A. SUMMARY OF THE POSITION/ARGUMENTS
1. While international law applies in Kenya or at least has relevance in Kenya under the new Constitution, a discriminating approach should be pursued (under art 2.6) in the reading of international treaties ratified by Kenya. The reading by the judge of this provision (blanket application of the entire RS to Kenya) produces absurd results. In part, it would have it that the ICC is a Kenya.
2. Although the judge misapplies art 2.5 (it should properly relate to international customary law rather than treaties), it is not consequential for outcomes in the case. However, it is relevant to analysis relating to article 98 (below).
3. The Judge wrongly bases his decision to issue an arrest warrant on obligations arising under the customary law jurisdictional principle of universal jurisdiction. This approach is wrong because the Rome Statute does not contain a principle of universal jurisdiction. Because this is the core of the judge's decision, it can fall on this score alone. In any case, state practice relating to universal jurisdiction (based entirely on case law by Western Courts) contains a head of state exception to the exercise of jurisdiction by a national court. The judge does not treat this crucial aspect of UJ in his decision.
4. In what is the weakest element in the decision (and thus on the basis on which the decision must fall), the judge does not address the issue on which the case should have been decided: immunity of a sitting head of state. A proper reading of the Rome Statute discloses that while the ICC can issue an arrest warrant against anyone (art 27, relating to immunity from jurisdiction), a sitting head of state is not subject to the exercise of legislative, executive or judicial action in Kenya because of heads of state immunity (art 98, relating to immunity from execution). There is a weaker argument that even article 27 does not apply to Sudan because it is not a party to the Rome Statute.
5. There is a strong jurisdictional argument that can be made - based on the practice applied consistently by US courts in relation to separation of powers - that a court has no competence to decide on matters that touch on sensitive foreign relations, especially where immunity issues are implicated. The judge should have formulated the political question doctrine on the basis of which US cases remove themselves from similar cases. [The failure by the Judge to caution himself or to defer to the political branches (executive) by refusing to rule in a matter that has far reaching effects for the conduct of diplomatic relations by Kenya can be characterised as improper overreach by the judge in our scheme of separation of powers. A persuasive argument in favour of the political question doctrine developed and deployed consistently by US courts can be made.]
B. IMPROPER APPLICATION OF INTERNATIONAL LAW
6. The approach by the judge in interpreting article 2(6) improperly blurs the distinction between international law and national law. Merely because treaties ratified by Kenya apply in Kenya does not mean that international law and our national law are now one. This is particularly relevant where parliament has passed a law domesticating the international treaty in question. Parliament may rightly interpret and formulate some provisions of the treaty differently than in the treaty. In any case, some provisions in treaties - such as those that create institutions, making financing arrangements etc - can only be applied in Kenya with absurd results. A reading of art 2.6 that establishes a seamless relationship between national law and international law contained in a treaty will have it that the ICC is a Kenyan court, which it is not. There are elements in the decision that show that this approach has been taken (eg the judges reading of art 5 of the Rome Statute).
7. While any reader of Article 2(5) and 2(6) comes away with the impression that international law has some application in Kenya as a source of law, or at least has relevance in interpretation, the approach this study takes is to warn against 'simplistic' conception of both provisions, in particular Article 2(6). The 'simplistic' and straightforward view is that once a treaty is ratified by Kenya, it applies automatically and fully (in its entirety) as part of national law.' A much more 'sophisticated', discerning, careful or - for want of a better word - discriminating approach that scrutinizes relevant provisions contained in a ratified treaty for before they can be considered applicable as part of Kenyan law or for purposes of application as part of Kenya law is urged.
8. At least two reasons are proposed for the 'discriminating' approach urged here. First, the 'simplistic' view that would apply an international treaty fully into national law improperly blurs the distinction between national and international law thereby producing 'absurd' situations. For instance, if one considers that international treaties not only contain norms and rules but also create institutions, oversight bodies, make funding arrangements between states, among other things, the 'blanket' approach would have it that an institution created - such as the ICC in the Rome Statute - is in fact a national, as well as an international institution! The second reason why the discriminating approach should be adopted is that, the plain language of Article 2(4) - the supremacy clause in the constitution - suggests that all laws, - including customary international law and international treaties -, have to be pass muster when tested against the constitution. For this reason, it is conceivable that the terms of a particular treaty, or a rule of customary law would offend against the constitution, in which case they it cannot form part of Kenyan law.
