Security Council Resolution Seeking Deferral of Kenyan Leaders’ Trial Fails to Win Adoption, with 7 Voting in Favour, 8 Abstaining

15 November 2013
SC/11176

Security Council Resolution Seeking Deferral of Kenyan Leaders’ Trial Fails to Win Adoption, with 7 Voting in Favour, 8 Abstaining

15 November 2013
Security Council
SC/11176
Department of Public Information • News and Media Division • New York

Security Council

7060th Meeting (AM)

Security Council Resolution Seeking Deferral of Kenyan Leaders’ Trial Fails to Win

Adoption, with 7 Voting in Favour, 8 Abstaining

 

An almost evenly divided Security Council, lacking the requisite nine affirmative votes, today failed to adopt a resolution seeking a one-year delay in International Criminal Court proceedings against the President and Deputy President of Kenya.

Seven Council members voted in favour of the text (Azerbaijan, China, Morocco, Pakistan, Russian Federation, Rwanda, Togo), none voted against, and 8 abstained (Argentina, Australia, France, Guatemala, Luxembourg, Republic of Korea, United Kingdom, United States).  The draft was, therefore, not adopted.

Had it passed, the Council would have requested the International Criminal Court, under Chapter VII of the United Nations Charter, to defer the investigation and prosecution of President Uhuru Muigai Kenyatta and Deputy President William Samoei Ruto for 12 months, in accordance with Article 16 of the Rome Statute, which established the Court.  By other terms, the Council would have decided that Member States would take no action inconsistent with their international obligations.

Following today’s action, delegates explained the differences of opinion reflected in their respective actions.

The representative of the United States said the Assembly of States Parties to the Rome Statute, which oversaw the Court’s administration, would meet next week to help address outstanding issues.  Since the Court and the Assembly were the proper venues for addressing the concerns of Kenya and the African Union, the United States had abstained rather than voting against the draft resolution.

France’s representative said the vote had been unnecessary when the Council was in the midst of consultations with African States.  The United Kingdom’s representative stressed that the sponsors had failed to establish the Charter VII threshold beyond which the Court’s proceedings against the Kenyan leaders would pose a threat to international peace and security.

Guatemala’s representative said it was offensive to suggest that those who had not voted in favour of the draft were somehow against Africa.  However, today’s vote had erected a “barrier of distrust”.  That some countries had submitted a draft resolution in full knowledge that it would not be adopted did not accord with the goal of promoting Council unity, he emphasized.  Today’s exercise had left a balance of losers, he said, adding that the vote was detrimental to the African Union, which perceived its proposal as having been rejected; to the Court, whose aspiration for universal membership was under assault; and to the Council, which now appeared divided.

The Russian Federation’s representative said African countries had presented compelling arguments at a critical time for Kenya, whose military was playing a key role in Somalia.  Their request did not undermine the integrity of the Rome Statute, and there had been no attempt to turn them against the Court.  The application of Article 16 would have increased the credibility of the international system of justice among African countries, showing its readiness to address “complicated and ambiguous” situations, he said.

Council President Liu Jieyi ( China), speaking in his national capacity, said Africa’s request was a matter of interest to the entire continent.  It was well grounded and based on the principles of the Charter.

Pakistan’s representative said Kenya’s case rested on sound, solid strategic, political and legal grounds, adding that its logic was compelling.  From a strictly legal standpoint, the principle of complementarity must respect national jurisdiction, he said, noting that the functioning of the offices of the President and Deputy President was under question.  A provision on deferral was already available in the Rome Statute, he pointed out.

Rwanda’s representative emphasized that the Council was indeed the proper place to discuss today’s issue, and expressed his delegation’s deep disappointment at what had transpired.  “Let it be written in history that the Council failed Kenya and Africa on this issue,” he stressed.  Today’s vote undermined the principle of sovereign equality and confirmed the long-held view that international mechanisms were manipulated to serve select interests.  Article 16 had never been meant to be used by an African State; it appeared to be a tool used by Western Powers to “protect their own”, he added.

