Kenya: Hague Court Ruling Body Challenges African Union Over Kenya

25 May 2013
guest column

The relationship between the International Criminal Court (ICC) and the United Nations Security Council has generated much discussion, criticism and controversy.

The Security Council has played a crucial role in international criminal justice. It was the Council that established several ad hoc criminal tribunals, like the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, after large-scale crimes occurred.

Unlike these tribunals, the work of the permanent International Criminal Court is based on the Rome Statute, an international treaty that was adopted in 1998. To date, 122 states have become parties to the statute, accepting the jurisdiction of the ICC as the court of last resort to investigate crimes against humanity, war crimes and genocide.

The Rome Statute also reserves a role for the United Nations Security Council. The council can refer situations in which one or more such crimes appears to have been committed in any State, regardless of whether it has ratified the statute of the court, under Chapter VII of the Charter of the United Nations.

This avenue was considered necessary to end impunity and to provide the council with the ability to use the ICC instead of having to set up new ad hoc tribunals in situations where international crimes were taking place outside the Rome Statute system and no domestic investigation of these crimes was taking place.

The council has twice made use of its powers to refer situations in non-Party states to the ICC: in Sudan (Darfur) in 2005, and in Libya in 2011.

The two referrals were both applauded and criticized. Through these referrals the Security Council, the most important international body tasked with the maintenance of international peace and security, expressed confidence in the newly established ICC. Moreover, the decision to refer the situation in Libya was made by consensus, with the approval of powerful states outside the Rome Statute system such as the United States, Russia and China. At the same time, accusations of politicization of the Court emerged: why does the council choose to refer certain situations outside the Rome Statute system and not others?

Time has shown that the way the council refers situations to the court does not fully empower the court to deal with these extremely complex issues: the legal obligation to cooperate with the court, including the execution of arrest warrants, applies only to states parties to the Rome Statute and the country referred. The council does not extend the obligation to cooperate to all states, as has been the case with ad hoc tribunals.

Time has also shown that the legal and diplomatic means at the disposal of the court and the states parties are not enough in cases where the referred country refuses to cooperate. This constitutes a serious weakness of the system, produces a delay in delivering justice and ultimately a feeling of abandonment, desperation and continued injustice in affected communities.

The Rome Statute also takes into account the difficulties of post-conflict situations, the linkages between peace negotiations, post-conflict rehabilitation and the delivery of justice.

This is why the Security Council, within its overall responsibility for peace and security in the world, has been given a right to defer investigations for a period of 12 months if the circumstances on the ground so require.

On several occasions states have argued that deferral under Article 16 of the Rome Statute of an ICC investigation was necessary; the council, however, has so far never used this power of deferral.

Recently the discussion of the relationship between the Security Council and the ICC has gained momentum as issues of rule of law and justice in general have gained prominence in the council, becoming part of the mainstream of council discussions. The fact that the council has increasingly been able to refer to the court's work and contribution to the fight against impunity and to international peace and security in its resolutions and presidential and press statements is indeed welcome.

Besides the few direct linkages between the Security Council and the ICC as explained above, the authors of the Rome Statute and the states parties to the statute have always been proud of the independence of the ICC, including its purely judicial nature and the independence of its prosecutor. It is no secret that recent attempts to reform the Security Council have failed and that many states consider the Security Council unrepresentative of the world's opinions, but rather a reflection of post-World War II realities.

For many, the possibility of council referrals of situations to the ICC opens a door to the politicization of the court. It has been of great pride for the Rome Statute system that states parties collectively elect the prosecutor, the deputy prosecutor and the judges of the court, and thus can give the power to deliver justice to those whom they trust the most.

On May 2, 2013, Kenya, a long-standing party to the Rome Statute, sent a note verbale to the President of the Security Council requesting the termination of the proceedings before the ICC. The issue at hand: the recently inaugurated President Uhuru Kenyatta and Deputy President William Samoei Ruto are alleged to have committed crimes against humanity following the disputed December 27, 2007 elections and have been indicted by the court.

The note asked for termination of the ICC proceedings rather than a deferral as contemplated under Article 16 of the Rome Statute, which Kenya previously requested in 2011. (At that time Kenya argued that an Article 16 deferral would give them time to establish alternative domestic adjudicative mechanisms.)

The note also contains harsh criticism of the current prosecutor, Ms. Fatou Bensouda, who was elected by consensus by the Assembly of States Parties in 2011 and had obtained prior endorsement of the African Union, of which Kenya is a member.

It is telling that the Assembly of States Parties has never received any complaints about the performance of the prosecutor. Kenya's appeal to the Security Council is currently also being discussed by the African Union. I hope that the African leaders who have been instrumental in setting up the independent court will continue to stand by its independence.

Any attempt to interfere with the activities of the court apart from an Article 16 temporary deferral of an investigation, permitted by the Rome Statute, would be detrimental to the very idea behind the inception of the International Criminal Court - to have an independent court at the service of states parties to the statute.

Ambassador Tiina Intelmann is the President of the Assembly of States Parties to the International Criminal Court, the oversight body which governs the court and comprises representatives of all countries which have ratified the court.

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