{The UN Security Council on Friday failed to approve an African Union resolution, proposed by Rwanda, to suspend the trial of Kenya’s President Uhuru Kenyatta and his deputy, William Ruto, at the ICC for a year when eight of the 15 council members abstained}
Only seven members of the Council—China, Russia, Togo, Azerbaijan, Rwanda, Morocco and Pakistan voted in favour, two votes less than the required number needed for any Council resolution to sail through. Rwanda’s Permanent Representative to the UN, Eugène-Richard Gasana expressed disappointment in this explanation to the Council after the vote:
{{Mr President}},
Africa didn’t come here [at the UN Security Council] to vote for or against impunity. We did not come here for confrontation.
Terrorism is the most serious threat to international peace and security. It is affecting all people of the world, without discrimination, from World Trade Centre in New York to Westgate Shopping Mall in Nairobi.
Fortunately, we have countries and leaders who are committed to fight against terrorism. Kenya and its President and deputy President are among them. They are at the forefront of the fight against international terrorism and we are grateful for their commitment and determination to fight Al Shabaab in Somalia, a country where the African blood is shed, on behalf of this Council that should bear the primary responsibility of maintenance of international peace and security.
In that regard, His Excellency, President Uhuru Kenyatta and Deputy President, William Ruto should be respected, supported and empowered; not distracted and undermined.
That is why, after this [Friday] morning’s vote, Rwanda expresses deep disappointment on what transpired regarding the request for the deferral of the cases against the President and Deputy President of Kenya; despite proactive efforts by Africa to engage the Security Council in a legitimate process, in the interest of maintenance of international peace and security.
The failure to adopt this draft resolution, endorsed by the whole African continent, is a shame, yes indeed, it’s a shame. Let it be written today in History that the Security Council failed Kenya and Africa on this issue.
{{Mr President}},
I express my deep gratitude to your country, China, as well as to Azerbaijan, Pakistan and the Russian Federation, for voting in favor of this draft resolution, together with Morocco, Togo and Rwanda.
The disappointing vote of today undermines the principle of Equal Sovereignty of States, enshrined in the UN Charter and confirms our long held view that international mechanisms are prone to political manipulation and applied in situations that fit the interests of some countries. It also undermines the tremendous efforts made by the Kenyan government in the reconciliation of the Kenyan people. I want to recognize among us, the Speaker of the Senate of Kenya.
{{Mr President}},
Six months ago, in May, Kenya tried to engage the Security Council, regarding the cases against its President and Deputy President. I must say that this Council heard but didn’t listen. Then, on 12 October this year, African Heads of State and Government, in their extraordinary session, considered the threat posed by terrorism in Kenya and in the Horn of Africa and consequently decided to request the Security Council, through Kenya, the deferral of the investigation and prosecution against President Kenyatta and Deputy President Ruto for twelve months, to allow them time to deal with this threat.
We believe that this request was reasonable and legitimate, as it was based on provisions of the Statute of the Court. To ensure that the Council takes their message seriously, our leaders set up a high level Contact Group on the ICC, which came here to New York and engaged in an interactive dialogue with members of the Security Council, delivering the message from Africa and requesting their support.
We were therefore hoping that, after extensive consultations, this Council would express solidarity to Kenya and to Africa, by negotiating in good faith and adopting this draft resolution. This didn’t happen, as some members of this Council even refused to negotiate on any single paragraph. We profoundly regret it.
{{Mr President}},
Our colleagues, who didn’t vote in favor of this draft resolution, argue that the Kenyan situation, you have heard it, doesn’t meet the “threshold” to trigger the application of Article 16 of the Rome Statute. They explained that this article shall only be applied when the investigation and prosecution could create or worsen a situation of threat to international peace and security. So I am here just wondering: if a terrorist attack by Al Shabaab, an Al-Qaeda-linked movement, which killed more than 70 innocent victims and wounded 200 others, does not meet the threshold, which other situation can cross that line? Which one? If a clear and present threat of terrorism against the Kenyan people, due to their determination and courageous intervention in Somalia, does not meet the threshold, what other threat can be here “eligible”?
