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Explanation of Vote on the resolution to defer International Criminal Court proceedings related to Kenya

UNITED NATIONS SECURITY COUNCIL

Statement by HE Mr Gary Quinlan, Ambassador and Permanent Representative of Australia to the United Nations

 

Australia deeply regrets that a vote was called today.  This was unnecessary.  As has been said earlier in the Council this morning, “We have all lost” by this.

We have valued the dialogue with Kenya and the African Union on this very difficult question, and believe further dialogue was needed.

The concerns of Kenya and the AU were clearly conveyed to the Council by the African Union Ministerial Contact Group. We listened carefully. There was a genuine willingness on the part of all Council members to consider those concerns.

Australia understands the security challenges that Kenya faces. We recognise that the security situation in East Africa is volatile and precarious, with serious threats that are flowing across borders with deadly results.

We acknowledge that President Kenyatta and Deputy President Ruto face a serious challenge in trying to meet their trial obligations, at the same time as devoting their attention to tackling security threats in their country and the region.

But that challenge must be balanced against the need to preserve the International Criminal Court’s role in support of international peace and security. Australia is a staunch supporter of the ICC and the principles it embodies, and of the integrity and independence of the Court, which are central to its mandate to end impunity for serious international crimes.

We consider that Security Council action under Article 16 of the Rome Statute to defer an investigation or prosecution of the ICC should only be taken in exceptional circumstances, when the proceedings themselves threaten international peace and security, and alternative options have been exhausted.

This threshold was not met on this occasion, and therefore we were not able to support the resolution.

In any case, there were real alternatives to pressing ahead with a divisive vote in the Council on the question of deferral.

The ICC Trial Chamber has already postponed the start of President Kenyatta’s trial until 5 February, at the request of his defence team.

The Assembly of ICC States Parties (ASP) will meet next week, and constructive work is already under way by States Parties on proposed amendments to the Rules of Procedure and Evidence to help address Kenya’s concerns.  Australia will listen closely to African States Parties’ views at the Assembly, and will adopt a responsive and flexible approach to any proposal that States Parties bring to the Assembly for its consideration.

Australia is determined to do what it can to ensure that President Kenyatta and Deputy President Ruto are able to fulfil their constitutional responsibilities. In turn, we trust that Kenya, and other African States, particularly those with relevant obligations under the Rome Statute or resolutions of this Council, will cooperate in full with the ICC to ensure the Court can continue to play its role in contributing to our common objective of deterring the commission of serious international crimes, which is intrinsic to achieving peace and security.

We are also determined to continue to work to strengthen the relationship between the Council and the African Union.  As was said so well in the Council earlier this year by the AU itself when reviewing our joint partnership:  “The United Nations needs a strong AU.  And the AU needs a strong United Nations”.

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