Friday, September 3, 2010

Al Bashir's Presence in Kenya Did Not Violate the New Constitution

This article appeared as an op ed in The Star newspaper (Nairobi) on 4th September 2010.

The saga relating to the presence of President Al Bashir in Kenya continues. Some have argued that Kenya violated its obligations relating to the International Criminal Court (ICC) by inviting an individual against whom an ICC arrest warrant exists.

Lately, it has also been argued that the government breached the new constitution by hosting Al Bashir. One writer, Howard Varney notes that Kenya ‘despoiled the new constitution’ by this act.

In a previous piece, I have addressed the first argument, noting that the hosting of Al Bashir did not violate the Rome Statute of the ICC. Today, I consider why this act in no way violates the new constitution. I will refer to contrary arguments made by others on this issue. However, I will not address any political underpinnings of the invitation or its alleged links to the ICC investigation in Kenya. The argument is that whatever its motives, the act stands on sound legal legs.

A number of Kenyan lawyers and Howard Varney have suggested that since Kenya ratified the Rome Statute, hosting Al Bashir violates article 2 of the New Constitution. The relevant parts, articles 2(5) and 2(6) respectively read as follows:

The general rules of international law shall form part of the law of Kenya.

Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this constitution.

This issue cannot be understood by resorting to general arguments such as those above. There is a specific issue that these commentators deliberately ignore or shy away from discussing: the immunity of a serving head of state from the jurisdiction of foreign nations, and by extension the ICC. General arguments about article 2 do not shed any light on the key issue.

Before addressing what international law and the Rome Statute in particular says about immunity of heads of state, it is useful to consider which part of international law actually forms part of Kenyan law as per article 2 above.

General rules of international law in article 2(5) above refers to customary rules of international law. These are rules over which there is widespread, if not total agreement by states. Examples include the prohibition of genocide, war crimes and crimes against humanity; the equality of states; immunity of heads of states and foreign ministers when travelling abroad; and the prohibition against use of force.
These customary rules automatically form part of Kenyan law, no matter their source. Once Kenya ratifies an international agreement ie agrees to be bound by it, only the customary rules in that treaty apply immediately. Customary rules in any case apply in the absence of any act of ratification.

All other rules of international law – that are not customary in character – only form part of Kenyan law when domesticated ie, applied through an Act of Parliament.
Informed by our own dualist tradition (see relevant provisions of new constitution regarding law making authority) and comparative experience, there is no other way of understanding article 2(6) of the New Constitution. It cannot therefore be suggested - as some have attempted to do - that the Rome Statute as a whole forms part of Kenyan law because we ratified it. It forms part of our law because Parliament passed the International Crimes Act in order to domesticate it.

Back to the issue that previous commentators have avoided, but which perhaps is the only relevant issue in the Al Bashir saga: immunity of heads of states. Article 27 of the Rome Statute says that the official position of an individual does not prevent the ICC from exercising jurisdiction. This means anyone can be investigated, indicted and an arrest warrant issued. There international lawyers who take a stricter view, suggesting that serving heads of states and foreign ministers are excluded and that any act the mere act of attempting to charge would be illegal. This links to rules in the Rome Statute that appear to preserve customary law immunities of senior state officials.

Article 98 (1), which I have commented on before (see previous blog posting), is easily the ‘elephant in the Rome Statute’ that many prefer to treat as a black hole. Fervently pro-ICC people hate it, and prefer to ignore it in their analysis. It is fair to suggest that this approach only renders their understanding of the Statute partial, subjective or downright dishonest.

Article 98(1) says that the ICC may not proceed with a request for surrender or assistance which would require the requested state to violate its obligations under international law with respect to the state or diplomatic immunity of a person ….

I want to state emphatically that 98(1) codifies one of the oldest rules of customary international law, and which is rightly one of the pillars of the international legal order as we know it. It affirms the equality of states, and oils inter-state relations by protecting presidents and senior envoys from small and weak nations from willy nilly arrests abroad.

The ICC has changed some things, but this is one rule it cannot change, at least not in its entirity. And that is why it is preserved in article 98(1) in a treaty that declares war on impunity. Both article 27 and 98(1) form part of Kenyan law automatically but also through the International Crimes Act passed by Parliament in 2008. So when people say Kenya violated its international law obligations, and its New Constitution, they must tell us which obligation.

The truth is: that Kenya finds itself, like other nations, in a position in which it can choose to arrest a head of state in compliance with a weaker and definitely younger rule of customary international law (art 27 was introduced by the Rwanda and Yugoslavia tribunals in 1994) or host him at will, in compliance with a rule older than the modern state founded in 1648.

As I have argued before, Al Bashir can only be arrested once states remove the recognition he enjoys as the President of Sudan or if his immunity is removed: after he leaves office either by losing an election or removal by the Sudanese Parliament. The supposedly all powerful UN Security Council cannot legally do this.

