Kenya's ICJ moves to court to seek Bashir’s arrest

NOTE to self for future reference. Weird timing on ICJ's part. Who is behind it and why? Today, this blog's parent site Sudan Watch has received quite a few visitors searching for news re tanks shipped by MV Faina. Check out Sudan Watch, 19 July 2009 - MV Faina cargo: 100 tanks were ordered by Government of South Sudan - and, at the end of the story, click on FAINA label to view a series of news reports filed 02 October 2008 - 19 February 2010.
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Kenya's ICJ moves to court to seek Bashir's arrest
Source: The East African - www.theeastafrican.co.ke
Author: Jillo Kadida
Date: Thursday, 18 November 2010 at 18:44

Photo: President Al Bashir arrives for the promulgation of Kenya's new constitution at Uhuru Park, Nairobi on August 27, 2010. His visit sparked outrage among Kenyan leaders and the international community. Photo/STEPHEN MUDIARI

The Kenyan Section of the International Commission of Jurists has moved to court seeking a warrant of arrest against Sudan president Omar Al Bashir.

The commission filed a case at the High Court in Nairobi yesterday seeking a provisional arrest warrant against Al Bashir.

Mr Al Bashir has been indicted by the International Criminal Court for genocide crimes committed in Sudan. The court also issued two warrants of arrest which have never been effected.

The jurists’ organization says Al Bashir is likely to visit Kenya in November or near future and his presence in the country would be a violation of the law.

ICJ also wants the court to order Ministry of Internal Security to effect the arrest warrant when Al Bashir sets foot in Kenya.

The ICJ Kenyan Chapter blames the Kenya Government for failing to arrest Al Bashir when he visited Kenya on August 27 2010 during the promulgation of the new constitution.

The organization says the Government in utter disregard of its obligation under international law failed to arrest Al Bashir despite the existence of two warrants of arrest issued by ICC.

Last month President Al Bashir was expected to visit Kenya to attend the Inter-Governmental Authority on Development (Igad) meeting but this was moved at the last minute following fears that he might be arrested.

The meeting was transferred to African Union headquarters in Ethiopia following a letter from the ICC to the government of Kenya.

In its letter the court called for arrest of Mr Al Bashir in the event he turned up for the conference.

A statement from the ICC Registrar, Ms Silvana Arbia, had said: “The International Criminal Court requested the Republic of Kenya to inform the Chamber, no later than 29 October, about any problem which would impede or prevent the arrest and surrender of Omar al-Bashir in the event that he visits the country on 30 October, 2010.”

Yesterday after hearing the case filed by ICJ High Court Judge, Nicholas Ombija directed that the suit papers be served on the Attorney General.

The parties will appear before him for hearing next Tuesday.

Sudan: Why Citizens Should Encourage Sudan Unity and Not Disintegration

The concept of joining ranks and formation of regional and continental blocks is gaining momentum and support throughout the entire world (e.g. the European Union, the Russian Federation and the US), among them the most wealthy and powerful nations.

So why should we turn against this global trend and preach for separation and disintegration of our least developed of African countries into smaller and weaker states, while real empowerment and development lies in unity and more unity?

Full story below.

Sudan: Why Citizens Should Encourage Sudan Unity and Not Disintegration
Source: The Nation (Nairobi) - www.nation.co.ke
Opinion piece by Sonaya Abdelsadig
Date: Friday, 29 October 2010

Nairobi — A recent trend in Kenya and East Africa in general tends to favour the partitioning of Africa's biggest nation into two parts, claiming that the emerging "independent" state in the South should be purely African and Christian and that East Africans should enjoy the oil wealth of Southern Sudan.

Firstly, speaking about independence for Southern Sudan is fallacy because historically, the South has never been a colony to the North, but an integral part and parcel of one country regardless of disparity in development standards resulting from many historical factors and political mistakes committed by various actors.

These errors are being addressed and sorted out in numerous conferences and meetings with one culminating in the signing of the historical Comprehensive Peace Agreement (CPA) in Nairobi in 2005.