The representative of Ethiopia spoke in that country’s capacity as current Chair of the African Union, stressing that the Rome Statute’s Article 16 gave the Council authority to defer cases under the Court’s remit for 12 months.  The African request could not be rejected on legitimate grounds, and abstention under the circumstances amounted to rejection, he added.

Kenya’s representative noted that some Council members had chosen to tie the denial of the African Union’s request to a paranoid fear of imaginary possible future abuse of Article 16.  “Indeed, our understanding is now clear.  The Security Council is no institutional destination for solving complex and fluid international security and political problems,” he said, adding that the Rome Statute had failed its first crucial test.

Also speaking today were representatives of Luxembourg, Argentina, Morocco, Azerbaijan, Australia, Republic of Korea and Togo.

The meeting began at 10:15 a.m. and ended at 12:00 p.m.

Background

As the Security Council considered peace and security in Africa this morning, members had before them identical letters dated 21 October 2013 (document S/2013/624), from the Permanent Representative of Kenya and addressed to the Secretary-General and the President of the Security Council.  They outline that delegation’s request that the Council defer investigations or prosecution by the International Criminal Court on cases relating to the situation in Kenya.  The Council was expected to vote on a draft resolution to that effect.

Action

By a vote of 7 in favour (Azerbaijan, China, Morocco, Pakistan, Russian Federation, Rwanda, Togo) to none against, with 8 abstentions (Argentina, Australia, France, Guatemala, Luxembourg, Republic of Korea, United Kingdom, United States), the Council did not pass draft resolution 2125 (2013).

Statements

GERT ROSENTHAL ( Guatemala) said his delegation’s abstention was a source of great sadness, as his Government had dedicated much time and effort to encouraging more constructive engagement between the Council and the International Criminal Court.  Noting that one was a legal body and the other a political one, he said both were united by a mission to fight impunity and demand accountability from perpetrators of mass atrocities.  However, today’s vote had erected a “barrier of distrust” between them.  That some countries had submitted a draft resolution in full knowledge that it would not be adopted did not accord with the goal of promoting Council unity, he emphasized, pointing out that a divided Council was on display without justification.  Today’s exercise had left a balance of losers, he said, adding:  “All of us lost something.”  The vote was detrimental to the African Union, which perceived its proposal as having been rejected; to the Court, whose aspiration for universal membership was under assault; and to the Council, which now appeared divided.  Efforts to build a fruitful partnership between the Council and the African Union had been compromised.  “Sometimes we sacrifice justice to achieve peace,” he said, rejecting the suggestion that not voting in favour of the resolution was an expression of ill will towards the African Union.

SYLVIE LUCAS ( Luxembourg) recalled that the Council had met with the African Union Contact Group two weeks ago, to discuss the regional bloc’s question about the situation of the President of Kenya.  At that time, Luxembourg had hoped for solutions that were in the interests of all concerned parties, but unfortunately, that opportunity had not arisen.  She said her delegation did not support today’s text because recourse to Article 16 was not necessary or applicable in the case before the Council.  There were other means available to allow Kenya to deal with its affairs, including cooperation with the Court.  Moreover, the Court had taken steps to ensure that the President and Deputy President of Kenya would be available to deal with affairs of State, thereby taking their concerns into account.  The second available means was the twelfth session of the Assembly of States Parties in The Hague, which would hold a special meeting on counts filed against Heads of State, she said.  That was the appropriate body to address those counts.  Continuing the proceedings did not threaten regional peace and security, she said, stressing that Luxembourg was open to continuing dialogue to address the concerns of both Kenya and the African Union.

MARÍA CRISTINA PERCEVAL (Argentina) said her delegation had abstained because it was the Council’s duty to interpret strictly whether the trial posed a threat to international peace and security, and Argentina did not think it did.  The Council was being seen as protecting the law of the jungle.  In keeping with its voluntary submission to the Court’s jurisdiction, Argentina strove for universal jurisdiction in the fight against impunity, she said.  While understanding the motives of the draft’s sponsors, as well as acknowledging Kenya’s decision to cooperate with the Court, Argentina noted that the Assembly of States Parties was working on amending the rules of procedure.  Historical awareness and collective fate pushed the countries of the South to avoid dead ends, she said.  However, the rights of victims could not be forgotten or the subject of indifference; they deserved truth, justice and reconciliation.

