What politics has put together, the International
Criminal Court (ICC) can tear asunder.
The decision of ICC Trial Chamber V (b) — on a
majority vote — to excuse President Uhuru Kenyatta
from continuous presence at his trial was seen as
good news by his lawyers and supporters alike.
But sometimes one loses by succeeding:That
decision may have unwanted consequences for
President Kenyatta. It could complicate his
deferral request to the UN Security Council;
fray the threads holding together his Jubilee
coalition and undermine the united front that
he and his deputy William Ruto have so far
maintained. How so?
The immediate problem is that the court’s
decision to exempt the president but not his
deputy from in-person hearings may not help
the deferral argument at all. In fact, it opens
the possibility that the Security Council could,
if it considers the issue, delink the president’s
case from that of his deputy, much to the
chagrin of Mr Ruto and his supporters.
But will the matter get to the Council in the
first place? Kenyan officials sound optimistic
but they have overlooked the fact that the
deferral request needs nine votes to come
before the full Council. Yet, of the 15 members
of the Security Council, there are seven state
parties to the Rome Statute who have
previously opposed deferral. Until the votes
add up the Council will not consider the merits
of the request.
How might the issue go if it gets there? The
baris of the AU’s request is that asking the
president and his deputy to attend the ICC
trials in person distracts them and sunders
their effectiveness at a time of great danger to
Kenya. This, it is said, is a legitimate ground
for the Security Council to invoke UN Charter
Chapter VII powers to put off the trials for at
least another 12 months.
Yet, by exempting the president from in-
person hearings, the ICC has undercut much of
the initial force of the case for deferral. True,
the Court’s decision matters not a whit to
members of the Security Council already
committed on either side of the deferral
debate, but it could change the mind of
It could also be that the African Union’s thinly
veiled threat to damage the ICC may incline
the Security Council to yield to deferral. Even
then, though, the Security Council could hand
a triumphant AU a flute of bad champagne by
stopping the case against the president but
not that against his deputy.
Legally and symbolically, the president and his
deputy are not similarly situated. The
president is the chief executive and,
symbolically, he embodies the sovereignty of
the state. The deputy president supports some
but not all of the president’s chief executive
functions but plays none of his symbolic roles.
Which is why, on the executive side, the
deputy president is not the deputy
commander-in-chief. Thus, delinking the
president’s case seems possible and
potentially attractive. It would allow both the
pro and anti-deferral sides to claim victory.
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The AU would feel that it has drawn an
inviolate line in the sand for the future: No
sitting head of state would ever be hauled
before a court, domestic or international. The
anti-deferrals will have drawn theirs too: There
never can be a categorical exemption from
international justice. Differential treatment
along these lines would irritate Mr Ruto and
his supporters but the argument for deferring
his case is, in truth, much weaker. His case is
in train; the president’s is yet to start.
Deferring Mr Ruto’s case now would disrupt its
progression; deferring the president’s would
Assuming that such tactical calculations do not
figure in the final decision, is deferral — in
terms of substance — a foregone conclusion?
Hardly. A majority of the 15-member Security
Council may agree that terrorism is a threat to
peace and security without accepting the add-
on claim that the circumstances in Kenya
justify a deferral.
They could point out, for a start, that this is
merely the latest of Kenya’s many recent
unsuccessful efforts to stop or defer these
cases. In short, Kenya should not automatically
expect the Security Council to do a volte-face
just because the AU now threatens to storm
out of the ICC.
Perhaps a rehash of the facts will help refresh
memories:In January 2011, the AU asked for a
deferral offering peace and security reasons.
The Security Council refused. In March 2011,
Kenya’s UN Ambassador Macharia Kamau tried
to get a deferral so as to allow Kenya time and
space to create a domestic mechanism. It was
not granted. A request for termination suffered
the same fate as that for deferral.
On May 2, 2013 Kenya sent a rather insipid
note verbale — an unsigned diplomatic note
written in the third person — asking the
Security Council to terminate the ICC cases.
Twice the Security Council hesitated, refusing
to put the issue on its substantive agenda for
May 8 and for May 13 and only doing so,
eventually, for its meeting May 16. The
decision on that request gives a glimpse into
the thinking of the Security Council and shows
why the AU has now made a request for
deferral under Article 16 of the Rome statute.