C. MISAPPLICATION OF UNIVERSAL JURISDICTION
9. The judge misapplies the international customary law principle and bases his decision to issue an arrest warrant on it. Under customary international law (and some treaties), certain international crimes such as piracy, crimes against humanity, war crimes (under the Geneva Conventions) are subject to universal jurisdiction establishes the obligation to prosecute or extradite (aut dedere aut judicare). This means that any state can prosecute anyone who commits an international crime anywhere. There is some debate about whether the exercise of jurisdiction is based on custody (i.e. the person should be on your territory for you to exercise jurisdiction based on UJ) or whether it can be exercised in anticipatory fashion (where the arrest warrant is issued in anticipation of someone's arrival). The overwhelming case law however links exercise of UJ to custody (or presence on the territory).
10. Unlike treaties like Geneva Conventions and a number of framework treaties relating to certain acts of terrorism, the Rome Statute does not include universal jurisdiction, and the fact that some nationals that implement the Rome Statute include this is irrelevant." The issue of UJ was discussed in Rome and settled that it would not be included. The absence of universal jurisdiction in the Rome Statute is very significant. Since the judge bases his decision on universal jurisdiction, (basically saying that because ICC crimes are subject to universal jurisdiction, we have an obligation to arrest or prosecute Al Bashir), the decision must fall on this score alone.
11. In any case, if the judge had properly considered the actual scope of universal jurisdiction, he would have found that the practice of universal jurisdiction (entirely by western Courts) includes an exception that a head of state is not subject to arrest and prosecution in national courts. These cases include decisions on: Robert Mugabe by a US court; Gadhafi by a French court; Paul Kagame by Spanish and French courts; Pinochet by UK courts; Ariel Sharon, Rumsfeld in Belgian Courts. In the case of Belgium, which had the most generous UJ law, it was forced to amend the law by the US and Israeli pressure. Spain and UK have recently changed their law under similar circumstances to limit the scope of their UJ laws. Significantly though, the International Court of Justice has in the Arrest Warrant Case confirmed the position of the law by finding that DRC Congo's rights had been breached through the issuing on an arrest warrant by a Belgian Court against Yerodia Ndombasi the then Congolese Foreign Minister.
D. SITTING HEAD OF STATE ENJOYS IMMUNITY FROM OUR STATE ORGANS
12. The judge did not consider the most relevant provision of the Rome Statute, article 98 which in any case forms part of our law (as customary law through article 2.5 of the Constitution). Article 98 is the provision that regulates procedure relating the arrest of a sitting head of state, and thus the judge application of article 91 and 92 of the Rome Statute is erroneous. A matter relating to whether Kenya can arrest a sitting head of state wanted by the ICC (and by extension whether a Kenyan court can issue an order of arrest), cannot be decided properly without a detailed analysis of article 98. The judge makes a blanket statement in one line - without citing any provision - that no one is immune from the ICC. As noted above, the judge's reference can only be referring to article 27, which relates to a different issue: whether the ICC itself can issue an arrest warrant against a sitting head of state. It thus deals with what is referred to as jurisdictional immunity, as opposed to adjectival immunity/immunity from execution that is the subject of article 98.
13. Article 27 of the Rome Statute has advanced international law by opening the possibility for a head of state to be indicted by the ICC. In terms of this provision, the ICC can indict and issue an arrest warrant against anyone linked with ICC crimes, including a sitting head of State. It must be noted - and as argued in greater detail below - the power to indict and issue an arrest warrant against a sitting head of state does not extend to a national court (other than of course a court of a state of which the suspect is a national). Any interpretation that conflates the ICC and a national court in this respect (indicting and issuing an arrest warrant) is bad in law.
14. Equally, states have obligations under the Rome statute to cooperate fully with the court and assist it in its functions. This is in terms of the general rule in art 86 and other subsequent provisions that deal with specific aspects of cooperation. However, the question is what forms, circumstances of cooperation etc.
