The ICC on the ropes: What can the EU do about it?

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

The EU should use a range of economic and diplomatic measures to prevent the African Union from withdrawing its member states from the International Criminal Court, Medlir Mema argues.

Medlir Mema is a research associate at the Institute for European Studies, Vrije Universiteit Brussel (VUB).

The announced meeting will take place just weeks before the trial of Kenya’s president Uhuru Kenyatta is scheduled to begin, and is intended to put pressure on the Court to drop the charges against Kenyatta and his deputy William Ruto.

Should the Court give in to the demands of Kenya and other African heads of state and dismiss the charge, the Court’s legitimacy would be compromised a great deal. On the other hand, continuing down the current path could invite an even more calamitous response that could put the existence of the Court in question.

The current situation in Kenya rises out of a proprio motu investigation initiated by the Office of the Prosecutor (OTP) in 2010, aimed at holding accountable the individuals believed to be responsible for the 2007-2008 post-election violence that killed over 1200 and displaced more than half a million individuals.

For the time being, both Kenyatta as well as Ruto have been able to carry out their duties, while also appearing in The Hague, when asked so. The Court’s decision to issue a summon rather than an arrest warrant has helped diplomats from International Criminal Court (ICC) member states avoid the headache of limiting their contacts with the Kenyan leaders merely to those of a ‘non-essential’ nature. All of that is about to change.

The Court will soon rule whether Kenya’s president could use video-conferencing instead of appearing in person in The Hague. Given the legal and practical implications of the decision, the Court will likely demand the full-time presence of the suspects in The Hague.

Also, the recent arrest warrant issued for Walter Barasa who is suspected of attempted bribery of witnesses in the case of Kenyatta and Ruto, could signal a shift in prosecutorial strategy. Should a further investigation indicate that Barasa was acting on behalf of Kenyata, the Office of the Prosecutor might very well demand that the summons issued to Kenyatta and Ruto be converted to an arrest warrant.

The detention of Kenyatta and Ruto is likely to cause chaos, instability and mass violence in Kenya. Following the terrorist attacks at the end of September, the situation in the country is already tense and there are indications that Al Shabab is preparing to strike again.

Consequently, we believe that the following course of action is advisable:

First, the EU and its member states, in cooperation with the NGO community, should take an active role in the run-up to the upcoming African Union (AU) extraordinary meeting. The purpose of this engagement should be to weaken any drive towards a strongly worded resolution calling for the withdrawal of African states from the ICC. This can be done by supporting sympathetic states as well as by taking advantage of the EU’s economic and diplomatic leverage.

Next spring, the EU and AU delegations will meet in Addis Ababa for their fourth AU-EU Summit. EU officials should remind them that the Cotonou agreement which, among others, regulates the EU’s relations with African countries, makes cooperation with the ICC a clear commitment.

Second, the EU and its member states should take the initiative in lobbying and supporting action in favor of a UN Security Council deferral under Article 16 of the Rome Statute which would put on hold for one year the current trial (with the option of renewing such a deferral on a yearly basis). An Article 16 deferral would have the benefit of using an instrument foreseen in the Rome Statute and would provide a political solution to what has become a political question.

Unlike a determination by the OTP to drop the charges against Mr. Kenyatta and his deputy, an Article 16 deferral would only delay such a trial, rather than end it. It is often said that “justice delayed is justice denied.” But, it is also true that justice can be patient and since other trials related to the 2007-2008 violence will still go forward, an Article 16 deferral should be seen simply as a tactical withdrawal which will not ultimately affect the overall strategic gains made by the international community in its fight against impunity.

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