George Kegoro, Representative of International Commission of Jurists

Introduction

The role of the UN Security Council has come under increased focus on the African continent and elsewhere in the world, in the context of the discourse on how to bring accountability for crimes that have been committed on the continent.

The International Criminal Court, the mechanism that the international community adopted for bringing accountability for atrocity crimes, has been active on the African continent. Thereafter, an increasing number of cases from the continent, the only one that has cases before the court, has been evident. In the context of these cases the Security Council has come under discussion especially in connection with the power to refer cases to the court and also in relation to the power to defer cases that are already before the court.

The formal relationship between the ICC and the Security Council is established in the Rome Statute and is two-fold. First, a reference by the Council is one of the ways in which the jurisdiction of the court can be invoked.
The Rome statute authorizes the Court to exercise its jurisdiction with respect to the crimes that fall under its competence in accordance with the provisions of the Statute if:

(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
(b)  A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations, or;
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

Thus a reference by the Council is one of the three ways in which the jurisdiction of the court in relation to crimes under its competence may be invoked.

The Rome statute establishes another relationship with the Security Council under article 16 when it confers on the Council the power to defer, for a period of six months, further proceedings in a case that is before the ICC. Article 16 stipulates as follows:

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.
A third relationship between the Court and the Council has been argued to exist based on a confluence of the issues of interest between the two organs. The Security Council regularly discusses issues and themes relevant to the mandate and activities of the Court. Thus, when the Security Council referred the situation in Darfur to the ICC through resolution 1593 of 2005, the text of the referral contained a clause requiring the Prosecutor of the court to periodically address the Council on action taken in the implementation of the Resolution. Under article 8 of the Resolution the Security Council “invites the Prosecutor to address the Council within three months of the date of adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution.”
Since this Resolution was passed the Prosecutor of the ICC has been briefing the ICC every six months as required by the Resolution. Thus, beyond the formal relationship established by the power to refer case to the Court, the Prosecutor and the Council have maintained dialogue on the Darfur situation, being a matter in which the two organs are interested.

Africa and the ICC

Since the negotiations in Rome that yielded the Rome statute, the African states and African civil society, have both maintained a strong interest in the issues that the Rome statute was established to cover. 47 African states were present in the drafting of the statute, and unanimously voted for its adoption. There were more than 800 African civil society organizations represented at the drafting of the statute.

Currently there are 123 states parties to the Rome statute. Of these 35 are from Africa, 19 from Asia-Pacific, 18 from Eastern Europe, 27 from Latin America and the Caribbean, and 25 from Western Europe and other states. Thus Africa forms the largest bloc of states parties to the statute.

African national occupy a significant number of positions in the Court. The Prosecutor of the court, Fatou Bensouda of the Gambia, is from Africa. O the 18 current judges, 4 are from Africa, including the first Deputy President of the court, Kenya’s Justice Joyce Aluoch.

To date, there are nine situations before the Court. Four states parties to the Rome Statute – Uganda, the Democratic Republic of the Congo, the Central African Republic and Mali – have referred situations occurring on their territories to the Court. In addition, the Security Council has referred the situation in Darfur, Sudan, and the situation in Libya – both non-states parties.

In 2010, the Prosecutor obtained the leave of the pre-trial chamber to commence investigations into the Kenyan situation in exercise of the proprio motu powers under article 15 of the statute.

In June 2011, the Prosecutor of the ICC applied for the leave of the court to commence proprio motu investigations into the situation in Cote d’Ivoire. On 8 April 2003, the Cote d’Ivoire, which is not a state party to the Rome statute, lodged a declaration under article 12(3) of the statute, accepting the jurisdiction of the Court for crimes committed on its territory since September 2002 and additionally, “for an unspecified period of time.” In October 2011, the pre-trial chamber of the ICC authorized investigations into the situation in Cote d’Ivoire.

Application to the Security Council for a deferral of ICC cases

In 2009, the ICC issued an arrest warrant for President Omar al-Bashir accusing him of committing crimes against humanity and war crimes in Darfur. A second arrest warrant accusing him of genocide was issued in 2010. Arrest warrants were also been issued against two other high-ranking government officials: Ahmed Haroun, former governor of the conflict-affected state of Southern Kordofan, and Abdelrahim Mohammed Hussein, now Minister of Defence. Ali Kushayb, an alleged Janjaweed leader, has also been charged.

From the start, the government of Sudan refused to cooperate with the ICC in all these cases. The warrants came at a time that Sudan was involved in preparations for the referendum that eventually resulted in the creation of South Sudan as a separate country. Within the AU concern was expressed that arresting Bashir at the time would jeopardise plans for the referendum on South Sudan.

