RECENT DEVELOPMENTS

Kenya's provisional warrant of arrest for President Omar al Bashir of the Republic of Sudan

Phillip Apuuli Kasaija

Associate Professor, Department of Political Science, Makerere University, Kampala, Uganda

SUMMARY

At the end of November 2011 a Kenyan High Court ordered that, if ever President Omar al Bashir of the Republic of Sudan steps on Kenyan territory, he should be arrested and transferred into the custody of the International Criminal Court (ICC). In pursuit of this ruling, the same court in January 2012 issued a provisional warrant of arrest for President Bashir. In issuing the ruling and the provisional arrest warrant, the Court observed that it was implementing the decision of the ICC, which issued warrants of arrest for Bashir in March 2009 and July 2010 for crimes against humanity and genocide, respectively, which he allegedly committed in the Darfur conflict. The contribution argues that, first, the Court missed an opportunity to clarify the issue of the tension existing between provisions of the Rome Statute, particularly article 27 relating to the irrelevance of official capacity, and article 98(1) relating to co-operation with respect to waiver of immunity and consent to surrender a head of state whose country is not a state party to the Rome Statute. Secondly, the Court's declaration that the principle of universal jurisdiction has acquired jus cogens status and its application to the Bashir case was not correct.

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* BA (Hons) (Makerere), LLM DPhil (Sussex); pkasaija@ss.mak.ac.ug/apuulik@gmail.com
1 For a discussion, see D Akande 'The African Union, the ICC and universal jurisdiction: Recent developments' EJIL Talk! 29 August 2012 http://www.ejiltalk.org/the-african-union-the-icc-and-universal-jurisdiction-some-recent-developments/ (accessed 7 September 2012).         [ Links ]
2 Aljazeera 'Malawi cancels AU summit over Sudan's Bashir' 9 June 2012 http://www.aljazeera.com/news/africa/2012/06/20126974132905285.html(accessed 15 September 2012) (observing that Joyce Banda, Malawi's new President, wanted Bashir to stay away to avoid straining ties with key donors for her impoverished country).
3 See Republic of Kenya, In the High Court at Nairobi, Misc Criminal Application 685 (2010), 28 November 2011 (unreported) (on file with author).
4 As above.
5 P Ogemba 'Court issues warrant against Sudan's Bashir', Daily Nation on the Web 28 November 2011 http://allafrica.com/stories/201111282128.html (accessed 12 December 2011).         [ Links ] Again, on 23 January 2012, Judge Ombija issued a provisional warrant of arrest against President Omar al-Bashir with strict consequences to Internal Security Minister George Saitoti if the government failed to obey the order. The judge said that 'he was satisfied with the information provided by the ICJ-Kenya Chapter to issue the provisional warrant of arrest urgently as provided under section 32 of the International Crimes Act (ICA).' He also observed that 'it is necessary to ensure [Omar al-Bashir] will not obstruct or endanger the ongoing investigations into the crimes for which he is allegedly responsible and that he will not continue with the commission of the crimes'. See P Ogemba 'Kenya court issues new Bashir warrant' Daily Nation on the Web 23 January 2012 http://allafrica.com/stories/201201241147.html (accessed 25 January 2012).
6 As above.
7 Sudan threatened sanctions on Kenya, including imposing a no-fly zone over Sudanese air by flights originating in or bound for Kenya; the expulsion of Kenyan nationals from Sudan; and the stopping of all Kenyan exports to Sudan (Sudan being a large importer of Kenyan tea). J Gitau International Commission of Jurists-Kenya Chapter (KCIJ) (e-ail communication) (on file with author).
8 Daily Nation on the Web 28 November 2011 http://allafrica.com/stories/201111300076.html (accessed 12 December 2011). See 'Country to appeal Bashir arrest order'. On 20 December 2011, the Attorney-General, Githu Muigai, lodged an appeal in the Court of Appeal seeking a temporary suspension of the arrest warrant against Bashir. The Court ruled that the Attorney-General's arguments were insufficient to suspend the warrant, and thus the warrant should stay in effect until the appeal is heard on merit. See E Latif 'Bashir warrant in force until appeal is heard' Capital FM (Nairobi) 20 December 2011 http://allafrica.com/stories/201112201033.html (accessed 27 December 2011).
