An Unusual Dissenter from Kenya’s Bid to Shut Down the ICC

by Kevin Jon Heller

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?

http://opiniojuris.org/2013/05/11/an-unusual-dissenter-from-kenyas-bid-to-shut-down-the-icc/

15 Responses

  1. I am not sure that Kenyatta and Ruto would be ‘well within their rights to withdraw their request’. That assumes that Kenyatta and Ruto are entitled to decide Kenyan foreign policy to suit their own interests as accused individuals. Although I don’t know anything about Kenyan constitutional law and convention, it seems to that as a matter of commonsense it would be highly improper for any leader of a purportedly democratic state to act so.

  2. Khan is correct – the UNSC does not have the power to terminate the proceedings. Instead, as you note, the UNSC only has the power of deferral. Termination and deferral are two quite different things.

  3. Rob,

    The President of a state does not have the right to give instructions to his state’s Ambassadors? Really? I would love to see what would happen if the US’s Ambassador to the UN decided to pursue a policy against President Obama’s wishes.

  4. Kevin,
    That’s not what I said. What I said is that your post “assumes that Kenyatta and Ruto are entitled to decide Kenyan foreign policy to suit their own interests as accused individuals”. Is it not obvious that for a president or minister to direct the state to take action solely for their own private gain violates the most basic tenets of democratic government?

  5. Rob,

    It is certainly what you implied when you questioned whether they would be “well within their rights” to withdraw their request. It may indeed be a bad idea for K&R to “decide Kenyan foreign policy to suit their own interests” — although insisting that the ICC go ahead with their prosecution hardly qualifies as self-dealing. But the executive in a state is clearly entitled to give instructions to its Ambassadors.

  6. Kevin, I perfectly share your surprise at this turn of events. 
    On a minor point, I do think your claim that “Khan is wrong”, especially with the “of course” attached to it, is wrong, of course, as you know. Suspension of the case might be possible forever (though highly unlikely), but that is not the same as termination. 

  7. Dov,

    Khan was speaking to a non-expert audience. He offered no qualification to his statement; he did not mention that the SC could defer the case for a year; he did not mention that the SC could defer the case in perpetuity by passing multiple deferral motions. What he said (according to the article) was that only the ICC could decide “on the termination of the case or otherwise.” I think that was at best profoundly misleading, at worst simply wrong.

  8. Kevin wrote: “The Kenyan government has asked the Security Council to pass a resolution deferring the prosecution of Uhuru Kenyatta and William Ruto”

    Well. No.
    They didn’t.
    They explicitly didn’t.
    What they wrote, literally in the very last paragraph of their note verbale, clearly distinguishes the two different terms:
    “What this delegation is asking for is not deferral. What this delegation is asking for, is the immediate termination of the case at The Hague without much further ado.”
    http://www.docstoc.com/docs/156046087/Letter-Kenya-Sent-to-UN-in-May-2013-to-Stop-the-ICC-Cases
    Any questions remaining?

  9. Kevin,
     
    There was no implication that a head of state or a head of government cannot generally give directions to diplomats. There was no implication of any kind.
    I meant exactly what I said expressly – that your statement that Kenyatta and Ruto would be ‘well within their rights’ to withdraw their request simply because they have the de jure power assumes that they can exercise that power to serve their own private interests. Since that it is unlawful in many states, I would not make the assumption.
    As I said previously I do not know anything about Kenyan constitutional law and convention, but I know that it includes this provision:
    73. (1) Authority assigned to a State officer—
    (a) is a public trust to be exercised in a manner that—
    (i) is consistent with the purposes and objects of this Constitution;

    (b) vests in the State officer the responsibility to serve the 
    people, rather than the power to rule them.
    (2) The guiding principles of leadership and integrity include—

    (b) objectivity and impartiality in decision making, and in 
    ensuring that decisions are not influenced by nepotism, 
    favouritism, other improper motives or corrupt practices;
    (c) selfless service based solely on the public interest, 
    demonstrated by—

    (ii)the declaration of any personal interest that may conflict 
    with public duties;

    75. (1) A State officer shall behave, whether in public and official 
    life, in private life, or in association with other persons, in a manner 
    that avoids—
    (a) any conflict between personal interests and public or official 
    duties;
    (b) compromising any public or official interest in favour of a 
    personal interest; or

    (2) A person who contravenes clause (1), or Article 76, 77 or 78 
    (2)—
    (a) shall be subject to the applicable disciplinary procedure for 
    the relevant office; and
    (b) may, in accordance with the disciplinary procedure referred 
    toin paragraph (a), be dismissed or otherwise removed from 
    office.

