Posts Tagged al-Bashir

IGAD Summit: It Did Move to Ethiopia Because of the ICC

For some reason, this story keeps catching my interest. Here is the latest development (excerpt):

A Kenyan official today confirmed that the summit will take place in Addis Ababa to prevent Bashir’s presence from overshadowing the meeting.

“We don’t want to take our eyes off the ball. This is a very crucial meeting and we want to extract a commitment from the main actors in Juba and Khartoum that they will respect the Comprehensive Peace Agreement (CPA) and that they will play their role in ensuring the referendum goes ahead peacefully,” acting Foreign affairs Permanent Secretary Patrick Wamoto was quoted as saying by the ’Daily Nation’ newspaper.

Wamoto said that invitations for the summit in Addis Ababa went out in President Kibaki’s name because Kenya chairs the subcommittee on Sudan in the IGAD.

He further said Kenya would have preferred that the meeting be held in Naivasha where the North-South peace agreement was signed but the risk that Bashir’s presence would provide the main focus of international attention during the meeting forced a rethink.

Needless to say, I do not miss Moses Wetangula.

Many thanks to Uli Zumsande for sending me this via Twitter.

Previous posts on the subject:

Related reading:

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Shedding Light on Tensions Between the African Union and the ICC

The current tensions between the African Union and the International Criminal Court are often the object of international criminal lawyers’ discussions, and are particularly seized upon by skeptics and critics of the Court. For the Court and its supporters however, it has also been the subject of much reflection and concern, and this up to the highest levels (see ICC President Song’s opening remarks at the ICC-NGO biannual meetings a few weeks ago). Tensions and frustrations are flaring, and there seems to be no end to the standoff between the UN Security Council and the ICC on one side, and the African Union and Sudan on the other.

In the midst of these frictions that clearly threaten the ICC’s credibility in Africa, the Institute for Security Studies published last week an excellent Position Paper titled “An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC”, written by three African international law experts, namely Dapo Akande, Max du Plessis and Charles Chernor Jalloh.

As the title very clearly suggests, the authors give a very detailed analysis of the African Union’s position towards article 16 of the Rome Statute, in particular as it relates to the current tensions arising from the ICC’s involvement in Darfur.

Before giving some of my personal thoughts on the study’s findings, I first have to say that this report is brilliant and enlightening. It takes a very clear and rigorous approach to the raised questions on the role article 16 has to play, and makes the case for the African Union’s position without falling into the usual anti-West postcolonial political rhetoric that I find too often pollutes the debate and makes the real legal case inaudible. Although some would say there’s nothing new in the study for anyone who has followed AU-ICC relations closely, I still find that it puts a fresh perspective and offers a coherent analysis that puts the difference pieces of the puzzle in order.

I would recommend the reading of this report to anyone interested in understanding the state of ICC-AU relations, and more specifically, the legal aspects of the AU’s position towards the ICC.

I won’t summarize and go over the entire report, but briefly mention three main ideas that I think structure the paper and that particularly shed light on the ongoing conflict: Read the rest of this entry »

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A Rapid Follow-Up to the al-Bashir in Kenya Saga

So al-Bashir did not go to Kenya today. Instead, the IGAD summit that was initially supposed to take place in Nairobi will take place instead at a date still to be determined in Addis Ababa, in Ethiopia, which is not a State Party to the Rome Statute and therefore is not bound to execute the arrest warrants. At the insistence of the United States, Security Council Resolution 1593, which referred the situation of Darfur to the International Criminal Court, makes that very clear at paragraph 2 (emphasis is mine):

2. Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while 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;

Kenya did respond to Pre-Trial Chamber I’s request (see my previous post) by merely stating that there was no plan for the Sudanese President to come, which was, once the summit was moved to Ethiopia, true.

There’s not much to say here, and perhaps the saga ends here. The Pre-Trial Chamber’s “warning shot” probably did, despite (former) Kenyan Foreign Minister Wetangula’s claims, dissuade Kenya from holding the summit and receiving Bashir.