MASOOD KHAN ( Pakistan) said that, while his country was not a member of the Court, it recognized the obligations of members, and noted that the African Union had unanimously requested a deferral.  That had produced a tension between those seeking justice and those seeking to promote peace and security.  Kenya had made its case on sound, solid strategic, political and legal grounds, he said, adding that its logic was compelling.  Kenya and the African Union were fully conscious of the complexity of the case and its repercussions for the region.  From a strictly legal standpoint, the principle of complementary must respect national jurisdiction, he said, noting that the functioning of the offices of President and Deputy President was under question.  A provision on deferral was already available in the Rome Statute, and could justifiably be applied to reconcile the tensions, he noted.  The same considerations that had allowed a four-month deferral could have provided the basis for a longer one, he said, adding that his country had therefore supported the draft resolution.  While it could not be adopted, however, Pakistan hoped that dialogue aimed at reaching a pragmatic solution would continue in the interests of the Council, the African Union and the International Criminal Court.

VITALY CHURKIN ( Russian Federation) said his delegation had supported the draft resolution, but unfortunately, the Council had been unable to adopt it.  African countries had presented compelling arguments at a critical time for Kenya, whose military was playing a key role in Somalia.  The democratically elected President and Deputy President should have the possibility of being in their country, with their people, to carry out their tasks, he emphasized.  The request by African States did not undermine the integrity of the Rome Statute, and there had been no attempt to turn them against the Court.  The application of Article 16 would have increased the credibility of the international system of justice among African countries, showing its readiness to address “complicated and ambiguous” situations, he said, underlining his Government’s commitment to combating impunity for the gravest violations of international law.

MARK LYALL GRANT (United Kingdom) said his Government understood the desire for the President and Deputy President of Kenya to fulfil their constitutional responsibilities, but that must be done at the Court and at the Assembly of States Parties, which would meet in five days.  Part of that meeting would focus on addressing the African Union’s concerns, with a number of amendments on “presence through video technology” already having been tabled.  On 31 October, the start of President Kenyatta’s trial had been pushed back to 2014, which demonstrated a constructive and legally proper response to the concerns raised.  Noting that the Court was one of last resort, he said that, of the eight cases before it, five had been initiated at the request of African States parties.  The question before the Council was whether continuing the Court’s proceedings constituted a threat in itself.  It did not, he emphasized, adding that the United Kingdom’s abstention did not change its commitment to peace and security across Africa.  However, it was disappointing that the draft resolution had been put to a vote that had highlighted disagreements in the Council.  The United Kingdom would continue to engage in addressing the African Union’s concerns, through the Assembly of States Parties, he said.

GÉRARD ARAUD ( France) said the vote had been unnecessary at a time when the Council was in constant engagement with the African Union.  The disagreement was not over the shared goal of allowing Kenyan leaders to pursue the obligations of their office, but over the means to achieve that.  Other alternatives could have been pursued in the pursuit of common goals, as Kenyan lawyers and the Court had already demonstrated in recent proceedings, he said.  Next week’s meeting in The Hague would draw upon those alternatives, but today’s effort had been a hasty one that could only widen divisions, he cautioned, emphasizing that dialogue must continue beyond that difficult episode.  As an active partner in Africa, France had expended resources and lives on the continent, and would continue to work with Kenya as well as the African Union to address their concerns and uphold the obligations of the Rome Statute.

ABDERRAZZAK LAASSEL (Morocco) expressed regret over the absence of consensus, pointing out that the meeting between Council members and African Union representatives had brought the substance of the draft resolution to the fore.  Kenya had made progress domestically in bolstering justice and reconciliation under the two elected leaders, he said, adding that they had demonstrated an untiring commitment to fighting terrorism while promoting regional and international security and stability.  African States had produced a constructive basis for discussions that could no longer proceed.