Kenya’s earlier request that the Security Council
terminate these cases was rather convoluted.
However, it can be shortly summarised: Under
Chapter VII of the UN Charter, the Security Council
has a wide remit to forestall threats to international
Kenya argued that pushing ahead with the ICC cases
would endanger regional peace and security. As
Kenya told it to the Council, its obligations under the
UN Charter were, on the face of it, now in conflict
with its duty to comply with the Rome Statute and to
co-operate with the ICC. Whenever such conflicts
arise, Article 103 of the UN Charter says that Charter
obligations will trump all including obligations that
arise from “international agreement.”
Given this “conflict in obligations,” Kenya was
inviting the Security Council to invoke its mandate,
under Article 41, to terminate the ICC cases. Article
41 gives the Security Council the power, to take
measures short of war, to “give effect to its
decisions”. This grandly incoherent argument proved
One, Article 41 merely sets out the means by which
the Security Council enforces its decisions it is not a
“grandfather clause” that gives the Council power to
decide matters outside its mandate.
Two, the ICC is not a UN body and there is grave
doubt whether, in fact, the court’s powers could be
legally nullified using the “conflict of obligations”
provisions of article 103 of the UN Charter as urged
Three, the plea that Article 41 powers should be
deployed is unthinkable: The Security Council was
being requested, in effect, to ask state parties to the
Rome Statute to stop co-operating with the ICC on
the flawed argument that criminal charges arising
from violations of humanitarian law in Kenya were in
conflict with Charter provisions.
Not surprisingly, some very muscular arguments
were made against the position put out by Kenya.
Even so, the Council opened the window for an in-
principle dialogue with Kenya on possible deferral
under Article 16 of the Rome Statute. This is
probably the reason why the country has mobilised
the AU to request a deferral.
The essence of Article 16 deferral is that if an ICC
trial poses a threat to peace and security, the
Security Council may, on request, postpone the case
for 12 months at a time until the threat ceases.
Since this power has never been invoked, many
questions remain open: What evidence will justify a
Council decision? How many times would the Council
reasonably grant additional deferrals given
reasonable concerns about witness safety; fading
memories and the risk of loss of records? And, most
poignantly, what signal would endless deferrals send
to victims, who will probably have waited a long time
to get justice?
The questions into one tactical issue:Given Kenya’s
highly chequered history in the Security
Council, how might the votes on this latest
deferral request actually go? The conventional
view is that it all turns on whether any of the
five permanent members vetoes a deferral.
That is sometimes the key. However, when the
diplomatic stakes are low, the decision lies
with a majority of the 15 members. At the
moment, the smart money says that most
members would prefer that the matter does
not come to the Council at all. But if it does,
the calculations could then change.
How so? Five members could scupper deferral
via a veto: China, the Russian Federation,
France, the USA and the United Kingdom. The
other 10 rotational members whose opinion
could be dispositive if none of the five is
inclined to veto a deferral are Argentina,
Australia, Luxembourg, Azerbaijan, the
Republic of Korea, Guatemala, Morocco,
Pakistan, Rwanda and Togo.
First off, let us scrutinise how the five veto-
wielding states might vote. To begin with,
China, Kenya’s new ally in the country’s turn
East, holds the Presidency of the Security
Council for November and will be, for that
reason, in a pivotal position to shepherd a
resolution. But how will the actual vote go?
Nobody can say for certain but informed
chatter from the Security Council corridors
suggests a close-run thing.
Lobbying China and Russia
Both China and the Russian Federation are
almost certainly pro-deferral. It was instructive
that in a major diplomatic shift soon after his
election, President Kenyatta chose, as his first
official tour, a visit to Russia and China. Both
countries will want to quickly cement the
emerging relationship through a concrete
This deferral vote provides a great double
opportunity: The two get to underline their
unequivocal support for a new ally, Kenya, and to
send a clear signal to the rest of Africa that they are
different from the preachy West.
France appears to be vacillating. But, perhaps, not
too much should be read into this. For starters,
France rejected the earlier request for deferral.
