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Gabon/Nigeria/South Africa: Reconsider Support for Deferral of ICC Kenya Investigation

Civil Society Letter to the Ministries of Foreign Affairs of African ICC States Parties on the UN Security Council

Sent March 1, 2011

Your Excellencies,

We, the undersigned organizations, urge your government to reconsider support for a United Nations Security Council deferral of investigations and prosecutions of the International Criminal Court (ICC) in Kenya under article 16 of the Rome Statute. Any deferral under article 16 would be contrary to the law and would further delay justice for the victims of crimes committed during the violence that followed Kenya's 2007 polls.

As you are aware, the Assembly of Heads of State and Government of the African Union (AU) adopted a decision during the January 2011 AU summit supporting and endorsing Kenya's request for a deferral. This follows requests made by the ICC prosecutor in December 2010 for summonses to appear for six Kenyan citizens for crimes against humanity allegedly committed during the 2007-2008 post-election violence. That violence claimed over 1,100 lives and forced nearly 400,000 from their homes.

The Assembly decision cites as a basis for the deferral the need to "allow for a National Mechanism to investigate and prosecute the cases under a reformed Judiciary provided for in the new constitutional dispensation, in line with the principle of complementarity..." But complementarity-a core Rome Statute principle establishing the ICC as a court of last resort that steps in only where national authorities are unwilling or unable-is distinct from an article 16 deferral.

Instead, article 16 allows the Security Council in exceptional circumstances to pass a resolution under its Chapter VII authority to defer an ICC investigation or prosecution for a renewable period of 12 months. Chapter VII of the UN Charter, in turn, only empowers the Security Council to take measures to "maintain or restore international peace and security." A deferral of an ICC investigation risks legitimizing political interference with the work of a judicial institution and could set a dangerous precedent for accused in other situations. Therefore, use of article 16 should be extremely rare.

There is no indication that the ICC's work in Kenya poses a threat to international peace and security. The AU-mediated Kenya National Dialogue and Reconciliation agreements put an immediate end to the post-election violence in February 2008. The coalition government put in place by that agreement remains in power to this date. Rather than promote instability, the ICC's investigations could counter a climate of impunity in Kenya, which many believe contributed significantly to the 2007-08 violence. Therefore, there is no merit in the suggestion that a deferral of the Kenya investigation would act to "prevent the resumption of conflict and violence" as is alleged in the AU's recent decision.

Indeed, Kenyan victims who made submissions to the ICC regarding the court's initial decision to authorize an investigation overwhelmingly supported the court's intervention. Among the most frequently cited reasons was the deterrence of future violence, particularly that associated with electoral cycles. In fact, many called for the ICC to move quickly so that there could be results in advance of the 2012 election.

While national trials are not a basis for an article 16 deferral, they could form a basis for an admissibility challenge under article 19 of the Rome Statute. Article 19 provides the Kenyan government with the right to challenge the admissibility of a case on the basis that it is already being investigated and/or prosecuted in Kenya. This is distinct from deferral under article 16, and is made to the court, not to the Security Council.

It should be recalled, however, that inaction by the Kenyan authorities to bring those responsible for the post-election violence to account formed the basis for the ICC's decision to authorize its prosecutor to begin an investigation. In the three years since the post-election violence, Kenya's parliament has failed to adopt legislation to establish a special tribunal to try crimes committed during the post-election violence, and the government has taken no substantial action to ensure prosecutions were brought before the ordinary courts. National trials should be encouraged in order to widen accountability, but the judicial and police reforms necessary to ensure fair, credible, and effective investigation and prosecution of the crimes committed in Kenya will take time to implement. Kenya does not require an article 16 deferral to proceed with these reforms.

Therefore, any deferral now of the ICC process not only has no basis in law, but would also further delay justice for Kenyan victims. Although some in the Kenyan government have sought to portray the ICC's investigations as unpopular and divisive, support for the ICC, in fact, remains high in Kenya. Civil society widely condemned efforts to secure support for an article 16 deferral at the AU summit. Demonstrations have been organized across the country as part of a "Yes to the ICC now, No to deferral!" campaign.