  10. Whether or not that is binding and justiciable as regards such things as foreign policy I don’t know, but the import of the general principle appears to be self-evident from the plain wording of the text.

  11. The note verbale posted by Alexander also shows that Kenya is not asking for the SC to exercise a legal authority to terminate the ICC proceedings, but rather to give political support to the position that the ICC should reconsider on its own accord:
    “Under the UN Charter, the Security Council has primary responsibility for maintaining international peace and security. But the Rome Treaty removes this existing system of checks and balances, and places enormous unchecked power in the hands of the ICC prosecutor and judges. The treaty created a self-initiating prosecutor, answerable to no state or institution other than the Court itself. We thus ask the ICC to take the much needed political stance that Kenya must be given the time and opportunity to apply the principle of pre-eminence of National Courts. […] [W]e ask friendly nations to use their good offices and prevail upon the International Criminal Court to reconsider the continued process in relation to the situation in Kenya.” (p. 12)

  12. Daniel’s hint is also important in another respect. On one hand, OTP has now formally asked the court to issue an admonishment (rebuke) under article 87 (3) to chastise the Government of Kenya for its continuous leaking of confidential information to the accused (they have done that before, and OTP was smart enough to restrict its output, so it isn’t new).

    On the other hand, OTP threatens an article 87 (7) application. That one is edgy and can too easily result in a fracas damaging the standing of the court itself, which is why they only wave this stick in the air. The GoK has itself tried in the past – so far with little success – to whip up support in the assembly of state parties, and the strong stance both of Wenaweser and now of Intelman against such machinations, does not mean that the Kenyan schemings could not find some facile followers.

    Lastly, and on a hind leg, there has been a formal article 70 investigation running against witnesses who are alleged to have been bribed or threatened by the accused, and have consequently given false testimony, or withdrawn correct testimony. The trial chamber has now laid that open (ICC-01/09-01/11-728), and makes it a – non-public – topic “D” in the scheduled forthcoming status conference on 14th May:
    http://www.icc-cpi.int/iccdocs/doc/doc1590773.pdf

    This is quite heavyweight, and can result in arrest warrants against the accused, either public or sealed; because it is also a violation of the summons conditions, as OTP pointed out already in February. Article 70 (1) (b) (c) weighs heavily and at least Karim Khan knows that, which explains his grovelling and sollicitous tone on behalf of his freshly acquired new client in the last couple of days.

  13. I’d add one minor clarification to what’s been said above: The UNSC does not have the power to terminate proceedings under the Rome Statute. An argument can be made that it does have such a power under the UN Charter (which would trump the Rome Statute under article 103). Of course, that argument could equally be rebuffed.  The reason I raise this is not to start a legal discussion on the relationship between art 103 of the Charter and the Rome Statute, but to illustrate a different point: that governments engaging with the ICC do not necessarily take the Rome Statute as their starting point and frame of reference. 
    I agree with Daniel that this note verbale appears as more of a political ploy than any real legal argument. As a legal argument, it’s bizarre. When seen as a political argument, it starts to make more sense. Perhaps because it’s addressed to the UNSC and Member States, this argument is particularly far removed from the Rome Statute. However, the failure to directly engage with the Rome Statute and jurisprudence and the desire to base arguments on other frameworks seems to be a frequent characteristic of government filings – of Kenya previously and of Libya in the Gaddafi and Al Senussi cases. It’s not simply a case of bad lawyering – many of these filings are signed by well-established international criminal law and/or public international law figures. 

  14. David K charitably commented:
    “It’s not simply a case of bad lawyering – many of these filings are signed by well-established international criminal law and/or public international law figures.”

    The second part of this assessment is certainly true. And it is fully reconcilable with the first part, namely extremely bad lawyering – as experience and a quick look out of the window can show.

    E.g., Sir Geoffrey Nice QC and Rodney Dixon who had unsuccessfully represented the Government of Kenya as state party before, were and are certainly names of high renown in international criminal law.
    Yet their filings and submissions were not only “bad” – they were atrocious in quality and style, and not evenly remotely able to engage the pre-trial chamber II’s own legal thought, that was deeply steeped in the Civil Law tradition. As now also is the trial chamber V.
     

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