SAMANTHA POWER ( United States) said she had abstained because Kenya’s concerns were best addressed in the Court and in the Assembly of States Parties.  That position was consistent with the view that the United States had shared with the Contact Group at the end of October.  Families affected by the 2007/2008 post-election violence had waited five years for a judicial “weighing” of the events, and it was incumbent upon everyone to support the pursuit of justice against those who had committed crimes against humanity, she emphasized.  The United States shared the horror of the Westgate Mall attack and was mindful of the importance of such issues to the African Union.  Noting that the Court had never tried a sitting Head of State, or a person who might act in that capacity, she said the Assembly of States Parties, which oversaw the Court’s administration, would meet next week to help address outstanding issues.  Because those were the proper venues for addressing such issues, the United States had abstained rather than voting against the draft resolution, she said, adding that her country valued its friendship with Kenya and would continue to work alongside it in combating terror and promoting human rights and justice, among other issues.

AGSHIN MEHDIYEV ( Azerbaijan) said that, while his country was not a party to the Rome Statute, it believed that accountability contributed to the maintenance of international peace and security.  Azerbaijan’s vote in favour of the draft resolution was based on its understanding that Kenya and the wider region faced complex security challenges.  The judicial proceedings against its senior officials would obstruct the functioning of State institutions and threaten efforts to promote peace and security in the region, he warned, adding that the request for deferral could not be considered a measure of impunity.  Kenya had shown its commitment to fighting impunity, and both its President and Deputy President had cooperated fully with the Court process, he pointed out.  Its Government had worked to restore stability since the political crisis, and was able to handle such judicial issues, he said, adding that for those reasons, Azerbaijan supported the deferral of the Court’s proceedings.

GARY QUINLAN ( Australia), expressing regret over the vote’s outcome, said no one had emerged a winner.  Australia recognized the case made by the draft’s sponsors, but was also focused on the obligations of the international community under the Rome Statute.  The threshold of threat to international peace and security had not been met in Kenya’s case, he said, adding that alternative ways to proceed were available.  Kenya and the Court were already working to address many of the country’s concerns, and Australia would do everything it could to ensure that its President and Deputy President would be able to fulfil their obligations.  At the same time, Australia hoped for understanding of the Court’s obligations.

JOON OH (Republic of Korea) said his delegation’s thorough deliberations with other Council members as well as representatives of the African Union had helped him better understanding the challenges involved.  In the Republic of Korea’s view, the African Union’s concern was genuine and legitimate, but International Criminal Court issues were best addressed not in the Council, but in the Assembly of States Parties in The Hague, he said, emphasizing the importance of not setting a precedent wherein the Council stepped in the way of the Court’s proceedings.

KODJO MENAN (Togo) expressed regret that the Council had not adopted the draft resolution, as requested by the African Union, adding that his delegation also regretted the Council’s division over a “very significant” issue for Africa.  Hopefully, the decision would not “sow the seeds of doubt” about the importance of partnership between the Council and the regional body, he said, adding that the growing number of Council agenda issues concerning Africa meant there was much work to be done.

EUGÈNE-RICHARD GASANA (Rwanda) emphasized that the Council was indeed the proper place to discuss today’s issue.  While Africa did not want confrontation, terrorism was the most serious threat to international peace and security, and Kenya’s President and Deputy President were at the forefront in fighting it, he said, emphasizing that they should be respected, supported and empowered, not undermined.  Rwanda was deeply disappointed at what had transpired, despite Africa’s proactive efforts to engage the Council in a legitimate process, in the interest of international peace and security.  “Let it be written in history that the Council failed Kenya and Africa on this issue,” he stressed.  Today’s vote undermined the principle of sovereign equal and confirmed the long-held view that international mechanisms were manipulated to serve select interests, he continued.  Article 16 had never been meant to be used by an African State; it appeared to be a tool used by Western Powers to “protect their own”.  Some had not even signed up to the Rome Statute because they wished to protect their own nationals, he pointed out.  African Heads of State and Government had proposed a solution to the Kenyan issues, but Western Powers had an alternative solution in mind — interaction with the Court and the Assembly of States Parties.

