UNITED NATIONS: The UN Security Council on Friday failed to adopt a draft resolution, co-sponsored by African countries, calling for the deferral of the International Criminal Court (ICC) proceedings against Kenyan leaders.
Seven of the 15-member Council members — Pakistan, China, Russia, Azerbaijan, Morocco, Rwanda and Togo– voted for the draft, none voted against, with eight (United States, Britain, France, Argentina, Australia, Guatemala, Luxembourg and South Korea) abstaining.
The draft was, therefore, not adopted, as it lacked the requisite nine affirmative votes.
Kenyan President Uhuru Kenyatta and his deputy, William Ruto, face the ICC trial for their alleged roles in murders, deportation or forcible transfer of population, and persecution during Kenya’s 2007-2008 post-election violence. Both have denied the charges.
On October 31, the ICC postponed the trial of Kenyatta to February, 5, 2014. However, African countries have called for the ICC proceedings against the Kenyan leaders to be deferred for one year.
Under the Rome Statute, an international treaty that established the ICC, the Security Council has the right to defer ICC case.
Explaining his vote, Pakistan’s U.N. Ambassador 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, the Pakistani envoy pointed out.
African countries had sought that the Council use such power to suspend the Kenya case, which they said could be a “threat to peace.” They also sent a high-level contact group to New York, where the UN headquarters are located, to approach Security Council members on the issue.
The draft resolution said that the case is “distracting and preventing” Kenyatta and Ruto from fulfilling their constitutional duties.
In his remarks, Ambassador Masood Khan also said that, while Pakistan 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.
He said 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.
The Pakistani envoy said the provision on deferral in the Rome Statute could justifiably be applied to reconcile the tensions.
The same considerations that had allowed a four-month deferral could have provided the basis for a longer one, he said, adding that Pakistan 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.
African delegations reacted angrily. “Reason and the law have been thrown out the window. Fear and distrust has been allowed to prevail. Africa is disappointed and we regret this very much,” Kenyan UN Ambassador Macharia Kamau said after the vote.
He blasted what he called the “paranoid” fear of some nations that other leaders could use the deferral as a precedent to delay any proceedings against them.
Rwanda’s UN Ambassador Eugene Richard Gasana, who played a key role in drawing up the resolution, said the council had “failed” Kenya and Africa by rejecting the resolution.
But the African nations who put forward the measure also faced strong criticism for the way it was portrayed as a vote for or against Africa.
Guatemalan UN Ambassador Gert Rosenthal called the tactic “offensive” and highlighted how Security Council countries had provided peacekeeping troops to Africa and backed efforts to boost justice on the continent.
“In our view, the voting was detrimental for the African Union, which perceives that its proposal was rejected; for the International Criminal Court, whose aspiration of universal membership is under assault, and for the Security Council, which presents itself… divided,” Rosenthal said.