posted on WED 22 MAY 2013 3:26 PM
Informal Interactive Dialogue with Kenya on ICC Issue

Tomorrow (23 May), Council members will have an interactive dialogue with representatives from Kenya to discuss International Criminal Court (ICC) proceedings against its nationals. On 2 May Kenya sent a note verbal to the President of the Council requesting termination of the proceedings before the ICC. (Six high-profile individuals connected to two rival political parties, including recently inaugurated President Uhuru Kenyatta and Deputy President William Samoei Ruto, were issued summons by the ICC on 8 March 2011 for the alleged commission of crimes against humanity following the disputed 27 December 2007 elections. Since then, Pre-Trial Chamber II declined to confirm the charges against two individuals and in one case the Prosecutor has withdrawn the charges.) The letter asked for termination of the ICC proceedings by the Security Council rather than a deferral as contemplated under Article 16 of the Rome Statute, as was previously requested by Kenya in 2011. (On 18 March 2011, Council members had an interactive dialogue with representatives from Kenya and the AU where Kenya argued that an Article 16 deferral would give them time to establish alternative domestic adjudicative mechanisms. This was followed up by a letter from Kenya asking for an open debate to consider the request for a deferral which Council members did not agree to. See our 6 April 2011 Update Report: Kenya and the ICC for more background information.)

The 2 May letter from Kenya was raised under “any other business” on 8 May. Several Council members thought that the appropriate forum for a first discussion on the request was at the legal expert level, in the Informal Working Group on International Tribunals chaired by Guatemala. However other Council members, including China, are of the opinion that the Working Group should only be a forum to discuss the work of the ad hoc tribunals for the former Yugoslavia and Rwanda, and not for ICC related issues, and therefore did not agree with that approach. (These Council members took a similar position recently when, as a follow-up to the 17 October 2012 open debate on the rule of law, Guatemala sought to invite the ICC Prosecutor to a meeting of the Working Group. Instead an interactive dialogue was held with the Prosecutor on 7 May.) Some Council members made the point that it was unclear what format Kenya itself wanted to address the Council in, as it was not mentioned in the letter.

On 13 May Kenya sent a follow-up letter to the President of the Council, requesting an informal interactive dialogue with Council members in order to clarify its position regarding the situation in Kenya and the ICC proceedings. Council members discussed the letter under “any other business” on 16 May, where it was agreed to hold the interactive dialogue the following week.

As for the substance of the 2 May letter, the request for a termination of the ICC proceedings raises several difficult legal questions. Apparently Kenya is asking the Council to use its enforcement powers under Chapter VII, Article 41, to order the ICC to terminate proceedings, bearing in mind that Article 103 of the UN Charter dictates that obligations under the Charter, and by extension binding Council resolutions, prevail over other international obligations of member states. Yet such action would give rise to a number of legal issues, amongst them the fact that the ICC is not a UN body bound by Article 103 and also whether the Council has the power to terminate legal proceedings by an international or other court as a matter of law. Even a resolution by the Council demanding that states refrain from cooperating with the ICC on the Kenya situation would be legally controversial and politically unpalatable to most states parties to the Rome Statute of the ICC.

Meanwhile, media reports suggest that both the Kenyan Attorney-General and Deputy President William Ruto have disassociated themselves from the letter, acknowledging that the Council does not have the power to terminate the proceedings and reiterating Kenyan cooperation with the ICC.

As was the case when Kenya last approached the Council on this issue, most Council members are not in favour of taking any action but agree that there should be a format in which to hear Kenya out. Some Council members also have strong views on the legal impossibility of the Council terminating an independent judicial proceeding. Some Council members expect that during the dialogue, Kenya will limit its request to an Article 16 deferral given the legal and political backlash it received on its request to terminate the proceedings.

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