The UK is now supporting changes to International Criminal Court rules to enable President Uhuru Kenyatta and Deputy President William Ruto to attend their trials through video link.
After abstaining from voting during last week’s UN Security Council meeting where the Africa Union request for the Kenya cases to be deferred for a year was rejected, the British government has signalled that it will support Kenya’s continuing push for Mr Kenyatta and Mr Ruto to be excused from being personally present in the courtroom at The Hague.
After the defeat of the AU at the UN, the next stage for Kenya comes up on Wednesday at the ICC Assembly of State Parties where the 34 African Nations who have signed the Rome Statute will push for immunity from prosecution for serving heads of state and government.
London, however, has floated a compromise position that would allow appearance by video link. President Kenyatta and Mr Ruto have previously applied at the ICC to be allowed to participate by video link.
Ahead of the UN vote on Friday, the UK government had dispatched its deputy national security advisor at the Cabinet Office, Mr Oliver Robbins, to Nairobi for a meeting with government officials.
A dispatch by Kenya’s Foreign Ministry said Mr Robbins met Mr Karanja Kibicho, the Principal Secretary For Foreign Affairs.
“Mr Robbins noted the constraints the ICC case has placed on both the President and his Deputy President. He stated that the Government of the United Kingdom duly recognises President Uhuru Kenyatta and his deputy and their constitutional obligations to the people of Kenya.
Continue with the case
“He delivered the message from the UK government on the need to free the President and his deputy from attending their trial and instead leave their lawyers to continue with the case at The Hague”.
According to the statement, British diplomats in New York had been instructed to lobby for the best solution, including the use of available technologies such as video links.
Mr Robbins also asked Kenya to look beyond the Security Council vote and not allow the matter “discolour many years of friendship.”
Another country that helped defeat the Kenya case at the Security Council, Argentina, has also indicated that it would side with Kenya during the ICC State Parties gathering.
“Argentina is working closely with Kenya and other African countries regarding amendments to be proposed at the Assembly of State Parties,” said an Argentinian envoy after the UN vote last week. However, he also said that while Argentina was inclined to vote with southern nations, it would not put the rights of serving heads of government above justice for victims.
“The right of victims are not to be forgotten, including victims of 2007 in Kenya,” he said.
Government sources in Kenya said diplomats representing the 122 nations who are members of the ICC have agreed on 95 per cent of the changes required to the courts rules of procedure but it remained unclear how much had been agreed on proposals specific to the Kenya case.
The diplomats, under the auspices of the Working Group of State Parties, have been meeting for the last three weeks with the aim of presenting a united front when member states meet for 10 days at The Hague from November 20.
Foreign Affairs Cabinet Secretary Amina Mohamed said in video interview from the Commonwealth Heads of Government Summit in Sri Lanka that Kenya would still push for the deferral of the cases.
While accusing UN Security Council members who defeated the Kenya case by abstaining of speaking from both sides of the mouth, Ms Mohamed said Friday’s decision showed an “anomaly” in the Rome Statute which must be changed.
“We are left with the feeling that since the council does not want to deal with the Rome Statute, since it doesn’t want to break the seal, maybe Article 16 (on deferral) should also not be part of the Rome Statute,” she said.
“Another thing that is disturbing is that we are State Parties to the Rome Statute and some of the countries that abstained are not. Article 16 puts member-states of the Rome Statute in the hands of non-members. Which also is an anomaly because it doesn’t happen with any other international instrument. It is an issue that we need to look at.”
The ICC is not an organ of the United Nations although the two bodies are linked through Article 16 of the Rome Statute. It states that: “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.”
The chapter referred to says the security council may defer the cases if they are seen as a challenge to international peace and security.
Although eight members of the Security Council, including three permanent members (the US, the UK and France) abstained from voting on the deferral bid, the three said that they had “respect” for Kenya and Africa and that they want Kenya to address those issues when the Assembly of State Parties meet.
Ms Mohammed, however, was not impressed that security council members who effectively voted against Kenya had then referred the country to the ICC State Parties meeting.
“The council spoke in two ways. On the 21st of September, they made it clear that what happened in Westgate was a threat to international peace and security but on Thursday, they did not speak on that. It means that we cannot trust what the council says.
“Nobody voted against the resolution which to us means that all the members of the UN Security Council acknowledged and recognise that the issues that were being raised in the draft resolution were real issues and they needed to be attended to,” said Mrs Mohamed.
The Assembly of State Parties (ASP) is a collection of 122 countries, 34 of them from Africa, who have signed and ratified the Rome Statute, which created the ICC.
It is not clear if the pledges by some of the security council members who are also members of ASP would translate to support for Kenya’s request.
There are two other requests Kenya would be seeking: One is to amend Article 27 of the Rome Statute so that heads of state and government may be exempted from trial as long as they are still in power. This, however, has been challenged by a number of activists arguing that heads of state may cling on power to avoid trial.
Another request, if the first two fail, would be to amend the ICC Rules of Procedure to have Mr Kenyatta and Mr Ruto exempted from physically attending trial.
Since the ASP works almost like a parliament, it would call for Kenya to lobby for its case. So far, the AU has indicated that it would continue supporting Kenya. That means 33 members (plus Morocco which is a non-AU member) will be backing Kenya and the country only has to seek support from other regions.