Sunday, December 18, 2011

Al Bashir arrest warrant judgement by Kenyan High Court bad in law

The brief post below appeared as an op ed in the Kenyan daily, Standard on 18th December 2011. See here

The judgement by Justice Ombija issuing an order of arrest against President Al Bashir of Sudan has been subject of contestation for several weeks now. I only offer a brief scholarly critique of the judgement in light of my own reading of the law, which is that the judge erred in law: the judge was wrong to issue the order. To summarise Judge Ombija’s decision, he says that Kenya has an obligation to arrest Al Bashir because we ratified the Rome Statute, passed a law domesticating it and have in any case a Constitution that applies every treaty ratified by Kenya as part of our law.

But, can the applicants, ICJ-Kenya actually apply for an arrest warrant as they did? I have difficulty identifying what basis they were allowed to address the court on substance. Under the International Crimes Act that domesticates the Rome Statute, only the Minister can approach the High Court for an arrest warrant. Under our law, there are only two possibilities for a private citizen to come to court on this matter: for judicial review asking the court to issue orders compelling the Minister to approach the court for a warrant, or rely on the generous provisions on standing in the constitution by alleging that the constitution, in particular the bill of rights has been violated. Neither of this was done by the ICJ. In short, the judge improperly allowed a private citizen to act as the Minister.

According to the judgement, the crucial link between Kenya’s obligations to the ICC and the duty Al Bashir to arrest is universal jurisdiction. According to the judge’s reading of this principle, any state can arrest, prosecute or extradite anyone who commits an international crime anywhere. The problem with this view is twofold. First, with utmost respect to the judge, a discussion of universal jurisdiction on which he bases his decision should never have been conducted because it is irrelevant: the Rome Statute does not include universal jurisdiction. In my view, the judgement can fall on this score alone.

Secondly, although the judge discusses universal jurisdiction at length and he is broadly right on the principle, he does not consider or discuss the fact that current case law — all of it developed by leading Western courts — is that a sitting head of state is immune from arrest or prosecution by national courts abroad. I argue — again with utmost respect to the judge — that he only arrives at the conclusion that Kenya has an obligation to arrest by considering arguments that should not be relevant to the discussion, but more crucially, by not considering the most crucial issue. This central issue, on the basis of which the warrant issue should be resolved — and on which his decision stands or falls — is regrettably not dealt with by the judge.

The issue is: even when there is an ICC arrest warrant, can a sitting head of state be arrested abroad and handed over the ICC? The judge simply says in a couple of lines that no one benefits from immunity in respect of the ICC. Although he doesn’t cite the provision, this position is represented in article 27(2) of the Rome Statute. It is true that the ICC can indict anyone. However, it is not the correct approach to base Kenya’s obligation to arrest on article 27. If the Rome Statute forms part of our law, one must go on to see what else the Rome Statute says. The judge correctly does that, but he stops at article 91 and 92 which regulate procedure for arrest. By doing that, the judge misses the fact that a sitting head of state is subject to a different procedure of arrest, under article 98(1).

My reading of article 98(1) — which is not uncontroversial — is that because under international law of diplomatic relations and state immunity a sitting head of state ordinarily enjoys immunity from the actions of foreign organs of state — including the Judiciary — a Kenyan court can only properly order arrest of Al Bashir if one of three things exist: Sudan waives his immunity (through national law) or he is removed from office or Kenya removes its recognition of him as the legitimate Sudanese President. The cases of Milosevic of the former Yugoslavia, Charles Taylor of Liberia, and former Ivorian strongman Laurent Gbagbo who now sits in a cell in The Hague months after leaving office all support this view. Until there is a new rule of international law — introduced perhaps by an amendment of the Rome Statute, saying a sitting head of state indicted by the ICC can be picked up when visiting a foreign nation, we are stuck with what we have. It is for this reason that I fault the ICC judges’ ruling made several days ago on this issue (a decision involving Malawi’s refusal to arrest Al Bashir), which I will address, in a future post. However, I have serious doubts that a rule allowing arrest of a sitting head of state will emerge soon. The immunity enjoyed by heads of state and foreign ministers when traveling abroad to conduct diplomacy for their nations — is one of a handful of rules that form the cornerstone of the international system. I cannot visualise a different world — other than an anarchic one — where the legal equality of states did not exist.

My interpretation of article 98 of the Rome Statute does not mean a President cannot be tried: we just have to wait until he/she leaves office. Gbagbo is now in The Hague, seven months after his ouster. Too bad if a country is not a democracy or if — as is the case in Sudan – other states are unwilling, because of their national interests, to remove recognition of the sitting head of state that would enable them arrest him without breaching international law. Right now, resolution of the Bashir issue does not lie in the law: it is political.

