Bashir in Kenya
On 27 August, President Bashir attended Kenya’s celebrations for the promulgation of the new constitution. For the Pre-Trial Chamber of the ICC this was a reason to take a “Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya” (http://www.icc-cpi.int/iccdocs/doc/doc930979.pdf).
The US, EU and several human rights organisations have condemned Kenya for welcoming a fugitive from international justice. They may have valid political and human rights arguments for their position, just like Kenya has political reasons for inviting the President of its biggest neighbour.
ICC judges, however, may take only those decisions for which the ICC Statute provides a legal basis. This blog has already pointed out that it is questionable whether the ICC judges were allowed to circulate an arrest warrant for a President of a non-state party, whose immunity had not been lifted by the Security Council, to ICC States Parties (see the earlier discussion on this blog). However, it is even more questionable whether the ICC judges had a legal basis for this “Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya”.
It is remarkable that the judges do not point to a legal basis for their decision. The only reference to an article in the Statute is to article 87, which is on cooperation. The only paragraph in this article on the Court’s informing the Assembly of States Parties (ASP) and the Security Council (SC) is article 87(7), which reads:
“7. Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.”
Article 87(7) thus allows the Court to inform the ASP and SC of a state party’s failure to comply with a cooperation request, but only after a finding to that effect. The Court made no such finding in this decision. (Had it been such a finding, it should have heard Kenya first pursuant to regulation 109(3), which provides: “Before making a finding in accordance with article 87, paragraph 7, the Chamber shall hear from the requested State”).
What is the role of article 87(7), which provides a procedure for informing the SC and ASP in explicitly provided circumstances, if the judges had the implied powers, as they seem to arrograte in this decision, to inform the ASP and SC of whatever they like to inform these organs?
The purpose of this “decision informing” the SC and the ASP is not generously to share information that only the judges had access to – the ASP and SC were well (or better) informed about Bashir’s possible visit to Kenya. Rather than a decision to inform, it is a decision to encourage the ASP and SC to “take any measure they may deem appropriate”. Without a legal basis, such encouragement comes down to political activism. The US, EU and human rights organizations may be in a better position to conduct such activism than a court that is already under fire for using the law for political purposes.
It is unfortunate that the Pre-Trial Chamber I of the ICC has engaged in what will likely be perceived my many in the global community as â€œpartisan politicsâ€ [and in this instance I use the word â€œpartisanâ€ to mean â€œbiased.â€]
It is likely that the â€œDecision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashirâ€™s presence in the territory of the Republic of Kenyaâ€ issued by the Pre-Trial Chamber was no more than an attempt by that Chamber to appear to be aligned with one faction in the dispute centered upon Bashirâ€™s indictment as a sitting head of state.
Beyond the appearance for bending the rules to deny immunity to Sudan that is afforded the United States, the Chamber has overreached in a way that defies legal logic. The ICC, as well as international law is a social construct. And as such, it only exists within the boundaries of that construction. And while there have been successful attempts[in many instances] to extend the law [and its various institutions] beyond its original design, when this happens in a manner that is viewed as manifestly unfair and biased towards particular nations and cultures, the foundations of those laws shudder with the seismic rumblings of the larger community.
There is no legal authority for this latest action by the Pre-Trial Chamber I, nor is there moral it justification for it as long as the ICC turns a blind eye to the human rights violations perpetrated by the United States and it allies.
World public order cannot survive in an environment of unjustified privilege – and indecent bias in the application of the law is a stench in the nostrils of the global community that will not be long tolerated.
I believe that Kenyaâ€™s response to the accusations by the US and the EU was a response to a perception of unfair and indecent bias that the US and the EU are attempting to sell to the global community. And such responses will occur more frequently as long as these â€œprivilegedâ€ nations that see themselves as being above the law make demands on the rest of the world to abide by those laws.
And as a footnote, I would like to say that I enjoyed reading Sarah Nouwenâ€™s post very much.
Sarah Nouwen raises more fundamental issues about the ICC .
It has been very obvious to layman that the court is pursuing politics rather than legal business. It seems also the Prosecutor is losing focus and tried to be on the forefront of the world media seeking celebrity.
The Kenyan were right when they invited the President of their biggest neighbour to share with them their joys of being entering new era of their constitutional life. They have left back forever the legacy of the colonial era. I guess Kenya now is not the ones that could be threatened by accusations of the ” privileged nations” as stated by Oscar.
They have been guided by real African wisdom “a real neighbour couldn’t betray”.
Bashir in Kenya, but what about Kagame?
Sarah Nouwen and others raised some valid points about the ICC reaction to the presence of President al Bashir at the signing ceremony of the new Kenyan constitution on 27 August and implicitly the barrage of criticism of the â€˜International Communityâ€™ of Kenya for inviting the neighbouring Sudanese president.
Compare the stark contrast with the deafening silence regarding the presence of other controversial neighbouring presidents such as Messrs Museveni and Kagame of respectively Uganda and Rwanda.
