The Second Vice President of the International Criminal Court (ICC) has informed the top leadership of the African Union (AU) that the court can only consider suspending the Kenya cases before it if an application is made to the court.
Judge Cuno Tarfusser, the ICC Second Vice President, also informed the AU’s chairman and the AU Commission’s chairwoman that the court can only act on the AU’s request for the Kenya cases to be referred back home if an application is made to the court. Judge Tarfusser made the comments in a letter in response to another letter co-signed by AU Chairperson Hailemariam Desalegn and AU Commission Chairperson Nkosazana Dlamini-Zuma. The correspondence between the ICC and the AU took place last week but was only made public on Friday by the ICC.
The AU chairperson is the political head of the organization and is usually a head of state or government who is elected each year. The AU Commission chairperson is the head of the organization’s executive arm who serves for a term of five years and is in charge of day to day operations.
“Allow me to reiterate in the clearest terms that the matters raised in your letters – or in the Decision of the Assembly of the African Union – can only be considered by the Court in the context of concrete proceedings if they are properly raised before the relevant Chambers in accordance with the procedures laid down in the Rome Statute and other relevant documents,” Tarfusser wrote in his letter dated September 13, 2103.
“I assure you that the Court has no reason whatsoever to harm the interests of any State Party in any way; quite the contrary,” Tarfusser continued.
In a joint September 10 letter Hailemariam and Dlamini-Zuma expressed concern that the trial proceedings were beginning to adversely affect the ability of President Uhuru Muigai Kenyatta and Deputy President William Samoei Ruto to govern Kenya. Kenyatta and Ruto are facing separate trials at the ICC for their alleged roles in the violence that followed the disputed December 2007 presidential poll. The two did not contest for the presidency then, but they ran for president and deputy president in March this year and were declared the winners.
Hailemariam and Dlamini-Zuma said in their letter that the concern arose from a decision by the Appeals Chamber that required Ruto to attend all hearings until the appellate court decides whether he can be excused from attending some of the trial sessions.
“This means that during the absence of the Deputy President at the trial, the President of Kenya will automatically be prevented from meeting his international obligations,” Hailemariam and Dlamini-Zuma wrote, giving as an example the United Nations General Assembly High Level Segment scheduled to start on September 23. They also referred to a donors’ conference on Somalia hosted by Belgium that took place on Monday.
This question of whether Ruto should attend all his trial hearings is the reason the ICC President Sang-Hyun Song and First Vice President Sanji Mmasenono Monageng could not respond to the AU letter. Tarfusser explained that they are among the judges of the Appeal Chamber that is considering the matter, which is why he, the ICC Second Vice President, was responding to the letter of Hailemariam and Dlamini-Zuma.
The Appeal Chamber’s interim decision to require Ruto attend all hearings and other issues, “leaves the African Union with no option but to ask that until the request of the AU is considered and clearly responded to, the cases should not proceed,” Hailemariam and Dlamini-Zuma wrote.
“Therefore, on behalf of the African Union, we would like to request the Court, in light of the above-mentioned reasons, to allow the Head of State of Kenya and his Deputy to choose the sessions they wish to attend in accordance with their constitutional obligations and duties that they are required to fulfil and for which they are accountable to the people who elected them,” Hailemariam and Dlamini-Zuma wrote.
This request echoes an application that Kenyatta’s lawyer, Steven Kay, made during a preparatory meeting between the defense, prosecution, and the judges on September 6. Kay had argued that because trial judges in the separate trial of Ruto had allowed him to be excused from attending all hearings, Kenyatta should choose which hearings to attend because he is Kenya’s head of state. No decision has been made on the application Kay made. However, the Appeals Chamber is considering the prosecution’s challenge to the decision of the trial judges in the Ruto case. Ruto’s trial is on-going and he is charged with former radio journalist Joshua arap Sang. Both men are facing three counts of crimes against humanity.
It is unclear why the ICC decided to make public the correspondence between it and the AU. Although, the release of the letters coincides with reports that the African Union will host a special summit this October focusing on the continent’s relationship with the ICC.
The AU correspondence is, however, not the only one between the court and African states this month. On September 9, a day before the AU letter was written, Burundi, Tanzania, and Uganda sent applications through the ICC Registrar requesting the Appeals Chamber to allow them to file briefs as friends of the court in connection with the prosecution’s challenge to the trial judges’ decision to allow Ruto skip some of his trial hearings. Rwanda sent its application days earlier on September 6 and Eritrea sent a similar application that is undated.
The Burundian, Tanzanian, and Eritrean submissions are clearly made from a template application indicating where to fill the date, name of the country, name, and title of the official authorized to sign on behalf of their respective country, suggesting that the applications are part of a coordinated action. The Burundian, Tanzanian, and Eritrean submissions are all filled with handwriting. On September 13, the Appeals Chamber, in a majority decision, allowed the five states to file their briefs by Wednesday this week and all of them have done so.
All five states belong to one of two regional groupings to which Kenya is also a member. Burundi, Rwanda, Tanzania, and Uganda are members of the East African Community economic bloc, as is Kenya. Eritrea and Uganda are members of the Intergovernmental Authority on Development. Kenya, Sudan, and Ethiopia are also members. AU Chairperson Hailemariam Desalegn is also Ethiopia’s prime minister. Many decisions in the AU are driven by the interest of the different regional groupings. Sudanese President Omar al-Bashir is wanted by the ICC for his alleged role in the conflict in the western Sudan region of Darfur.
In other events, the trial of Deputy President Ruto and Sang, which commenced on September 10, continued today at the ICC in closed session. Redacted transcripts of the proceedings held in closed session will be available starting next week.