Fanning Off the Sparks: Kenyas Dilemma to Cooperate with ICC or Ignore Arrest Warrant to Save Relations with Sudan
Fanning off the Sparks: Kenya’s Dilemma to Cooperate with ICC or Ignore Arrest Warrant to Save Relations with Sudan
Lawrence Mwagwabi Draft
12 December 2011
The High Court order issued by Justice Nicholas Ombija that directed the government to arrest the Sudanese President Omar Al-Bashir should he set foot in Kenya1 raises critical questions both from an international law and diplomatic perspectives. This short paper will attempt to demonstrate why implementing the arrest warrant on Al-Bashir is difficult.
The diplomatic crisis between Kenya and Sudan was occasioned by a ruling issued by Justice Ombija that restated the International Criminal Court (ICC) warrant to face crimes against humanity amongst a host of other charges following an application by the International Commission of Jurists. The ruling made by Justice Ombija read,
“The Applicant on 19th October 2010 wrote two letters; one, to His Excellency the President and another, to the Right Honorable the Prime Minister of Kenya, Raila Amolo Odinga, raising concerns over the possibility of a second visit by President Omar Ahmad Hassan al-Bashir calling on the two principals to take their international and domestic obligations seriously … On 9th November 2010, the applicant received a response from the Prime Minister’s … indicating that the Intergovernmental Authority on Development meeting had been moved from Nairobi to Addis Ababa. The said letter also pointed out that the presence of President Omar Ahmad Hassan al- Bashir in Kenyan’s territory on 27th August, 2010 was not a matter of mutual agreement within the Grand Coalition. The evident divisions on the matter strengthened the ICJ’s case, and the petitioner asked the judge to take note of the fact it was difficult to understand the official government policy on matters relating to the International Criminal Court (ICC). It was the applicant’s last and final position, that the disjointed approach in responding to requests from the International Criminal Court is a testimony of the different interests that are at play in the Grand Coalition Government when it comes to issues touching on the Rome Statute, hence the applicant’s interest in prosecuting this application in line with its objectives and mandate.”2
This judgement caused a diplomatic storm with Sudan with President Al-Bashir giving Kenya’s ambassador 72 hours to leave Khartoum. Sudan also recalled its own ambassador after what they called a “dramatic deterioration of relations”3. The Sudanese embassy in Nairobi referred to the ruling that had damaged, “the bilateral relations between the two countries”. The Sudan government recalled its ambassador in Nairobi for “consultations”4. Furthermore, the Sudanese government noted that the ruling touched on its sovereignty and was not ready to allow the International Criminal Court (ICC) to sour relations with Kenya.
This decision by Sudan had several implications on Kenya. Bashir had ordered an imposition of sanctions on Kenya. This included: a ban on all Kenyan flights on Sudanese airspace, severance of all trade ties, and expulsion of 1,000 Kenyans working and studying in Sudan as well as demanding the Kenyan peace-keeping forces in Darfur to leave the country5. Kenya is the biggest beneficiary of the balance of trade between it and Sudan. Sudan is also one of the largest consumers of Kenyan goods especially tea and coffee which is estimated to fetch Kenya 20 billion in 20106. From a geopolitical perspective, Kenya has played a leading role in the peace mediation between Bashir’s government and Sudan People’s Liberation Movement culminating in the signing of the Comprehensive Peace Agreement (CPA) that precipitated the creation of South Sudan as an autonomous state7.
It is common knowledge that President Al-Bashir is wanted by the International Criminal Court (ICC) to answer for charges of war crimes, crimes against humanity and genocide committed in Sudan’s Darfur region8. All state parties to the Rome Statute, which established the ICC, are obliged to arrest Bashir if he sets foot in their territory. The question then is what difficulties does this ruling pose in its implementation? The answer to this question can be identified both in international relations practice among nation-states but more importantly international law.
Firstly, diplomatic law currently comprises a large, and in many respects, highly developed body of law. These include the 1961 Vienna Convention on Diplomatic Relations (VCDR), the 1963 Vienna Convention on Consular Relation (VCCR) and the 1969 UN Convention on Special Missions. In addition, in relation to international organizations, there is a large number of treaties which deal with both privileges and immunities of representatives of states to international organizations and privileges and immunities of officials employed by those organizations.
The best known examples are the 1946 Convention on the Privileges and Immunities of the United Nations, and the 1947 Convention on the Privileges and Immunities of Specialized Agencies. A further important component of diplomatic law is the Convention on the Prevention and Punishment against Internationally Protected Persons, including Diplomatic Agents 19739. To exemplify application of these diplomatic laws, Kenya has, for instance, domesticated the Vienna Convention on Diplomatic Relations through what is referred to as the Privileges and Immunities Act, Chapter 179 of the Laws of Kenya10. This convention is now ratified by 186 countries provides for immunities and privileges for diplomats, which protects them from coercion, harassment and prosecution from a host country. These immunities and privileges are also extended to Heads of State or Government. Indeed, the Minster for Foreign Affairs also enjoys these immunities and privileges by virtue of the position they hold.
