Fanning off the Sparks: Kenyas Dilemma to Cooperate with ICC or Ignore Arrest Warrant to Save Relations with

Sudan By 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 Kenya 1 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 Ministers 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 alBashir in Kenyans territory on 27th August, 2010 was not a matter of mutual agreement within the Grand Coalition. The evident divisions on the matter strengthened the ICJs 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 applicants 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 applicants 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 Kenyas ambassador 72 hours to leave Khartoum. Sudan also recalled its own ambassador after what they called a dramatic deterioration of relations3. 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
1

See P. Ogemba, Judge Orders Bashir Held, Handed to ICC: Wetangula 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-Bashirs 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

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 Bashirs government and Sudan Peoples 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 Sudans 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 Kenya 10. This
5 6

K. Cheruiyot, Why Kenya Had to Negotiate With Sudan, in The People,3-4 December 2011, pp. 1 & 3 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 groups physical destruction (article 6-c). See http://www.icccpi.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)

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 mission 11. 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-Bashirs 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! Now, under what circumstances does a head of state or government lose their immunity? While a state cannot claim jurisdiction over another states incumbent head of state, an
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 Magistrates 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 Mugabes arrest under Section 134 of the Criminal Justice Act 1988, which incorporates the UN Convention Against Torture 1984 into UK domestic law.

international tribunal can. In this way, heads of state and other high ranking officials do not enjoy impunity. However, this vertical claim of jurisdiction is subject to two conditions: 1. that the instruments creating the tribunals expressly or implicitly remove the relevant immunity of the official, and, 2. that the state of the official concerned is bound by the instrument removing the immunity. In the Arrest Warrants case13 the International Court of Justice (ICJ) also stressed that immunity was not the same as impunity. In this respect, it noted four circumstances in which availability of immunity ratione personae of incumbent officer-holders would not prevent their prosecution: 1. where the office-holder in question is prosecuted by the courts of his own state; 2. where immunity is waived by the office-holders state;
3. when the office-holder leaves office, he or she may be prosecuted by the court of

another state (provided that in other respects it has jurisdiction in accordance with international law) in respect of his or her acts prior to or subsequent to his period of office, or for his or her private acts during his period of office; and, 4. by certain international criminal courts, provided that they have jurisdiction. The Rome Statue has also managed to pierce sovereign immunity. Under article 27 of the Rome Statute14, states and even heads of state or government are, not exempt from criminal responsibility under the statute for serious crimes. However, this article constitutes a break from customary international law. To be able to demonstrate this break, the Arrest Warrants case at the International Court of Justice (ICJ), as well as the Tachiona case in the US courts15, is informative on this. In the Arrest Warrants case, the ICJ held that Foreign Affairs Ministers enjoy full immunity from criminal jurisdiction and inviolability while in office since this immunity is important for the exercise of their duties. This immunity ensures that Foreign Affairs Ministers can travel without hindrance in the performance of their duties. Heads of State are by nature of their office representatives of the state wherever they are and also enjoy this immunity. Even though the case being dealt with in the Arrest Warrants case concerned a Foreign Affairs Minister, the same immunities would be accorded Heads of State. This immunity is only functional, since it accords Heads of States free exercise of their duties in representing their state. The Tachiona case in the US courts dealt with torture and civil action against the Mugabe regime for having tortured Tachionas family in Zimbabwe. Following the precedent in the Arrest Warrants case, the US courts held that a sitting head of state has immunity from criminal and civil proceedings abroad. However, the Arrest Warrants case dealt with criminal or civil prosecution in a national court, not an international one. It should be noted that none of the immunities considered are for the benefit of any particular individual or group of individuals, but rather are for the benefit of the state they represent. Thus, a sending state can waive immunities thereby consenting to the jurisdiction
13

Arrest Warrant of 11 April 2000 (Democratic Republic of Congo V. Belgium), Preliminary Objections and Merits, Judgement, ICJ Reports, p. 3 14 See The Rome Statute on International Criminal Court 1998 15 See Tachiona v. United States, 386 F.3d 205 (2d Cir. 2004)