A meeting of the AU Peace and Security Council held in July 2008, recommended the deferral of the indictment and directed the AU Commission to urgently establish a High Level Panel on Darfur, the objective of which would be to investigate ways of addressing the twin challenges of “accountability and combating impunity, on the one hand, and reconciliation and healing on the other”.

The PSC recommendation was endorsed by the 12th Session of the AU Assembly in Addis Ababa, Ethiopia in February 2009. The Summit directed the AU Commission to establish a panel of eminent personalities, called the AU Panel on Darfur (AUPD) under the leadership of former South African president Thabo Mbeki. The mandate of the AUPD would be to examine the situation in Darfur and develop recommendations on “combating impunity, on the one hand, and the reconciliation and healing, on the other…” The AUPD was expected to present its outcomes by September 2009.

The Assembly further directed that a high level delegation from the AU meet with the UN Security Council (UNSC) with the intention of urgently requesting a deferral of the case against President Bashir, in accordance with article 16 of the Rome Statutes.

However, the UNSC did not acknowledge the AU decision or grant a meeting for the AU delegation. Within the AU, this was interpreted as an act of arrogance within the Security Council and deepened the perception that Western powers treated African leaders with contempt.

Tensions and disputes between the AU and the culminated in the AU resolution of July 13, 2009 at the 13th Session the of the Assembly of the African Union held in Sirte, Libya, not to cooperate with the Court in the arrest and surrender of the Sudanese president. The AU’s decision was based on its perceived impact the indictment of President Bashir by the International Criminal Court would have on the peace process pertaining to the conflict in Darfur.

On the side lines of the Review Conference of the ICC in Kampala, African states parties prepared a letter to the chairperson of the AU Commission supporting the opening of the ICC-AU liaison office in Addis Ababa. ICC president Judge Sang-Hyun Song met in Addis Ababa with Dr Jean Ping, chairperson of the AU Commission in July 2010 to discuss AU-ICC relations.

The 15th Session of the AU summit held in Kampala from 25-27 July 2010, the summit reiterated its previous decision that AU member states should not cooperate with the ICC in the arrest and surrender of President Omar Hassan Al-Bashir of Sudan.  The summit also delayed the opening of an ICC liaison office in Addis, censured the ICC prosecutor, and urged African states not to forget their obligations to the AU when considering cooperation with the court.

In the 16th Session held in Addis Ababa, Ethiopia on January 30-31, 2011, the AU again took a stand that the decision by Chad and Kenya to host the indicted Sudanese president on July 21, 2010 and August 27, 2010 respectively and not to assist the ICC in effecting the arrest and surrender warrant against him was in pursuit of peace and stability in the region.

In 15 December 2010, the prosecutor of the ICC had announced that he would be presenting two separate cases for confirmation of charges in relation to the Kenyan situation: this was the beginning of the cases in which the deputy prime minister and finance minister, Uhuru Kenyatta, who went on to become president of Kenya, and a minister, William Ruto, who went on to become his deputy were charged before the ICC.

Kenya had reacted to this development by making a request of its own for a deferral of the country’s cases before the ICC. Kenya’s request cited the ongoing peace building and national reconciliation process and the need to prevent the resumption of conflict and violence in the country. Thus, while there had been only one request to the Security Council for a deferral, the Kenyan situation made it two requests.

At the 16th session, the AU endorsed Kenya’s request to the UN Security Council for the deferral of the ICCs investigation and prosecutions (Article 16 of the Rome Statute of the ICC) in relation to the 2008 post-election violence.

Just like before there was no formal acknowledgement by the Security Council of this request. 

Kenyatta and Ruto are elected to office

In March 2013, Kenya held elections in which in which Uhuru Kenyatta and William Ruto, both of whose separate case had since been confirmed before the ICC,  were declared president and deputy president of the country.
The results of the elections meant that persons with a direct and personal interest in the ICC cases were now also in charge of the Kenyan state. Within days of their coming to power, there was a noticeable increase in the intensity of Kenya’s diplomatic efforts in relation to the ICC cases.

In May, Kenya’s Permanent Representative to the UN wrote a strongly-worded letter, calling for an unconditional termination of the cases against President Uhuru Kenyatta, and Deputy President William Ruto before the ICC. This letter was followed by another, a week later, seeking an informal interactive dialogue between members of the Security Council and the Kenyan representative to the UN “to further elucidate the contents of my letter and to discuss the situation in Kenya and the International Criminal Court.”

