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

 Phillip Apuuli Kasaija
 BA (Hons) (Makerere), LLM DPhil (Sussex)
 Associate Professor, Department of Political Science, Makerere University, Kampala, Uganda
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 Edition: AHRLJ Volume 12 No 2 2012
  Pages: 623 - 640
 Citation: (2012) 2 AHRLJ 623-640
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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.

1.  Introduction

On 27 August 2010, President Omar al Bashir of the Republic of Sudan attended the promulgation of the new Constitution of Kenya 2010 at Uhuru Park, Nairobi. Again in October 2010, Bashir was to attend an Intergovernmental Authority on Development (IGAD) summit meeting in Nairobi on the future of Sudan but, due to the uproar at his presence in Kenya from various quarters, the meeting was shifted to Addis Ababa, Ethiopia. Also, the African Union (AU) summit meeting that was to be held in Malawi in July 2012 ran into problems because of Bashir. Malawi, which was to play host, requested that Bashir not be invited to attend the meeting. [1] Malawi, a party to the Statute of the International Criminal Court (ICC), stated that it had an obligation to arrest Bashir, who was wanted by the ICC, were he to visit Malawi. After the death of President Bingu wa Mutharika in April 2012, who had played host to Bashir in October 2011, President Joyce Banda, his successor, stated that there was a risk of damaging relations with Malawi's donors (Western countries) [2] were the country not to comply with the decision of the ICC to arrest Bashir. As a consequence of Malawi's insistence that Bashir was not welcome, the AU decided to move the meeting to Addis Ababa.

Bashir's presence in Kenya in August 2010 became a subject of discussion in Kenya and around the world, because in March 2009, Pre-Trial Chamber I (PTC I) of the ICC had issued a warrant of arrest for him as a result of the investigation by the Chief Prosecutor of the ICC in the Darfur situation. As a result of Bashir's visit and Kenya's failure to arrest and hand him over to the ICC, the International Commission of Jurists-Kenya Chapter (KICJ) (the applicant) petitioned the High Court of Kenya seeking to find Kenya in violation of its obligations under the Rome Statute of the ICC. [3] The application was motivated by, inter alia, 'the development, strengthening and protection of the rule of law, and in particular to keep under review all aspects of the rule of law and human rights within the Republic of Kenya, and take such action as will be of assistance in promoting or ensuring the enjoyment of these rights'. [4] Kenya became a state party to the Rome Statute in 2005.

On 28 November 2011, Kenyan High Court Judge Nicholas Ombija ruled that, should Bashir ever visit Kenya again, he should be arrested and handed over to the ICC. [5] The judge ordered that the Attorney-General and the Internal Security Minister enforce the directive, and hand over the Sudanese leader to the ICC. [6] Sudan reacted to the ruling by threatening to expel Kenya's ambassador to Sudan and recall its own ambassador to Kenya. President Bashir gave Kenya two weeks to rescind the ruling. [7] Meanwhile, the Kenyan government sent a special envoy to Sudan to reassure Bashir that the government would appeal the ruling. [8] In this regard, Foreign Minister Moses Wetangula was quoted as assuring the Sudan government that 'the government of Kenya ... expresses its deep concern at the very unhelpful High Court ruling and will do everything in its powers to ensure that the ruling does not undermine in any way whatsoever the very cordial and fraternal relations that exist between Kenya and Sudan'. [9]

This article argues that in its ruling, 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 a 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. 