of the courts of another court over the official in question. This applies whether the immunity in question is granted ratione personae or ratione materiae16. On any reasonable interpretation of the Rome Statute, the same principles do not apply to the ICC. What are the consequences therefore of such a policy of prosecuting even sitting heads of state and government and stripping them of their immunity, which is regarded as important for the exercise of their duties? If the ICC Prosecutor had sought the arrest warrants when Bashir had left office that would have been a different issue. But right now Bashir is still in office, and notwithstanding the repercussions for the Darfur peace process, is such a gamble likely to succeed even if the warrants are issued and Bashir is taken to the ICC? Many practical difficulties exist. It is doubtful whether any state can arrest Bashir without violating the international law on immunity, which means that the support of other states in arresting Bashir will be unlikely. The ICC relies on states to enforce and implement its warrants. The failures in arresting the Lords Resistance Army leader Joseph Kony are instructive here. The ICC has not been able to bring Kony to The Hague because of the failure to physically arrest him. One wonders if it would be easier to arrest Bashir. It seems the ICC has learnt little from its experiences in the Uganda situation. The ICC itself is based in the territory of another state. Whether The Netherlands, where the ICC is housed, would violate its international legal obligations by allowing the ICC to go ahead and prosecute a sitting president who has immunity within its territory is also yet to be seen. Even though scholars and commentators have challenged this position on immunity, in terms of law and the precedent set by the Arrest Warrants case, for the time being the position stands that a sitting head of state is immune from prosecution and/or arrest in the territory of another state. Indeed, in the Arrest Warrants case, the International Court of Justice was concerned with the immunity ratione personae of a serving Foreign Minister, and concluded that under customary international law, no exception to that immunity exists in respect to war crimes or crimes against humanity. The court based its decision upon its review of national legislation17 and those few decisions of higher courts in national legal systems on the point18. Thus, based on the general principle, the immunity ratione personae of certain incumbent high state officials, including Heads of State, Head of Government, Foreign Ministers, certain senior Ministers, diplomatic agents and also members of high-level special missions, are, in the absence of a waiver by the sending state, an absolute bar to the criminal jurisdiction of the national courts for the duration of their office or mission. The ICC often overlooks that, even though it is an independent court, it operates within the comity of states, which have rules that pre-date the ICC. Most likely, the ICC Prosecutor did consider all of these eventualities. If so, then, why did he seek the warrant for Bashirs arrest and also publicise the fact? One is tempted to arrive at the conclusion that the ICC Prosecutor is playing politics rather than law - in an
16

See C. Wickeremasinghe, Immunities Enjoyed By Officials of States and International Organization, op. cit., p. 413 17 Ibid., p. 414. In this respect the former Begian Act of 10 February 1999 under which the immunities were not admissible in respect to war crimes, crimes against humanity and genocide, appeared exceptional and so could not be relied upon as sufficient evidence in itself of an emerging rule of general international law. A point underlined by the fact that this provision was repealed and the Act as a whole was substantially amended following the Courts judgement and diplomatic pressure from other states. 18 Subsequent cases that support the findings of ICJ are Tachiona V. Mugabe and the decision of Bow Streets Magistrates court

attempt to intimidate Bashir into faster negotiation of a peace deal and resolution of the Darfur conflict and possibly handing over the other two suspects from Sudan. The ICC is also playing politics by trying to force the Security Council into engaging fully in Sudan to end the conflict. The Security Council has so far exhibited very little political will to involve itself wholeheartedly in resolving conflict in Sudan - hence, the referral to the ICC, the mere support role played by the UN in assisting the African Union force, and the continued debate over whether the violence in Darfur constitutes genocide. This is a gamble by the Prosecutor, and whether it will trigger the Security Councils full engagement remains unclear. It is instructive that while the ICC includes genocide on its list of crimes allegedly committed in Darfur, the UN has not considered the crimes as genocide on the grounds that there is no genocidal "intent". Even though some members of the UN, particularly the US, have publicly referred to the crimes committed in Sudan as genocide, there has not been in the UN Security Council or General Assembly a response worthy of the crime of genocide. The Security Council has not invoked its powers under Chapter VII of the UN Charter to protect a people in danger from its own government and to maintain peace and security in Sudan. There has not been the sense of urgency that a response to genocide necessitates. The International Criminal Court is a body established by treaty thus in a different position because states must consent to be bound by the Rome Statute before they are bound by it19. Whilst the Rome Statute appears to limit immunities available to defendants in proceedings before the ICC itself20, it is not clear that this provision can restrict the immunities of officials of states that are not parties to the Rome Statute, unless there is a waiver by the present relevant state, or binding resolution of the Security Council vesting jurisdiction in the ICC. In relation to the availability of immunities in relation to proceedings before national authorities and national courts relating to requests by ICC for surrender and assistance, it should be noted that Article 98 (1) of the Rome Statute also preserves the state and diplomatic immunities of officials and property of third states21. In other words, officials of a state which is not a party of the Rome Statute may be able to claim immunity in respect of their arrest and transfer to the Court, whereas a state party to the Rome Statute has in effect waived such immunities in respect of its own officials both before ICC itself and in the courts of other states parties in respect of their cooperation with ICC. At this juncture, one may need to make a shift from international legal arguments and explore Kenyas problem with Sudan from a geopolitical position. Sudan is part of a larger conflict system, the Horn of Africa Conflict System which includes those states in the Horn of Africa namely: Ethiopia, Eritrea, Djibouti, Sudan, Kenya and Somalia. Recently, Kenya invoked Article 51 of Chapter VII of the UN Charter in a bid to defend itself against Al Shabaab insurgents in Somalia. Given that Kenya is within the Horn of Africa Conflict System, Kenyas relationship with states at the Horn are inter-related so that from a systems theoretic model perspective, relationships among independent and dependent variables, changes in one or more variable are accompanied or followed by changes in other variables or combination of other variables22. Rapoport explains explicitly by pointing out that, a
19

