Oct 4, 2018
An opinion piece by Sean Bain, ICJ International Legal Advisor in Myanmar
Last week a partial but significant foundation was laid to provide accountability for gross human rights violations in Myanmar, and hopefully to deter repetition.
After receiving a 444-page UN report extensively detailing human rights violations in Myanmar and making recommendations to address them, the UN Human Rights Council in Geneva passed a resolution that includes the establishment of an evidence-gathering mechanism to enable future trials.
The “independent mechanism” is mandated to “collect, consolidate, preserve and analyze evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011 and to prepare files to facilitate and expedite fair and independent criminal proceedings.”
Similar to an existing mechanism for Syria, it will be responsible for preparing case files to standards required for any future criminal prosecution in a national or international court of law.
The full, final report of the Independent International Fact-Finding Mission (FFM) on Myanmar was presented to the Council on 18 September.
It finds members of security forces responsible for crimes under international law, including crimes against humanity in Rakhine, Kachin and Shan states – and potentially for the crime of genocide against Rohingyas. Findings also noted that restrictions on fundamental freedoms stifle honest constructive public discussion of this.
The application of these findings to the situation in Myanmar is familiar territory. The experience of Rohingyas is particularly egregious but not an isolated case; for more than six decades serious crimes have persisted against communities throughout the country, overwhelmingly perpetrated by members of the military, who enjoy impunity.
In recognition of this, the mandate of the independent mechanism is not limited to any particular area or group within Myanmar. Although, when it becomes fully staffed, it will necessarily refine its focus taking into account the gravity and scale of offences as well as its financial and human resources.
While case files are to be prepared, the UN resolution did not establish a court.
The International Criminal Court (ICC) has the potential to address some aspects of the crimes in question, however, it is not presently in a position to address the situation as a whole.
Certain foreign courts exercising universal or other grounds of jurisdiction are, likewise, only likely to address a limited portion of the overall offenses.
Within Myanmar, no court has the required independence, impartiality, competence and jurisdiction to ensure fair criminal proceedings against perpetrators for the full range of crimes under national and international law.
Myanmar’s national prosecutors and judges have demonstrated they lack the independence, impartiality and competence to hold members of security forces accountable for human rights violations, or to consider redress for victims and their families.
Government reforms offer hopes of establishing genuine Rule of Law, with respect for human rights, but this is undermined by persistent injustices – encapsulated recently in the wrongful prosecution and punishment of two Reuters journalists.
In a recent campaign local activists have worn shirts emblazoned “failed law.” This reflects frustration with a system that prosecutes human rights advocates without justification, but does not punish perpetrators of the most serious criminal violations of human rights, particularly when soldiers are involved.
Impunity continues to embolden these perpetrators of crimes, undermining democracy and peace, and feeding ongoing cycles of violence.
Since the partial power transfer from military to quasi-civilian administration in 2011, several government-commissioned inquiries have investigated human rights violations – including in Sagaing, Mon and Rakhine states.
None have addressed the military’s pervasive influence in the administration of justice, nor provided accountability or redress. The government’s most recent commission of inquiry on Rakhine State is evidently no different, and may even promote impunity by deferring robust accountability measures.
While any evidence held by the new independent mechanism could be available in future should national institutions eventually become sufficiently impartial, independent, competent, and capable to do so – this seems a long way off.
In this context, calls have increased, including from the FFM, for the UN Security Council (UNSC) to refer the situation in Myanmar to the ICC or for the creation of an ad hoc tribunal.
Since Myanmar has not ratified the Rome Statute (the treaty that created the ICC), it has not agreed to submit itself to the jurisdiction of the ICC with respect of the crimes listed in the Statute (the Court may only exercise its jurisdiction in situations where the alleged perpetrator is a national of a State Party or where the crime was committed in the territory of a State Party).
However, as a UN Member State, Myanmar would be obliged to cooperate with any referral to the ICC made by the UNSC.
Furthermore, on the basis that the ICC’s general jurisdiction applies to crimes occurring within a State Party to the Rome Statute such as Bangladesh, ICC prosecutors are conducting a preliminary examination into alleged crimes where an element – or part of a crime – was committed within the territory of Bangladesh, including the crime against humanity of deportation which, by definition, has a cross-border element.
Calls for an international prosecution seem loudest from outside Myanmar, by States, human rights organizations and from diaspora groups.
