The InterDependent

On Aug. 27, as dignitaries from around the world gathered at a ceremony in Nairobi to mark the inauguration of a new democratic constitution for Kenya, there was no mistaking the leader sitting front and center in the reviewing stand: Omar al-Bashir, the president of Sudan and an indicted war criminal.

Bashir has been charged with war crimes, crimes against humanity and genocide for the violence that has left several hundred people dead in the Darfur region. Kenya signed and ratified the Rome Statute creating the International Criminal Court, which has issued warrants for the Sudanese president’s arrest, and the Kenyan government is obligated by its treaty commitments to arrest him.

Instead, he was treated as an honored guest in Nairobi. Worse in its potential impact on the court, the decision to invite Bashir was explained by Kenyan officials as dictated by the African Union’s decision in July not to abide by international arrest warrants, putting regional interests above international interests. The precedent is chilling. Can any regional group of UN member nations now pick and choose who will be tried by the court? The concept of universality is at the heart of the court’s reason for being. [Read the blog post on ICC Memo, “After Refusing to Arrest Bashir, What's Next for Kenya?”]

Erin Siegal/UN Photo

Omar al-Bashir, president of Sudan. He recently traveled to Kenya despite arrest warrants from the International Criminal Court.

Not all African Union members accept the organization’s decision to ignore court warrants. Botswana and South Africa have been most outspoken in upholding the primacy of the court in international criminal cases. Individual Kenyans have also spoken in defense of the court, which began work in 2002. Among the court’s Kenyan supporters is the activist Wangari Maathai , a Nobel Peace Prize winner, who recently described the court, created to try the world’s most egregious offenders against civilian populations or opposing armies, as the best hope for people everywhere who have no other recourse against tyrants.

Kenya’s foreign minister, Moses Wetangula, hastened to try to reaffirm Kenya’s commitment to the court when Bashir’s surprise visit to Nairobi provoked international criticism – from President Obama, the European Union and human rights organizations. "His visit has no impact at all on Kenya's future commitment to the ICC," Wetangula said, according to news reports. Other officials pointed lamely to the fact that Sudan was an important neighbor.

Kenya itself is under investigation from the International Criminal Court for widespread violence in 2008 following a contested 2007 election. The new Kenyan constitution was drafted, and approved in a national referendum, precisely to prevent such future outbreaks of political turbulence. The constitution introduces greater political power-sharing as insurance against lethal polarization, sometimes along ethnic lines.
The Kenyan case is interesting in that it was brought to the attention of the court initially by a group of eminent Africans, led by former UN Secretary-General Kofi Annan, and was taken on as a case after Kenya itself failed to deal with accusations that certain political figures had been behind the violence.

After Bashir was welcomed in Kenya, judges at the International Criminal Court reported the infraction to the Security Council. "Kenya has a clear obligation to co-operate with the court in relation to the enforcement of warrants of arrest," court judges said, inviting the council to take appropriate action.

Kenya is not alone in defying the court. In July, Chad (also a full party to the court) welcomed the Sudanese leader as an “honored guest.” Bashir has traveled unchallenged to Egypt, Ethiopia, Libya, Qatar and Saudi Arabia.

For the United States, the precedent set by Kenya, exposing weakness in the court’s reach, will not help persuade critics of the International Criminal Court to consider supporting full American membership in the entity in what is known as a “state party.” The US signed the court statute in the waning days of President Bill Clinton’s second term, but the treaty was never submitted to the Senate for ratification because of intense opposition from Republicans. The late Jesse Helms, then chairman of the Senate Foreign Relations Committee, said that the treaty would be “dead on arrival.”

The administration of George W. Bush tried to distance itself from the court by sending a letter withdrawing American support and attempting to “unsign” the US signature. But legal experts say that is not possible, and so the Obama administration can reverse that opposition with a letter of its own, though ratification in the current political climate is out of the picture for the foreseeable future.

The Obama administration has resumed participation in the court’s activities as an observer, most recently at the first major review of the court’s progress, held in Kampala, Uganda, from late May to early June, when a relatively large American delegation was led by two high-ranking State Department officials, Harold Hongju Koh, legal adviser to the State Department, and Stephen J. Rapp, ambassador-at-large for war crimes issues.

In its final years, the Bush administration seemed to be softening its rigid opposition to the court. It came as close as it could to supporting its work in 2005, when it did not veto a Security Council resolution that for the first time, under considerable public pressure, referred a head of state to the court’s prosecutor, Luis Moreno-Ocampo.

That head of state was Omar al-Bashir.