Max du Plessis (senior research associate, ICAP, ISS; associate professor, University of KwaZulu-Natal, Durban)
The presence of President Omar al-Bashir of Sudan at the recent launch of Kenya’s constitution was a watershed moment in the nascent history of the International Criminal Court (ICC). Undettered by the ICC’s indictment of him for genocide and crimes against humanity, it appears that Kenya unintentionally sparked controversy by inviting al-Bashir to its territory. Al-Bashir had hitherto thumbed his nose at the international community by deigning to visit only those states that were not party to the Court. Kenya is different, however. It is a treaty member of the ICC’s Rome Statute, and al-Bashir’s much-publicised stop there is the first by the indicted leader to the territory of a state party. The visit has highlighted, with dramatic symbolism, the conflicting positions certain African states are finding themselves in: choosing between the integrity of their domestic legal order and apparently competing international and regional legal obligations.
First, let us be clear, Africa is not at war with the ICC. African states were key participants in the formation of the Rome Statute in 1998 and Africa remains its largest signatory grouping. Moreover, all but one of the situations within the jurisdiction of the Court has resulted from the positive action of African states: of the four active situations before the Court, three arose from ‘self-referrals’ by African states. What complicates Kenya’s recent decision is that the 2007 post-election violence in Kenya is currently under investigation by the ICC Prosecutor and looks certain to become the next frontier for the Court. (Kenya itself mooted the possibility of ICC investigations for the violence, although it was ultimately taken up by the Prosecutor on his own accord after delays on the part of Kenyan authorities to take appropriate action against those suspected of the violence). Finally, despite obvious difficulties, Africa remains engaged in the strengthening and expansion of the Court, most recently through its support for the extension of the ICC’s jurisdiction over the crime of aggression at the Court’s first Review Conference in Kampala earlier this year. In the face of these cold facts, the Africa-versus-the ICC characterisation is both unhelpful and simplistic.
Secondly, Africa is not united behind al-Bashir. While there are powerful interests within the AU willing to protect Sudan’s President, the ‘African position’ on the ICC is contested and by no means monochromatic. The most strident backbencher is Botswana - it has made it clear that Gabarone remains committed to assisting the ICC and to honouring the country’s obligations to arrest al-Bashir if he comes to its territory. South Africa too - with urging from civil society - has stressed on more than one occasion that it will honour its legal obligations to the ICC if al-Bashir were to land here, going so far as to confirm that an arrest warrant for al-Bashir has been issued by a Pretoria Magistrate in compliance with our treaty duties. A failure to recognise the various shades of the relationship between the Court and Africa’s capitals is unhelpful . This oversimplification, reminiscent of a general predisposition within the West to treat Africa en bloc’ should be resisted: it plays directly into the hands of certain African politicians who are keen to present the ICC as anti-Africa, and Africa as anti-ICC.
That is not to say the relationship is harmonious. A central complaint by the AU is about the continuing reticence of the Security Council to respond to the AU’s call for a deferral of proceedings against President al-Bashir for one year (a possibility under article 16 of the ICC Statute). This reticence strikes a sour note with African states who are critical both of the Council’s role in the Court generally, and the prerogative given to it by article 16 in particular. There has thus been a proposal by the AU for an amendment to article 16 to give the UN General Assembly the power to defer in cases where the Security Council dithers. Again, the failure of many Western capitals to understand the pull of multilateralism in Africa and Africans’ sense of injustice and suspicion regarding the current international order, is problematic. The al-Bashir saga, and the work of the ICC, is now integrally bound up with (some might say infected by) the long-standing complaint, prevalent in the developing South, about the illegitimacy of the UN. What is more, some within Kenya have argued that Kenya has an interest in supporting the comprehensive peace agreement in Sudan (CPA). The line is that Kenya (as a neighbour to Sudan and a key port of entry for Southern Sudan) should place peace and stability in Sudan and the prospects of the CPA before the ICC. Boiled to its bare bones, Kenya’s argument is that if it snubbed al-Bashir it would risk undermining the peace agreement that is central to the region.
It is against this backdrop that al-Bashir was allowed to attend the launch of Kenya’s new Constitution earlier this month. The reasons given for permitting his attendance ran the gamut from regional obligations to national interest, based on both legal and political considerations. The regional obligations stem, primarily, from a July decision of the AU Assembly of Heads of State and Government directing its members ‘not to cooperate with the ICC in the arrest and surrender’ of President al-Bashir. By contrast, Kenya as a state party to the ICC is obliged by the Rome Statute (and arguably in the case of al-Bashir, Chapter VII of the UN Charter) to cooperate in the arrest of al-Bashir. Rhetorical flourishes aside, the most pressing question facing Kenya, and other African signatories to the ICC, is how to reconcile the apparently competing demands of the Rome Statute and the African Union.
According to article 23 of the Constitutive Act of the African Union, the failure of a Member State to comply with decisions of the AU may result in sanctions being imposed on the defaulting state. These include the denial of transport and communications links with other Member States, as well as other measures of a political and economic nature to be determined by the Assembly.
Against this obligation, African states that are party to the ICC must weigh their obligations under the Rome Statute to, inter alia, ‘cooperate fully with the Court in its investigation and prosecution of crimes’ within the Court’s jurisdiction.
How these two obligations are to be balanced will be a question for lawyers to ponder. It seems clear, however, that any suggestion that the provisions of the Rome Statute outrank the authority of the AU’s decision is not likely to go down well amongst African states, particularly those with a flair for decrying imperialism. Nor is it likely to facilitate the rapprochement both the ICC and Africa need. Rather, it is likely to play into the hands of those who would roll back the significant gains made so far.
Arguably the strongest argument against Kenya’s decision to allow Bashir to attend the Constitution’s launch comes not from the provisions of the Rome Statute, nor from the Security Council, but from the AU decision itself which requested that Member States ‘balance, where applicable, their obligations to the AU with their obligations to the ICC’. This paragraph was included at the insistence of states such as South Africa whose implementing legislation obliges them, under domestic law, to cooperate with the ICC. This is significant for Kenya. Under its International Crimes Act (2008) Kenya has implemented the Rome Statute of the ICC into its domestic law. The Act - which came into force on 1 January 2009 - states that certain sections of the Rome Statute, including those relating to international co-operation and judicial assistance, shall ‘have the force of law in Kenya’. Under its own law Kenya is under an obligation to arrest and surrender persons to the ICC in respect of whom the Court has issued a warrant of arrest. The Act backs up that obligation by providing that a person who willfully attempts in any manner to obstruct, pervert or defeat the course of justice of the ICC is guilty of an offence and liable on conviction to imprisonment.
In that light, Kenya’s facilitation of al-Bashir’s visit and its concomitant failure to arrest him are questions of both domestic and international legal significance. Whatever international lawyers may come to say about the apparent clash of obligations under the Rome Statute and the AU’s Constitutive Act, one thing seems clear: that Kenya has failed to give effect to its own domestic law. That is a straightforward rule of law problem for Kenya; and viewed in this light its conduct in respect of al-Bashir has done it no honour. The only individual who has truly benefited from Kenya’s (in)action is al-Bashir - an odious leader allegedly responsible for genocide and mass atrocities against his own people and, now increasingly, a symbol of Africa’s divided and divisive position on international criminal justice. That his indictiment has become a complex international law problem for the continent and the international community at large is a continuing shame for the victims of violence in Sudan.