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Saturday, Sept. 4, 2010


The ICC snubbed

Kenya late last month launched a new constitution. The event was marked by a gala celebration in Nairobi that included other regional leaders and heads of state. Sadly, among the guests was Sudanese President Omar Hassan al-Bashir. His attendance, while no doubt intended to honor his hosts, was also a snub at the International Criminal Court (ICC), which has accused Mr. Bashir of war crimes, crimes against humanity and genocide. Yet, rather than honor that warrant and arrest Mr. Bashir, Kenya afforded him high honors. It is both a snub to the ICC and a troubling indication of the Kenyan government's thinking about human rights.

The ICC made history by issuing a warrant for Mr. Bashir's arrest in March 2009 on five counts of crimes against humanity and two of war crimes for allegedly orchestrating atrocities in the troubled region of Darfur in southern Sudan. The indictment was historic: It was the first time that a sitting head of state had been served with charges by the ICC. Three months later, the court added three counts of genocide to the charges against him. The warrant alleged that that Mr. Bashir, and his government, were complicit in the slaughter of hundreds of thousands of Sudanese and the displacement of millions more after they rose up against central government discrimination and neglect.

Mr. Bashir rejected the allegations, charging that they were without foundation and were yet another indication of Western imperialism toward Africa. He has received a sympathetic hearing from other leaders in Africa even though signatories to the treaty establishing the ICC are supposed to cooperate with the court and arrest individuals who have been charged by it. The court issued a statement noting that Kenya "has a clear obligation to cooperate" in enforcing arrest warrants. The Kenyan government chose to ignore that obligation: Mr. Bashir was escorted to the event by a Cabinet minister and had a front row seat at the Aug. 27 celebrations.

Kenyan officials say they were acting in accordance with an African Union (AU) decision not to arrest Mr. Bashir. In July, the AU criticized the warrant and called for it to be suspended. They too see it as evidence of a colonialist mindset. Some African nations — such as Chad, which Mr. Bashir visited the same month — have also declined to arrest him. But other AU members that are ICC signatories have said they would arrest Mr. Bashir if he entered their territory.

Kenya's inaction reflects several considerations. One is a sensitivity to charges of being an accessory to imperialism. Kenya's Foreign Affairs Minister Moses Wetangula has said that Mr. Bashir deserves recognition as the "head of state of a friendly neighbor state" and he deserved to be present at a gathering of regional leaders. Moreover, Kenya hosted peace talks between Mr. Bashir's government and southern rebels that yielded an agreement in 2005. Arresting him would appear to be taking sides.

But the most important factor might be the fact that the ICC is expected to levy charges of crimes against humanity against Kenyan leaders for acts committed during and after elections held in that country in 2007. ICC prosecutor Luis Moreno Ocampo has said he expects the investigation to be completed by the end of this year, and charges will be leveled against individuals who allegedly directed violence that resulted in more than 1,000 deaths. Kenya's president and prime minister have said that they will cooperate with the court and Mr. Wetangula said that Mr. Bashir's attendance at the constitution celebration "will have no impact at all on Kenya's future commitment to the ICC." Human rights activists are not so sure.

The failure to arrest Mr. Bashir underscores again the difficulties faced by advocates of a U.N.-based international order. Institutions like the ICC ultimately depend on the readiness of member states and signatories to honor their obligations. The court has no police force and relies on its members to enforce its warrants. Their failure to do so not only robs the institution of its authority, but effectively undercuts its value as a deterrent. The fear of arrest is the only way to check leaders who break the law — after all, these are men and women who consider themselves above the law.

Fortunately, the threat of arrest is real. Mr. Bashir was forced to cancel a trip to Turkey last year at the last minute when it looked like that the Turkish government would arrest him. Granted, Ankara was under intense pressure from Europe, but nonetheless, the prospect of justice was enough to change Mr. Bashir's travel plans. It may not sound like much, but if more world leaders lived under the threat of being held accountable for their actions — their bank accounts (and ill-gotten gains) seized, their travel options limited, if not eliminated entirely — then they might think twice about committing the deeds that earned them arrest warrants.

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