It is important to note that diplomatic law is not fully codified. Thus, certain categories of those engaged in the conduct of international relations therefore enjoy immunity only by virtue of customary international law. For instance, the law governing the privileges and immunities of foreign Heads of State and other senior government officials remains largely uncodified at the international level. However, immunity from jurisdiction of Heads of State travelling abroad has undergone some important changes in modern times. For instance, in the United Kingdom, the State Immunity Act (1978) essentially equates the position of a Head of State with that of the head of a diplomatic mission11. Thus, a foreign Head of State (whether on an official or a private capacity) will enjoy complete personal inviolability and absolute immunity from criminal jurisdiction or ratione personae12 . It should be noted that immunities of a Head of State can be waived, either by the Head of State himself or herself, or his or her state. On the other hand, when a Head of State leaves office, the House of Lords in the UK has found that he/she will enjoy immunities on the same basis as a former diplomat, and in particular subsisting immunity or ratione materiae for his official acts as provided for under Article 39 (2) of the VCDR.
Secondly, under customary international law, a Head of State enjoys immunity from prosecution for criminal offences. Thus, enjoyment of privileges and immunities of Head of States and government from criminal jurisdiction and inviolability is firmly entrenched in International Law. Indeed, these immunities and privileges are not granted for personal benefit of the Head of State or Government, but to ensure effective performance of their functions on behalf of their states. Thus, President Al-Bashir’s immunity from arrest and prosecution is functional because when he officially visits other states (including Kenya), he is performing the function of the state and the office he holds. Functional immunity protects a Head of State from prosecution even after he ceases to perform the duties of a head of state because of the principle of sovereign equality under customary international law, which suggests that each nation-state is formally equal to the other and therefore should be given equal respect by the other nation-states. States are also entitled to a right to self-determination and non-intervention in their internal affairs by other countries or international organizations. Now this principle makes a president immune from prosecution on the virtue of everything he/she does as long as he/she is in office. Furthermore, a president enjoys personal immunity as long as he/she is a head of state!
1 See P. Ogemba, “Judge Orders Bashir Held, Handed to ICC: Wetang’ula Says High Court Ruling Was ‘A Judgement in Error’” in Daily Nation, 29 November 2011, pp. 1 - 2
2 “Kenya: Conflict of Coalition Principals Over Arrest Warrant Weakens Stand On Foreign Policy Matters” in Daily Nation (on the Web), 3 December 2011
3 “Al-Bashir’s Fit of Fury”, in Daily Nation, 30 November 2011, p. 1; see also B. Namunane, “Sudan Expels Kenyan Envoy Over Ruling”, op. cit., p. 4
4 Ibid., p. 4
5 K. Cheruiyot, “Why Kenya Had to Negotiate With Sudan,” in The People, 3-4 December 2011, pp. 1 & 3
6 Ibid., p. 3
7 J. Kwayera, “Just What Does Government Stand to Lose If Bashir Severs Relations With Kenya?”, in The Standard on Saturday, 3 December 2011, p. 4
8 See The case reference for charges against Al-Bashir is: ICC - 02/05 - 01/09, The Prosecutor V. Omar
Hassan Ahmad Al Bashir. The counts specifically read: “Mr Al Bashir is allegedly criminally responsible ten counts on the basis of his individual criminal responsibility under Article 25(3)(a) of the Rome Statute as an indirect (co) perpetrator including: five counts of crimes against humanity: murder - Article 7(1)(a); extermination - Article 7(1)(b); forcible transfer - Article 7(1)(d); torture - Article 7(1)(f); and rape - Article 7(1)
(g); two counts of war crimes: intentionally directing attacks against a
civilian population as such or against individual civilians not taking part in hostilities -Article 8(2)(e)(i); and pillaging - Article 8(2)(e)(v); and,Three counts of genocide: genocide by killing (article 6-a), genocide by causing serious bodily or mental harm (article 6-b) and genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction (article 6-c). See http://www.icc- cpi.int/menus/icc/situations%20and%20cases/situations/situation%20icc%200205/related %20cases/icc02050109/icc02050109?lan=en-GB for details.
9 See (1974) 13 ILM. This convention comprises an important aspect of the duty of protection states owe officials of states and international organizations engaged in international business, providing for broad extraterritorial jurisdiction in respect to crimes relating to attacks on these persons. See also M. Wood, “The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents”, in International and Comparative Law Quarterly, Vol. 23, No. 10 (1974), pp. 791 - 817
10 See the Privileges and Immunities Act, Chapter 179 of the Laws of Kenya, Revised in 2010 (published in 1984)
11 C. Wickeremasinghe, “Immunities Enjoyed By Officials of States and International Organization”, in M. D. Evans, (ed.), International Law, 2nd Edition, (Oxford: Oxford University Press, 2006), Chapter 13, p. 407
12 See example, judgement of Bow Street Magistrates’ Court in Mugabe of 14 January 2004 in International and Comparative Law Quarterly, Vol. 53, Issue No. 1 (2004), pp. 1-15. In this example, the ruling in Bow Street Magistrate’s Court, President Mugabe cannot be arrested or prosecuted for the crime of torture. Judge Timothy Workman ruled that President Mugabe, as a serving Head of State, has “absolute immunity” from arrest and prosecution (see quotes below from his judgement). Mr Workman was delivering his verdict on an application for an arrest warrant, on charges of torture, filed by human rights campaigner Peter Tatchell. Mr Tatchell sought President Mugabe’s arrest under Section 134 of the Criminal Justice Act 1988, which incorporates the UN Convention Against Torture 1984 into UK domestic law.
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