|President Omar al-Bashier attending ceremonies in Kenya last Friday.|
(Photo by AFP)
There is a common belief among international legal scholars that there is a hierarchy to international obligations. The UN Charter tops the list, with regional economic partnerships falling somewhere near the bottom. Many would agree that Kenya’s first international obligation is to the UN Charter, then to the Rome Statute, and finally to their AU partnership. Taking this hierarchy in to account, it seems that Kenya has not lived up to its legal obligations on several levels. Al-Hadi Shalluf, a French-Libyan lawyer, has explained that the AU resolution did not overrule the Rome Statute. He claimed that “the AU is a regional organization and it is recognized by the United Nations, but it has no authority and no mandate to break international law."
We know from Otto Triffterer’s analysis of the Rome Statute that any failure to comply with the Rome Statue by an ICC State Party is “tantamount to an internationally wrongful act”. He goes on to explain that the Security Council has the authority to urge compliance, condemn the non-cooperating State Party, or, in the most extreme circumstances, call for economic sanctions. The ASP also has the authority to review the situation and make any recommendations as long as they do not conflict with the UNSC. Consequently, Kenya also has obligations stemming from the UN Charter. UNSC Res 1593 (2005) requires Sudan (an ICC non-State Party) to cooperate with all ICC investigations and “urges all States and concerned regional and other international organizations to cooperate fully.”