International Criminal Court and Kenya

International Criminal Court and Kenya in 2013

United States views on international law [1] in relation to International Criminal Court and Kenya: On November 15, 2013, U.S. Permanent Representative to the UN Samantha Power delivered an explanation of vote on the U.S. decision to abstain from a Security Council vote on a request for deferral by Kenya of ICC proceedings against Uhuru Kenyatta and William Ruto (the sitting President and Deputy President of Kenya). In 2010, the ICC opened its investigation relating to alleged crimes against humanity committed during post-election violence in Kenya in 2007 and 2008. See this world legal encyclopedia (in relation to issues that took place in the year 2010) at 139. Ambassador Power's remarks, below, are available at (link resource) usun.state.gov/briefing/statements/217614.htm.

Some Aspects of International Criminal Court and Kenya

Thank you. The United States abstained on this vote because we believe that the concerns raised by Kenya regarding the International Criminal Court proceedings against President Kenyatta and Deputy President Ruto are best addressed within the framework of the Court and its Assembly of States Parties, and not through a deferral mandated by the Security Council. This position is consistent with the view that we shared with the African Union Contact Group at the Council's Informal Interactive Dialogue at the end of October. Further, the families of the victims of the 2008 post-election violence in Kenya have already waited more than five years for a judicial weighing of the evidence to commence. We believe that justice for the victims of that violence is critical to the country's long-term peace and security. It is incumbent on us all to support accountability for those responsible for crimes against humanity. At the same time, we want to emphasize our deep respect for the people of Kenya. We share their horror and outrage at the recent Westgate Mall terror attacks and understand their desire both for effective governance and for accountability under the law. We are mindful, as well, of the importance of these issues to the member states of the African Union that have raised similar concerns. We recognize that the situation the Court is confronting in these cases is a new one—the ICC has never before had a trial of a defendant who is also a sitting head-of-state, or a person who may act in such a capacity, and who has appeared voluntarily subject to a summons. Accordingly, we are encouraged that Kenya is continuing to pursue its concerns through an ongoing ICC process.

Developments

We are also encouraged that the Assembly of States Parties, which includes the government of Kenya, is working to enable trial proceedings to be conducted in a manner that will not force the defendants to choose between mounting a vigorous legal defense on the one hand and continuing to do their jobs on the other. The Assembly, which under the Rome Statute has responsibility for overseeing the Court's administration, will meet next week, and will have the chance to engage in dialogue and consider amendments that could help address outstanding issues. Because of our respect for Kenya and the AU, and because we believe that the Court and its Assembly of States Parties are the right venue for considering the issues that Kenya and some AU members have raised, we have decided to abstain rather than vote “no” on this resolution. The United States and Kenya have been friends and strong partners for half a century. We value the friendship and will continue working with the government and people of Kenya on issues of shared concern, including security against terror, economic development, environmental protection, the promotion of human rights, and justice. We also continue to recognize the important role that the ICC can play in achieving accountability, and are steadfast in our belief that justice for the innocent victims of the post-election violence in Kenya is essential to lasting peace.

Details

On November 27, 2013, the ICC's ASP reached consensus on amendments to the ICC's Rules of Procedure and Evidence, including amendments relating to the presence of defendants at trial proceedings. The amendments are available at (link resource) icccpi.int/iccdocs/asp_docs/Resolutions/ASP12/ICC-ASP-12-Res7-ENG.pdf. Ambassador Power issued a statement on the amendments, available at (link resource) usun.state.gov/briefing/statements/218108.htm, and excerpted below.

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I applaud the International Criminal Court's (ICC) Assembly of States Parties' achievement in reaching consensus today on a package of amendments to the ICC's Rules of Procedure and Evidence. The United States believes in the importance of accountability for those responsible for crimes against humanity, and we have taken seriously Kenyan concerns about the ongoing trial proceedings. Earlier this month, when the issue came before the United Nations Security Council, I encouraged Kenya and the African Union to work within the framework of the Assembly of States Parties to enable the proceedings to be conducted in a manner that would not make the Kenyan defendants choose between mounting a vigorous legal defense and continuing to do their jobs. Today, because of the remarkable efforts of the Assembly of States Parties members, including the Kenyan delegation, supported by many African Union member states including South Africa and Botswana, the Assembly of States Parties has done just that. The situation the ICC is confronting in the Kenya cases is a new one. The ICC has never before tried a defendant who is also a sitting head-of-state and who has appeared voluntarily in Court. I offer my congratulations to the Assembly of States Parties, and particularly the States Parties who engaged constructively to help refine the Court's own processes and resolved this matter in a manner that appropriately protects the rights and interests of both victims and defendants while allowing the judicial process to proceed without delay.

Resources

Notes

1. International Criminal Court and Kenya in the Digest of United States Practice in International Law