Ethnic and religious diversity was never the cause of the civil war but a mix of multiple factors.

It is misinformation to claim that since East Africa, and especially Kenya, is predominately a Christian society, the views of an estimated 4.3 million Muslims in the country, whose point of view was not taken into consideration in this regard should be ignored.

The same criteria should be applied on South Sudan Muslims.

Somalia, for instance, is an ethnically and religiously unified country; nevertheless that unity did not protect the state against total collapse and continuous bloodshed between brother and sister.

The belief that in order to achieve full benefits from the oil wealth in South Sudan the country should be disintegrated contradicts reality and solid figures.

Since the signing of the CPA in Nairobi that brought an end to hostilities between the warring parties, an estimated number of Kenyans ranging between fifty and seventy thousand, with a sizeable fraction of them in Juba, are working and doing business throughout Southern Sudan and within the unified Sudan, without the slightest objection from the North.

Kenya does not need to disintegrate the million square-mile neighbour in order to sustain her growing benefits.

The number of Kenyan companies and banks operating in the South is the highest outside Kenya and the number is growing at a rapid rate.

The famous Nakumatt Supermarket has announced plans to venture into the region by the end of the year.

The training of civil servants, military personnel and people from other spheres of life is done in Kenya while some Kenyan experts are doing the same on the ground in the South.

To claim that Kenya is not in need of the friendship of the North is to ignore the realities of history, geography and the strategic interests of the Kenyan people as was clearly stated by the esteemed government when justifying the receiving of President Al-Bahsir last August during the promulgation of the new Constitution.

Economically speaking, North Sudan is an important and promising market for Kenyan products and industries with the former currently importing seven per cent of Kenyan tea.

The population in the North is four times that of the South. Great human and financial resources, including vast virgin lands and huge rivers are available, offering big economic prospects for all kinds of investments and business ventures.

The Kenyan Government's stand was strong, logical and straightforward while defining those interests and highlighting the historical role played by Kenya as a custodian, guardian and guarantor to the peace process in Sudan, which culminated in the historical CPA -- a noble role that should be continuous and sustainable till the realisation of the whole agreement, including safeguarding, defending and protecting the sovereignty, integrity and unity of Sudan.

The concept of joining ranks and formation of regional and continental blocks is gaining momentum and support throughout the entire world (e.g. the European Union, the Russian Federation and the US), among them the most wealthy and powerful nations.

So why should we turn against this global trend and preach for separation and disintegration of our least developed of African countries into smaller and weaker states, while real empowerment and development lies in unity and more unity?

Hat tip: Allafrica.com

ICC Ocampo: Violence it is not a ticket to power, but to The Hague

THE ICC is working towards using the Kenyan case as a deterrent to other African countries against use of violence as a means of getting into power.

Already, officials from the ICC have been to Guinea, which is planning its elections, and Cote d'voire to impress upon the leaders to hold peaceful elections.

"Kenya's case is a signal that if you produce massive violence it is not a ticket to power, but to The Hague," the ICC prosecutor said.

Mr Ocampo, however, admitted that he is working against 'strong elements' who still perpetuate the idea that committing atrocities is a way of gaining power.

Full story below.

Kenya: Four to Stand Hague Trial Over Poll Violence This Year
Report by Daily Nation, Nairobi (reprinted at AllAfrica)
Written by Cosmas Butunyi and Peter Leftie
Originally published on Friday, 22 October 2010. Copy in full:

Nairobi — ICC Chief Prosecutor Luis Moreno Ocampo said on Friday that at least four ODM and PNU officials would appear before him by the end of the year.

"I will present my first two cases this year against two to three individuals from the two different sides," Mr Ocampo said in an interview with the France24 international news channel.

Mr Ocampo said the cases, which would be based on evidence, could involve senior government officials. The ICC is working towards using the Kenyan case as a deterrent to other African countries against use of violence as a means of getting into power.

Already, officials from the ICC have been to Guinea, which is planning its elections, and Cote d'voire to impress upon the leaders to hold peaceful elections.