Yet demand for ICC referral from inside Myanmar is also growing, although this is significantly muted, due to fear of reprisals from government and nationalist groups against civil society, journalists and other public figures.
Whatever the eventual pathway for justice in Myanmar – national, international or a combination of both – effective criminal prosecutions are likely to constitute an important element to provide some accountability, enable redress and deter the repetition of human rights violations in future.
Any of these models will require evidence, and in the case of violations against Rohingyas and in northern Myanmar, having a mechanism to store evidence and prepare case files will serve as a critical aspect of this.
Memories fade while physical evidence either deteriorates or is destroyed, which means there is now an urgency to the gathering of evidence by appropriately trained experts.
Historically and recently much documentation has been collected, both inside and outside the country, often under dangerous and risky conditions.
Human rights documentation has played a critical role in exposing the truth, drawing attention to injustice, and pressuring State and non-State actors to address the situation.
But past experience has taught that documentation of atrocity crimes should, wherever possible, be conducted in accordance with best practice by highly experienced and well-resourced multi-disciplinary teams. The ethical principle at the heart of documentation is “Do No Harm.”
For example, any efforts should be coordinated and careful threat and risk assessments should be conducted before any interviews of survivors so they do not cause avoidable harm.
Multiple interviews of the same person can cause re-traumatization and even potentially impair future prosecutions.
The independent mechanism can contribute to these goals. The Office of the High Commissioner for Human Rights has 20 days to develop its terms of reference, after which it could take up to 12 months to establish (the FFM’s mandate has been extended to bridge any gap in documentation).
A key consideration will be complementing existing or potential national and international justice systems, be that the ICC, foreign courts with jurisdiction, or later in Myanmar, or a mix of these options.
Indeed, criminal accountability is only one tool for justice, and it cannot wholly reverse the damage done. But it can help victims, and critically it can help Myanmar get out of the entrenched cycle of human rights violations.
Eventually criminal trials will be required, which will open a range of other challenges. But right now, an important foundation for effective accountability has been established with the creation of this independent mechanism. Anyone wishing for justice and peace in Myanmar would be right to support it.
Myanmar-UN Mechanisms-News-Op Eds-2018-BUR (PDF of article in Burmese)
Apr 3, 2018
An opinion piece by Belisário dos Santos Júnior, ICJ Commissioner & Member of ICJ’s Executive Committee
The recent Federal military-led intervention in Rio de Janeiro was carried out, according to the executive decree ordering the operation, “to put an end to a serious breach of public order in the State of Rio”.
The Brazilian Constitution authorizes such exceptional political measures, but they must be ordered by the President and ratified by the Congress.
As far as the security situation was concerned, this additional military intervention was not necessary because the (Rio) State police, the National Public Security Forces and the Army had already been working together for many months, planning and executing numerous so-named “operations to guarantee law and order.”
Nor did the military intervention have anything to do with checks and controls of borders, ports, airports and federal highways, to prevent the international traffic of weapons, ammunition and drugs, notably from Paraguay. Other federal police forces are in charge of these controls.
Recently the Chief Commander of the Army himself said in an interview that the intervention in Rio would only bear fruits in the very long term because it was crucial to first implement structural changes, especially in the public security system, the prison system, and the enforcement of penal law.
It has become obvious that corruption and links with organized crime reach to the highest levels of the civil and military police forces in Rio de Janeiro.
Arguably, the main objective of the military intervention was indeed to reform these police forces. But then if that was the case, it should have started with the removal of the present Governor of the State of Rio, Luis Fernando Pezão, who was the right-arm man of the former Governor Sérgio Cabral, convicted and imprisoned for corruption.
It should have also focused on all areas of the State government, and not just the security forces, which do not work in isolation. Moreover, the police reform would need to be accompanied by public policies and investment to provide local communities (in the favelas) with access to water, sanitation, and electricity.
Today, these local communities are hostage to the numerous drug-traffickers, territorial disputes between gangs and shoot-outs between police forces and organized crime.
In the favelas, services, such as the telephone, cable television, electricity supplies, and the sale of gas canisters are all controlled by criminal gangs and public service providers are systematically defrauded.
The military intervention has been used as a theatrical opportunity to parade armoured vehicles in strategic points of the city, with soldiers who are not trained to manage situations of urban violence but for troop action, and therefore not used to individual decision-making.