Reports indicated that when Kenya’s first letter was tabled before the Security Council, there was no agreement on what should be done with it. In the end, One account of the meeting before the Security Council was that the members were divided on the Kenyan request, and that although it had the support of Africa members of the Council, Morocco, Togo and Rwanda, others refused to support it, or were non-committal. While Guatemala suggested that Kenya’s request for termination of the cases should be referred to the informal working group on international tribunals, the United States -- which is not a member of the ICC -- joined in this.

Morocco suggested that the concerns of the Kenyan delegation should be heard at the Security Council and then referred to the working group on international tribunals if this was deemed necessary. On its part, Argentina proposed that Kenya should write a letter to the Security Council asking for a meeting or an interactive dialogue. Kenya’s second letter seems to have been following the advice that was given by the Council on the first letter.

In the first letter, Kenya had accused the office of the prosecutor of bringing charges against the Kenyan accused persons, based on “claims that might have been false or manufactured”. Kenya alleged that it had since emerged that the evidence on which the charges were based could have been “procured through inducement and or corruption” and that “the manner in which the cases are being conducted is neither impartial nor independent.”

While Kenya pressed on with the request for the termination of its cases, Deputy President, William Ruto, who had earlier strongly dissociated himself from the first letter appeared before the ICC for the first time as Deputy President, where he pledged not only his continued personal cooperation with the court, but also that of the government of Kenya.

Many would have expected that Ruto’s bold denunciation of Kenya’s actions before the Security Council, would result in some kind of internal political crisis within Kenya, because if it was  true that he was not consulted, it would amount to taking him for granted in a matter on which he ought reasonably to have been consulted. However, not only did President Kenyatta remain silent about the goings on in New York, but Kenya’s representative pressed on with what he had started.

In October the AU held an extraordinary Summit of its heads of state in Addis Ababa, a meeting which endorsed a new request that Kenya had made to the Security Council for a deferral of the Kenyan cases and also resolved that no head of state or a person entitled to act in that capacity, should face charges before the ICC while still in office. This resolution came was targeted towards the fact that Kenyatta’s trial before the ICC was expected to commence in February 2014.

By coincidence the 12th Assembly of States Parties was coming up at The Hague in November 2013, a few weeks after the extraordinary Summit. In the end, the Security Council rejected Kenya’s request for a deferral of its cases. Even though the results were not favorable for Kenya this was the first time that the Council had formally convened to address the country’s request for a deferral.

Kenya would have wanted the ASP to approve an amendment to the statute to provide for head of state immunity, consistent with the resolution made at the extraordinary summit of the AU in October. However, such a proposal was time-barred and could not be discussed at the ASP. The AU, however, forced the late inclusion in the ASP agenda of an item to discuss head of state immunity in a general, non-binding, manner. During this discussion African states that had supported head of state immunity in Addis Ababa capitulated and failed to back Kenya’s quest for immunity.

Kenya had also proposed an amendment to the rules of procedure to provide for the excusal of the president during the trial.  Liechtenstein, Jordan and Botswana also suggested amendments of the rules similar to Kenya’s.
The United Kingdom, pressured by the weight of the Security Council decision rejecting Kenya’s application for a deferral, offered its own amendment of the rules to enable the use of video technology as an alternative to physical presence. However, Kenya enjoying the pressure under which it has put the UK, rejected this proposal. In the end, Kenya was prevailed upon to accept the UK proposal which all other delegations supported.

Kenya wanted an automatic excusal from trial for persons mandated to fulfill “extraordinary public duties at the highest national level”. Although other states were prepared to allow the excusal, there was disagreement over whether this should be automatic or not. Most states were reluctant to make it automatic, arguing that the court should be allowed to decide this on a case by case basis.

In the end, the text agreed on was that “persons mandated to fulfill extraordinary duties at the highest national level may submit a written request to the to be excused from attendance” and to be represented by counsel and that, “the Trial Chamber shall consider the request expeditiously and, if alternative measures are inadequate, shall grant the request where it determines that it is in the interests of justice and provided the rights of the accused are fully ensured”.

The terminology of “case-by-case” was dropped from the final text, leaving much uncertainty if an excusal should be made once for the whole trial, or from time to time.

Conclusions

While African countries played a key role in the establishment of the ICC, the issuance of an arrest warrant against President Omar el Bashir led to strains in that relationship. While, at first, AU displeasure over the arrest warrants was not well articulated, this has changed over time and the AU has eventually developed an articulate and strong position against the possible trial of Bashir and any other African president.

The entry of the Kenyan cases before the ICC meant that a second front was opened through which the AU would express concerns about the prosecution of African leaders. Kenya became adept at mobilizing the AU to its cause and has been the sole reason why such a strong African platform has now emerged.

It seems that the Security Council badly misjudged the developments on the African continent, letting things drift into a fully hostile relationship between the AU, on the one hand, and the Court and the Council on the other hand.