The al-Bashir in Kenya Saga Continues

Sudanese President al-Bashir present in Nairobi on August 27, 2010 for the promulgation of Kenya’s new constitution (photo by AFP)

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.



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  1. #1 by Daniel on 27 October 2010 - 03:45

    Could you enlighten me about what kind of consequences is Kenya facing if it “fails” again to arrest Bashir?

    • #2 by Xavier Rauscher on 1 November 2010 - 09:56

      Sorry for the late response, it’s been a hectic and tiring week.

      In a nutshell, under article 87(7) of the Rome Statute, the Judges may make a finding of non-cooperation. That finding is then transmitted either to the Assembly of State Parties, or, if the situation has been referred by the Security Council, to the latter. It is then up to these political bodies to take whatever sanctions they deem necessary. At its weakest, it’s naming and shaming. But it can get worse if the political body gets its act together.

      As far as the ASP is concerned, there has yet to be a clear mechanism to deal with such an eventual finding, and there has been no such finding as of yet.

      Before anyone gets all excited and starts telling me that the ICC is doomed under such a system, two remarks:
      – first of all, that’s how every international judicial system works – there is simply no other functioning model in the current state of international relations/law;
      – second of all, it doesn’t necessarily not work well – see the ECHR for example, for which the implementation of its decisions are overseen by the Committee of Ministers. Overall, I think we can agree that the ECHR is a successful international tribunal. Other examples exist as well.

      To be successful and legitimate, ICC needs two things: first of all, time to be truly anchored in the international system – there’s not much it can do about that, and secondly, to guarantee that its decisions are fair, so as to be accepted as widely as possible.

      It’s an uphill battle, but we’ll get there someday I’m sure!

  2. #3 by Mark Kersten on 3 November 2010 - 21:36

    It’s a very important question Daniel, and as someone who studies the politics of international law, a crucial one. The reality is that the weakest link of international criminal law is the issue of enforcement. When a state breaks the rules, the ICC needs the international community to have the political will to enforce whatever punishment it deems necessary. Absent the political will there is no enforcement and you are left with only the capacity to “name and shame” (which, of course, can be useful). Thus, to Xavier’s list of what the ICC needs to be “successful and legitimate” (I would actually say if it is seen as legitimate it’s already successful) I would add that the ICC’s decisions are enforced effectively. Importantly, that doesn’t mean that it gets a police force of its own, but that there is a credible threat that when a member state breaks the rules there are repercussions that will be enforced by the international community.

  3. #4 by Mark Kersten on 3 November 2010 - 21:41

    I should just add, that what is absolutely critical to note, that given my comments it is *not* the ICC to whom we should be looking at to ensure credible punishment for non-compliance, but the international community and their political will or lack thereof. The inconvenient reality is that few observers note is that if the member-states of the ICC wanted an effective enforcement/punishment mechanism, they would have one. Of course, that brings us away from the law and into the realm of politics.

  4. #5 by Daniel on 5 November 2010 - 04:48

    Thank you very much for your answers. I better understand the ins and outs now.

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