UNITED NATIONS, Nov 15 – African nations will Friday launch one of the biggest challenges yet to the International Criminal Court by forcing a UN Security Council vote on suspending the trial of Kenya’s president.
A resolution seeking to defer crimes against humanity charges against President Uhuru Kenyatta and Vice President William Ruto for one year is almost certain to fail through lack of support.
But diplomats and justice experts say the action risks heightening tensions between the ICC and Africa.
The two leaders are accused of masterminding unrest after a 2007 presidential election in which at least 1,100 people died. Kenyatta and Ruto took office after an election this year.
Ruto’s trial has started, while that of Kenyatta gets underway February 5 after being delayed three times.
Both have so far cooperated with the ICC. But Kenya has made two written requests to the council to suspend or halt the cases.
Scores of Kenyan victims of the violence have also withdrawn from the ICC case because of what diplomats and experts call “intimidation.”
The resolution to be voted Friday is the most serious bid yet to suspend proceedings.
The Security Council can ask for an ICC case to be deferred for a year under Article 16 of the court’s founding Rome Statute if a trial is considered a threat to international peace.
The resolution has been pressed by Rwanda, a temporary Security Council member, but not an ICC signatory, with strong backing by Ethiopia, another ICC opponent.
It would need at least nine votes on the 15 member council to pass. But with the council’s seven ICC signatories and the United States against them, the resolution has no chance, diplomats said.
The draft resolution says the court case is “distracting and preventing” Kenyatta and Ruto from their duties.
It takes up African Union complaints that the two should be left to handle Kenya’s role in battling Islamist militants in Somalia and the aftermath of September’s Westgate mall attack in Nairobi which left 67 dead.
But western diplomats and activists see a largely political campaign to halt the proceedings and more generally by countries opposed to the ICC to discredit the court.
African leaders frequently complain that the ICC discriminates against their continent.
All eight cases being investigated by the ICC concern Africa. But nearly all were called by the countries involved and Africa’s 34 members make up a key chunk of the court’s 122 signatories.
“The Africans have now reached a stage where they are talking about this is as a test of whether you are in favour of Africa or against Africa,” said one UN diplomat who has taken part in the often highly emotive talks on the resolution.
This was “deeply resented” by countries who oppose the resolution, added the diplomat, who highlighted how the Security Council voted this week to increase an African force in Somalia which is almost entirely paid for by the European Union.
“This is turning into the biggest challenge to the court since it was set up,” added a second council diplomat.
“Undoubtedly, the pressure exerted by Kenya, by Rwanda, by Ethiopia increases strain on the court as it tries to strengthen its impact,” commented Richard Dicker, justice specialist with the Human Rights Watch group.
He said part of the motivation for the vote was to “ratchet up pressure” ahead of an assembly of the Rome Statute member countries in The Hague starting next Wednesday.
The assembly is to discuss possible measures such as allowing defendants to take part by video-conference and to give courts’ extra leeway to allow absences, which could help Kenyatta and Ruto.
Some African leaders have agitated for an African withdrawal from the ICC.
“I don’t think this would lead to a mass walkout, but if this vote goes ahead the atmosphere will be so bad at the assembly it is going to make it so much more difficult to reach agreement on things that could make a difference,” said the UN diplomat.
“And it would increase the likelihood that Kenyatta will not cooperate with the court,” the official added.