Furthermore it should be recalled that in 2018 alone, more than 60 policemen were killed by organized crime, which is approximately equivalent to the number of human rights defenders assassinated in Brazil last year, according to Amnesty International.
Tragically, the recent execution of Marielle Franco, the city councillor and human rights defender, is not even surprising. She and her driver were killed in the centre of the city, while the military intervention was in full force and all the country’s eyes focused on Rio de Janeiro.
This crime is not only odious, but a clear attack on the rule of law and a challenge to the democratic system. Elected with over 46,000 votes, Marielle Franco was a very active councillor, who in little more than a year, had already presented 13 important draft bills, on issues such as sexual harassment, legal abortion and evening opening hours for nurseries.
Above all it is important to remember that she was highly critical of both the police forces because of their abuses and human rights violations as well as the criminal gangs operating in the communities. And, supreme irony, she had been elected rapporteur of the City Council’s Commission for military oversight in Rio.
It is now known that the bullets that killed Marielle and her driver were from a stolen Federal Police stock and similar bullets had already been used in another similar murder. But both the material and intellectual authors of these murders remain free.
The State Police investigation looks far from being independent. Both the investigation and prosecution should be a Federal responsibility, which is permissible under the Constitution, Article 109, paragraph 5, in cases of serious human rights violations, exactly for the same motives that led to the military intervention in the first place.
However, the Prosecutor General of the Republic apparently declined this option, and only four Federal staff have been assigned to support the State-level Public Ministry in the investigation.
The huge outcry of protest that followed Marielle Franco’s assassination and brought thousands of people onto the streets in various cities of the country might change this situation.
Numerous and diverse demonstrations reveal there is a mounting rejection of Brazilian politics.
Human rights groups are considering how to increase international pressure, so that such a gross attack on the rule of law does not remain in impunity. For this reason, international missions will be very welcome in Brazil.
On the other hand, organized crime, both in Brazil and throughout Latin America, has become an extremely serious social phenomenon.
With the capacity to mobilize important financial resources, weapons and ammunition, organized crime has orchestrated riots in prisons, protests and blockades, paralyzing major cities with the burning of buses, for example, taking advantage of State police strikes.
Taken together with the attacks and the killing of public authorities, it seems that Brazil is in danger of “Colombianization”.
With the combination of corrupt security forces and armed groups linked to drug trafficking Brazil finds itself in a similar situation to what happened previously in Colombia and Mexico.
According to the National Justice Council, some 200 Brazilian judges are under police protection, including a Supreme Court Judge who is a rapporteur in cases of corruption.
In Rio de Janeiro in 2011, Judge Patricia Accioly was killed, shot no less than 28 times, after she had ordered the arrest of three military police officers.
During the last elections in Brazil, in 2016, there were 45 attempted murders of election candidates and 28 were killed, with half of these deaths occurring in Rio de Janeiro alone.
The situation in Rio is very serious, but the systematic violence and corruption in the whole of the country is equally concerning. The rule of law and the democratic system itself are at risk.
One of the first film pictures of the Federal military intervention in Rio showed school children, with their hands up, being searched by soldiers.
Is this the way to go? Is this the right way to protect the rule of law and to defend citizens?
Tragically, this situation is continuing. There will soon be more to write about it.
Brazil-Belisario sobre Marielle Franco-News-op-eds-2018-POR (Portuguese version in PDF)
Mar 20, 2018
An opinion piece by Sean Bain, ICJ International Legal Adviser in Myanmar.
Australia now sits as a member of the UN Human Rights Council for the first time, sharing an enhanced responsibility to promote and protect human rights globally.
This commitment must be robustly pursued in neighboring Southeast Asia, where human rights are under assault and states are reluctant to call each other out on international law violations.
The ASEAN-Australia Special Summit this past weekend brought regional leaders to Sydney, including Myanmar’s de facto civilian leader Daw Aung San Suu Kyi.
Alongside talks on business and counterterrorism, the Australian government is duty bound to vigorously raise human rights concerns. Australia should also re-evaluate defense cooperation in the region, particularly in Myanmar.
The scale and intensity of rights violations against Rohingya civilians, perpetrated by Myanmar’s military, rates among the worst ASEAN has seen in recent memory.
The Rohingya plight has been of regional concern for some time, largely due to effects of refugee movements. The commission of acts constituting crimes under international law has escalated the situation to a global level.
On March 12, UN experts tasked with fact finding presented more horrific reports to the Human Rights Council. The UN High Commissioner for Human Rights says acts of genocide may have occurred and that ethnic cleansing continues.
