posted on WED 22 MAY 2013 3:26 PM
Informal Interactive Dialogue with Kenya on ICC IssueTomorrow (23 May), Council members will have an interactive dialogue with representatives from Kenya to discuss International Criminal Court (ICC) proceedings against its nationals. On 2 May Kenya sent a note verbal to the President of the Council requesting termination of the proceedings before the ICC. (Six high-profile individuals connected to two rival political parties, including recently inaugurated President Uhuru Kenyatta and Deputy President William Samoei Ruto, were issued summons by the ICC on 8 March 2011 for the alleged commission of crimes against humanity following the disputed 27 December 2007 elections. Since then, Pre-Trial Chamber II declined to confirm the charges against two individuals and in one case the Prosecutor has withdrawn the charges.) The letter asked for termination of the ICC proceedings by the Security Council rather than a deferral as contemplated under Article 16 of the Rome Statute, as was previously requested by Kenya in 2011. (On 18 March 2011, Council members had an interactive dialogue with representatives from Kenya and the AU where Kenya argued that an Article 16 deferral would give them time to establish alternative domestic adjudicative mechanisms. This was followed up by a letter from Kenya asking for an open debate to consider the request for a deferral which Council members did not agree to. See our 6 April 2011 Update Report: Kenya and the ICC for more background information.)
The 2 May letter from Kenya was raised under “any other business” on 8 May. Several Council members thought that the appropriate forum for a first discussion on the request was at the legal expert level, in the Informal Working Group on International Tribunals chaired by Guatemala. However other Council members, including China, are of the opinion that the Working Group should only be a forum to discuss the work of the ad hoc tribunals for the former Yugoslavia and Rwanda, and not for ICC related issues, and therefore did not agree with that approach. (These Council members took a similar position recently when, as a follow-up to the 17 October 2012 open debate on the rule of law, Guatemala sought to invite the ICC Prosecutor to a meeting of the Working Group. Instead an interactive dialogue was held with the Prosecutor on 7 May.) Some Council members made the point that it was unclear what format Kenya itself wanted to address the Council in, as it was not mentioned in the letter.
On 13 May Kenya sent a follow-up letter to the President of the Council, requesting an informal interactive dialogue with Council members in order to clarify its position regarding the situation in Kenya and the ICC proceedings. Council members discussed the letter under “any other business” on 16 May, where it was agreed to hold the interactive dialogue the following week.
As for the substance of the 2 May letter, the request for a termination of the ICC proceedings raises several difficult legal questions. Apparently Kenya is asking the Council to use its enforcement powers under Chapter VII, Article 41, to order the ICC to terminate proceedings, bearing in mind that Article 103 of the UN Charter dictates that obligations under the Charter, and by extension binding Council resolutions, prevail over other international obligations of member states. Yet such action would give rise to a number of legal issues, amongst them the fact that the ICC is not a UN body bound by Article 103 and also whether the Council has the power to terminate legal proceedings by an international or other court as a matter of law. Even a resolution by the Council demanding that states refrain from cooperating with the ICC on the Kenya situation would be legally controversial and politically unpalatable to most states parties to the Rome Statute of the ICC.
Meanwhile, media reports suggest that both the Kenyan Attorney-General and Deputy President William Ruto have disassociated themselves from the letter, acknowledging that the Council does not have the power to terminate the proceedings and reiterating Kenyan cooperation with the ICC.
As was the case when Kenya last approached the Council on this issue, most Council members are not in favour of taking any action but agree that there should be a format in which to hear Kenya out. Some Council members also have strong views on the legal impossibility of the Council terminating an independent judicial proceeding. Some Council members expect that during the dialogue, Kenya will limit its request to an Article 16 deferral given the legal and political backlash it received on its request to terminate the proceedings.
