Insights on Kenya and ICC
On Friday, 18 March Council members held an interactive dialogue with the permanent representative of Kenya to discuss the ICC proceedings against six Kenyans. (This interactive dialogue had been postponed from Wednesday, 16 March to Friday morning because of the negotiations on the Libya resolution adopted on Thursday evening.) AU representatives also attended.
Kenya has been proposing a one-year deferral of the ICC proceedings and seeking a decision from the Council in this respect. (Article 16 of the Rome Statute allows the Council to pass a resolution under Chapter VII authority to defer an ICC investigation or prosecution for 12 months.)
Among the questions raised during the interactive dialogue by a number of delegations were concerns about whether the Kenyan situation in fact constitutes a threat to international peace and security (a condition that must be met before a deferral might be given under Article 16).
Kenya seems to have argued that an Article 16 deferral would give it time to establish alternative domestic adjudicative mechanisms. It seems some Council members supported Kenya’s wish to establish domestic mechanisms of accountability for the accused but others were sceptical about Kenya being able to establish the necessary mechanisms given its failure to do so for the last two years.
It appears that the US, UK and France were strongly opposed to a deferral. But overall there appears to be a general lack of support for the Council to take up this matter in a formal meeting. Most Council members felt it would be more appropriate for Kenya to pursue an appeal to the ICC directly under Article 19 which allows for a state to claim that it has credible domestic procedures in place.
It appears unlikely at this stage that there will be any follow-up Council action to this meeting although some members indicated that the issue could come into the Council if there is a deterioration in the peace and security situation in Kenya.