Crimes against humanity of murder, forcible transfer, persecution, and rape are among those attributed to the military in Rakhine state and in the conflict-affected north.
Both the civilian and military branches of Myanmar’s government staunchly contest claims of widespread or systematic rights violations. They argue the military campaign is an appropriate response to attacks on police by Rohingya militants, who are voraciously labeled as terrorists.
Humanitarian agencies, independent media, and UN investigators are denied access to areas of concern.
Disregarding the state’s obligation to duly investigate and prosecute crimes, Myanmar diplomats have asked for “concrete evidence” of violations.
It’s an absurd request given the ongoing prosecution of two Reuters journalists for investigative work, and the substantial body of evidence collected by the UN and nongovernment organizations, despite restricted access.
Australia continues modest but symbolically significant defense cooperation with the Myanmar military, a stance at odds with European and North American allies, who have mostly cut these ties.
Persistent military involvement in international crimes demands a re-evaluation of this support.
The “quiet diplomacy” approach, by its nature hard to measure for efficacy, appears to have failed, as the ferocity of security operations is unchanged by recent years of renewed defense cooperation. Given the scale and intensity of violations in Myanmar, Australian engagement that does not at its core address human rights violations will inevitably be self-defeating.
At minimum, future assistance must address the policies and practices that encourage or enable rights violations at the operational and tactical levels.
Myanmar’s invocation of its Counter Terrorism Law as cover for indiscriminate and unlawful killings gives further reason for caution (a counter terrorism conference accompanied the summit in Sydney). Broad democratic gains and wider reforms are seriously threatened by military impunity and a lack of government accountability.
Defense cooperation is now patently indefensible without addressing accountability and redress in line with international law.
Placing human rights at the center of engagement would better position the Australian government to implore neighbors to address the crisis caused by Myanmar’s military.
An application of regional pressure would serve as a critical motivator for the Myanmar government to recognize the crimes and to address cyclical patterns of violations. Myanmar’s state media regularly trumpets signs of regional support for its obstinacy.
Take for instance the theatrical example of Senior General Min Aung Hlaing’s recent trip to Thailand, where he received the award, “Knight Grand Cross of the Most Exalted Order of the White Elephant.”
Recently the military chief, unanswerable to the elected government under constitutional arrangements, was welcomed by ASEAN defense chiefs at another meeting in Singapore. But outside these overt public displays, there is discontent in ASEAN with Myanmar’s handling of the crisis and with the unwanted instability this brings.
While ASEAN is generally viewed as reticent on human rights, linked to a principle of “noninterference” in the affairs of its member states, divergence from this has occurred when rights concerns take an international dimension.
This has particularly been the case for Myanmar: in 2006 the government abdicated its inaugural ASEAN chair in response to regional pressure on rights, and more recently Malaysian Prime Minister Najib Razak publicly contemplated intervention to protect Rohingyas (a significant move regardless of potential domestic motives). Yet regrettably the bloc has been mostly silent on the current crisis.
This lack of regional pressure, an existence of discontent, and the precedents for rights talk within ASEAN, open space for and demand Australian leadership.
As a strategic partner of ASEAN but outside the bloc itself, and as a member of the Human Rights Council, Australia is both well positioned and duty bound to robustly engage on the human rights situation in Myanmar, with a view to convince ASEAN members and the responsible authorities to reign in the military and fulfill obligations under international human rights law.
The Australian government must speak forthrightly on human rights, and match this by reviewing defense assistance to states that flout international law.
Failure to publicly address and push accountability for crimes of the scale seen in Myanmar would embolden perpetrators of human rights violations throughout the region.
Mar 2, 2018
An opinion editorial by Róisín Pillay, Director of the ICJ Europe Programme.
The European Court of Human Rights is once more facing a political challenge to its role, in proposals for a new political declaration put forward by the Danish Presidency of the Council of Europe.
That the Court’s extraordinary success in advancing human rights protection in Europe provokes the dissent of certain governments is nothing new. Neither is this the first time that the eight year long reform process – instigated by the Interlaken Declaration of 2010 in order to deal with the overwhelming caseload of the Court – has been the forum for political resistance to the Court’s perceived intrusion into national affairs.
The reform process has constantly navigated delicate questions of the respective powers of the Court and the Council of Europe Member States.
