AU in new legal thinking over Sudanese President Al-Bashir's visit

NOTE, the below copied article explains that:

"There is no single body that creates international law.

It is developed and agreed upon by those that make up the international community.

Sources of international law include, among other things, local custom, state practice (how states behave in practice), general principles of law, equity, and reason."

Kenya: African Union Dares the West in New Legal Thinking Over Al-Bashir's Visit
From Daily Nation On The Web - Friday, 3 September 2010
Op-ed by Peter Mwaura

Nairobi — Kenya and the African Union have challenged the world with new jurisprudence on the applicability of international law over Sudanese President Omar al-Bashir's visit to Kenya. The legal thinking is grounded on the rules of conflict of laws.

The challenge should not come as a surprise to international law experts and jurists because there is no single body that creates international law. It is developed and agreed upon by those that make up the international community.

Sources of international law include, among other things, local custom, state practice (how states behave in practice), general principles of law, equity, and reason.

And international law must continue to evolve and must be applied, as the AU says, without "pretensions and double standards." Kenya and the AU, in their challenge to the world, are on pretty firm ground as they are using the same rules of legal reasoning used by Western jurists to settle conflict of laws.Conflict of laws occurs when two or more laws could apply to a situation.

In this case, there are two laws which are now in opposition to each other.

There is the Rome Treaty setting up the International Criminal Court, which obligates state parties to cooperate with the court. There is Constitutive Act of the AU, which obligates all AU members to comply with its decisions and policies.

Kenya is a member of both the ICC and the AU, and normally there is no conflict. A conflict has arisen because the ICC, which has indicted President al-Bashir on war crimes, crimes against humanity and genocide, has issued a warrant of arrest against him and obligates members of the ICC to arrest him.

The AU has appealed to the Security Council to defer the ICC proceedings against President al-Bashir for one year. The Union argues that arresting him would be counter-productive and would not advance peace in Darfur.

The Security Council has ignored the request. Consequently, the AU has passed a resolution obligating all its members to ignore the warrant of arrest.

Is the AU contravening international law? No, says the Union, it has adopted another law. If anything, it is a conflict of laws.And it has been resolved using the rules.

The rules have been developed to help decide which lawmaking body has the strongest interest in resolving a matter, and therefore which law applies. Leave aside the morality of inviting President al-Bashir to witness the 27 August promulgation of Kenya's new Constitution, notable for its protection of fundamental rights and human rights.

Kenya acted within international law using the rules of conflict of laws.When two laws are in opposition to each other, it becomes necessary to decide which law is to be obeyed.

Kenya chose the AU law, rightly so it might say. Darfur is an African problem. Sudan is Kenya's neighbour. As the AU said in its press release of August 29, Kenya has "an abiding interest in ensuring peace and stability in Sudan."

Peace, justice and reconciliation in Sudan can only be achieved through continuous engagement with the elected government of that country, the AU said.

Neighbouring countries do this as a matter of survival as they bear the brunt of instability or insecurity in neighbouring states, it went on to say. "Kenya as a member of IGAD and a guarantor to the peace process in Sudan, arising from the implementation of the Comprehensive Peace Agreement and the impending referendum in South Sudan, has a duty and obligation to continuously engage with President al-Bashir."

The AU argues that engagement with the elected leaders of Sudan is vitally and strategically essential and unavoidable for the countries of the region as well as the entire continent.

Because of their proximity to the problem, they are better able to understand and take into account the local realities and dynamics. The situation in Darfur is complex, says the AU.

It requires a fine balance between peace and justice and the AU "shall oppose any attempt to coerce African countries to undermine the common African position." And that is the new international law, for you, made in Africa.

(Hat tip AllAfrica.com)

New plot to block ICC's Ocampo

New plot to block ICC's Ocampo to "give Kenya breathing space"

New plot to block Ocampo
From The Standard (Kenya)
By Juma Kwayera
Saturday, 08 May 2010

As International Criminal Court Chief Prosecutor Luis Moreno-Ocampo arrives in Kenya, a group of African States plans to petition the United Nations Security Council to defer the investigations until after the next General Election.

The 60 African lobbyists — who include academics, politicians and lawyers — plan a parallel meeting to an ICC Review Meeting scheduled for May 31 to June 11 in the Ugandan capital, Kampala.

The push to stop Moreno-Ocampo from pursuing post-election violence suspects has been met with stinging criticism from local human rights groups, who read desperate attempts by forces culpable in the violence that consumed the country in the aftermath of the highly disputed 2007 presidential elections.

