International Justice

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Deferral Worthy? Kenya and the ICC

Deferral Worthy?

Should Kenyatta’s case be given deferral by the Security Council Under Article 16 of the Rome Statute?

At the 12th ASP meeting last year, Uganda’s minister for Justice and Constitutional Affairs, Mr. Frederick Ruhundi stated that Kenyatta’s case should be granted deferral by the UN Security Council. Ruhandi argued that the Kenya’s decision to elect Kenyatta should be respected and he should be granted deferral while he still holds office. This power of the security council to defer cases is granted under Article 16 of the Rome Statute. Article 16 allows the UN Security Council to pass a resolution under its Chapter VII authority to defer an ICC investigation or prosecution for a renewable period of 12 months. Article 16 states in full: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the court to that effect; that request may be renewed by the Council under the same conditions.” Chapter VII of the UN Charter empowers the Security Council to take measures to “maintain or restore international peace and security” if it has determined “the existence of any threat to the peace, breach of peace or act of aggression.”

While several occasions have arisen over the years where states have argued that deferral under Article 16 of the Rome Statute of an ICC investigation was necessary, the Council have never yet used its power of deferral. In Kenyatta’s case, while I do understand the argument in support of his case’s deferral, believing that his case should be put on hold until his presidential term is complete, it at the same time sets a bad precedent for Article 16 and the role of the ICC. Under the statute, article 16 deferrals should only be granted by the Security Council when a case is believed to pose a threat to peace and security. If they were to grant Kenyatta’s case worthy of this, it would send the message that State’s have ultimate authority over the court. Additionally, it sends the message that a State can simply threat violence or outbreak if the court does not grant their wishes. This would be a huge threat to the legitimacy of the court.

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2 responses to “Deferral Worthy? Kenya and the ICC

  1. jhgmitch February 2, 2014 at 11:23 am

    Great post. I agree that the Kenyatta case does not seem to be a good example of a situation where security reasons would require a deferral.

    What Mr. Ruhundi is arguing is that we should privilege the wishes of the Kenyan people over international law. I’ve always been sympathetic to such arguments, because international actors are FAR less accountable to the people–and the elected representatives of the people–than national actors are. But I think the fact that Kenya signed the Rome Statute means that Kenya KNEW it was entering into the murky undemocratic land of international justice politics and did it anyway. In other words, Kenya lost its chance to use the democracy argument.

  2. Alana Tiemessen February 3, 2014 at 10:06 pm

    I’ll try to find the source, but there was an interesting recent poll showing that the majority of Kenyans wanted President Kenyatta to appear for his ICC hearings and go through the trial, regardless of whether they believed the was innocent or guilty. Many Kenyans do not trust their own judicial system to carry out the trials impartially, and Kenya was given a chance ensure accountability before the ICC stepped in.

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