UK envoy to Kenya says AU decisions on Bashir irrelevant to ICC obligations

September 1, 2010 (WASHINGTON) – The British foreign office today summoned the Kenyan ambassador to express its disappointment over Nairobi’s decision to invite and receive Sudanese president Omer Hassan Al-Bashir during the promulgation of the country’s new constitution.

Bashir showed up at the ceremony attended by several African heads of states and foreign dignitaries, many of whom later expressed shock after seeing the Sudanese leader at Uhuru Park to join them.

“Like many, I was surprised by the presence of President Al-Bashir of Sudan in Nairobi for the promulgation of Kenya’s new constitution,” Annan said in a statement in his capacity as chair of the Panel of Eminent African Personalities on Kenya.

“Kenya has specific obligations as a signatory of the Rome statute and is also cooperating with the International Criminal Court on investigations relating to the 2007/8 election violence,” said the text issued in Nairobi.

“In the circumstances, the government should clarify its position and reaffirm its cooperation with and commitment to the ICC,” said Annan.

The Sudanese leader has been charged by the world court on ten counts of genocide, war crimes and crimes against humanity he allegedly orchestrated in Darfur.

All 113 members of the ICC have a legal obligation in theory to arrest Bashir should he step on their territories.

But African Union (AU) states have mostly backed Bashir and adopted resolutions barring any cooperation with the ICC in apprehending him.

Countries such as Botswana and South Africa however, said they will not abide by the AU resolutions on the matter.

The British Undersecretary of State at the Foreign Office Alistair Burt issued a statement revealing the content of the message conveyed to the Kenyan envoy in London on Wednesday.

“I am disappointed that President Bashir of Sudan last week traveled to Kenya in defiance of International Criminal Court arrest warrants for war crimes, crimes against humanity and genocide,” Burt’s statement reads.

“We made clear that the British government expects the Government of Kenya to stand by its obligations under the Rome Statute, and as a UN member state. The Government of Kenya has repeatedly committed itself to full cooperation with the ICC in respect of crimes in Kenya, and I reiterate the importance that the British government places on such commitments”.

Kenya is also under investigation by the ICC for violent events that occurred after elections in 2007. Some 1,300 Kenyans were killed in that violence and more than 300,000 others fled their homes, fearing for their lives.

The Kenyan foreign minister Moses Wetangula defended Bashir’s invitation in a deeply divided parliament yesterday and furnished the statement by the AU supporting his country’s stance and reiterating obligations of African countries to resolutions adopted by the Pan-African body.

But the British High Commissioner to Kenya Rob McCaire, who described Bashir’s attendance as a “shame”, stressed that AU resolutions cannot supersede its obligations to the ICC under the Rome Statute it ratified in 2005.

“As Kenya is State Party to the Rome Statute, it is legally bound to arrest and surrender those with an ICC arrest warrant against them. Most African countries have therefore declined to invite President Bashir onto their territory,” McCaire said in his blog.

“For a state that follows the rule of law, no political position by the AU, or regional realpolitik, should overcome that basic legal obligation. And it is deeply troubling that such a decision should have apparently been made by a minority of Ministers within the coalition government.

The Kenyan Prime Minister Raila Odinga said this week that the decision to invite Bashir was “wrong” and revealed that he was kept in the dark on the planned visit of the Sudanese leader.

“We must foster good neighbourliness, that is very important and that’s why we invited neighbours to come but if you have a neighbour who is a witch, you don’t invite them to a party……We are going to look bad in the eyes of the international community because we invited somebody indicted by the International Criminal Court to spoil the party for us,” the prime minister was quoted as saying by local media.

“It was wrong to invite President Bashir because he was indicted on crimes against humanity — as much as we want to foster good neighbourliness with countries in the region,” he added.

The ICC judges on Friday ordered the court’s registrar to transmit Kenya’s non-compliance with its obligations to the ICC Assembly of State Parties and the United Nations Security Council (UNSC). The latter referred the situation in Darfur to the ICC in 2005 under a Chapter VII resolution because Sudan was not a member of the court.

Kenya “has a clear obligation to cooperate” in enforcing arrest warrants, the judges said.

But the Chairperson of the Commission of the AU Jean Ping, who is a fervent critic of the court, slammed the judges for ignoring the continental body’s resolutions blocking its members’ cooperation with the court in arresting Bashir.

“The African Union Commission expresses its deep regret that both the statements and the decisions grossly ignore and make no reference whatsoever to the obligations of the two countries to the African Union,” Ping said in a statement.

Today the Rwandan Foreign Affairs minister Louise Mushikiwabo expressed support to Kenya’s move.

“As far as my government is concerned, it is Kenya’s sovereign decision to deal with its neighbours the way it deems so. Kenya has been involved as a member of The Inter-governmental Authority on Development (IGAD) and has been involved in talks including engaging President Bashir,” Mushikiwabo told the Ugandan Daily Monitor newspaper.

“Kenya is making efforts to stabilise Sudan. It makes sense to us that government of Kenya would love to deal with President Bashir. That engagement is in line with the AU’s position. Justice doesn’t work in a vacuum. Justice is to bring order and not create chaos to satisfy the international community,” she added.

The top Rwandan diplomat described her country as one that has been “affected by the international law system since 1994” in reference to the genocide that took place in that year.

Similarly, today the 14th Common Market for Eastern and Southern Africa (COMESA) Summit in Swaziland said that criticism against Kenya on the issue of Bashir is unwarranted.

(ST)