2.  International Commission of Jurists-Kenya chapter's application

2.1  Background and pleadings

Following President Bashir's visit to Kenya in August 2010, the KICJ sued the Attorney-General and the Minister of State for Provincial Administration and Internal Security of Kenya as first and second respondents respectively, arguing inter alia that Kenya enhanced her commitment to fight against impunity by domesticating the Rome Statute in the domestic laws through the enactment of the International Crimes Act 2008 (ICA 2008), which entered into force on 1 January 2009; [10] that the ICA 2008, like the Rome Statute, does not recognise immunity on the basis of official capacity; that despite the Kenyan government being averse to or not aware of its commitments and obligations under international and municipal law, President Bashir was invited and hosted by the good government of Kenya at the promulgation of the new Kenyan Constitution on 27 August 2010; that the presence of Bashir in Kenyan territory was in violation of Kenya's obligations under the Rome Statute, the ICA 2008 and the new Kenyan Constitution of 2010; that the failure, neglect or refusal to arrest Bashir violated the basic tenets of international law; and that the hosting of Bashir by the Kenyan government raised very serious concerns over Kenya's commitment to combating impunity for the most serious crimes against humanity. [11]

It was the contention of the applicant that the disjointed approach in responding to the requests from the ICC was testimony of the different interests at play in the Grand Coalition Government (of Kenya) and thus it was in the applicant's interest to prosecute the application in line with its objectives and mandate. [12]

The first and second respondents argued, inter alia, that a request for a provisional warrant of arrest could only be made by the ICC, and thus the applicant lacked locus standi as it had not demonstrated its interest in the case, nor had it shown that it had been instructed to act on behalf of the ICC; that foreign requests in matters of mutual legal assistance or extradition are channelled through the Attorney-General who, if satisfied as to the authenticity of the request, will move to the High Court for issuance of a warrant and conduct proceedings on behalf of the requesting party, the process not being done by an individual or any authority; and that there was no evidence of a request by the ICC to the Kenyan government for a provisional arrest warrant for Bashir, therefore the High Court lacked jurisdiction to hear, determine or give the orders sought in the application. It is instructive to note that the respondents never raised the issue of Bashir's immunity as a sitting head of state.

Later on, the Kenyans for Justice and Development Trust (KEJUDE), through its trustees Andrew Okiya, Omtata Okoiti and Augustinho Neto Oyugi, joined the proceedings as the third respondent. KEJUDE inter alia argued that the decision of the Assembly of the AU taken at Sirte, Libya in July 2009, directing all the members of the AU to withhold co-operation with the ICC in respect of the arrest and surrender of Bashir, still stood; that the AU has called on the United Nations (UN) Security Council to invoke article 16 of the Rome Statute to suspend the warrant against Bashir; that Kenya as a member of the AU is bound by the decisions and resolutions of the AU; that as a neighbour to Sudan, Kenya declaring a warrant of arrest against Bashir is an act of aggression whose execution shall jeopardise or risk the lives and property of an estimated 500 000 Kenyans in Sudan; and that the issuance of the warrant of arrest by the Kenyan courts may lead to a deterioration of the relations between the two states.

2.2  Applicant's prayers

The applicant sought the following orders: that the Court issues a provisional warrant of arrest against President Bashir; that it orders the second respondent to effect the said arrest warrant, if and when the said Bashir sets foot within the territory of the Republic of Kenya; and that it issues such further orders, writ or direction as it deems fit and just in the circumstances.

2.3  Judgment

As a matter of fact, the Court easily established that Kenya had ratified the Rome Statute on 15 March 2005 and followed up this action by domesticating the Rome Statute by passing the ICA 2008, which came into force on 1 January 2009. The Constitution of Kenya 2010, which was promulgated on 27 August 2010, states in the Sixth Schedule, clause 7(1), that all laws in force immediately before the effective date (read 27 August 2010) continue in force and should be construed with the alterations, adoptions, qualifications and exceptions necessary to bring it into conformity with the Constitution.