African Union that has in the past two years been critical of Moreno-Ocampo since he slapped a warrant of arrest on Sudanese President Omar Hassan el Bashir, are pushing for a revision of Article 15 of the Rome Statute that bestows unlimited powers on the chief prosecutor to pursue leaders accused of genocide and crimes against humanity.

The anti-Moreno Ocampo campaign is being spearheaded by Sudan, which has rallied support from among others Kenya, Libya, Ethiopia, Somalia, Eritrea, Uganda, South Africa, DR Congo, Rwanda, Zimbabwe, Sierra Leone, Liberia Mozambique and Chad.

In Europe, former USSR and Czechoslovakia satellite states are rallying behind the lobby group.

Apart from the African World Media (AWM), a leading British lobby group, and American-based Witness Africa, are some of the organisations lining up to tell Ocampo to "give Kenya breathing space".

Further, the group has drafted a petition it hopes to present to the UN Security Council on Wednesday to press for the deferment of the ICC investigations pending the conclusion of Agenda Item IV of the National Peace Accord signed under international pressure by President Kibaki and Prime Minister Raila Odinga that ended post-election chaos in 2008.

Moreno-Ocampo arrives at a time when the referendum debate has elicited strong reactions from the ‘Yes’ and ‘No’ camps, stoking fears of ethnic and political polarisation reminiscent of post-2007 General Election.

The leader of the group that convenes under the aegis AWM, Dr David Nyekorach-Matsanga, says ICC investigations of crimes against humanity carries with it a disruptive effect and has the potential to polarise the country further.

"We are wary of deadline politics in Africa. Crimes were committed in Kenya but this is not the time to engage in investigations that can rekindle the ethnic hostilities the resulted in post-election chaos. It is also important that the investigations be deferred pending the conclusion of constitutional, judicial, police and civil service reforms, which are on course," Dr Matsanga told The Standard on Saturday.

However, the Kenya National Commission on Human Rights Vice-Chairman Hassan Omar says the push to scuttle the ICC activities in Kenya would be resisted.

"There is obviously panic in Government because it is dominated by key suspects. ICC operations will move in any direction, including the Executive. The attempt to criticise the ICC or reduce the mandate of chief prosecutor is myopic as it cannot deflate the wheels of justice as they are catching up with people who planned and committed the crimes," Omar, who will participate in ICC General Assembly meeting in Uganda, says.

This is not the first time that Matsanga wants Moreno-Ocampo tamed in the hunt for post-election suspects.

Perceived impunity

In February, a 12-page application was filed at the ICC Pre-Trial Chamber II seeking the nullification of the international court’s effort to rein in perceived impunity in Kenya.

More significantly, the application filed soon after that of two Americans — Prof Max Hilaire and William A Cohn — failed to convince the international court to scupper investigations.

In the application, Matsanga argued: "Flawed application of Article 15 of the Rome Statute of 1998 is likely to lead to flawed justice for both the victims and the alleged key perpetrators of the post-election violence of 2007-2008 as well as lead to a cataclysmic politico-socio falling out across the country, with a dire consequences for Kenya."

Moreno-Ocampo’s five-day visit to Kenya has apparently rekindled fears that the hunt for bearers of the greatest responsibility for alleged crimes against humanity would rope in the Executive, which a local commission of inquiry has blamed for occasioning post-election violence.

International Centre for Transitional Justice senior researcher and lawyer, Njonjo Mue, agrees the search for justice for post-election violence faces threats of being messed by politics.

But he says: "The victims of post-election violence have waited too long. The rules of procedure are such that the process cannot stall until the investigations are through. Ocampo is aware of this. The indictments can be open or sealed, so there should be no fear that investigations will affect constitutional reforms as ICC is not a political court," says Mue.

University of Nairobi political science lecturer, Adams Oloo, shares the sentiments. But he cautioned: "Although the timelines of the referendum and ICC investigations are far apart, key suspects could use them as an excuse to mess up the democratic process. Ideally Moreno-Ocampo’s investigations could influence the 2012 elections."

An ICC statement early in the week that Moreno-Ocampo’s investigations would, when necessary, be taken to the highest office on the land has intensified panic that had been on a lull since his departure in November.

The planned meeting is part of the pressure that is piling again from within and outside Kenya against ICC to frustrate the investigations pending the determination of Africa’s demand for the reduction of the chief prosecutor’s powers.

Agenda IV, an outcome of national reconciliation and peace talks, envisages constitutional, electoral and judicial reforms whose deadlines are defined by the timeframe provided in the National Accord.

Moreno-Ocampo touched off panic in the high echelons of the Government when he declared early in the week that his imminent investigations would not spare anybody irrespective of position in the Government.