After Refusing to Arrest Bashir, What's Next for Kenya?

In light of Kenya’s unwillingness to arrest Omar al-Bashir, president of Sudan, who is wanted by the ICC and visited Nairobi last week, Pre-Trial Chamber I notified the UN Security Council and the ICC Assembly of States Parties (ASP) of Kenya’s failure to cooperate and asked them to “take any measures they may deem appropriate." Earlier this year the African Union called on its members to refuse to comply with the ICC. Kenya has claimed that their failure to cooperate stems from these AU obligations and a need to keep to keep the peace.

President Omar al-Bashier attending ceremonies in Kenya last Friday.
(Photo by AFP)

This situation has ultimately become a question of competing obligations. Is Kenya bound by AU, UN, or Rome Statue obligations?

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.”

By not arresting al-Bashir it appears that Kenya has called into question its commitment to the ICC. Kenya is currently under investigation by the ICC for crimes that were allegedly committed following the 2007 election. Some have claimed that failure to assist with other current ICC cases may ultimately harm the justice process within Kenya. Alison Smith, legal counsel with advocacy group No Peace Without Justice, stated that "if the political will is not strong enough to prevent them extending an invitation to al-Bashir to come to Kenya, we have to question if it will be strong enough to extradite suspects from Kenya."

Widespread post election violence in Kenya killed 1,200 and
displaced over 350,000 in 2007. (Photo: Ben Curits/AP)

Would a slap on the wrist from the UN Security Council or the ASP make future cooperation from Kenya any more likely? Given these recent developments in Kenya, the Office of the Prosecutor is already planning to issue sealed arrest warrants, just in case.