2.3.1  Establishing jurisdiction

The Court held that the Rome Statute formed part of the laws of Kenya by virtue of the fact that article 2(5) of the Constitution of Kenya 2010 states that the general rules of international law form part of the law of Kenya. This position is further buttressed by section 41(1) [13] of the ICA 2008 and article 2(6) [14] of the Constitution of Kenya 2010. In establishing its jurisdiction to decide the application, the Court observed that 'the Constitution of Kenya 2010 does not in anyway reject the role of the international institutions such as the ICC'. [15] Thus, it noted that the Constitution of Kenya 2010 envisages that those exercising judicial authority to be guided by inter alia such principles as 'human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised'. [16] The Court, whilst observing that these values could not be given fulfilment by Kenya acting in isolation of the community of nations, noted that it was essential to recognise and facilitate the role of the ICC operating in the framework of the Rome Statute, in the framework of the Kenyan legal system. In this regard, the Constitution of Kenya 2010 gives the High Court jurisdiction to hear any questions in respect of the interpretation of the Constitution, including the determination of [17]

In the end, the Court concluded that both the Constitution of Kenya 2010 and the ICA 2008 grant it jurisdiction to enforce the Rome Statute.

2.3.2  Applicable principles

The Court considered the application of the principle of universal jurisdiction to the case. Under this principle, any state is empowered to bring to trial persons accused of international crimes regardless of the place of the commission of the crime or the nationality of the offender. Rightly, the Court noted that the principle was first proclaimed in customary international law in the seventeenth century with regard to piracy. Any state was authorised to arrest and bring to justice persons suspected of engaging in piracy, whatever their nationality and the place of the commission of the offence because pirates were regarded as 'enemies of all mankind' (hostis humani generis).

The Court then observed that the Rome Statute obligations were in any case customary international law which a state could not contravene. Violating customary international law, the Court noted, 'is intentionally violating fundamental rules of international public policy ... which would be detrimental to the international legal system and how that system and the society it serves defines itself'. [18] The duty to prosecute international crimes, the Court also noted, [19]

Citing the classic cases, including those of Pinochet [20] and Eichmann, [21] and the German Penal Code and Italian Criminal Code, the Court observed that a state may prosecute persons accused of international crimes regardless of their nationality, the place of commission of the crime, the nationality of the victim and even whether or not the accused is in custody or at any rate present in the state.

Whilst applying the principles of international law to the facts of the case, the Court held that [22]

In addition, the Court, after reviewing the approaches adopted in the jurisdictions of Australia, Canada and the United Kingdom, established that the applicant had locus standi and the issues raised by the application were justiciable.

In conclusion, the Court posed a very pertinent question: What happens when the warrants are issued and the Minister for Internal Security fails, neglects or refuses to execute them? In answering, the Court averred that any legal person, the applicant included, who has the requisite mandate and capacity to enforce or to execute the warrant may be at liberty to do so. Following this ruling, the Court in January 2012 issued a provisional warrant of arrest for President Bashir.

3.  Analysing the judgment

As observed above, the respondents never raised the issue of President Bashir's immunity in their pleadings. Presumably, following the non ultra petita rule, that is why the Court also never considered it. Nevertheless, in my considered opinion, the Court missed an opportunity to give clarity on the tension existing between the different provisions of the Rome Statute, in particular articles 27 [23] and 98(1). [24] Article 27 relates to the irrelevance of official capacity, while article 98(1) relates to co-operation with respect to a waiver of immunity and consent to surrender of a head of state whose country is not a state party to the Rome Statute. It should be recalled that the ICC's Pre-Trial Chamber (PTC) ignored discussing this issue when it first issued arrest warrants for President Bashir. According to Akande, 'the PTC ought to have dealt with the applicability of article 98 and how it relates to 27 before proceeding to issue the request for arrest and surrender to states parties, and Security Council members'. [25] Several countries in Africa, including Chad and Malawi, have been reported to the UN Security Council by the ICC for failure to arrest Bashir when he visited them. [26] Considering that Kenya is a state party to the Rome Statute and Sudan is not, the Kenyan court missed an opportunity to clarify the tensions arising out of the competing obligations existing between the two articles.

