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.