Why deferral of Uhuru, Ruto trials may flop

By ALEX NDEGWA and GEOFFREY MOSOKU

A resolution on deferral of ICC cases against Kenyan leaders is expected to divide the United Nations Security Council (UNSC) today when it is put to vote.

Diplomatic sources suggest the 15 members of the UNSC have failed to reach consensus on the African Union-backed petition but the continent’s representatives in the UN body are determined to press a vote.

Reuters reported on Wednesday that Rwanda plans to push for a vote on the draft resolution seeking to defer ICC trials of President Uhuru Kenyatta and his deputy William Ruto despite lacking sufficient support.

Security Council resolutions need nine votes and no veto by any of the five permanent members – Britain, Russia, China, France and the United States – to pass.

Russia and China, the Council President for November, are openly sympathetic to Kenya’s cause but the other three veto-wielding nations are reportedly reluctant to sanction one-year suspension of ICC cases against the Kenyan leaders.

Western and Latin American delegations are reportedly also reluctant to support a deferral because of concerns it could lead to impunity, diplomats were quoted saying.

Little support

It is such divisions that Council diplomats say might have already ensured Kenya’s deferral request is dead in the water, as does not have enough support to pass, even without a veto.

But African states are said to be keen to present the draft, so that it is formally rejected to provide the basis to launch a new onslaught on the ICC, during the Assembly of State Parties meeting set to start next week.

African leaders have warned of mass pullout from membership of ICC that could be a blow considering the continent has the single-biggest bloc in the international court.

The meeting of the 122 members of the international court runs from November 20-28 and the draft agenda indicates it is the next battle stage over the Kenyan ICC cases.

Scheduled on the first day of the conference is a three-hour special segment that begins at 3pm requested by the AU.

Kenyan leaders have protested being confined in the courtroom at The Hague.

Ruto’s request to have the cases heard either in Kenya or Tanzania was rejected because it could not attain the threshold.

It also emerged that the ICC has also planned for any eventuality in the face of the spirited campaign by the Kenyan leaders to avoid having to be present at The Hague courtroom throughout trial.

“Additionally, in the Kenya cases Chambers envisage having the accused follow the hearings via video teleconferencing  from Nairobi,” provides the 2014 ICC budget proposal that will be approved at the conference next week.

Video link

Uhuru has a pending application seeking to be allowed to follow trial proceedings via video link and another for his case to be either in Kenya or Tanzania.

In New York today, the AU is expected to protest that already part of its petition had been ignored.

The African Heads of State in October in Addis Ababa, Ethiopia, had resolved that the ICC postpones Uhuru’s trial and suspends proceedings against Ruto until the Council considered the deferral request.

Ruto’s trial began in September and resumes next week after a brief break, while Kenyatta’s trial, which had been planned to start on November 12, was postponed to February 5.

A delegation of African ministers told the Security Council on October 31 that they believe their “requests are not given serious attention.”

China’s UN envoy, President of the Council for November, insisted that the council does take African worries seriously, although he acknowledged the divisions over a deferral.

“The members attach importance to the concerns of the African countries,” said Chinese UN Ambassador Liu Jieyi after the meeting.

Rwanda, one of Africa’s non-permanent members of the UNSC, circulated a draft resolution to approve a deferral among members earlier this month.

The Security Council can defer ICC proceedings for a year under Article 16 of the Rome Statute that established The Hague-based court a decade ago.

Kenya has petitioned the Council to order that no investigations or prosecutions shall proceed with regard to the Kenyan cases at the ICC saying they were a threat to peace and security.

Kenya wants to use the term of the deferral, if granted, to consider “how best to respond to the threat to international peace and security in the context of the Kenyan situation.”

The council turned down a previous deferral request by Kenya in 2011 and rejected a request in May for the cases to be terminated because the council had no such power.