3.1  Irrelevance of official capacity vis-à-vis immunities of a sitting head of state

Immunity is the right not to be submitted to the exercise of foreign jurisdiction. [27] Its underlying purpose is the maintenance of peaceful relations between states and the settlement of disputes by consent rather than the diktat of one state, and to that end international law recognises the independence and equality of states and accordingly requires restraint from subjecting one state to adjudication of its disputes in the national courts of another state. [28] To allow the national court of another state to review judicially the propriety of a state's conduct would constitute a major intrusion into the internal administration of that state with the consequent loss of independence. The general purpose of immunity is to safeguard the ability of states to discharge their functions without interference, as well as to protect their dignity. [29]

Under customary international law, serving heads of state are accorded immunity from the criminal jurisdiction of foreign states. [30] Those immunities, as stated by the International Court of Justice (ICJ) in the Case Concerning the Arrest Warrant of 11 April 2000 (Arrest Warrant case) are to protect the individual concerned against any act or authority of another state which would hinder him or her in the performance of his or her duties. [31] Immunity from criminal jurisdiction includes immunity from personal arrest or detention and extends even to cases where heads of state are suspected of having committed war crimes or crimes against humanity. [32] As observed by the ICJ: [33]

However, the policy and doctrine of international accountability mechanisms, especially courts and tribunals, have trumped the customary international law notion that heads of state enjoy immunity when they are alleged to have committed international crimes. [34] 

For example, serving heads of state are not immune from the ICC jurisdiction by virtue of article 27 of the Rome Statute. Apparently, even before the coming into force of the Rome Statute, the ICJ in the Arrest Warrant case (albeit with respect to the Minister for Foreign Affairs) had established that [35]

In its decision, while referring the Republic of Malawi to the UN Security Council for failing to arrest and surrender Bashir when he visited the country in October 2011, the PTC dealt with the issue of immunities of serving heads of state vis-à-vis the ICC. [36] The Chamber, after reviewing heads of state's immunity before international courts since the end of World War I up until the establishment of the Special Court for Sierra Leone (SCSL), [37] held that [38]

The matter of the immunity from arrest of a serving head of state has now been put to rest by the SCSL in the Prosecutor v Charles Ghankay Taylor case. The Court, while handing down judgment on 26 April 2012, affirmed the decision of its Appeals Chamber of 31 May 2004 that the sovereign equality of states does not prevent a head of state from being prosecuted before an international tribunal or court. [39] 

Nevertheless, there appears to be a contradiction between articles 27 and 98(1) of the Rome Statute. [40] The ICC itself acknowledged this fact when it observed that 'the Chamber notes that there is an inherent tension between articles 27(2) and 98(1) of the Statute and the role immunity plays when the Court seeks co-operation regarding the arrest of a head of state'. [41] Van der Vyver notes that [42]

To him, article 98(1) recognises the legal rights of states to the protection of their heads of state (and other officials) under international law.

Whilst state parties who adopt the Rome Statute revoke the immunity of their heads of state (this is why many states have had to amend their constitutions before ratifying the Rome Statute), third states (states not parties to the Rome Statute) continue to have protection for their heads of state. According to Ssenyonjo, 'Sudan has not ratified the Rome Statute and so is not bound by article 27'. [43] Article 98(1) requires that the Court may not proceed with a request for arrest and surrender unless it has obtained the consent and waiver of the third state (Sudan). Thus, the ICC must first seek a prior waiver by a third state (Sudan) of the immunity of the individual (Bashir). A waiver is required because the immunity of a head of state is a right that attaches to a state, and not the person of the head of state alone. Waiver and consent are the only means of removing other obligations under international law. There is no application for a waiver that has been made by the ICC to Sudan in the case of Bashir. Therefore, there is no competence under article 98(1) for the ICC to make a request for the surrender of Bashir to state parties of the ICC without a waiver of his immunity by Sudan; neither can the requirement of the waiver itself be vitiated by the Court. Thus, whilst Ssenyonjo concludes that '[t]he Rome Statute cannot create obligations for a non-state party without its consent, and as such the Statute cannot remove the official immunity enjoyed by a head of state of a non-state party', [44] Triffterer is of the view that 'making the surrender of an official of a non-party state enjoying sovereign immunity dependent upon a waiver of that immunity by the non-party state concerned, could in practice bar the Court from exercising its jurisdiction over such a person, since the ICC Statute does not permit trials in absentia'. [45]

