Now the UK has proposed that Mr Kenyatta be allowed to participate in his trial by video link from Nairobi, which would require a change to the rules governing the ICC. This would clearly resolve the objections relating to both governance and regional security, making it impossible for the AU to continue with its campaign for the trials of sitting presidents to be deferred until they complete their term of office, without undermining its credibility completely.
After its request being denied by UNSC, Kenya is now looking forward to the next session of ICC assembly of states where it will propose amendment to article 27 which speaks about individual criminal responsibility of head of state.
So, finally United Nations Security Council (UNSC) refused to defer the trial of Kenya’s President and Vice President for one year.(1)The power to defer the proceedings has been invested with the UNSC under Article 16 of the Rome Statute. For purpose of deference, Kenya required total 9 votes according to Article 27 of UN Charter which states that matters except non-procedural require 9 affirmative votes in UNSC including all five permanent members.(2) But, it could gather only 7 votes because other eight members of UNSC abstained from voting which includes USA, UK and France. Whereas China and Russia voted in favor of deferral. The reason cited to defer the trial was that ‘court case is distracting and preventing Kenyatta and Ruto from carrying out their duties. And reference was also made to a terrorist attack in in September at a mall in Nairobi that left over 60 people dead.(3) China’s representative said that ‘Deferring ICC proceedings against Kenyan leaders is not only the concern of Kenya, but also the concern of all African countries. It is indeed an urgent need dictated bythe interest of maintaining regional peace and stability.’ (4) The question this remark raises is that can justice be traded off for peace and stability? what is meaning of peace without justice?
The African nations, led by Rwanda, who proposed the resolution faced strong criticism for the challenge and the way it was forced upon the council i.e. resolution was called as ‘un-necessary’, which created ‘artificial confrontation’ between International Criminal Court(ICC) and UNSC. (5) African countries was using the narrative of discrimination which is unfortunately true to some extent. This is evident from the fact that 20 cases in 8 situations brought before ICC are all from African Region. (6)But I don’t subscribe to the idea that we should let go of one criminal because others are not prosecuted. that reasoning is absurd. And another point to be noted is that out of these 8 situations about 4 situations were referred by those states themselves.
To date, 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. (7) visited on 18-11-2013
But that should not blind us to fact that some countries are using ICC and exercising power without bearing any responsibility. Yes! I am talking about USA. But what about the citizens of Kenya. So there was poll conducted according to which 67 percent of 2,060 Kenyans surveyed think that President Uhuru Kenyatta should attend his trial at the International Criminal Court.(8) Apparently, a common man of Kenya doesn’t subscribe to the views of African Union.
The ICC charged Kenyatta and Ruto with crimes against humanity, including murder, forcible population transfer and persecution, for their alleged roles in postelection violence that left more than 1,000 people dead in late 2007 and early 2008. Kenyatta also is accused of responsibility for rape and other inhumane acts carried out by a criminal gang known as the Mungiki, which was allegedly under his control.
So i came across an article. I specially liked the ‘The case of UNSC deferral’ portion which actually makes it clear that diplomacy and play of politics has some, if not more, limitations in light of international law laid down. though, since states are sovereign, this limitation might not produce any desirable interest. And secondly, the principle of individual responsibility in international law is posing new problems as we are witnessing in kenya. where accused persons are at helm of state affairs and were democratically elected and trying to prosecute them at this time doesn’t seem feasible. but we can’t let them go free as they had committed crimes. Thirdly, there is another problem of selective justice i.e. by and large product of notion of sovereignty and economics mixed with politics. we have not came across any head of state from any of the western countries who has been proceeded against except the Nuremberg trials which is a separate category altogether.
Anyways, enjoy reading the article
Deputy Kenyan President William Ruto said on Tuesday he would continue to cooperate with the International Criminal Court despite a call from African leaders for his case and that of President Uhuru Kenyatta to be delayed. But said he should be excused from appearing in person so that he could carry on with his duties in Kenya. Ruto and Kenyatta face charges of crimes against humanity over accusations they orchestrated widespread violence after a disputed 2007 election. Both men deny the charges and have tried to have their prosecutions adjourned or halted. An African Union summit at the weekend criticized the workings of the court, complaining it had only pursued Africans. It urged the U.N. Security Council should defer the trials of Kenyatta and Ruto under article 16 of the court’s Rome Statute, which allows for an initial delay of a year, or the AU would seek an alternative means of postponement. (Now what are these alternative means of postponement?) For western nations, Kenya is a vital regional ally in the battle against militant Islam. The United States and European nations, who are big donors to Kenya, have so far given little indication of their next moves.