9 As above.
10 Specifically, arts 29 and 30 were cited by the applicant. Sec 29 provides: '(1) If a request for surrender is received, other than a request for provisional arrest referred to in section 28(2), the Minister shall, if satisfied that the request is supported by the information and documents required by article 91 of the Rome Statute, notify a judge of the High Court in writing that it has been made and request that the judge issue a warrant for the arrest of the person whose surrender is sought. (2) If a notice is sent to a judge under subsection (1), the Minister shall also send to the judge a copy of the request and supporting documents.' Sec 30 provides: '(1) After receiving a request under section 29, the judge may issue a warrant in the prescribed form for the arrest of the person if the judge is satisfied on the basis of information presented to him that - (a) the person is or is suspected of being in Kenya or may come to Kenya; and (b) there are reasonable grounds to believe that that person is the person to whom the request for surrender from the ICC relates. (2) The judge shall give reasons for the issue or refusal to issue a warrant under subsection (1).'
11 See n 3 above.
12 As above. Apparently, the applicant, on learning that President Bashir was to visit Kenya again in October 2012, had written to the two principals in the Grand Coalition Government, President Kibaki and Prime Minister Odinga, calling on them to take [Kenya's] international and domestic obligations seriously. In his response, Prime Minister Odinga observed that the presence of President Bashir in Kenya's territory on 27 August 2010 '[had not been] a matter of mutual agreement with the Grand Coalition'.
13 It states: 'The provisions of the Rome Statute specified in subsection (2) shall have the force of law in Kenya in relation to the following matters: (a) the making of the requests by the ICC to Kenya for assistance and the method of dealing with these requests; (b) the conduct of an investigation by the Prosecutor or the ICC; (c) the bringing and determination of proceedings before the ICC; (d) the enforcement in Kenya of sentences of imprisonment or other measurers imposed by the ICC, and any related matters; (e) the making of requests by Kenya to the ICC for assistance and the method of dealing with those requests.'
14 It states: 'Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.'
15 n 3 above.
16 Art 10(2)(b).
17 Art 165(3)(d).
18 n 3 above.
19 As above.
20 For a full record on this, see Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet, R v [1998] UKHL 41; [2000] 1 AC 61; [1998] 4 All ER 897; [1998] 3 WLR 1456 (25 November 1998); Pinochet, In re [1999] UKHL 1; [2000] 1 AC 119; [1999] 1 All ER 577; [1999] 2 WLR 272 (15 January 1999); Pinochet, Re [1999] UKHL 52 (15 January 1999); and Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet [1999] UKHL 17 (24 March 1999).
21 Attorney-General of the Government of Israel v Eichmann 36 ILR 5 (1961).
22 n 3 above.
23 It states: '(1) This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity of a head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this statute, nor shall it, in and itself, constitute a ground for reduction of sentence. (2) Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the court from exercising its jurisdiction over such a person.'
24 It states: 'The court may not proceed with a request for surrender or assistance which would require the requested state to act inconsistently with its obligations under international law with respect to state or diplomatic immunity of a person or property of a third state, unless the court can first obtain the co-operation of that third state for the waiver of the immunity.'
25 D Akande 'The legal nature of Security Council referrals to the ICC and its impact on Al Bashir's immunities' (2009) 7 journal of international Criminal justice 337.
26 ICC 'Pre-Trial Chamber I (PTC I) informs the United Nations Security Council and the Assembly of States Parties about Chad's non-co-operation in the arrest and surrender of Omar Al Bashir' Press Release ICC-CPI-20111213-PR756, 13 December 2011 http://www.icc-cpi.int/NR/exeres/371A3E88-35C6-4C54-8C98-60B92D3E140A.htm (accessed 4 February 2012).