Recent niggles and doubts about its current stance
arise mainly from President Francois Hollande’s
equivocal remarks in a recent visit to South Africa.
During that visit, President Hollande appeared to
wiggle, sounding less definitive than the earlier
French stand would indicate. Nevertheless, President
Hollande didn’t fully comfort the ICC naysayers
either. He made it clear that France expects Africa to
deal with impunity in the framework of the ICC.
Hardly surprising: France is a major funder of the ICC
and is unlikely to support measures that undercut it.
This suggests that France will be inclined not to
outright opposition but to deferral with tough
The United Kingdom looks split between sticking to
an “ethical foreign policy” and protecting its vital
interests in Kenya and the region. It wants to pursue
the one by being seen to support the ICC and to
protect the other by not alienating President
Kenyatta and his deputy.
It is this that explains why the British High
Commissioner has vigorously denied reports that the
UK has changed its position. It looks as if a final
decision is still in the air- being mulled over in
Whitehall — even as the UK’s national interest
suggests — as with France — an edging towards
supporting a deferral with stiff conditions.
Like the UK, the United States has seemed even more
ambivalent, caught between its pressing
commitment to fight global terrorism — a matter on
which Kenya’s support is vital — and its post-Cold
War position that impunity is incompatible with
democracy and the rule of law.
The problem, though, is partly one of optics: In the
wake of Kenyatta’s election, the US seemed to do an
about-face from its oracular choices-have-
consequences stance to some undefined halfway
house between wait-and-see and let-us-normalise-
But that view may be unfair: President Obama’s
advisors have been singularly vocal that the US won’t
countenance impunity. Susan Rice — the President’s
National Security Advisor and former ambassador to
the UN — and Samantha Power — the permanent
representative to the United Nations — have
impressive human rights credentials. Would they
advise the US to support deferral without
unequivocal evidence that the 2008 criminals will be
punished and victims given relief? It seems unlikely.
The crucial question, though, is what the US will
actually do: Will it abstain from voting; vote for
deferral with strict conditions or veto deferral? Veto
and abstention are weasel choices. Abstention is an
exercise in self-emasculation. Those that do not
participate do not decide and all that a veto does is
to erode one’s leverage.
Given this, it seems more likely that the USA will
align with France and Britain, supporting a deferral
but with conditions. Here, then, is true irony. Having
cocked a snook at the West as The Economist says of
President Mugabe, President Uhuru and his deputy
are now in a place of scant wiggle-room. If they get
deferral it will be on the say-so of the Western
powers and on conditions that they set.
How about the rest of the Security Council?
Argentina has been ardently pro-ICC. But it has
nourished an angry and never-ending grievance
against Britain on the Falklands Islands over which
the two fought nearly a generation back.
Implausible as it seems, there are those who think
that Argentina is spiteful enough to oppose whatever
position the UK takes. Most countries — other than
Kenya it seems — are rather hard-headed when it
comes to national interest. So, Argentina is probably
a borderline case on this issue, inclining ever so
slightly against deferral or to a deferral with
Australia, Luxembourg and Azerbaijan are probably
anti-deferral. The Republic of Korea usually allies
itself with the West and with the US in particular.
Guatemala, a signatory to the ICC, has had its own
troubles with genocide and impunity. It is thought
that it may oppose deferral just so as to draw a moral
redline on its ignoble past.
Morocco, another signatory, has in the past voted
with France and is thought to incline against deferral.
However, its desire for influence on the continent
may lead it to recalibrate its traditional stance,
edging it away from France and bringing it closer to
the AU position. Pakistan, Rwanda and Togo have
been clear: They want the cases deferred, and if
possible, stopped altogether.
Thus, the great diplomatic game could play out. How
could deferral affect local politics? Much depends on
whether the Security Council grants President Uhuru
a deferral but refuses to do so for his deputy, William
Ruto. A general deferral for both would have political
consequences but they would be different from a
more personalised decision that delinks the two
cases. Let’s then consider the impact of a decision
that defers President Uhuru’s case but not Deputy
It is unlikely that Deputy Ruto’s supporters would
applaud such a decision. They will recall that when
Rwanda and Uganda first urged President Uhuru and
Mr Ruto to skip The Hague trials, the president
refused their counsels, principally on the argument
that the principle at stake — that they are innocent
— would then be lost.