(Re)Writing History After Rwanda's Genocide: A Response to Peter Erlinder

Recent reports that President Kagame's Rwandan Patriotic Front may have committed serious crimes in the DRC in the 90s has raised the temperatures again, with Rwandan threatening to withdraw its troops from Darfur, Sudan if the UN publishes the report, which the Rwandan government has criticised heavily.

On a related issue, my good friend, Charles Jalloh, a JURIST Guest Columnist and Professor at the University of Pittsburgh School of Law (Pennslyvannia USA) has written as excellent piece responding to Peter Erlinder's article Rwanda: Flawed Elections and the Politics of 'Genocide Denial'. He argues that certain of Erlinder's criticisms of the ICTR are political or unfounded...

You can read his article here...

States Parties to the ICC Have No Obligation to Arrest Al Bashir

The ongoing saga over the presence of President Al Bashir at the promulgation of Kenya's new constitution raises interesting questions which I addressed four weeks ago in op eds in the Standard and Star Newspapers (Nairobi) following Al Bashir's first visit to a state party of the ICC: Chad.

The same arguments apply to the recent visit to Kenya:

At its summit in Kampala, the AU has repeated its call last made in July 2009 at its Summit in Sirte Libya requesting African countries not to cooperate with the ICC to arrest President Al Bashir. It comes in the wake two significant developments.

The first is the issuance of a second arrest warrant against Al Bashir by the ICC for charges of genocide after the previous arrest warrant in 2009 for alleged war crimes and crimes against humanity. The second development is the first ever visit since the arrest warrants by Al Bashir to a state party to the ICC: Chad.

The African Union (AU) has been heavily criticized by many for its stand on Al Bashir. The argument has been that African countries that are party to the Rome Statute, including Kenya have an obligation to arrest and surrender Al Bashir.
There are legal and political reasons why it would be folly to arrest Al Bashir. It will focus on the legal ones.

Those who have urged Al Bashir arrest – largely non-governmental organizations – have asserted that states parties have an obligation to arrest and surrender. They have insisted that article 27 of the Rome Statutes does not allow immunity, including that of head of state.

Yet the legal position is less straightforward than suggested.
I argue that there is no automatic obligation to arrest and surrender – and no obligation whatsoever – for these states to arrest Al Bashir, a serving head of State of a country that does not accept the jurisdiction of the ICC.
Although it is true that article 86 of the Rome Statute requires states parties to cooperate fully with the ICC and that article 27 removes immunity from the jurisdiction of the Court, that is only half of the story.

Despite the general obligation in article 86, there is no automatic obligation to arrest and surrender because article 89 provides that the Court must make a request for cooperation to a state containing specific information outlined in article 91.
However, – and this is where trouble lies for proponents of Al Bashir’s arrest – the fact that the ICC has made a request for arrest does not solve the legal problem.

Article 98(1) says that the ICC may not proceed with a request for surrender or assistance which would require the requested state to violate its obligations under international law with respect to the state or diplomatic immunity of a person ….

As confirmed by the International Court of Justice in the Arrest Warrant Case, foreign ministers and by extension heads of state cannot be subjected to judicial authority of another country, irrespective of what they are alleged to have done.

Article 98(1) was intended to preserve obligations of states that existed under customary law even before the ICC was created. These obligations that allows heads of states and their representatives to travel freely ensure smooth relations between states.

While states continue to recognize Al Bashir as President of Sudan, who is designated by Sudanese people to transact for them abroad, they cannot touch him. Otherwise, they will be in breach of article 98.

In fact, while knowing that States have these obligations, the Court will itself be violating the statute if it requests them to arrest. What is surprising that the ICC judges have missed two opportunities to clarify this issue.

Some people argue that recognizing immunity for sitting heads of states defeats the objects of the ICC. I beg to differ. We must distinguish immunity from jurisdiction and immunity from execution.

The operation of article 27 allows the ICC to indict even a head of state. However, article 98(1) prevents the execution of an arrest warrant in respect of a sitting head of state.

Article 98(1) then provides how we should proceed in this case: request for waiver of immunity. Only Sudanese people can waive the immunity of their President, with support for states: state unequivocally that they do not recognize Al Bashir’s Presidency.

As long as they do not do this, they cannot arrest him legally. The legal alternative is to wait until he leaves office. It is in fact duplicitous to want to do business with Al Bashir (on Darfur, the CPA in the South and resources) while insisting that other states should arrest him.

It is exactly this that the AU opposes in different words: turning the ICC into an instrument of foreign policy.

The ICC has changed a lot of things, but it cannot change the foundations of the international legal system: the equality of states and facility in inter-state relations which is premised on ease of travel those who represent states abroad.