May I request that all of you remember why Article 16 was proposed to the Rome Statute, more than ten years back? Let me repeat this: Remember why Article 16 was proposed to the Rome statute, more than ten years back?
This article was not proposed by an African state; it was proposed by some of the western powers around this table, to be applied for their own and sole interests! In other words, Article 16 was never meant to be used by an African state or any other developing country.
It seems to have been conceived as an additional tool for big powers, to protect themselves and to protect ‘their own.’ Isn’t it? This is what appeared here today. You would also remember that some countries that didn’t vote for this draft resolution have even passed laws to refuse any cooperation with the ICC targeting their nationals; to sanction countries cooperating with the ICC in that regard, even to use military means to release their nationals who would have been arrested, at the ICC request. I hope that you all agree that we are here very far from our modest request of deferral for twelve months, just twelve months.
In this regard, we believe that equal application of all provisions of the statute does not only strengthen the ICC but also legitimises it as a credible and fair player. Justice becomes so when the vulnerable and the strong have equal protection. It is unfortunate that the ICC continues to lose face and credibility in the world the more it continues to be used as a tool for the big powers against the developing nations.
{{Mr President,}}
We have always been preached of the values of democracy and self-determination. But surprisingly, those who taught us don’t believe in Africa determining its fate. Instead, Africa is to be given a doze to swallow as we have seen this tendency during the whole process prior to this vote.
In the same context, African Heads of State and Government proposed, in their wisdom, a solution to a Kenyan situation, New York thought otherwise. Western powers had indeed an alternative solution to resolve the Kenyan concerns, namely interaction with the Court and with the Assembly of States Parties (ASP).
Is this the right place here? Yes it is. Is ASP the right place? Yes it is! For those who are members it is. We do not say that it is not! But let us come here and interact with you. Hear Africans, Hear what the African Heads of State want, hear what the Kenyans want.
On the Court, let me say, we really have to be careful with what we say. On the court, after five long years of procedure against Kenyan leaders, we were surprised that suddenly, the ICC was willing to show flexibility the very day the African Group of Contact was interacting with this Council.
Whose hand was behind this? Why to decide that very day? This shows us that maybe this is not the right place! That Africans are not at the right place to decide, that we belong elsewhere. But we belong also here! You have heard, 2/3 of the Security Council is dedicated to Africa and that is why the Africans come here. How can you explain to me, that all of a sudden, the Prosecutor General decided “let me give you four months”, you do not need to go bother this exclusive club. This cannot work like that. Are we living in a global world? In a fraternity? I ask myself, it can’t continue like this.
The Group was also surprised to learn that members of this Council were aware, because they asked us, of the decision to postpone the commencement of the case against the President of Kenya, even before the decision was actually taken. This poses serious questions on the independence of the Court.
Yes, you forget all of this! You start saying its confrontation. We do not want confrontation at all. Actually, Kenya is a member of the ICC, as you saw, the deputy President going to interact at The Hague. How can you say that we want confrontation, that we want precipitation?
As for the Assembly of States Parties, I would remind you that the ASP is only composed of state parties to the Rome Statute.
And Morocco, Togo, Rwanda, and some members of this Council are not parties to this statute and could not participate in the deliberations on the Rome Statute discussion.
I refer here to what my colleague from the Russian Federation was telling us that day. While welcoming any amendment that could enhance respect for African leaders, the issue at hand is not simply a legal matter, but an issue related to international peace and security. Ladies and Gentleman, and the Security Council cannot abdicate its responsibility in that matter.
In conclusion, Mr President, one of the positive outcomes of this process, which led to a vote this morning, is the reaffirmation of the African unity and solidarity. You could see it today. We have the President of the AU, Represented by Ethiopia and the concerned country, Kenya.
I thank all African members, as well as their friends, and I hope that we will continue to fight for our rights, for the equal sovereignty of states and to advance the agenda of mutual respect among nations. There is something very special in Rwanda; in our culture we call “Agaciro”: our dignity. Today, it was a great rendezvous of Agaciro, of our dignity, the African dignity.
