ICC Member States Obliged to Arrest Fugitives on Their Territories
August 27, 2010
Kenya will forever tarnish the celebration of its long-awaited constitution if it welcomes an international fugitive to the festivities. Even worse, hosting al-Bashir would throw into question Kenya’s commitment to cooperate with the ICC in its Kenyan investigation.
Elise Keppler, senior counsel in the International Justice Program

(New York) - Kenya should bar Sudanese President Omar al-Bashir from entering Kenya or arrest him for trial at the International Criminal Court (ICC) if he enters Kenyan territory, Human Rights Watch said today. The Sudanese state news agency has reported that al-Bashir will travel to Kenya on August 27, 2010, to attend the celebration of Kenya's new constitution.

"Kenya will forever tarnish the celebration of its long-awaited constitution if it welcomes an international fugitive to the festivities," said Elise Keppler, senior counsel in the International Justice Program at Human Rights Watch. "Even worse, hosting al-Bashir would throw into question Kenya's commitment to cooperate with the ICC in its Kenyan investigation."

Al-Bashir is subject to two arrest warrants issued by the ICC for atrocities committed in Darfur in Sudan. The first was issued in March 2009 on charges of war crimes and crimes against humanity. The second was issued in July 2010 on charges of genocide.

Kenya is a state party to the ICC. The court's treaty, the Rome Statute, requires states to cooperate with the court, which includes the execution of arrest warrants.

Kenya is also the site of another ongoing ICC investigation, this one focused on serious crimes committed following Kenya's 2007 general elections. The Kenyan government has pledged full cooperation with the ICC in its investigation in Kenya. As recently as June 2010, the government reaffirmed this commitment at the ICC's review conference, which took place in Kampala, Uganda from May 31 to June 11.

"Whether Kenya allows a suspected war criminal into Kenya is a test of the government's commitment to a new chapter in ensuring justice for atrocities," said Keppler. "The Kenyan government should stand with victims, not those accused of horrible crimes, by barring al-Bashir from Kenya or arresting him."

Although the African Union (AU) has issued a call for its members not to cooperate in the arrest of al-Bashir, African states - including Botswana and South Africa - have made clear that the call does not trump the obligations of ICC member states to cooperate with the court. An AU decision on the ICC at the union's most recent summit in July itself recognizes the need for ICC members to balance AU obligations with obligations under the court's Rome Statute, Human Rights Watch said.

In addition to the warrants for al-Bashir in the ICC's investigation in Darfur, in April 2007 the ICC issued warrants for Ahmed Haroun, then the country's minister for humanitarian affairs and now governor of Southern Kordofan state, and Ali Kosheib, whose real name is Ali Mohammed Ali, a "Janjaweed" militia leader. The ICC prosecutor has also issued summons to three Darfuri rebel leaders to appear for attacks on an AU base in Haskanita in Darfur.

Sudan has refused to cooperate with the ICC's work to ensure justice for crimes in Darfur. In June, the ICC issued a judicial finding of non-cooperation by the government of Sudan with respect to execution of the arrest warrants for Haroun and Kosheib, which have been outstanding for more than three years.