Notably, the UK government’s initial proposals for the 2012 Brighton Declaration Brighton Declaration posed serious threats to the independence and role of the Court, and to the right of individuals to petition it.
Ultimately, under pressure from some States as well as civil society, the most damaging of these proposals were not pursued.
However they did result in, amongst other things, the enshrining of a reference to the principles of subsidiarity and the “margin of appreciation” that states are considered to enjoy in protecting certain of the Convention rights, in the preamble to Protocol 15 to the Convention Since then, the Brussels Declaration of 2015 commendably re-directed attention to the problem that is the real root of the Convention system’s struggles: failings in effective national implementation of the Convention rights, which leave victims of human rights violations with no other recourse but to take their case to Strasbourg.
The Danish Government, which took on the rotating Presidency of the Council of Europe in 2017, has now proposed a new political declaration on the Convention system, to be agreed at a high-level conference of Council of Europe Member States in Copenhagen in April.
A draft of the Copenhagen Declaration was published in February. The text, while including some welcome re-affirmations of the need for enhanced national implementation measures and better execution of Court judgments, as well as strengthened selection processes for judges of the Court, also contains proposals that carry significant risks for the independence and role of the Court, and for the consistent protection of Convention rights across the Council of Europe region.
To assure the continued credibility and health of the Convention system, it needs to be significantly amended.
The draft Declaration has already faced sharp criticism, including from a coalition of international NGOs (including the ICJ) which made detailed proposals for amendments; from Danish NGOs and from academic commentators.
The Court itself has responded cautiously refraining from strong criticism, but drawing attention to the governing framework for the role of the Court under the ECHR and to principles of judicial independence which it notes must be respected by the Declaration.
Three main elements in the Declaration are of particular concern.
First, the draft Declaration emphasises the need for “better balance” between the respective roles of the Court and Member States, based on “shared responsibility” for the protection of the Convention rights (para.11).
The Convention certainly envisages complementary roles and responsibilities for national authorities and the Court within the Convention system: it is the obligation of Member States to respect and protect the Convention rights (Article 1 ECHR) and the role of the Court to supervise this obligation.
The Court’s role is clearly set out in Article 19 of the Convention, as “to ensure the observance of the engagements undertaken” by States under the Convention.
Article 32 establishes that the Court’s jurisdiction in doing so extends to “all matters concerning the interpretation and application” of the Convention rights. The much contested doctrine of the “margin of appreciation” developed in the Court’s jurisprudence applied by the Court in respect of certain rights or aspects of rights only, does not in any way displace or diminish this jurisdiction.
The draft Declaration however, seems to allow for more qualified role, based on an unduly wide interpretation of principles of subsidiarity and the margin of appreciation.
The draft emphasises that the Convention rights should not only be secured at national level, but also “determined” there (para.10) and that rights should be protected “predominantly at national level by State authorities in accordance with their constitutional traditions and in light of national circumstances,” a proposition that appears to leave room for varying standards in the protection of the Convention rights, contrary to the principle of universality.
Startlingly, given the only too evident, continuing occurrence of sometimes grave and systematic human rights violations within the Council of Europe region, the draft Declaration confidently asserts that this new emphasis on national adjudication is a “natural step in the evolution of the Convention system” given that the Convention is now well embedded in national legal systems (para.10).
The second aspect of the draft Declaration worthy of particular scrutiny is proposals addressing the “subsidiary rule of the Court”. The principle of the subsidiary nature of the Convention system is long established in the jurisprudence of the Court.
It recognises that national authorities are best placed to evaluate local needs and conditions in the implementation of human rights, but also that such implementation must always be subject to the Court’s review.
The draft Declaration posits a notion of subsidiarity that appears to restrict the Court’s role, however, stating (without qualification as to the nature of the rights or aspects of rights concerned) that: “the Court … should not take on the role of States Parties whose responsibility it is to ensure that Convention rights and freedoms are respected and protected at national level.” (para.22) Singling out asylum and migration cases, it asserts that where national procedures in these cases operate fairly and in respect for human rights, the court should only intervene “in the most exceptional circumstances”. (para.26) In the context of a political declaration, such language appears to question the scope of the Court’s role under Article 19 of the Convention.
It is all the more concerning because it is followed by direct calls on the Court to apply more “robustly” the principles of subsidiarity and the margin of appreciation.