Delaying justice would be inconsistent with the AU's rejection of impunity as enshrined in article 4 of its Constitutive Act. The ICC is an integral component of this effort, and African governments have played an active role in establishing the court and in supporting its work. Indeed, the Democratic Republic of Congo, Uganda, and the Central African Republic self-referred crimes committed on their territories to the ICC prosecutor.

The AU's support for deferral of the Kenya situation threatens to undermine the credibility of its commitment to accountability, especially at a time when violence following disputed elections threatens more lives and livelihoods in other parts of the continent, including Cote d'Ivoire.

Recognizing your commitment to the fight against impunity, we urge your government as an African member of the ICC and the United Nations Security Council to reconsider the merit of a deferral of the ICC's investigations and prosecutions in Kenya.


  1. Action Against Impunity for Human Rights, Lubumbashi, Democratic Republic of Congo (DRC)
  2. Action des Chrétiens pour l'Abolition de la Torture, Bangui, Central African Republic (CAR)
  3. Action of Christian Activists for Human Rights in Shabunda, South Kivu, DRC
  4. Africa Centre for Open Governance, Kenya
  5. The Africa Regional Programme of the International Commission of Jurists, Johannesburg, South Africa
  6. Alliances for Africa, Lagos, Nigeria
  7. Association of Lake Kivu Shipowners, South Kivu, DRC
  8. Association of Sisterhoods of Kenya - Justice and Peace Commission, Nairobi, Kenya
  9. Burundi Coalition for the International Criminal Court, Bujumbura, Burundi
  10. Catholic Justice and Peace Commission, Monrovia, Liberia
  11. Center for Research and Development, Mutare, Zimbabwe
  12. Center for Research on Environment, Democracy and Human Rights, Goma, DRC
  13. Central African Republic Coalition for the International Criminal Court, CAR
  14. Children Education Society, Dar es Salaam, Tanzania
  15. Cite des Droits de l'Homme et de Paix, DRC
  16. Civil Resource Development and Documentation Centre, Enugu, Nigeria
  17. Coalition for the International Criminal Court, Cotonou, Benin
  18. Coalition for Justice and Accountability, Freetown, Sierra Leone
  19. Collectif des Organisations des Jeunes Solidaires au Congo-Kinshasa, Kinshasa, DRC
  20. Congolese Coalition for Transitional Justice, DRC
  21. Congolese Initiative for Justice and Peace, Bukavu, DRC
  22. East and Horn of Africa Human Rights Defenders Project, Kampala, Uganda
  23. Federation of Women Lawyers, Nairobi, Kenya
  24. Human Rights Network-Uganda, Kampala, Uganda
  25. Human Rights Watch, Johannesburg, South Africa
  26. International Center for Policy and Conflict, Nairobi, Kenya
  27. International Center for Transitional Justice (Africa)
  28. International Crime in Africa Programme, Institute for Security Studies, Pretoria, South Africa 
  29. International Society for Civil Liberties and the Rule of Law, Nigeria
  30. Ivorian Coalition for the International Criminal Court, Abidjan, Ivory Coast
  31. Kenyan Section of the International Commission of Jurists, Nairobi, Kenya
  32. Law Society of Zimbabwe, Harare, Zimbabwe
  33. Lead-Centrafrique pour le Developpement Durable, CAR
  34. 34. Legal Defence and Assistance Project, Lagos, Nigeria
  35. National Coalition on Affirmative Action, Enugu, Nigeria
  36. National Organization for Legal Assistance, Dar es Salaam, Tanzania
  37. 37. Network of the NGOs in Congo, North-Kivu Province, DRC
  38. Nigerian Coalition for the International Criminal Court, Abuja, Nigeria
  39. Réseau des Associations des Droits de l'Homme du Sud Kivu, DRC
  40. Southern Africa Litigation Centre, Johannesburg, South Africa
  41. Uganda Coalition for the International Criminal Court, Kampala, Uganda
  42. West African Bar Association, Abuja, Nigeria

List of signatories updated March 11, 2011.

The signatories are members of an informal network of African civil society organizations and international organizations with a presence in Africa who have been working on Africa and the International Criminal Court.

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