An Intolerable Affront

Sudanese President Omar Al-Bashir in Nairobi today, photo by AFP

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.

The Court has done both these things this afternoon: see the Press Release here, and the decision (in PDF) here.

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.

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  1. #1 by Mark Kersten on 27 August 2010 - 19:22

    Great post once again.

    Two quick points:

    1. Not only did powerful states outside of Africa choose not to expend diplomatic capital but (and perhaps more worryingly) ICC supporters within the African Union chose not to. In my view, this visit is not only connected to the past visit to Chad but also the AU Conference where AU member states discussed how to deal with the indictment of al-Bashir. At first it seemed, according to one negotiator that “Bashir is tearing us [the AU] apart”. Within a day, all AU-member states had agreed that none would arrest him. It was shocking. What needs to come to light is what happened during those negotiations – what was traded off in Kampala so that AU-member states supportive of the ICC, including South Africa, Uganda and Ghana chose to turn the other way.

    2. Not only may Kenya be legally obliged to arrest al-Bashir as a UN member state and as a member-state of the ICC but separately as a signatory of the Genocide Convention. In this case, it doesn’t really matter if you think al-Bashir is responsible for genocide or not (I know it’s contentious), but he was charged with it and the proper criteria were met. The Genocide Convention is one of the few sources of treaty law which explicitly requires prosecution. If you agree/believe the above to be true, Kenya just got a hat-trick: 3 international obligations broken with one act.

    • #2 by dov jacobs on 28 August 2010 - 10:17

      Actually, the Genocide Convention doesn’t work imho, because it doesn’t create universal jurisdiction, or any general obligation to arrest. Article VI only enacts the obligation to prosecute from the State on the territory of which the act was committed. So no hat-trick for Kenya, I’m afraid…

  2. #3 by Xavier Rauscher on 27 August 2010 - 19:30

    Mark, as always, thanks for your on-target and very interesting comment.

    Something did happen within the AU, and I’ve heard several people, you being the latest, pick up on it. I’ve briefly heard stories of undemocratic decisions and even cases of bullying, but to what extent and how true these stories are, I have no idea.

    And nice one on the Genocide Convention: I hadn’t thought of it.

  3. #4 by dov jacobs on 28 August 2010 - 10:14

    xavier, I agree with the political analysis, but, as you point out in your post, not necessarily with your legal one. I’d have two remarks:
    1) you link to my post, where I said that Chad didn’t have an automatic legal obligation to arrest an ICC indictee. I stick by that, but do acknowledge that there was a specific request made for cooperation in this respect. I do have one problem with the general request for cooperation to “all States”. As I point out in the comment section of my post:
    “I’d still have one question on the use of article 89 by the Court in this wholesale way. 89(1) mentions a possibility to issue a request to “any State on the territory of which that person may be found”, rather than just “any State”. If the second part of the sentence is to have any legal meaning, it can’t just be all the countries in the world preemptively… Shouldn’t there be some reasonable indication of the presence of the accused on the territory of a State as a condition of the issuance of the request?”
    any thoughts on that?

    2) If you’re going to make a legal analysis, you need to deal with the question of head of State immunity, which is being ignored by the Court and by many commentators. As a non-State Party,there is an argument that Bashir benefits from Public International Law immunity, which Kenya and Chad would be violating were they to arrest him. Dapo deals with this at EJIL talk! and I gave my own (dissenting) opinion here
    http://dovjacobs.blogspot.com/2010/07/bashir-and-genocide-in-sudan-second.html

  4. #5 by Xavier Rauscher on 28 August 2010 - 10:19

    Dov, I just put a little update on the immunity issue, which I think you did not see because you might have been writing your comment as I was updating my post.

    I’ll probably write a longer post on the issue of immunity next week, when things have settled down, both with Bashir’s visit and my own personal workload. As you point out, it is a major issue, and I agree with today’s Dapo Akande’s post that the ICC Judges need to address the issue, preferably at the Appeals Chamber level.

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