See 1969 UN Convention of the Law of Treaties on provisions and applications of treaties among states that are signatory to those treaties 20 Article 27 of the Rome Statute on International Criminal Court 1998 21 Article 98 (1) states: The Court may not proceed with a request for surrender or assistance which would require the requested state to act inconsistently with obligations under international law with respect to state or diplomatic immunity of a person or property of a third state, unless the Court can first obtain the cooperation of a third state on the waiver for immunity. 22 J. E. Dougherty and R. L. Pfaltzgraff, Contending Theories of International Relations: A Comprehensive Survey,(New York: Longman, 1996), p. 136

whole which functions as a whole by virtue of the interdependence of its parts is called a system and the method which aims at discovering how this is brought about in the widest variety of systems has been called a general systems theory23. Burton, on the other hand, argues that the concept of systems connotes the relationship between units. The units of a system are the same set meaning that they have features in common that enable a particular relationship. He further suggests that systems have different features in common that enable particular relationships to exist. He further notes that systems have different features at different levels24. Based on these views, theoretically, one can identify that a conflict system should have certain components, mainly states although they are not only actors involved. Conflict systems are used to analyze conflicts for purposes of managing them. It helps one to identify and understand its complexities that lead to its management. In this case, the Sudan conflict has to do with more than the Horn of Africa conflict system as there are other states from other parts of the world that are both directly and/or indirectly apart of. While some states are involved in the conflict through other states in the Horn of Africa, some are directly dealing with factions. Kenyas to success Somalia is contingent of the goodwill it can muster from Sudan and Ethiopia. Furthermore, Kenyas demand for action against Eritrea (who already face sanctions from IGAD) has further received the support of the United Nations Security Council. By severing diplomatic relations with Sudan, Kenya only adds on a list of enemies and frontlines to battle from and further complicates its own position in the region given that it midwifed the signing of the Comprehensive Peace Agreement (CPA) between the Sudanese government and Sudans People Liberation Movement. It would be injurious to South Sudan if relations between Nairobi and Khartoum soured before the delineation of boundaries in South Kordofan and oil rich Abyei is resolved25. These issues pose potential threats to the stability of the region and in effect, potential full scale war between these two states. Despite the courts attempting to assert their independence of tenure by directing that President Al-Bashir be arrested should he set foot in Kenya, the bigger picture only compounds the challenge to implement such a directive. Such a ruling contradicts other existing international law provisions if they are all taken into account. Furthermore, these international law provisions pre-date the Rome Statute that established ICC. Maura points out that it is very easy for one to criticize the Minister for Foreign Affairs and the government that considers the court actions which negate and contradict Kenyas vital interests in a bid to express its need direct orders that are difficult to implement26. Prof. Jackton Ojwang, who is a Supreme Court Judge contends that making orders in vain exposes the courts to ridicule and no agency of the constitutional order would be left in place as a guarantor of legality and for the rights of all people27. In other words, the courts would be bereft of their credibility and authority to protect the public. Kenyas vital interests are far more important than seeking the arrest of a seating president at this point in time when we are at war and not to mention the economic costs that accompany this decision.
23

A. Rapoport, Forward, in W. Buckley (ed.), Modern Systems Research for Behavioural Scientists, (Chicago: Aldine, 1968), p. Xvii; see also J. E. Dougherty, The Study of the Global System, in J. N. Rosenhau et al (eds.),World Politics: An Introduction, (New York: Free Press, 1976), pp. 597 - 623 24 J. W. Burton, Systems, States, Diplomacy and Rules, (Cambridge: Cambridge University Press, 1968), p. 6 25 See K. Cheruiyot, Why Kenya Had to Negotiate With Sudan, op. cit., p. 3 26 P. Mwaura, When Courts Issue Orders That Cannot Be Obeyed, They Erode Their Authority, in Saturday Nation, 3 December 2011, p. 14 27 Ibid., p. 14