posted on WED 22 MAY 2013 3:21 PM
Consultations on Sudan-South Sudan and UNISFATomorrow morning (23 May) the Security Council is scheduled to hold consultations on Sudan-South Sudan and the UN Interim Security Force in Abyei (UNISFA). Edmond Mulet, Assistant-Secretary-General for Peacekeeping Operations, is scheduled to brief. No immediate outcome is expected, although the Council will likely renew UNISFA’s mandate before its expiration at the end of the month. (The UNISFA adoption is currently scheduled for 29 May.) At press time, the Council had also been negotiating a draft presidential statement welcoming progress… Read more »
posted on TUE 21 MAY 2013 7:36 PM
Renewal of UN Mission Mandate in Guinea-BissauTomorrow, 22 May, the Security Council is scheduled to adopt a resolution extending the mandate of the UN Integrated Peacebuilding Office in Guinea-Bissau (UNIOGBIS) for a period of one year. The current authorisation of UNIOGBIS is due to expire on 31 May. The draft resolution was circulated on Wednesday night and, following three days of expert level negotiations, went under silence today until 2 pm and is now in blue.… Read more »
posted on MON 20 MAY 2013 12:12 PM
Working Group Meeting on Children and Armed ConflictThis afternoon (20 May), the Working Group on Children and Armed Conflict will have a formal meeting where it will discuss the issue of persistent perpetrators and the latest report of the Secretary-General on children and armed conflict in Myanmar (S/2013/258). It will also receive a briefing from the Special Representative for Children and Armed Conflict, Leila Zerrougui, on her recent visit to Chad.… Read more »
posted on THU 16 MAY 2013 2:34 PM
Arria Formula Meeting on Women, Peace and SecurityOn Friday afternoon (17 May), Security Council members are set to hold an Arria Formula meeting focusing on the progress and challenges to the implementation of the women, peace and security agenda with a particular focus on field perspectives from gender practitioners in peacekeeping operations. Panelists include Under-Secretary-General for Peacekeeping Hervé Ladsous; Gaynel Curry, the first women protection adviser deployed in the UN Mission in South Sudan (UNMISS); Elsie Effange-Mbella, a senior gender adviser in the UN Stabilisation Mission in… Read more »
posted on TUE 14 MAY 2013 5:08 PM
Briefing and Consultations on the Central African RepublicTomorrow morning (15 May), the Security Council will be briefed by the Secretary- General’s Special Representative and head of the UN Integrated Peacebuilding Office in the Central African Republic (BINUCA) Margaret Vogt on the latest BINUCA report. The Prime Minister of the transitional government in the Central African Republic (CAR), Nicolas Tiangaye, will attend the briefing, which will be followed by consultations. Currently no outcome has been suggested but a press statement remains a possibility.… Read more »
posted on FRI 10 MAY 2013 5:55 PM
Open Debate: Challenges of Combating Terrorism in AfricaOn Monday morning (13 May), at the initiative of Togo, the Security Council is scheduled to hold an open debate on the challenges of combating terrorism in Africa. The meeting will be chaired by President Faure Essozimna Gnassingbé of Togo, and a briefing is expected by Secretary-General Ban Ki-moon, as well as representatives from the Inter-Governmental Action Group against Money Laundering in West Africa (GIABA) and the African Center for Studies and Research on Terrorism. The Council is planning to… Read more »
posted on THU 9 MAY 2013 3:13 PM
Briefing by Counter-Terrorism Committee ChairsTomorrow (10 May), the Security Council is scheduled to hold its semi-annual briefing of the chairs of its counter-terrorism-related committees. (The last such debate was held on 14 November 2012.) The briefers will be Ambassador Gary Quinlan (Australia), who chairs the 1267/1989 Al-Qaida Sanctions Committee, Ambassador Mohammed Loulichki (Morocco), who chairs the 1373 Counter-Terrorism Committee (CTC), and Ambassador Kim Sook (Republic of Korea), who chairs the 1540 Committee, concerning the non-proliferation of weapons of mass destruction. In the context of… Read more »
posted on TUE 7 MAY 2013 2:43 PM
Consultations on LebanonTomorrow (8 May) Council members will be briefed in consultations by Special Envoy Terje Rød-Larsen on the Secretary-General’s latest report on the implementation of resolution 1559. No outcome is expected. The destabilising effects of the spillover from the conflict in Syria on the political and security situation in Lebanon is likely to be a key focus of the discussion. Two of the key unresolved issues impeding the full implementation resolution 1559 are the fact that Hezbollah maintains a significant arsenal… Read more »
posted on MON 6 MAY 2013 5:00 PM
Interactive Dialogue with the ICC ProsecutorTomorrow morning (7 May) the Security Council, at the request of Guatemala, is scheduled to hold an informal interactive dialogue with the International Criminal Court (ICC) Prosecutor, Fatou Bensouda. Although scheduled to provide a periodic briefing on the work of the ICC in Libya the following day (8 May), Bensouda will have the opportunity to engage in a broader and potentially less scripted exchange on the situation in Libya with Council members through the interactive dialogue format. Council members will… Read more »