These are principles of judicial interpretation, whose application should be a matter for the Court alone; in seeking to direct the Court as to their nature and scope, the draft Declaration fundamentally misconstrues the role of the judiciary under the rule of law.
Finally, the most disturbing passages of the draft Declaration are those that promote the idea of a “dialogue” between Member States and the Court.
The draft declaration proposes “an ongoing constructive dialogue between States Parties and the Court on their respective roles in applying and developing the Convention” (para.31) and “an ongoing dialogue in which states and their populations are actively involved” (para.32).
Such dialogue would “give a clearer picture of the general views and positions of governments and other stakeholders, thereby solving some of the challenges of developing the Convention over time [and…] anchor the development of human rights more solidly in European democracies.”
Although the draft also stipulates that such dialogue should take place “with respect for the independence of the Court and the binding character of its judgments”, this qualification rings hollow against the background of the proposals made; the risk that that they could facilitate inappropriate political pressure on the Court regarding specific cases, principles or standards, is clear, and is difficult to avoid.
Of course, the Convention system already allows space for the views of Member States on regional human rights standards to be expressed – a “dialogue” of sorts – within the bounds of constitutionalism.
First, Member States can continuously shape and develop Council of Europe human rights standards through standard setting in the Committee of Ministers.
In individual cases before the Court, they also have wide powers to put forward their views through third party interventions.
“Dialogue” between governments and an independent court outside of these spheres is however no more appropriate than it would be within a national system.
The court’s proper interlocutors in any exchange of views between the national and regional levels are national courts, with which it has already established fruitful dialogues.
It is disappointing to see basic principles of the rule of law such as the independence of the judiciary being called into question within a regional human rights system designed precisely to defend such standards – and which has been so effective in upholding these standards in the region.
It is a cause for continuing concern that regional human rights systems – not only the European Convention system but also notably the Inter-American Court and Commission – increasingly face such challenges arising from the hyper-nationalist politics of their Member States.
The draft of the Declaration is of course still in its early stages and it is to be hoped that the Member States will heed the warning voices and substantially amend the Declaration. How should they transform it? The European Convention system undoubtedly needs the political support that a high level political declaration could bring.
First and foremost, it needs a Declaration that would contain clear, specific and practical commitments from the Member States on national implementation and on execution of judgements (drawing on the language in the Brussels declaration).
This, combined with better national processes for the often complex exercises involved in executing European Court judgments, would considerably lessen the caseload of the Court.
Second, the Declaration should provide the elements the court needs to be effective in exercising its supervisory role: strong political re-affirmation of support for its role and independence; commitments for sufficient additional resources to deal with its caseload effectively, and improved judicial selection procedures that will ensure that the best candidates can be appointed to the Court and can carry forward its vital work.
It is this last point, as ICJ and OSJI have argued in a recent report on selection of judges for regional human rights courts, can truly ensure that future of the system is strengthened from within.
These issues are already addressed by the Copenhagen Declaration – they should be placed at its heart, and the text that threatens the independence and role of the Court should be discarded.
As negotiations on the Declaration continue, there is still time for it to make a positive contribution to the future of the Convention system.
This opinion editorial can also be found on opiniojuris.org
Feb 27, 2018
An opinion editorial by Tim Fish Hodgson, ICJ Legal Adviser in Johannesburg, South Africa
A Kenyan Court of Appeal decision handed down last week has, once again, reaffirmed the Kenyan government’s international obligation to arrest Sudanese President Omar al-Bashir should he ever return to Kenya.
The Court concluded “the Government of Kenya by inviting al Bashir to Kenya and failing to arrest him acted not only with complete impunity but also in violation of its international obligations.”
The African Union and some individual States such as South Africa, Uganda and Kenya appear to have serious concerns relating to what they perceive the conflicts between their obligations to arrest al-Bashir under the Rome Statue of the ICC and their obligation to respect his diplomatic immunity as a Head of State.
This apparent conflict is clearly expressed by both the African Union’s ‘Withdrawal Strategy Document’ and the draft International Crimes Bill introduced by the Minister of Justice to South African Parliament.
But the greatest testament to this discomfort is these and other states repeated failures to arrest al-Bashir despite their international legal obligations and pressure from local, regional and international human rights defenders.
The Kenyan Appeal Court recognized the “rare geopolitical predicament” faced by the Kenyan government in balancing its “focal role” in Sudan and “remaining true the African Union resolution not to cooperate with the [ICC]” with its obligations in terms of the international criminal law which is has domesticated in its own International Crimes Act.