LIU JIEYI (China), Council President, spoke in his national capacity, saying that he had voted in favour of the draft resolution.  Kenya had been playing a long-standing role in the fight against terrorism and in bolstering peace and security in Africa, and its request was therefore a matter of interest to the entire continent.  It was a matter of common sense to help the country’s popularly elected leaders focus on upholding their mandate.  International law should respect that mandate as well as the principle of complementarity and the sovereignty of nations, he emphasized.  The request of the African countries was well grounded and based on the principles of the Charter.  They sought respect for the two popularly elected leaders, he said, stressing that the Council should have heeded it and responded appropriately.  China would continue to support the aspirations of African countries, he added.

MACHARIA KAMAU ( Kenya) said Africa had come to the Council in the belief that the 15-member body was in command of its own reality and the master of its mandate.  However, Africa had learned that despite the Council’s own recognition of the recent terror attacks in Nairobi as threatening to international peace and security, that recognition counted for little in the Council when Article 16 was under consideration.  The request for a 12-month deferral was not political pressure but the law, of which Africa wanted both the spirit and letter applied because it believed that the Rome Statute was as much the continent’s own as anybody’s.  But reason and the law had been “thrown out the window”.  Fear and distrust and been allowed to prevail, he said, adding that Africa was disappointed.

Noting that some Council members had chosen to tie the denial of the request to a paranoid fear of imaginary possible future abuse of Article 16, he said today’s turn of circumstances was simply sad, absurd and confounding.  To certain Council members, the supposed fear of treading on legal niceties was clearly much more important than the need to promote international solidarity, peace and security, or the importance of helping to maintain stability in a nation, or region, under the threat of terror, he emphasized.  “Indeed, our understanding is now clear.  The Security Council is no institutional destination for solving complex and fluid international security and political problems,” he said.  “For Africa, the message is that we need only stay within the African family to solve unusual and complex political problems, working within the African Union to seek solutions to the challenges that we face.”

He went on to underline that the Council belonged as much to Africa as to any other region.  However, “our engagement here has been met with derision, suspicion, impatience and even irritation.”  That was wrong, unfair, sad and tragic, he said, adding that it was an indictment of the state of international relations at the dawn of the twenty-first century.  The Rome Statute had failed its first crucial test.  Nevertheless, Kenya was grateful for the recognition it had received from all Member States of the African continent and their leaders, as well as from the Russian Federation, Pakistan, Azerbaijan and China within the Security Council.  For Africans, their business in the Council was done but the matter was not closed, he cautioned.  The Council had removed itself from being part of an amicable solution and had thereby done irreparable damage to the Rome Statute and its future furtherance.

TEKEDA ALEMU (Ethiopia), speaking in his country’s capacity as current Chair of the African Union, expressed his profound appreciation to those Council members who felt that African Heads of State and Government knew what was best for their continent and supported the deferral request.  The African case had been made by the Contact Group, which had tried to convince the Council that the matter was not simply a Kenyan one, but an African one that had caused great concern for regional peace and security.  It had emphasized that distracting the Kenyan leaders from their obligations would represent a grave threat to peace and security.  What Africa had requested was within the law, he emphasized, explaining that Article 16 of the Rome Statute gave the Security Council the authority to defer cases under the Court’s remit for 12 months.

He went on to stress that the Commander-in-Chief of the Kenyan Defence Forces ought to be given support, rather than be distracted by a body whose track record on African matters did not inspire confidence.  The African request could not be rejected on legitimate grounds, and under the circumstances, abstention amounted to rejection, he said.  The African Union did not allow sovereignty to be used as a shield for impunity, and for African leaders not to be trusted — which was what today’s decision expressed — highlighted the challenge they faced in upholding international cooperation.  African countries could thrive through partnerships, as had been seen in Somalia, Sudan-South Sudan and Mali, he said, pointing out, however, that today’s response to the deferral request would lead many to conclude that Council members had difficulty seeing Africa exercise ownership over its policies and strategies for peace.

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For information media • not an official record
For information media. Not an official record.