Saturday, December 17, 2011

Reflections on Fatou Bensouda's Election as ICC Prosecutor: Is it Good for Africa?

My brief remarks below about Fatou Benouda's election and the next Prosecutor of the International Criminal Court appeared in the , a kenyan daily on 15th December 2011. See here

Fatou Bensouda’s election as the second ICC Prosecutor has received mixed reactions, although the majority of voices have been positive. I add my voice by arguing — as someone who has come to know Ms Bensouda personally, and as a follower and participant in developments around the ICC over the last few years — that her election is good for ICC, and for Africa. However, I suggest that it is precisely the fact her election is good for Africa that could be her undoing. It is no exaggeration to say she is assuming the position not only because of her abilities, but also because the African Union (AU) wanted, and fought hard to ensure an African succeeds Ocampo.

Her election is good for the ICC because it ‘buys’ continued support for the ICC from a large part of the African bloc in the ICC, and the AU, which has shown itself — for good or bad — a major player in the sphere of international justice. Bensouda’s election is also good for ICC simply because she is not Ocampo. While she has been at the heart of operations in the Office of the Prosecutor and in many cases handled the technical aspects of constructing cases (with Ocampo mostly as the PR person), she lacks Ocampo’s much reviled abrasiveness that turned many off the ICC. After the fallout between AU and the ICC (read Ocampo) over President Omar Al Bashir, one heard arguments in African capitals — mostly in boardrooms, but also publicly — that the ICC had ‘marginalised Africa’ while focusing entirely on Africa.

At the time when the ICC’s support was plummeting in Africa (in political circles at least), she became somewhat a ‘poster girl’ for the court. And I don’t mean this pejoratively. Accused by AU of being a ‘Western court’ that prosecuted Africans while at staff level relegating Africans ‘to deputy everything’ as some African leaders would gleefully state, the court had gone on a charm offensive by deploying its senior African staff. I was honoured to share platforms with Ms Bensouda in several African cities — Addis, Kampala, Pretoria, Maputo and Midrand (the seat of the Pan African Parliament) while she travelled the continent to market the court and put out fires. She came across to me as someone who is not only smart, but also one with a genuine belief in the ICC project. More importantly, unlike Ocampo, when some of us took the liberty to criticise her office and ICC constructively for the manner in which certain things were done, she was open to acknowledging these failings, but always referenced the need to do justice for victims.

For Ocampo, you were either unquestioningly with the ICC, or you were ‘with the criminals and killers’. She will win the ICC many friends just by being nice and accommodating. The AU’s triumphant fight to see her at the top must be seen in one of two ways. First, the AU hopes — however strange this may sound — to ‘establish balance’ in the court by gaining a foothold at the highest echelons of decision-making. If the idea is to somehow influence things through her however, there will be disappointment. Save for a limited space where the prosecutor enjoys total discretion (who to charge and largely, the charges), pretty much everything else is subject to judicial control of Pre-Trial Chamber.

Second, but linked to this is that there is a desire — and this is not limited to Africa — that the new prosecutor must expand the focus of ICC investigations beyond Africa. For long-term legitimacy of the ICC, many would agree that there must be a genuine attempt to truly internationalise the ICC. This could be Bensouda’s greatest challenge, one that could prematurely end celebrations. Because of the limits in ICC jurisdiction, some situations (non-state parties like Sudan) can only come to it through the UN Security Council. There is no doubt the AU will watch her every move, and I will not be surprised if some demands are made on her in the Al Bashir matter. She may have no choice but to rebuff these overtures. Her burden clearly is do her job in a way that does not open her to criticism globally for being ‘soft’ on Africa, merely because she is African. My suspicion is that it is precisely for this reason that she could be firmer than Ocampo, although in a more diplomatic and accommodating way. It is a commendable personal victory, but I honestly don’t envy her. She must rethink strategy and re-position the Office of the Prosecutor while remaining on course in existing situations and cases.

The reality is that even though there are proclamations that support for ICC is growing — largely because of new situations opening — in political circles resolve waivers and most doors have closed or near-closed in older situations like Uganda, DR Congo, CAR and Sudan. Even among communities of victims, experience shows that support for ICC reduces sharply as the process advances. This is partly because it becomes evident the ICC — however important — does not deliver quick justice and the promise of reparations from the court remains illusory for the vast majority of victims. Some hard thinking for Bensouda is necessary, but there are limits to what she can reasonably be expected to achieve because some of the problems of the ICC are structural. Only time will tell. She has my best wishes!