Nevertheless, grounding its judgment in the historical foundations of international criminal law, the Court quotes with approval the Nuremberg Tribunal’s observation that “perpetrators cannot shelter themselves behind their official positions in order to be freed from punishment in appropriate proceedings”.
The Court notes that when a state commits acts which violate ius cogens norms it “waives any rights to immunity” and concludes that, similarly, “we have no doubt that an exception to immunity exists in cases where the individual is responsible for crimes against humanity”.
This, it reasons, is because “acts amounting to international crimes of individuals cannot be considered legitimate performance of official functions of State” capable of attracting immunity in the first place.
In taking this approach the Kenyan Court of Appeal deftly acknowledges that despite the potential political conflicts that there is no real legal conflict between provisions on the Rome Statute with respect to immunity.
This same approach was supported by the ICJ’s submission to South African Parliament signed by six former Constitutional Court Justices and Navi Pillay the former United Nations High Commissioner for Human Rights.
In a judgment that has received praise from international law experts John Dugard and Guénaël Mettraux no less, the Supreme Court of Appeal of South Africa too concurred with this approach, noting that allowing immunity to prevent arrest in such situations “would create an intolerable anomaly”.
Highlighting the irony that Kenya’s government disregard of its international obligations in inviting al-Bashir to the inauguration of Kenya’s progressive Constitution, the Court also notes that the government’s actions violate a specific provision of the Kenyan Constitution itself.
Article 143(4) of the Constitution reads “[t]he immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity”.
Despite these categorical statements of Kenya’s legal obligations to arrest al-Bashir pursuant to the Kenyan Constitution, the International Crimes Act and the Rome Statute of the ICC, the Court overturned the provisional arrest warrant for al-Bashir issued by the High Court on the ground the requisite urgency no longer existed at the time the order was issued.
This, it reasoned, is because section 131(1)(c) of Kenya’s International Crimes Act explicitly permits the issuing of a provisional warrant only if “it is necessary or desirable for an arrest warrant to be issued urgently”.
This aspect of the Court’s judgment, which is inconsistent with the Rome Statute, strongly implies that future applications relating to al-Bashir’s arrest would need to be heard and determined urgently before or during a visit to the country.
This despite the Court’s own observations that the Kenyan government remains bound by its international obligation to cooperate with the International Criminal Court by executing warrants the ICC had issued when al-Bashir’s visit in 2010.
Bolstering the possibility of the urgent issue of a provisional arrest warrant in a Kenyan High Court, however, the Court’s decision affirms that human rights organizations such as the Kenyan Section of the International Commission of Jurists have legal standing to approach the High Court requesting the issue of a provisional arrest warrant.
This will mean that, as with litigation initiated by the Southern Africa Litigation Centre in South Africa, the Kenyan government’s own continued indifference or deliberate resistance to its international obligations, would not prevent al-Bashir’s arrest should he return to the country.
The judgment of the Kenyan Court of Appeal is of regional and international significance in the face of increasing threats of collective withdrawal of African countries from the ICC.
Most particularly, after failing to arrest al-Bashir on a visit to South Africa in 2015, the South African government appears to be charging ahead with its intention to withdraw from the ICC by proposing the enactment of woefully inadequate domestic legislation.
As a decisive statement by an African court this judgment will be useful for human rights defenders, lawyers and judges in South Africa who are consistently accused of lacking regional legitimacy by the government in their attempts to ensure that al-Bashir is arrested and prevent South Africa’s withdrawal from the ICC.
In the South African context, it remains to be seen whether newly appointed President Cyril Ramaphosa may change the South African government’s headstrong tune in the face of considerable, consistent and widespread criticism.
Finally, to some the Kenyan Appeal Court’s decision to invalidate the provisional arrest warrant for al-Bashir may appear to provide legitimacy to the Kenyan governments action. Properly read, this is perhaps merely politically astute exercise of its powers and is clearly overshadowed by the Court’s decisive condemnations of the government’s intransigence and strong findings which make absolutely clear that the Kenyan government is obliged to cooperate in al-Bashir’s arrest should he ever return to Kenya.
In terms of 163(4) of the Kenyan Constitution decisions of the Appeal Court may be appealed to the Supreme Court of Kenya if it can be shown that the matter involves the interpretation or application the Constitution or if it is decided that it is a matter of “general public importance”.
