By Dr. Godfrey M Musila
Ripples have recently been caused by the a section of the Kenyan government seeking a deferral of the process of the International Criminal Court (ICC) – that has cited 6 Kenyans for alleged crimes against humanity (dating from the 2007/08 post-election violence). Similarly, a statement attributed to President Al Bashir of Sudan to the effect that the ICC arrest warrant against him should be lifted following the referendum in Southern Sudan raises interesting questions. I will briefly consider the law and politics of the deferral process as well as possible outcomes of the process, including the implications for the ICC.
Article 16 of the Rome Statute is the basis for deferral. The main criterion for its granting is that continued investigations and /or prosecutions would constitute a threat to international peace and security. This determination is made by the United Nations Security Council (UNSC) under its Chapter VII powers.
As the debate in Sudan and Kenya attests, article 16 is a major site for contestation. It animates some of the more controversial debates in international criminal justice and the ICC in particular: the role of politics in the situation countries; the peace v justice debate; and geo-political power dimensions.
In Sudan, the AU had sought deferral in order to provide breathing space for a negotiated settlement to the conflict in Darfur, although the AU’s Mbeki Panel Report broadened the geography by framing the pursuit of peace in Sudan as a national project. Although in my view article 16 criteria were met – 2 million Sudanese refugees in Chad, a generalized state of insecurity and exportation of violence to neighbouring states – politics within the UNSC ensured that the matter would never be placed on its agenda.
As we know, the AU was naturally not amused, and proceeded to pass resolutions urging non-cooperation with the ICC, and threatened withdrawal of African States parties from the Court. President Obama’s policy on Sudan – one that excludes any mention of the ICC – and America’s accommodation of and engagement with Al Bashir’s government, has provided a needed valve to calm tensions and eased pressure on Khartoum.
For its part, the proponents of the deferral in Kenya are creating an artificial link between the deferral and local prosecutions. This is an objective that can be achieved through an admissibility challenge (an application to Pre-Trial judges to cede jurisdiction) once the judges have ruled on summons. Coming out of an historic constitutional referendum, and institutional reforms largely on course, the situation in Kenya does not meet article 16 criteria. In spite of a persistent IDP problem, contested reform agenda and unanswered questions on reconciliation, Kenya is peaceful and the laying the foundations for a new republic. Ironically, it is precisely these reasons – renewed hope and the ongoing reform agenda – that are cited by those pushing for deferral.
While the competence of Kenya’s application is questionable – and it is worth noting that the US and UK ambassadors have announced publicly that their countries would veto a deferral – its timing and the previous AU rancor with the ICC over Sudan may just tip the balance in favour of deferral. This however remains a remote prospect.
It is obvious that pro-deferral forces in Kenya are tapping into previous rancor between the AU and ICC. For its part, knowing that Kenya is an important country in the region and the outcome of the current process has direct impact on its own desires, Sudan actively supported the Kenyan courtship of the AU on this deferral. Put simply, whatever excuse may be given by Kenya to refuse cooperation or withdraw from the ICC, it (Kenya) would be great company for Sudan.
It is unfortunate that Sudan is now stating publicly that the ICC process against Sudan should be stopped permanently. It is noteworthy that the Obama policy on Sudan is quiet on ICC, but identifies preservation of Comprehensive Peace Accord (CPA) between North and South as one of the three national strategic interests for the US in the country. The agreement (tacit or express) with Sudan appears to have been: open up democratic space within the ruling party, play ball on CPA and we will go easy on ICC. For delivering a successful referendum in the South, Al Bashir now wants to cash in. His recent announcement that he will not run for office when his term expires is a further sign of his goodwill.
It is obvious that the Kenyan and Sudan situations are linked by more than just geography and time: by history, in view of Kenya’s role in securing the CPA; by politics, in view of AU’s united position on both (deferral); and destiny, that of the ICC itself.
On legal merits alone, the UNSC cannot act in respect of Kenya by deferring the situation and not do so for Sudan. If UNSC allows the Kenyan deferral, it will not be because article 16 legal criteria are met: it will be to save the ICC. Some have speculated that the Kenyan request – and there could be merit in this – is a trap for the ICC. If UNSC turns Kenya down, it will almost definitely trigger non-cooperation or mass withdrawal of African states from the ICC. I don’t know how the referral of Libya to the ICC is being viewed in African capitals, but it is likely to provide fodder for those who criticize the UNSC for acting only when the interests of the P5 allow it.
It is noteworthy that there are significant developments towards the establishment of an African Court of Criminal Justice. Whether you agree with this move or not, only die-hard optimists and decidedly pro-ICC actors would deny that the ICC will be dead if this happens: all six situations before the ICC are African (including Libya!), and non-cooperation or withdrawal from a Court that relies almost entirely on African states produces obvious results. Whatever happens, the ICC is unlikely to re-emerge from the ongoing saga unscathed.
Godrey Musila is Senior lecturer, Kenyatta University School of Law and Director, African Center for International Legal and Policy Research, CILPRA.
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