Why Kenya failed to defer ICC cases at Security Council

Diplomats at the United Nations Security Council say Kenya failed in its bid for deferral of International Criminal Court cases because it made the wrong decision to seek a postponement at the UN rather than taking its plea directly to the ICC.

The months-long effort to lobby Security Council members to postpone the Kenya case appeared to hit a brick wall on Friday after key Security Council members made clear to Kenyan officials that they would block the request.

The decision is a significant setback for President Kibaki and his key envoy, Vice-President Kalonzo Musyoka, who have been pressing for suspension of ICC consideration of the Kenya case, arguing that trials at The Hague would threaten the nation’s stability.

But Article 16 of the Rome Statute, the legal instrument establishing the ICC, allows for a deferral only if a country can show that ICC jurisdiction threatens international peace. Kenya failed on Friday to convince Council members that such a threat exists.

Kenya can still ask the ICC itself to defer the cases under the terms of Article 19 of the Rome Statute. The Article says The Hague-based court can set aside cases if a country shows credibly that it can handle the cases itself.

France, the US and Britain are all opposed to the request for a postponement of the cases at The Hague. Each of the Permanent Members of the Security Council can veto the plea for deferral, meaning the attempt so secure postponement of the trials at the UN is now essentially doomed.

Reuters quoted French Ambassador to the UN Gerard Araud as saying Kenya had no prospect of succeeding when asked if the Security Council might accept the request.

“No, I don’t think so. The conditions of the implementation of Article 16 are not fulfilled.”

Kenya’s Ambassador to the UN, Macharia Kamau, appeared to indicate the government would switch its attention to challenging the admissibility of the cases at The Hague.

He said the Council was not united about the deferral request.

“At the dialogue, sentiments were divided. As many countries did as did not support the application. The most unequivocal support was voiced by China, India and the three African countries (Nigeria, South Africa and Gabon). Colombia, Brazil and Lebanon, among others, requested for additional information to help inform their decision. The US, UK, Portugal and France want Kenya to pursue the same outcome but under Article 19 of the Rome Statute which does not require UN Security Council involvement.”

It is not possible to verify the positions of the various countries because no official statement by the UN was issued after the talks.

The near-certain failure of the bid for a deferral will raise questions about the quality of advice President Kibaki has been receiving in dealing with the ICC issue.

It will also revive debate on why the State committed millions of shillings to a round of lobbying labelled “shuttle diplomacy” despite warnings that the initiative was likely to fail.

Mr Musyoka told Parliament that an earlier round of diplomacy aimed at African Union members cost taxpayers Sh31 million. But sources in government told the Sunday Nation that the figure was much higher.

No figures have been made available for the amount spent in recent weeks sending ministers and their teams to countries in several continents to petition for a deferral.

Justice and Constitutional Affairs minister Mutula Kilonzo and multiple lawyers and academics had earlier advised the government that the ICC was the best place to challenge the admissibility of the Kenyan case.

The United States, Britain and France had also warned Kenya that they would not support a deferral bid made in accordance with Article 16 of the Rome Statute.

But the US did hold out the possibility that Kenya might succeed with an Article 19 appeal to the ICC itself.

Because Security Council members did not see a threat to international peace arising from ICC trials of the six named Kenyans, the outcome of Friday’s UN meeting seemed foreordained.

The council did not convene in an official capacity to hear Kenya’s plea. The gathering instead took the form of “an interactive dialogue” held outside the Security Council’s chamber and given little attention by the UN’s own publicity machinery.

Head of Public Service Francis Muthaura, Finance minister Uhuru Kenyatta, former police chief Hussein Ali, MPs William Ruto and Henry Kosgey and journalist Joshua arap Sang are expected to appear at The Hague on April 7 and 8 in response to summonses issued by the pre-trial chamber.