Also, it has been posited that, whilst article 27 does not remove the immunity of the head of state of non-state parties to the Rome Statute, in the case of Bashir such immunity may be regarded as having been removed by UN Security Council Resolution 1593, which referred the situation in Darfur to the ICC under chapter VII of the UN Charter. [46] There is ample academic debate on the effect of Resolution 1593 on Sudan being a non-state party to the Rome Statute. [47] For example, according to Schabas, it is now lex lata that the UN Security Council can withdraw immunity from anyone and this is what it has done by establishing ad hoc tribunals. [48] Moreover, it has also been noted that, whilst Resolution 1593 did not explicitly withdraw immunity of a head of state, it implicitly did so on the basis following, inter alia, (i) the Security Council referral to the ICC means that all individuals investigated and prosecuted via the referral are bound by the provisions of the Rome Statute; (ii) that when the SC decided in Resolution 1593 operative paragraph 2 that the government of Sudan 'shall co-operate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution' that included the lifting of the immunity; and (iii) that article 27 restates an already-existing principle of customary international law concerning the exercise of jurisdiction by any international court. Thus, it applies with respect to every person enjoying immunity under customary international law, regardless of whether the state this person represents is a party to the Rome Statute. [49] This position, however, is at variance with that of the AU, according to which [50]

Whilst establishing the jurisdiction of the ICC in the Bashir case, the ICC did not undertake any analysis of article 27. Rather, it observed that, according to the Preamble of the Rome Statute, one of the core goals of the Court is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, which must not go unpunished. [51] The Chamber noted that in order to achieve the punishment of impunity, article 27 of the Rome Statute must be operationalised. [52] Thus, it is upon this reasoning that the ICC issued a warrant of arrest for President Bashir in the first place. Moreover, the immunities that exist in national or international law (for example constitutional law and all rules of general and special international law such as those contained in the 1961 Vienna Convention on Diplomatic Relations) will not bar the ICC from exercising jurisdiction. [53] However, this position has been contested by the AU, which has argued that [54]

According to the AU, article 98(1) was included in the Rome Statute out of the recognition that the Statute is not capable of removing an immunity which international law grants to the officials of states that are not parties to the Rome Statute. [55] Immunities of state officials are rights of the state concerned and a treaty only binds parties to that treaty. A treaty may not deprive non-party states of rights which they ordinarily possess. In the final analysis, the AU reiterates the position as enunciated in the Arrest Warrant case that 'immunity accorded to senior officials, ratione personae, from foreign domestic jurisdiction (and from arrest) is absolute and applies even when the official is accused of committing an international crime'. [56] Nevertheless, the decision of the SCSL in the Charles Taylor case seems to have rendered the argument of the AU unsustainable.

In my considered opinion, the Kenyan Court missed an opportunity to contribute or even close the debate concerning the competing obligations existing between articles 27 and 98(1) of the Rome Statute as, hitherto, the ICC has not helped much on this front.

3.2  Universal jurisdiction

In his judgment Judge Ombija observed that universal jurisdiction is a jus cogens obligation under international law. He defined jus cogens as [57]

Unfortunately, that is as far as the judge went. He did not elaborate.

