Kenya’s push to have the cases against President Uhuru Kenyatta and his deputy William Ruto deferred seems headed for failure after an informal gathering of the UN Security Council indicated it would turn down the request.
Rwanda, Togo and Morocco circulated a draft resolution for a deferral among UN Security Council members on Friday, but there are indications the request will be rejected.
Minutes from a lobbying meeting held among ministers of foreign affairs from countries sitting on the Security Council show that Kenya managed to secure the support of only five of the 15 members. Only one of these has veto power.
At the meeting in Washington, eight ministers turned down the proposal while two others were non-committal.
Kenya’s Permanent Representative to the UN, Mr Macharia Kamau, Saturday said there are no specific dates when a decision by the Security Council can be expected. “However, it is anticipated that the decision will come within the fortnight,” he said.
It is expected that the views of the foreign affairs ministers will be reflected when the request is put to a vote.
Frustration kicked in towards the end of the meeting with Kenya’s Foreign Affairs Secretary Amina Mohamed saying that if Article 16 was not applied, it might as well be deleted from the Statute.
Article 16 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.”
Ms Mohamed claimed that by refusing to grant a deferral, the council would be empowering those Kenya is fighting against (terrorists).
The minister asked how some Security Council members knew that President Kenyatta’s case would be postponed to February long before the decision was made public.
Rwanda’s representatives said they would table a resolution before the council even if a refusal was evident.
Ethiopia’s minister was also unimpressed, wondering why most countries held a similar position prior to the meeting. The minister accused Security Council members of having plotted in advance to reject Kenya’s request.
President Kenyatta and Mr Ruto are accused alongside radio journalist Joshua Sang of bearing the greatest responsibility for the 2007-2008 post-election violence that left 1,113 people dead and over 600,000 displaced.
Ms Mohamed has undertaken shuttle diplomacy to convince Security Council members to defer the cases for a year.
The council can order a deferral of a case if there is proof that its continuation would jeopardise international peace.
Kenya is citing the recent Westgate terrorist attack and the continuing peace efforts in Somalia by the Kenya Defence Forces to ask for a deferral.
To achieve such a deferral, though, it is necessary to convince at least nine of the 15 members of the powerful council to vote in their favour without a veto.
Countries that hold veto power are China, France, Russia, the UK and the US. Other countries that sit on the council but have no veto power are Argentina, Australia, Azerbaijan, Guatemala, Luxembourg, Morocco, Pakistan, Korea, Rwanda and Togo.
The only country holding veto power that backed Kenya’s request was China. Togo, Rwanda, Morocco and Azerbaijan also supported the deferral.
The US, the UK and France were categorical in declining the request. Other countries that declined are Argentina, Australia, Guatemala, Luxembourg and South Korea. Russia and Pakistan gave half-hearted responses.
The minutes seen by the Sunday Nation indicate that the Chinese Foreign Affairs minister expressly suggested that the Security Council should invoke Article 16 and postpone the trial.
The French minister is quoted as saying that his country did not see a need to consider a deferral and emphasised judicial proceedings must proceed.
The matter should instead be handled by the Assembly of State Parties to the Rome Statute, the minister added. The minister was also concerned that deliberations of the meeting should not be negatively reflected in the media.
The US noted that the ICC had shown flexibility in proceedings, “which is good”. It decried witness intimidation as unacceptable and maintained that victims of the post-election violence needed justice.
The US also maintained that the matter should be dealt with through the assembly.
The UK minister noted that Article 16 was not the right vehicle, instead saying Britain was “looking forward” to addressing the matter through the Assembly of State Parties.
Guatemala’s minister said it was difficult to justify a deferral, adding that the role and interest of victims and witnesses was essential. The victims’ lawyers in the two cases have opposed a deferral.Luxembourg’s minister was more categorical noting that Article 16 could not apply since there is no threat to peace and security in Kenya.
The South Korean minister said the deferral clause should be invoked “only in exceptional circumstances” and backed the suggestion to address Kenya’s request through the assembly.
Argentina’s minister echoed the sentiments warning that a deferral is an “extremely exceptional measure” that is tantamount to “interference in an independent judicial body”.Australia also said the matter should be dealt with at the Assembly of State Parties which could consider amendments to the statute.
Russia sat on the fence, urging those in the parley to “calm down, wait and take it up in consultations”. Pakistan followed suit calling for a pragmatic solution. The country’s minister did not explicitly support use of Article 16, but stated that it would be possible.
Arguing Kenya’s case for deferral, Morocco’s minister underscored Kenya’s contribution to the peace process in Somalia.
Togo fully supported the deferral request, noting that although the assembly could handle the matter, it does not exempt the SC from giving a response
Azerbaijan offered unreserved support for deferral while Rwanda’s minister said the ICC decision to postpone the start of Mr Kenyatta’s case to February next year was late and shows polarisation of the court.
The minister said a lengthier period is required for Kenya to address the assembly and to deal with terrorism and other concerns.