The International Criminal Court, in a press release published today, announced that Pre-Trial Chamber I (PTC I) rendered a decision in which it requested that Kenya informs the Chamber by the 29 October about “any problem which would impede or prevent the arrest of Omar al-Bashir in the event that he visits their country on 30 October 2010.”
There has been rumors of late about a potential visit by the President of Sudan, subject to two different arrest warrants issued by the ICC for having allegedly committed war crimes, crimes against humanity and genocide in Darfur, to Kenya again in order to attend an Inter-governmental Authority for Development (IGAD) summit on Sudan, which is supposed to take place on 30 October.
The Court, which was taken by surprise and humiliated in consequence when Bashir was allowed by the Kenyan authorities to visit the country at the end of August 2010 without being arrested – despite the fact that Kenya is a State Party to the Rome Statute (and a situation country to boot) – appears this time to take all necessary precautions to make sure that the same problem does not happen twice.
The decision, which can be found here (in PDF), is short, but interesting. Recalling the Republic of Kenya’s obligation to enforce the Warrants of arrest, as provided for by articles 86 and 89 of the Rome Statute, and that Kenya had failed to arrest Bashir on his previous visit, it requests both that Kenya informs the Chamber by 29 October about any problem which would impede or prevent the arrest of al-Bashir, and this by next Friday, but also that “the Republic of Kenya […] take any necessary measures to ensure that Omar al-Bashir, in the event that he visits the country, be arrested and surrendered to the Court in accordance with its obligations under the Statute.”
This calls for several comments:
- first of all, the Court – and by the Court I mean the Judges themselves – is firing a warning shot at Kenya not to ignore its international legal obligations a second time, making it clear that it was expected that – should Kenya receive Omar al-Bashir once more – he will be arrested;
- secondly, by ordering Kenya to submit observations by next Friday, the Judges are forcing the Kenyan authorities in a dialogue, which was surprisingly missing in the previous submission informing the Assembly of State Parties and the Security Council of al-Bashir’s August visit to Kenya;
- lastly, the Judges have made it clear this time that there can be no excuse – if not previously discussed in “Consultations” as provided by article 97 of the Rome Statute – for a State Party not to execute an arrest warrant issued by the ICC. African Union Resolutions do not apply.
I’m looking forward to reading the Republic of Kenya’s response to the request as soon as it is made public – hopefully this Friday, and I will certainly publish something on it when it does.