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Kenyan Appeal Court: Arrest Sudan president when he visits the country

February 19 - 2018 NAIROBI
President Uhuru Kenyatta (L) congratulates President Omar Al Bashir after his inauguration in Khartoum in 2015 (standardmedia.co.ke)
President Uhuru Kenyatta (L) congratulates President Omar Al Bashir after his inauguration in Khartoum in 2015 (standardmedia.co.ke)

President Omar Al Bashir is to be arrested if he enters Kenya, a Kenyan Court of Appeal has ruled.

In a judgement issued on Friday, three Kenyan Court of Appeal judges condemned the country’s authorities for failing to arrest Al Bashir when he visited Kenya in 2010.

“Kenya was and is bound by its international obligation to cooperate with the ICC [the International Criminal Court in the Hague] to execute the original warrant issued by the ICC for the arrest of Al Bashir when he visited Kenya on August 27, 2010 and in future should he return to Kenya,” the judges ruled.

In 2009, the ICC issued an arrest warrant for the Sudanese president on counts of war crimes and crimes against humanity, and again in 2010 on counts of genocide. The crimes were allegedly committed between 2003 and 2008 in Darfur, and left nearly 300,000 people killed and more than two million displaced.

The Kenyan government is holding to the opinion it could not and will not arrest its friendly neighbour’s leader, pointing to the African Union Charter that dictates that no member state can arrest a sitting president.

The three justices however disagreed, by holding that individuals who commit international crimes are accountable to the world and ought to pay for their crimes, the Kenyan Standard said on Sunday.

“As a matter of general customary international law it is no longer in doubt that a Head of State will personally be liable if there is sufficient evidence that he authorised or perpetrated those internationally recognised serious crimes,” the judges ruled.

Visits

Khartoum signed the Rome Statute, the ICC’s founding treaty, in 2000, but has not ratified it to this date. It informed the ICC in in August 2008 that it had no legal obligation to hand in the country’s president for trial.

Since his indictment, Al Bashir has been visiting several countries that are parties to the Rome Statute without being held. In June 2015, he managed to leave South Africa hours before he would have been arrested.

He visited Addis Ababa several times. In end January this year, he attended the 30th AU Summit in the Ethiopian capital, where he also met with UN Secretary-General Antonio Guterres.

ICC Prosecutor Fatou Bensouda has more than once voiced frustration at the international community’s lack of cooperation with the ICC concerning the apprehension of Al Bashir.

'Clarity'

The 30th AU Summit concluded with the decision to request an advisory opinion from the UN International Court of Justice on the question of immunities of heads of state, and government and other senior officials.

The Coalition for the ICC said in a statement on February 1 that the AU is seeking clarity on relationship between Rome Statute Article 27 (irrelevance of official capacity) and Article 98 (cooperation with respect to waiver of immunity and consent to surrender) and the obligations of ICC states parties under wider international law.


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