Under the universal jurisdiction principle, each and every state has jurisdiction to prosecute particular offences. [58] The basis for this is that the crimes involved are regarded as particularly offensive to the international community as a whole. Enabling all states to share the right to jurisdiction in this way is meant to function as a guarantee against impunity and prevent the alleged perpetrators of heinous crimes from finding a safe haven in third countries. [59] There are two categories of offences that clearly belong to the sphere of universal jurisdiction – piracy and war crimes. Whilst there is not a generally-accepted definition of [universal] jurisdiction under customary and conventional international law, [60] attempts have nevertheless been made to define the principle. Under the Princeton Principles on Universal Jurisdiction, universal principle is [61]

However, the challenge of relying on the principle to assert criminal jurisdiction over foreigners for acts committed abroad is evidenced by the reality that almost everything about it is contested. Even those states that have incorporated the principle into their national laws have reflected widely varied understandings of the concept. [62]

The universal principle has not only come under critical review in Africa but, in some instances, its application has created tension even among countries with long-standing political ties. Belgium's law on universal jurisdiction created tensions with the United States of America with the latter's Defence Secretary, Donald Rumsfeld, threatening to move the North Atlantic Treaty Organisation (NATO) headquarters from Brussels if the law remained in effect. [63] In Africa, the principle first attracted the attention of the AU when judges in France and Spain indicted some high-ranking Rwandan government officials for the shooting down of former Rwandan President Juvenal Habyarimana's plane, an act that sparked the 1994 Rwanda genocide. This resulted in the AU inter alia declaring that the abuse and misuse of the principle of universal jurisdiction by judges from non-African states against African leaders, particularly Rwanda, is a clear violation of the sovereignty and territorial integrity of these states. [64] 

Leaving politics aside, the principle of universal jurisdiction in regard to international crimes that constitute violations of jus cogens is authorised by international law. In fact, states may accept and recognise a norm that creates an international crime as a basic principle of international law from which derogation is permitted but, in practice, they are free to determine for themselves whether the application of the universal principle is best to address the crime in question. [65] In other words, the competence of municipal tribunals to actually exercise the universal principle and the conditions under which such tribunals may actually exercise it are determined by the state concerned. [66]

Judge Ombija should not have applied the principle of universal jurisdiction in the Bashir case at all, as the case arises out of the jurisdiction of an international criminal tribunal, namely, the ICC. A distinction ought to be made between universal jurisdiction and the ICC. Whilst the former is an exceptional basis of jurisdiction which is exercised unilaterally by a state and does not necessarily involve an international organisation, the latter is exercised by an international body to which states have expressly agreed to delegate the power to enforce certain parts of international criminal law. [67] Simply put, the jurisdiction of an international tribunal is not constrained by where the crime was committed or the nationality of the accused or the victim. Mention must be made of the fact that at the Rome conference there was a heated debate between countries who argued in favour of including the universal jurisdiction in the ICC Statute and those who opposed it, such as the United States of America. [68] In the end, the jurisdictional scheme that was ultimately adopted in the treaty rejected universal jurisdiction, providing instead that the ICC could exercise jurisdiction when either the defendant was a national of the state party to the treaty or the crime was alleged to have been committed on the territory of a state party. [69]

4.  Conclusion

Between November 2011 and January 2012, a Kenyan court ruled in favour of, first, the arrest and surrender, and, second, issued a provisional warrant of arrest for the Sudanese President Bashir should he ever visit Kenya again. In doing this, the court argued that it is implementing the decision of the ICC to which Kenya, as a state party, has obligations to execute. Unfortunately, in ordering the arrest and surrender of Bashir, the court did not expound on some of the most outstanding issues concerning the immunities possessed by a sitting president of a state which is not a state party to the Rome Statute. There clearly appears to be a clash between the obligations imposed by articles 27 and 98(1) of the Rome Statute. The Kenyan court would have scored a first had it resolved this issue, which the ICC has hitherto not fundamentally resolved.

The judge erred in applying the universal jurisdiction principle to the Bashir case because the Bashir indictment is founded upon the jurisdiction of the ICC and not that of the principle of universal jurisdiction. Moreover, it should be emphasised that the jurisdiction of the ICC is founded upon territorial (exercise of criminal jurisdiction by a state in its territorial home) and active personality (exercise of criminal jurisdiction by a state based on the nationality of the person) principles of jurisdiction.