"Kenya's case is a signal that if you produce massive violence it is not a ticket to power, but to The Hague," the ICC prosecutor said.

Mr Ocampo, however, admitted that he is working against 'strong elements' who still perpetuate the idea that committing atrocities is a way of gaining power.

On the claims by critics that the ICC has focused more on the continent, instead of its global scope, Mr Ocampo said that he took up some of the cases he is handling, such as Uganda, Congo and the Central African Republic upon invitation by the country's leaders.

Mr Ocampo described the case of Sudan President Omar Al Bashir as the 'most complicated' that he is handling. He added: "When the international community is united, it is part of the solution. When it is divided, it is part of the problem."

Record statements

Meanwhile, top security officials in charge of post-election violence hot spots will have to wait a little longer before they can appear before the ICC investigators, it has emerged.

Lawyers representing PCs, DCs and provincial police bosses on Friday said their clients would only appear before ICC detectives once the rules governing the recording of statements are published and the registry set up.

One of the lawyers, Mr Evans Monari, noted that the advocates will need time to consult with their clients before recording statements after the registry is set up.

He said the lawyers expect to have a meeting with the judge appointed by the government to preside over the recording, Justice Kalpana Rawal. "We expect her to call us for a meeting to discuss house keeping issues," the lawyer stated.

The rules state how evidence from witnesses, in this case the top security chiefs, is to be gathered and how notices summoning them to appear before the ICC detectives are to be made.

Justice Rawal is expected to witness the recording of statements from the security chiefs before certifying and handing them to the Attorney-General.

Re post-election violence in Kenya: ICC Ocampo to prosecute six suspects

THE 2007/08 post-election violence in Kenya left more than 1,000 people dead and thousands others displaced from their homes.

In a statement released on Tuesday, the International Criminal Court chief prosecutor Luis Moreno Ocampo said that he will present two separate cases to judges before the end of the year charging between four and six people he believes "bear the greatest responsibility for the most serious crimes."

In April, Moreno Ocampo said he had a list of 20 possible suspects that included PNU and ODM leaders.

Full story below.

Ocampo to prosecute six post-election suspects
From The Standard (www.standardmedia.co.ke)
Wednesday, 22 September 2010:

The International Criminal Court (ICC) chief prosecutor Luis Moreno Ocampo reiterates that he will present two cases against four to six individuals suspected of instigating post-election violence in Kenya.

The 2007/08 post-election violence left more than 1,000 people dead and thousands others displaced from their homes.

In a statement released on Tuesday, Ocampo said that he will present two separate cases to judges before the end of the year charging between four and six people he believes "bear the greatest responsibility for the most serious crimes."

The statement did not mention the names of potential suspects or give more detail on when Ocampo would file the cases to judges at the court, who would have to authorise any arrest warrants.

In April, Moreno Ocampo said he had a list of 20 possible suspects that included PNU and ODM leaders.

Kenya’s commitment to cooperate with ICC was called into question last month when it invited Sudan's President Omar al-Bashir during a visit. Al-Bashir has been indicted for genocide for allegedly masterminding atrocities in Sudan's Darfur region.

Moreno Ocampo underscored in his statement that both Kibaki and Odinga — political rivals in the disputed election that led to the violence — had publicly expressed support for his investigation.

He also said he hopes "the Kenyan justice system will ultimately deal with the many perpetrators that the ICC will not prosecute."

The international tribunal is a court of last resort that takes on cases only when a country is unwilling or unable to bring to justice perpetrators of genocide, crimes against humanity and war crimes.

Judges at the court publicly rebuked Kenya in August for failing to arrest al-Bashir, saying the country had "a clear obligation to cooperate" in enforcing arrest warrants.

Foreign Affairs Minister Moses Wetangula defended inviting al-Bashir to celebrate Kenya's new constitution, saying the Sudanese president is the "head of state of a friendly neighbour state."

