Rome Statute of the ICC allows the Council to defer a situation for one year through the adoption of a Chapter VII resolution, for reasons relating to the maintenance of international peace and security). At press time, the draft resolution on the ICC deferral had been put in blue for a vote currently scheduled for Friday, although yesterday’s consultations did not bring Council members any closer to consensus on the draft text.

The consultations followed several informal meetings of Council members concerning the matter in recent days. (For more on the history of the Kenya deferral issue before the Council, see our What’s in Blue story from 30 October). On 31 October, Council members held an interactive dialogue with an AU high-level contact group regarding the AU request. (The AU contact group consists of the foreign ministers of Ethiopia, Mauritania, Namibia and Uganda and the deputy foreign minister of Burundi. The foreign minister of Kenya also participated.) During the interactive dialogue, Council members expressed strong views on the deferral issue with a small majority, consisting of the seven current ICC states parties in the Council plus the US, maintaining their objection to a deferral of the two cases, with others willing to support such action. To calm the atmosphere, it seems Russia at some point reminded the AU delegation and Council members that the discussion was only the beginning of a dialogue on the issue.

Notwithstanding the fact that the interactive dialogue did not change the vote count regarding a possible Council resolution on deferral, soon thereafter the African members of the Council (Rwanda, Togo and Morocco) introduced a draft resolution to that effect. The text contains several preambular paragraphs and four operative paragraphs. In the latter, the draft calls for a one-year Article 16 deferral of the cases against Kenyatta and Ruto and invites the Secretary-General to report to the Council within two months on the implementation of the resolution.

The draft resolution was discussed at the expert level during two meetings on 5 and 6 November. During the first meeting, a general discussion on the draft and the deferral issue took place, yet the positions of Council members did not sway on the issue. A second version was introduced before the second meeting. In order to avoid another general discussion the drafters requested members to address the text itself at this meeting. At the meeting, however, the experts of those Council members that are positively considering a deferral went through the text, making small amendments, while the opposing Council members observed the process without participating, noting their continued objection to the notion of a deferral in general. Following the meeting, on 8 November, the drafters circulated a third version of the draft text which included some amendments from Russia, and noted their intention to pursue a vote on the draft in the Council in due course.

The deferral was discussed yet again during consultations under “any other business” on Monday (11 November). China, the President of the Council for November, suggested convening an ambassadorial level meeting to further discuss the draft resolution as there were divergent views among Council members. Council members took up this suggestion by holding consultations on Tuesday (12 November). During this meeting, in an effort to provide a response to the AU before the meeting of the Assembly of States Parties (ASP) of the ICC scheduled to begin on 20 November, the UK put forward a draft presidential statement. However, the sponsors of the draft resolution insisted in pursuing a Council resolution as it is legally the only mechanism to authorise an Article 16 deferral.

Some members questioned the timing of a vote on the draft resolution, suggesting that it would be better for it to take place following the meeting of the ASP. However, it is likely that the sponsors wish to finalise the Security Council track through the pursuit of a resolution, ultimately with a Council vote, before the ASP commences. The AU is using both venues to try to end current and future prosecutions against sitting or acting African heads of state before the Court. Council members who are parties to the Rome Statute believe that the ASP is the more appropriate venue to consider this matter and have been working with African members who are likewise states parties to the Rome Statute on recommendations such as the use of video-conferencing or a more flexible approach to periods of absence to allow Kenyatta and Ruto to govern Kenya without having to be physically present in The Hague. They are concerned that voting on a draft resolution ahead of the ASP would make it difficult to reach agreement on such recommendations and could also lead to less cooperation from Kenyatta and Ruto.

The various discussions do not seem to have untangled the deadlock between the majority of Council members which oppose a deferral and the minority of members that have expressed their support for it. Council members who are state parties to the Rome Statute believe that the continuation of the Kenya case would not be a threat to international peace and security while the members in favour of a deferral are arguing otherwise, citing the 21-23 September terrorist attack by Al-Shabaab in Nairobi.

Several Council members are also aware that the AU has been pursuing a deferral of the Sudan case for several years, and would not want to create a precedent or any avenue for that issue to gain traction. At the same time, it seems that the political backing for the Kenya deferral has been gradually increasing within AU member states and is more consistent than for the issue of Sudan, which had originally prompted the AU to adopt a number of decisions on the issue of Security Council referrals and deferrals.

It seems the sponsors, with the strong backing of the AU, are determined to put their draft to a vote, even if it is unlikely to receive the nine votes required for adoption. In this way, they may seek to put positions expressed in private discussions to the test of a public vote, and demonstrate the unwillingness of some Council members to support their cause. African members of the Council have suggested that this resolution is a test of whether countries are either for or against Africa. This has upset some Council members who believe that this is an issue about two individuals and should not be linked to support for Africa.

Among the permanent members of the Council, France and the UK, which are state parties to the Rome Statute, and the US, which is not, appear to be opposed to an Article 16 deferral, while China and Russia seem to be supportive of it. However, even if a draft resolution calling for such a deferral is put to a vote and none of the permanent members veto it, there is a possibility that the draft might not receive the requisite nine votes for adoption. While relatively rare, there have been a few cases historically in which this has happened. One notable example occurred in June 1993 (S/PV.3247) when a draft resolution which would have exempted Bosnia and Herzegovina from the arms embargo on the ex-Yugoslavia received only six votes, with nine Council members abstaining. Among the permanent members of the Council, only the US voted in favour of the draft.

Ultimately, whether or not the draft resolution is put to a vote, and consequently adopted or rejected, will undoubtedly have consequences on the future relationship of African members of the ICC—as well as African countries at large—with the ICC and the Security Council.

Originally published by What's New in Blue.

Photo by The Embassy of Equitorial Guinea.