EJIL: Talk!

Editor’s Note:  The authors have recently launched a blog focussing primarily on issues of international criminal justice from an African perspective. See http://warandlaw.blogspot.com

According to media reports , the Kenyan government is redoubling its misguided efforts to persuade the UN Security Council to suspend the ICC Prosecutor’s investigation into the 2008 post-electoral violence. As we have noted before, the request is fundamentally flawed. Not only does it misinterpret both the Rome Statute and the UN Charter through its expanded construction of the Security Council’s Chapter VII authority, more fundamentally, it conflates the principle of complementarity and the realpolitik exception in article 16 that allows international peace and security to temporarily suspend the pursuit of justice. Not only does this weaken the former in principle, more practically it means that any respite Kenya receives from the Security Council (a highly unlikely prospect) will be temporary – article 16 requires the annual renewal of any deferral – whereas the proper exercise of complementarity would offer a permanent solution to Kenya’s concerns (on the assumption that it is truly willing and able to prosecute the offenders domestically).

Therefore, should Kenya genuinely wish to go it alone its only real option is to find another avenue under the Rome Statute to halt ongoing proceedings at the ICC on the basis of the proper exercise of complementarity. We have suggested article 53(4) is one such avenue. Kenya would be well-advised to pursue this option as, regardless of the legal merits thereof, its deferral request appears certain to fail politically as both the United States and the United Kingdom have publicly stated that they will veto such a request. Read the rest of this entry…

Max Du Plessis is associate professor at the University of KwaZulu-Natal and Senior Research Associate at the International Crimes in Africa Programme of the Institute for Security Studies. Chris Gevers is a lecturer at the Faculty of Law at the University of KwaZulu-Natal.

Kenya has recently become the epicentre of growing tension between the International Criminal Court (ICC) and Africa. Last month, the ICC prosecutor asked the court’s pretrial chamber to issue summons for six people on the grounds that they committed crimes against humanity in the post-election violence in Kenya in 2007 and 2008 (which claimed more than 1000 lives). The chamber, currently considering the request, authorised the prosecutor’s investigation in March 2009, partly on the basis that, despite indications that it would do so, Kenya had failed to seriously investigate the violence.

Aside from this investigation, Kenya’s relationship with the ICC came into the spotlight after its decision to thumb its nose at the ICC and invite President Omar al-Bashir of Sudan, wanted by the ICC for crimes in Darfur, to the launch of its new constitution last year (see here). The profile of the “O’Campo Six” has inflamed Kenya’s growing anti-ICC sentiment: it includes three senior government officials, one of whom is the son of Jomo Kenyatta, the “father of the nation”.

The latest move by prosecutor Luis Moreno O’Campo has thus sent Kenya’s political elite into reactive overdrive. Kenya’s parliament passed a resolution on December 22 calling for Kenya’s withdrawal from the Rome Statute, which founded the ICC. That decision prompted a backlash from civil society in Kenya and beyond. Although the threat of withdrawal remains in the wings (see here), the immediate focus has apparently shifted to using the African Union (AU) summit next week to procure an AU resolution requesting the United Nations (UN) Security Council to defer the proceedings in Kenya under article 16 of the Rome Statute. Although the strategy clearly does not enjoy the support of all parties in Kenya’s coalition government, Kenyan Vice-President Kalonzo Musyoka maintains he has a mandate “as the special envoy of the p resident of the Republic of Kenya”.

Internal schisms aside, the deferral strategy has gained momentum over the past week, and reportedly has the support of key countries such as South Africa (SA), Nigeria and Ethiopia. Surprisingly, the rationale given for the deferral appears to be to allow the Kenyan authorities to deal with the alleged crimes.

This deferral approach should be discouraged. First, it is bad in law. A deferral (under article 16) can be used only if the UN Security Council determines that there is a threat to international peace and security. Not even the most pessimistic assessment of the ICC’s involvement in Kenya could characterise it as such.

Second , it is unlikely to succeed within the security council. Read the rest of this entry…