Kenya tells ICC why Bashir was not arrested

Kenya's Foreign Affairs minister Moses Wetang'ula told the President of the assembly of state parties to the Rome statute of the ICC, Mr Christian Wenaweser that Kenya was bound by African Union's decision not to arrest Bashir.



Photo: Kenya's Foreign Affairs minister Moses Wetang'ula

Kenya tells ICC why Bashir was not arrested
From Daily Nation (www.nation.co.ke) by Lucas Barasa
Sunday, September 19 2010 at 13:11

Kenya has explained to the International Criminal Court why it did not arrest Sudan President Omar Bashir when he attended the promulgation of new constitution.

Foreign Affairs Minister Moses Wetang'ula told the President of the assembly of state parties to the Rome statute of the ICC Mr Christian Wenaweser that Kenya was bound by African Union's decision not to arrest Bashir.

“The minister clarified that the decision not to arrest Bashir was a resolution by the African Union, of which Kenya is also a member, and due to the complexity of the crisis in Darfur, AU was in agreement that arresting Bashir during this critical period towards a referendum would jeopardize the peace process,” a statement from Ministry of Foreign Affairs communication’s chief, Judith Ngunia, said.

The minister explained that following the issuance of the arrest warrant for Bashir, the AU, noting the complexity of the Sudan in relation to Darfur, the Comprehensive Peace Agreement, the relationship between the North and the South, invoked a clause of the ICC and asked the UNSC to suspend the warrant to allow the African efforts to resolve the crisis.

The UNSC never came back to Africa following which the AU summit in Sirte in July 2009, in Addis in January 2010 and in July Kampala 2010, took a decision that its member states were not obliged to cooperate on the case of Bashir, and invoked a Sanctions clause in the Constitutive Act, for non-compliance.

The AU position was also guided by recommendations of its Panel of Eminent Persons led by President Mbeki that urged the solving of the Sudan problem within a comprehensive framework of peace, security, justice and stability.

The minister who is attending a UN General Assembly in New York added that Bashir’s visit “was in the wider context of good neighbourliness and peace in the region as Kenya was a strategic partner of Sudan, and also the custodian of the comprehensive peace agreement and therefore had a mandate to safeguard the peace process towards a successful referendum in January 2011.”

The minister who met Mr Wenaweser in New York assured him of Kenya’s commitment in fighting impunity and that Kenya will defend the Rome statute as witnessed in the recent signing of the agreement with the ICC registrar in Nairobi.

The agreement gives the court independence to fully and efficiently discharge its mandate and fulfill its purpose within the country.

Mr Wenaweser is also the permanent Representative of Lichestien to the UN in New York.

He supported Kenya’s effort to continue engaging both parties in Sudan’s Comprehensive Peace Agreement for a successful referendum in 2011 and to ensure that peace, security and stability prevails in Sudan during and after the referendum.

Mr Wenaweser also supported the recent political developments in Sudan with regard to the CPA, and following talks between Presidents Kibaki and Bashir of Sudan in Nairobi in which the two parties agreed that the referendum must go on as scheduled for January 9.

Mr Wenaweser said Africa had the biggest membership within ICC and therefore should not be ignored, and pledged to support Kenya’s effort to have more funds directed towards peace keeping in the region and in particular in Somalia.
Mr Wetang'ula was accompanied by Kenya’s ambassador to Ethiopia Dr Monica Juma among others.

Kenya got a backlash from among others US President Barack Obama for hosting Mr Bashir during the promulgation ceremony.

Mr Bashir is wanted by the ICC over atrocities committed in Sudan’s region of Darfur.

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)

Kenya allows the ICC to open office - China to support Kenya at the UN over Bashir

TODAY, according to a report just in from the Associated Press, Kenya granted the ICC immunity from legal challenges, tax exemptions and other privileges in a letter signed by Foreign Affairs Minister Moses Wetangula. The report says:

The move comes only a week after Kenya hosted Sudanese President Omar al-Bashir during a ceremony for Kenya's new constitution.

The ICC registrar has been in Kenya since Wednesday to seek government assurances it will cooperate with the court and educate the public about how it operates.