27 S Wirth 'Immunity for core crimes? The ICJ's judgment in the Congo vBelgium case' (2002) 13 European Journal of International Law 882.
28 H Fox 'International law and restraints on the exercise of jurisdiction by national courts of states' in MD Evans (ed) International law (2006) 362.
29 n 27 above, 882. According to the ICJ in the Arrest Warrant case, Judgment, ICJ Reports 2002 para 51, 'in international law it is firmly established that ... certain holders of high ranking office in a state, such as the Head of State ... enjoy immunities from jurisdiction in other states, both civil and criminal'.
30 R Cryer et al An introduction to international criminal law and procedure (2007) 422.
31 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Judgment) 14 February 2002 (Arrest Warrant case) ICJ Rep 2002, para 54.
32 M Ssenyonjo 'The ICC arrest warrant for President Al Bashir of Sudan' (2010) 59 International and Comparative Law Quarterly 209.
33 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) [2008] ICJ Rep para 170, quoting from the Arrest Warrant case, para 54.
34 See eg C Gosnell 'The request for an arrest warrant in Al Bashir: Idealistic posturing or calculated plan?' (2008) 6 Journal of International Criminal Justice 841 843-844 (observing that the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) 'have held that the obligation to co-operate mandated by the Security Council acting under chapter VII prevails over any customary international law immunities that might otherwise exist').
35 Para 61 Arrest Warrant case (n 31 above).
36 ICC Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Co-operation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Ahmad Al Bashir, ICC-02/05-01/09, 12 December 2011.
37 n 36 above, paras 23-35.
38 n 36 above, para 36.
39 Para 2, Summary Judgment Prosecutor v Charles Ghankay Taylor, SCSL-03-1-T, 26 April 2012. The court also observed that 'the official position of Charles Taylor as an incumbent Head of State at the time when the criminal proceedings were initiated against him was not a bar to his prosecution'. The Appeals Chamber had concluded that 'the principle of state immunity derives from the equality of sovereign states, and therefore has no relevance to international criminal tribunals which are not organs of a state but derive their mandate from the international community'. See Prosecutor v Charles Ghankay Taylor, Case SCSL-2003-10-I, Decision on Immunity from Jurisdiction, 31 May 2004. The motion was heard in the Appeals Chamber by Justices Emmanuel Ayoola, Gerorge Gelaga King and Renate Winter, http://sc-sl.org/SCSL-03-01-I-059.pdf (accessed 15 September 2012).
40 According to Akande (n 25 above 337), this is so because the two provisions were drafted by different committees in the preparation of the Rome Statute, and no thought appears to have been given to their consistency with one another.
41 Para 37 Decision Pursuant to Article 87(7) (n 36 above). The Chamber went on to state that Malawi, and by extension the AU, are not entitled to rely on art 98(1) of the Statute to justify refusing to comply with the co-operation request. It gave four reasons for this: that immunity of heads of state before international courts has been rejected time and time again, dating all the way back to WWI; that there has been an increase in heads of state prosecutions by international courts in the last decade, giving examples of Slobodan Milosevic, Charles Taylor, Muammar Qaddafi and Laurent Gbagbo; that the 120 state parties to the Rome Statute have all accepted that any immunity they had under international law has been stripped from their top officials when they ratified the Statute; and that all states that have ratified the Statute cannot in turn interpret it in a way that disables and defeats the object of the Court and international justice. See paras 38-41.
42 JD van der Vyver 'Prosecuting the President of Sudan: A dispute between the African Union and the International Criminal Court' (2011) 11 African Human Rights Law journal 687.
43 n 32 above 210 (my emphasis).
44 As above.
45 n 42 above 688.
46 n 32 above 211.
