11 May An Unusual Dissenter from Kenya’s Bid to Shut Down the ICC
The Kenyan government has asked the Security Council to pass a resolution deferring the prosecution of Uhuru Kenyatta and William Ruto, the newly-elected President and Deputy President of Kenya. That’s not surprising; the Kenyan government has been doing everything in its power to undermine the ICC. What is surprising, though, is that Ruto has explicitly disavowed the request:
Through lawyer Karim Khan, Ruto says that the application neither represents government policy nor his personal wishes. In an interview with Capital FM News, Khan says that his client never had input in the application.
“His Excellency the Deputy President would like to dissociate himself with the application by ambassador Macharia Kamau as it does not represent his desire. He was never consulted in the making of the application and not in the presentation.
He said that Ruto who was sworn into office last month was committed to upholding the Constitution which included respect for independent institutions.
Khan said that President Uhuru Kenyatta – also indicted by the ICC – had also given his word on honoring international obligations.
Khan reiterated that the United Nations Security Council had no power to terminate proceedings saying that the ICC was an independent court. He said that it is only the ICC judges could make a decision on the termination of the cases or otherwise as the court, which he said had independent judges fully seized of the matter.
“The application is a distraction from the reality which is that no institution can interfere with the independence of the court. The judges have sworn an oath and they are the only ones who can make a decision on the matter,” he said.
He maintained that Ruto who had cooperated with the court since he was named among the suspects who have the greatest culpability in the 2007/08 post poll chaos will continue to cooperate with the court until he is vindicated.
Khan is wrong, of course, when he says that the Security Council cannot terminate the case. Article 16 of the Rome Statute gives the Security Council just that power — although it would have to pass a new deferral resolution each year, because Article 16 limits individual deferrals to 12-month increments.
That aside, Ruto’s statement raises some interesting questions. First, if Kenyatta agrees with Ruto, how can the “Kenyan government” be asking the Security Council to intervene? Reports indicate that the request was signed by Kenya’s ambassador to the UN — who presumably works for Kenyatta and Ruto. So it would seem that Kenyatta and Ruto would be well within their rights to withdraw the request. Does their failure to do so indicate that, in fact, Kenyatta and Ruto are not actually on the same page?
Second, why has Ruto disavowed the request? Color me skeptical that his opposition is motivated by a principled belief in the authority and legitimacy of international organizations. More likely, he simply believes that he is unlikely to be convicted — a not unreasonable assumption, given the many problems that have plagued, and continue to plague, the Kenya cases. If Ruto is confident of acquittal, his opposition to deferring the prosecution makes perfect sense: he will have much more freedom to operate as an acquitted war criminal than as an accused one. (See, e.g., Omar al-Bashir.)
We’ll see how this plays out.
UPDATE: Kenya’s Attorney General has now also disavowed the request. What is this, a UN Ambassador gone rogue?