I did particularly enjoy Mr. Wetangula’s arguments in that article, not only claiming that Kenya did not push for the summit to be held in Ethiopia because of the ICC Judges’ request (to be fair, only the Kenyan authorities know for certain, but that’s very unlikely), but also said some pretty ludicrous things, such as “We have no demands from the ICC and we are not the arresting agents of the ICC so that is not an issue” (oh, really? Just imagine what people like Moses Wetangula would say if ICC investigators conducted an arrest à la Eichmann), and “ICC does not have a hold on Kenya, we are a signatory to a treaty establishing it so we cannot live under fear over a treaty that we are just a party to” (to be honest, I’m not really sure what that means).

As for the “former” in front of Foreign Minister, Mr. Wetangula resigned last Wednesday over allegations of corruption.

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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. Read the rest of this entry »

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Good News for the ICC and ICL: Second Arrest Warrant Issued for Omar Al-Bashir

Good news today for any international criminal lawyer interested in the International Criminal Court’s role in bringing perpetrators of mass atrocities in Darfur to justice: Omar al-Bashir, the recently re-elected President of Sudan, has been indicted by the Pre-Trial Chamber I on charges of genocide (here is the document, in PDF).

The Pre-Trial Chamber had refused the first time to charge al-Bashir with the crime of genocide, charging him “only” with crimes against humanity and war crimes, on the ground that the evidence presented by the Prosecutor concerning the crime of genocide did not meet the “reasonable grounds” standard defined by article 58(1)(a) of the Rome Statute. The Chamber considered at the time that the Prosecutor had not sufficient evidence indicating that Omar al-Bashir had specific genocidal intent, a required element of the crime of genocide.

For those unfamiliar with the Rome Statute or genocide as a legal, not social, matter, a brief explanation is I believe necessary. The crime of genocide is a very specific and strictly defined notion. Considered by many to be – in the words of Professor William A. Schabas – the “Crime of Crimes,” it is defined by article 6 of the Rome Statute, which states:

For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a)     Killing members of the group;(b)     Causing serious bodily or mental harm to members of the group;

(c)     Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d)     Imposing measures intended to prevent births within the group;

(e)     Forcibly transferring children of the group to another group.

The keyword here which I emphasized is “intent”, which is the subject of much discussion among academics and of much misunderstanding between legal scholars and others who adopt a larger, more “social” definition of genocide. As far as international criminal law is concerned, to be guilty of genocide, an individual must have the specific intent to destroy a national, ethnical, racial or religious group. Destruction of such groups without the specific intent to eradicate is not – legally speaking – considered genocide, but falls into the “crimes against humanity” or “war crimes” categories. The former category is known informally among international criminal lawyers as the “bucket crime,” as anything that falls short of genocide ends up being considered as a crime against humanity.

Perhaps another subject of clarification for some but that should appear as obvious to many: under the Rome Statute just like most democratic Western-style judiciary systems, a Prosecutor must convince a Judge that his evidence is solid enough to justify an arrest warrant. In the case of the ICC, the Chief Prosecutor must convince 3 Judges composing the Pre-Trial Chamber, who may or may not issue an arrest warrant as demanded by the Prosecutor. The Prosecutor may, however, appeal the Pre-Trial Chamber’s decision before the – you guessed it – Appeals Chamber (article 57 and article 82 of the Rome Statute).

To return to the ICC and al-Bashir, the first decision by the Pre-Trial Chamber was hotly contested by certain scholars, such as Opinio Juris’ Kevin Jon Heller, who considered that the court’s interpretation of article 58’s “reasonable grounds” requirement was far too strict. The Appeals Chamber later on also sided against the Pre-Trial Chamber’s position in a decision dated on 3 February 2010, lowering the standard of proof initially required.

This led to today’s decision by the Pre-Trial Chamber I to issue an arrest warrant against Sudanese Omar Al-Bashir, this time on the count of genocide.

Battle’s not over yet, in any case. A lot still needs to be achieved. Although Mr. al-Bashir’s traveling plans have been disturbed, he has still not been arrested, has been recently re-elected (which politically always complicates things), and some still see him as taking part in a peace plan, a sad repeat of the “Milosevic Strategy” adopted by the U.S. State Department in the 1990s which had produced mitigated results.

That being said, it is still good news.

PS: I’m looking forward to read Kevin Jon Heller’s perspectives on the latest decision over at Opinio Juris.

See also Jurist.org’s summary of the news. For a very interesting, but less legal perspective, see Mark Kersten’s Kolumn’s post on this.

Finally, on the arrest warrant and the question of  head of state immunity, see Dapo Akande’s post over at EJIL: Talk!

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