If the Security Council now makes a decision that
leaves Mr Ruto shuttling alone to and from The
Hague, pro-Ruto conspiracy theorists will theorise
that this was the plan from the very first. Proof, if
such were needed, that other communities treat with
the mercurial Kikuyu at their own peril. If such a view
were to take root, it would complicate politics for the
president, in parliament to begin with, and, later, in
the Rift Valley as the country gets nearer to the next
In parliament, where the president’s majority
depends on the concerted support of Mr Ruto’s Rift
Valley block, discontent could wreck many or all of
his future legislative plans.
But there are also political dangers on the flipside: If
only one trial proceeds, that of Ruto, ICC evidence
from the 2008 post-election violence would tell only
one side of those events.
Even if the evidence lacked real probative value it
could, symbolically, paint the deputy president into a
very unhappy corner, re-ignite Kikuyu ire against the
Kalenjin and weaken Mr Ruto’s clout with the
This could, in turn, spawn an insidious palace plot to
shunt him aside, especially among those who already
think that he is way too powerful for a deputy.
Coupled with the fact that the ICC Appeals’ Chamber
has already ruled that he must attend his trial in
person, the deputy president could find himself
pushed even further to the margins of power,
precisely at the moment, early in the presidency,
when he most needs to be at the centre.
Looming political implications
Thus, the political complications loom. Yet this hardly
means that if both cases were deferred, Kenya’s
diplomacy would become normal and its politics
calm. The decisive question is what conditions, if any,
the Security Council would impose in granting a
Suppose the conditions turn out to be onerous, even
politically unpalatable? It may then be that the
government wouldn’t implement them. That, in turn,
would complicate future relations with the Security
Council. It would mean, for a start, that deferral
would not be automatically renewed when it lapses
Plausible conditions — that is to say, conditions that
the Council could impose — may include, first, a
demand that the government prosecute the
perpetrators of the 2008 post-election violence and,
second, that it take meaningful steps to help the
But in light of the official cynicism with which these
two issues have been handled in the past five years,
it would seem that there are deep-seated political
reasons why two presidents — Kibaki and now
Kenyatta —have, so far, have left impunity
undisturbed. And therein lies a critical issue: If
political calculation has trumped justice before, it will
do so again no matter how stiff or high-minded the
final resolution of the Security Council on this matter
It seems, then, that this latest request for a deferral
is shot through with complications. It is not the
happy destination it has been cracked out to be by
its enthusiasts. It is, like the rest of Kenya’s approach
to the ICC cases thus far, yet another stumble and
jerk along a path that leads only to a place of grief.
The central problem is that Kenya’s entire ICC
strategy has been built on two unsound ideas: First,
an egotistical desire to prove that Kenya won’t be
pushed around and, second, a belief that the cases
are a campaign by the West to get the president and
his deputy. The first is a foolish ground on which to
base any policy.
The second is a morally deceitful ploy intended to
deny that the trials are taking place at The Hague
because those who had power to keep the cases in
Kenya cynically failed to act.
Sadly, a silly but seemingly harmless belief has now
curdled and become both closed and dangerously
self-referential. Consider. If one believes — as some
Kenyans now do — that the West is covertly trying to
crucify President Uhuru and Mr Ruto, the fact that
there is no evidence to warrant the belief is held to
be proof for that very belief in a circuitous logic that
says that the insidious West is cleverly able to keep
the evidence forever concealed. In short, the lack of
evidence becomes a clear “case of the Devil
concealing his game,” as Schopenhauer would say.
Unfortunately, this ethically illiterate reasoning has
been used, repeatedly, to deflect moral debate from
the wrongs of the post-election violence — an urgent,
ongoing injustice — to colonialism’s unrequited
wrongs, an old psychosocial injury that won’t be
assuaged by loud declamations against Britain and
The moral point needs reclaiming: The government
must know that the issue won’t go away even if it
squanders more energy hunting down crypto-
imperialists and their lackeys in Kenya.
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