Not that the spotlight has not been shining negatively on Paul Kagame, not only following his own recent controversial presidential re-election with 93% outperforming the much ridiculed vote (68%) for al Bashir but also because of a leaked draft UN report on Kagameâ€™s forces in the eastern DRC between 1993 (!) and 2003, which according to media reports published about the same time as Kagame was in Kenya would suggest that his forces could be guilty of â€˜genocideâ€™ of Hutus in eastern DRC.
Kagameâ€™s reaction was the usual bluster one has to come to expect from him whenever he is criticised over his role in eastern DRC, suppression of opponents etc, culminating in the outburst during his own inauguration on 6 September that Africans â€œneed no lessonsâ€ from the West and the threat to withdraw the Rwandan contingent from Unamid, the largest in the hybrid UN AU force, which resulted in UN general secretary Ban Ki Moon running to Kigali to appease Kagame with reportedly promises to tone down the report, including the removal of the term of â€˜genocideâ€™, but which resulted not in one word of condemnation from the capitals of the â€˜International Communityâ€™.
One can only imagine what the reaction would have been from the usual suspects of activists and â€˜advocatesâ€™ if President al Bashir had spoken and acted in the same way. But there are more inherent serious issues beyond exposing â€˜International Communityâ€™ and â€˜Advocacyâ€™ hypocrisy and double standards in relation to Rwanda or Sudan.
Nearly immediately after the pogrom against Tutsis and so called Hutu moderates was unleashed in all its violence following the disputed circumstances of the downing of then Rwandaâ€™s Hutu president Habiyarimanaâ€™s plane on 6 April 1994 returning from a crucial meeting in Uganda with Kagameâ€™s Rwanda Patriotic Front insurgents, the whole Hutu political leadership was demonised as â€˜genocidairesâ€™ closing the door on any long term political solution in the country and wider region.
The flipside of demonisation is beatification and as a result Kagame and his RPF were beatified, preventing any discussion and critical analysis of not only their role in the Rwanda insurgency well before April 1994, but also post April 1994 their role in eastern DRC, the nature of the victorious RPF regime and the question of justice administration, such as â€˜victor justiceâ€™, the international participation etc; in fact nearly the whole corpus of Rwandaâ€™s pre colonial, colonial and earlier post colonial history and anthropology was thrown out like the proverbial baby and bathwater when they did not fit the RPFâ€™s narrative endorsed by the (Anglophone) â€˜International Communityâ€™ and adoring â€˜advocatesâ€™.
Ten years later we see the same scenario of demonisation and beatification played out again when some clumsily but naively for well meaning reasons to highlight the humanitarian emergency in Darfur, to be as fair and generous as possible, but others cynically and deliberately, made the false comparison between Rwanda and Darfur in April 2004.
And as a result a political solution of the Darfur situation has become as virtually impossible with all the implications for Sudan and the wider Sahara/Sahel region as much as it has become impossible to reach a lasting solution in the wider Great Lakes/Rift region as long as Washington, London etc give Kagame â€˜slackâ€™ as the expression is and for that matter also to Kabila, Nkurunziza, Museveni, and Meles; as Washington and London have succeeded in return to seduce the latter three to get sucked into the â€˜war on terrorâ€™ in the Horn the regional problems these gentlemen face now at home have become truly continental and international.
The difference that so far seems to emerge is that while a cautious and measured UN â€˜specialistâ€™ report into war crimes and genocide allegations in Darfur was twisted for political reasons and turned unilaterally by the unaccountable ICCâ€™s chief prosecutor Luis Moreno-Ocampo into a charge sheet, a similar report in equally cautious and measured language, as far as one can judge by what has been reported, is likely to be binned, for political reasons too.
However, the number of dissident voices in the West, media and otherwise, on Darfur or Rwanda is rising. Initially on 28 August Sam Kiley in the London Times demanded that a discussion on Kagameâ€™s role in DRC should not â€œdilute the horror of 1994â€, but in the same paper on 30 August Catherine Philip commented â€œvictor justice to meet potent challengeâ€™; we shall see.
But at least the debate not only on Kagame, but also on the meaning and usage of the term â€˜genocideâ€™, â€œtossed around with reckless disregardâ€ as Raymond Bonner wrote in the Atlantic on 13 September (Rwanda, eastern Congo and the meaning of â€˜Genocideâ€™), the role of the ICC as well as the appointment of its judges (see the Guardian of 9 September) etc seems to be gaining ground in the mainstream media, though not before time.
The latest Wikileaks documents shine a clear spotlight on the role and position of L.M.Ocampo.
!- His Icc is not independent or impartial .He coordinates behind closed doors with the USA(which does not recognise the ICCand has a law authorising its president to use all means necessary(read:force if required) to free any US citizen from trial by the ICC.
2-He had to admit that President Bashir is popular among his people.
3-He claimed that President Bashir has got Billions stashed in LOndon banks. He mentioned Lloyds Bank. The bank denied that Bashir has an account. Ocampo was thus forced to retrack his words. He denied in an interview with Julian Marshall(BBC World Service 18 December 10)that the billions are in London or with Lloyds!
4-The Daily Telegraph legal correspondent J. Rosenberg has called for L.M.Ocampo to resign.These latest revelations are more nails in what remained of the credibility of the ICC and its publicity seeking Chief Prosecutor.He shoud resign or be sacked.