SENSITIVE BUT UNCLASSIFIED INFORMATION MEMO FOR THE SECRETARY FROM: Bureau of African Affairs Shannon Keith

SUBJECT: Kenya Asks for Delay of Top Two Leaders ICC Trials Kenya and the African Union (AU) submitted a request October 23 to the UN Security Council (UNSC) to delay the International Criminal Court (ICC) trials of Kenyan President Uhuru Kenyatta and Deputy President William Ruto for a year, citing the increased terrorist threat in east Africa. Both leaders argue that a delay would allow them to address Kenyas security needs in the wake of the September 23 attack on Kenyas Westgate Mall, for which the Somalia-based terrorist group al-Shabab claimed responsibility. The ICC denied an earlier request by Kenyatta to attend his trial by video link but ruled October 18 that Kenyatta could miss parts of the trial to deal with Kenyas security issues. His trial is scheduled to start November 12. The ICC charged Kenyatta and Ruto in 2010 with crimes against humanity for their alleged involvement in Kenyas 2007-2008 postelection violence, which killed more than 1,000 people. Kenyas request puts pressure on the UNSC to make a difficult decision between international justice and international security. Kenya is an important ally for the U.S. counterterrorism strategy in east Africa, which is now a greater priority region since the September 23 Kenyan mall attack, followed by the October 5 U.S. raid and October 28 drone strike against al-Shabaab leaders in Somalia. In addition, Kenyattas trial is the first instance of a sitting president tried in court. Kenyas parliament has already voted to withdraw from the ICC and Kenyas situation is bolstering support among African countries to do the same, many of which are critical of the ICC targeting African leaders rather than world powers. The UNSC has not yet provided an official response to Kenya and the AUs latest request, but an anonymous UN diplomat told Associate Press that eight council members were opposed to a delay and seven were more sympathetic when discussing a potential Kenyan deferral in May. In the October 11-12 AU meeting, Kenyatta and other African leaders were outspoken about their discontent with the ICC, calling it a tool of imperialism, and the AU said that the ICC should never try heads of state. Human rights advocates, like former U.N. Secretary General Kofi Annan and Archbishop Desmond Tutu, have responded in favor of the ICC and warned African countries against withdrawing.