Cate and I have been monitoring this since the news that Sudanese President Omar Al-Bashir would be visiting Kenya today broke yesterday evening (Central European Time), and have been tweeting about it since (follow us @cminall and @xrauscher_, respectively), but I was holding out to see what was going to happen today, and notably what the Court’s reaction would be, before posting. Now that the day is coming to an end, and the Court has reacted, I have no more reasons to wait.
As you may or you may not yet know, Sudanese President Al-Bashir made a surprise visit to Kenya today as Kenya celebrated the signing into law of its new Constitution, and was able to enter and leave the country untouched. Omar Al-Bashir is indicted by the International Criminal Court for war crimes and crimes against humanity since March 2009, and for genocide – the crime of crimes – since last July.
By inviting him into the country and not arresting him, Kenya failed to meet its international obligations, and this on two different planes:
First of all, the situation in Sudan was referred to the International Criminal Court by the United Nations Security Council. In its Resolution 1593 referring the situation in Sudan to the ICC, the Security Council, at §2,
“recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;“
It could be very well interpreted that Kenya is in breach with its obligations as a UN member. However, some could argue that the use of the word “urge”, preceded with the “recognizing that States not party to the Rome Statute have no obligation…” (thank you John Bolton for that one), makes it non-binding.
Which leads to the second point: Kenya is also a State Party to the Rome Statute. It is bound by the obligations stipulated in the Rome Statute. And, article 87 of the Rome Statute states that:
“1.(a) The Court shall have the authority to make requests to States Parties for cooperation. (…)
7. Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.”
I have edited out the parts that are not relevant. Kenya had an obligation under the Rome Statute to execute the arrest warrant issued by the Court against Omar Al-Bashir. Should it fail to do so, the Court may refer the matter to the Assembly of State Parties, which is the executive and eventually legislative body of the organization, composed of representatives of the States that have ratified the Rome Statute, and the Security Council should the situation concerned had been the object of a referral by that body.
I think it cannot be stressed enough how grave the situation is for the International Criminal Court today. For the second time in a matter of weeks, Omar Al-Bashir has been able to visit an African State that is party to the Rome Statute without being arrested. The first one was Chad, and had already created a debate around State cooperation to the Court, whether Chad had a legal obligation to arrest Al-Bashir (for an example of a “No” case, see Dov Jacobs’ post, with which I respectfully disagree), and whether this would create or not a dangerous precedent. Some, like Mark Kersten or myself, had hoped that it would stay an isolated event.
We were wrong, and I regret that deeply. Several issues need to be addressed.
First of all, State cooperation with the ICC is at an unacceptable low. Not only did Kenya fail to meet its international legal obligations, but as David Bosco points out, the “major powers” that would be expected to support the Court have also failed in their responsibility:
“There can be little doubt that the United States, Brazil, and major European governments knew about Bashir’s trip in advance. Had they wanted to expend significant diplomatic capital, they likely could have stopped it. But here Bashir is on to something important: he knows that governments supportive of the ICC probably won’t have the patience and focus to maintain that effort.“
David Bosco is quite right: the European Union might feel “concerned” over Bashir’s Kenyan visit, but I seriously doubt that they did not know before hand that Bashir would be making the trip, and did little to pressure Kenya to either arrest him upon arrival or stop him from coming. These States that support the ICC and have the clout to help it enforce its decisions must assume their responsibility and do so, and go further than simple rhetoric. It is incoherent and just plain stupid to create an international court, pay millions of euros every year to maintain its existence, and let it turn into a lame duck court.
Secondly, the United Nations Security Council must react vigorously to this affront. It’s credibility is on the line: it referred the situation to the ICC in 2005, and must assist in every possible way the Court in its efforts to bring those guilty of war crimes, crimes against humanity and genocide to justice. To fail to do so would show with how little respect the Security Council considers the Court and its own referrals.
Lastly, Kenya. Kenya has failed to meet its international obligations. Although many are quick to point out that international law has very few enforcement mechanisms anyway, for a State to disregard its obligations – especially obligations that come from an international treaty – is a very dangerous and counter-productive move. Not only does it disrespect the fundamental principle Pacta Sunt Servanda, it casts tangible doubt about the seriousness of a State’s will to engage in international relations. Just like between individuals, States have no interesting in signing agreements and forging ties with States that have shown not to keep their words. I hope the Kenyan government will soon feel the consequences of such grave actions.
This is a very bad day for the ICC. Its creators, and the Security Council, must stand by it, and take firm measures to sanction behaviours such as Chad’s and Kenya’s, or this will be a blow the Court will have a difficult time reeling from. Make no mistake about it: today, the detractors and opponents of the Court, such as Julian Ku, are rubbing their hands in satisfaction. Today, the Court is toothless. A criminal court without teeth scares no one, and certainly not the international criminals that plague our world. It will become, as Mark Goldberg points out, “irrelevant“.
So much for the dream of an international rule of law. So much for international criminal justice. So much for Pacta Sunt Servanda.
But most importantly, so much for the hundreds of thousands of victims and their affected communities, who demand that justice be rendered.
This intolerable affront must not go unanswered.
UPDATE (28 August 2010): EJIL: Talk!’s Dapo Akande posted today a very interesting entry on the issue of the ICC and Head of State Immunity. In a nutshell (but the post is definitely worth reading), Akande blames the ICC Judges for having avoided so far the question of whether immunity and article 98 of the Rome Statute apply or do not apply, leaving the debate completely open. I did not deal with this issue in my original post, although Dov Jacob’ post discusses it in details. Both posts (Dapo Akande’s and Dov Jacobs’) are very well worth the read to get an understanding of that issue.