15. Cooperation in relation to the arrest of a sitting head of state is however subject to a separate legal regime, art 98.15 The judge does not consider this, but rather focuses on article 91 and 92 which would apply to individuals subject to an ICC arrest warrant but not enjoying immunity from national action abroad. Article 98 is a compromise that recognised that the ICC was inserting itself in a pre-existing legal order in which states have obligations under the law of state/sovereign immunity and diplomatic relations. For purposes of analysis, art 98 in essence introduces the law of diplomatic relations into analysis of cases (where immunity is claimed) in what is essentially a criminal court.
16. In terms of 98, a state asked to arrest a sitting head of state - that enjoys functional immunity under customary law of diplomatic immunity - can rightly refuse to cooperate.l" The ICC itself is asked to refrain from requesting for cooperation if it thinks such obligation exits. What the ICC has decided for now is to say - without any reflection - is that they don't think states are prevented by obligations owed under the law on diplomatic relations. Because the ICC decision issuing arrest warrants is silent on article 98, judges have decided not to wade into this controversial issue, preferring to focus on article 27, which properly gives the ICC to issue an arrest warrant even against a sitting head of state.
17. Because there is no automatic duty to cooperate, the formula foreseen under art 98 is that a state requested to arrest a sitting President will initiate discussions with the state (in this case Sudan to whom Kenya owes the duty to respect its senior diplomats - head of state in this case) for waiver of immunity. This waiver, to be done under Sudanese law, will make it internationally tenable for a Kenyan court to order arrest or for an actual arrest to be effected. If Sudan refuses to waive immunity, then we cannot execute an arrest warrant while Al Bashir is still in office. As at now, no request for waiver of immunity has been presented, and Sudan has not volunteered. Under the Vienna Convention, immunity cannot be implied because, as stated in article 34, waiver of immunity must be express.
E. THE POLITICAL QUESTION DOCTRINE
18. The political question doctrine has relevance for arguments around the jurisdiction of a Kenyan court to entertain the Sudan issue, and any case that raises delicate foreign policy issues. Although it does not appear that this issue was raised at the High Court (and the Judge does not tackle it either), there is a strong argument to the effect that a judge would err to insert himself in matters that pertain to the diplomatic sphere (therefore executive competence), hence the political question doctrine in the US. Case law shows US courts consistently remove themselves from any cases that raise matters that touch on US diplomacy, especially where it implicates immunity questions. The doctrine is justifiable not only in the basis of separation of powers but also because the judge lacks the tools and knowledge of numerous issues that pertain to intimate diplomatic relations conducted between the executive and other nations. In any case, such matters are often of a delicate character that should not be canvassed in a court of law.
F. THE POLITICAL ARGUMENT AGAINST ARREST
19. A political argument - but which has legal foundations as explained - is that the arrest warrant undermines our relations with Sudan, and hurts our national interests. It places Kenya at the frontline in the battle against Al Bashir (it has geopolitical dimensions) and forces Kenya to pay the price other states (US and the EU don't want to pay). It can be noted that that Obama's US policy of engaging Sudan that articulates three strategic US national interests that guide US-Sudan relations was calculated to advance US interests [war on terror; implementation of CP A and a vague reference to Darfur]. The policy, which avoids mentioning the ICC, must be based in part on US conviction that there is an arguable case for immunity while Al Bashir is still in office. Politically, one does not see why Kenya should harm its interests by pursuing a course with dubious legal grounding while others won't. China, which has not adopted an activist stance like the UK and France on Darfur issues, continues to enjoy preferential access to energy resources and infrastructure contracts.
20. Sudan's appreciation of things is that Kenya is in breach of its rights by issuing an arrest warrant against its head of state contrary to international law. As explained above, Sudan is probably right. This gives Sudan the right to act within the scope of means allowed in international law to reclaim its rights. Expelling the Kenyan ambassador has firm legal foundations. The current dispute can also found a suit at the international Court of Justice, although it is doubtful this will happen because in the UN Charter scheme of peaceful resolution of international disputes, recourse to judicial measures is often a matter of last resort.