47 n 25 above 341-342. Akande argues that 'by requiring Sudan to co-operate fully with the Court, Resolution 1593 explicitly subjects Sudan to the requests and decisions of the Court ... The fact that Sudan is bound by article 25 of the UN Charter and implicitly by Resolution 1593 to accept the decision of the ICC puts Sudan in an analogous position to a party to the Statute. The only difference is that Sudan's obligations to accept the provisions of the Statute are derived not from the Statute directly, but from a UN Security Council resolution and the Charter.' Gosnell (n 34 above) 843 posits that 'the Darfur situation was referred to the ICC by the Security Council, acting under chapter VII of the UN Charter ... This disables Sudan from asserting any immunity against an ICC arrest warrant.' SM Weldehaimanot 'Arresting Al Bashir: The African Union's opposition and the legalities' (2011) 19 African journal of International and Comparative Law 208 223-224: 'After reviewing the debates on the issue by different scholars inter alia concluding that for normative consistency and also objectivity, a UN SC referral resolution should have the effect of making non-member states parties to the Rome Statute [to comply] as far as the referred situation is concerned . as far as UNSC referred situations are concerned, the solution is to place non-member states on the same footing as member states.' See IK Souare 'Sudan: What implications for President Al-Bashir's indictment by the ICC?' Institute for Security Studies Situation Report 25 September 2008 7 (arguing, unlike Akande and Gosnell, that 'the ICC and the UN signed a relationship agreement on 4 October 2004 ... Article 2(3) of this Agreement commits both the UN and ICC to respect each other's status and mandate. Thus all member states of the UN are bound by this agreement, which obligates them to respect the provisions of the Rome Statute. While the agreement does not establish a direct ICC jurisdiction over the UN members, it implies the acceptance, by the UN, of the provisions of the Rome Statute ... Should the UN Security Council therefore refer to the ICC a situation arising from events in a member state, such as Sudan ... that state has to respect and abide by the referral because of its membership of the UN.'
48 WA Schabas An introduction to the International Criminal Court (2007) 232.
49 n 32 above, 211; P Gaeta 'Does President Al Bashir enjoy immunity from arrest?' (2009) 7 journal of International Criminal justice 315 322-323.
50 African Union 'On the decisions of Pre-Trial Chamber I of the ICC pursuant to article 87(7) of the Rome Statute on the alleged failure by the Republic of Chad and the Republic of Malawi to comply with the co-operation requests issued by the Court with respect to the arrest and surrender of President Omar Hassan Al Bashir of the Republic of Sudan' Press Release no. 002/2012, Addis Ababa, 9 January 2012 2.
51 ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Prosecutor v Omar Hassan Ahmad Al Bashir, http://www.icc-cpi.int/iccdocs/doc/doc639096.pdf (accessed 23 January 2012).
52 n 32 above 212.
53 O Triffterer Commentary on the Rome Statute of the International Criminal Court: Observers' notes, article by article (2008) 791.
54 n 50 above 2.
55 As above.
56 As above.
57 n 3 above.
58 MN Shaw International law (1997) 470.
59 G Bottini 'Universal jurisdiction after the creation of the International Criminal Court' (2004) 36 New York University journal of International Law and Politics 512.
60 CC Jalloh 'Universal jurisdiction, universal prescription? A preliminary assessment of the African Union perspective on universal jurisdiction' (2010) 21 Criminal Law Forum 1 6.
61 Principle 1 (1) Princeton University Program in Law and Public Affairs, The Princeton Principles on Universal Jurisdiction 28 (2001) http://www1.umn.edu/humanrts/instree/princeton.html (accessed 29 January 2012).
62 Dissenting Opinion by Judge ad hoc Van den Wyngaert in the Arrest Warrant case, para 46. See also dissenting opinion of Judge Oda's posting that 'the court has shown wisdom in refraining from taking a definitive stance [in respect of universal jurisdiction] as the law is not sufficiently developed' (para 12).
63 n 59 above 550.
64 Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction, Doc Assembly/AU/14 (XI) para 5(ii) (my emphasis).
65 n 59 above 518.
66 I am grateful to the anonymous reviewer who drew me to this tangent of the argument.
67 n 59 above 513.
68 See generally MH Morris 'Universal jurisdiction in a divided world: Conference remarks' (2001) 35 New England Law Review 350.
69 As above.