Full story here below. Note the word I have highlighted in red and the following Quote of the Day from this site's parent blog, Sudan Watch, 21 July 2010 - Ocampo announces ICC's verdict before indictment:

"According to my understanding of the decision, the [International Criminal] Court did not find [Sudanese] President Bashir guilty of these crimes. Rather, it considered that there were reasonable grounds to suppose that he might be guilty. This is an important distinction. While the Prosecutor will argue, in court and in public, that Bashir is guilty, I am surprised that he is announcing a verdict of the Court before there has been an indictment (so far we have an arrest warrant — any indictment will follow a confirmation of charges hearing) let alone a trial." - Dr. Alex de Waal OBE, Making Sense of Sudan, 18 July 2010

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Kenya allows Int'l Criminal Court to open office
By TOM MALITI (AP) – Friday, 03 September 2010

NAIROBI, Kenya — Kenya on Friday allowed the International Criminal Court to open an office in the country, a development that comes after Kenya's commitment to the court came into question when the nation hosted Sudan's indicted leader last week.

ICC Prosecutor Luis Moreno Ocampo is investigating top Kenyan leaders and businesspeople for their roles in the country's December 2007 to February 2008 post-election violence that killed more than 1,000 people.

On Friday, Kenya granted the ICC immunity from legal challenges, tax exemptions and other privileges in a letter signed by Foreign Affairs Minister Moses Wetangula.

The move comes only a week after Kenya hosted Sudanese President Omar al-Bashir during a ceremony for Kenya's new constitution.

Al-Bashir faces charges of genocide and crimes against humanity at the ICC stemming from the violence in Sudan's Darfur region. Despite being a party to the statute that created the ICC, Kenya did not arrest al-Bashir, arguing that such a move would destabilize Sudan.

That decision provoked an international outcry, including words of rebuke from President Barack Obama, and it raised doubts about the country's willingness to hand over Kenyan suspects expected to soon be charged by the ICC.

The ICC does not have its own police to enforce arrest warrants and it relies on member states such as Kenya to execute them.
Kenyan Cabinet leaders, including Wetangula, met with ICC Registrar Silvana Arbia on Friday.

"We have agreed to comply with every aspect of the (ICC) request for the privileges and immunity which their officers require to be able to undertake their work," said Minister of State for Internal Security George Saitoti, who chairs the Cabinet subcommittee on the ICC.

"I trust that the government of Kenya will fully respect its obligations under the Rome Statute," which established the ICC, Arbia said after receiving the letter.

The ICC registrar has been in Kenya since Wednesday to seek government assurances it will cooperate with the court and educate the public about how it operates.

Moreno Ocampo has said he believes crimes against humanity were committed during Kenya's political violence.

The court allowed him to open an investigation in April and he has said he expects the investigation to conclude by the end of this year. Moreno Ocampo has said he expects to charge up to roughly a half-dozen people who allegedly directed the violence.

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China to shield Kenya at the UN over Bashir
Report from PPS Capital FM - 03 September 2010 - excerpt:

NAIROBI, Kenya - China on Friday declared support for Kenya's decision to invite Sudanese President Omar al Bashir to attend the promulgation of the new constitution in Nairobi last week.

During talks with President Mwai Kibaki, visiting vice Chairperson of the Standing Committee of the Chinese People's Congress (NPC) Chen Zhili pledged China's support for Kenya if the country is subject of discussion at the United Nations Security Council over the issue.

"Kenya as a neighbor and guarantor to the Comprehensive Peace Agreement (CPA) on the Sudan require the support and not condemnation by the international community in her efforts to broker peace between the Southern and Northern Sudan.", Ms Zhili said.

She expressed appreciation to President Kibaki and the Kenya government for the pivotal role played in brokering peace in Sudan and the horn of Africa.

Zhili who is also the NPC Chairperson of all Women's Federation, assured President Kibaki that China would provide the necessary support towards peace and stability in the horn of Africa. [...]