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Kenya/Al-Bashir: ICC Press Release; Statements by EUOfficials; CICC Members HRW, FIDH, NPWJ, AU, ICJ; Links to Related NewsArticles
27 Aug 2010
Dear friends,

Please find below information related to the Sudanese President Omar Al-Bashir's visit to Kenya to attend a celebration on the adoption of the country's new constitution.

You will also find in this message a press release issued by the International Criminal Court (I); statements by European Union official Catherine Ashton and Chairwoman of the European Parliament Sub-Committee on Human Rights, Heidi Hautala (II); press releases from CICC Steering Committee members Human Rights Watch (HRW), International Federation of Human Rights (FIDH), No Peace Without Justice (NPWJ), Amnesty International (AI) and CICC member International Commission of Jurists- Kenya Section (III); as well as links to related news articles.

Please take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.

For additional information refer to the Coalition's website at www.coalitionfortheicc.org and participate in our blog 'In Situ: See justice through the eyes of civil society' at www.coalitionfortheicc.org/blog

Best regards,

CICC Secretariat
www.coalitionfortheicc.org

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I. ICC PRESS RELEASE

The document below has been produced by the ICC. The Coalition for the ICC distributes it as part of its mandate to keep member organizations and individuals informed about developments related to the ICC. The document does not reflect the views of the CICC as a whole or its individual members.

"Pre-Trial Chamber I informs the Security Council and the Assembly of States Parties about Omar Al Bashir's visits to Kenya and Chad", ICC Press Office, 27 August 2010, http://www.icc-cpi.int/menus/icc/press and media/press releases/pre_trial chamber i informs the security council and the assembly of states parties about omar al ba

"Pre-Trial Chamber I of the International Criminal Court (ICC) issued two decisions informing the Security Council of the United Nations and the Assembly of States Parties to the Rome Statute about Omar Al Bashir's visits to the Republic of Kenya and the Republic of Chad, 'in order for them to take any measure they may deem appropriate'.

The Chamber had learnt that Al Bashir was invited by the Government of Kenya to attend today's celebrations for the promulgation of the new Kenyan Constitution and was in Chad from 21 to 23 July. The Republic of Kenya and the Republic of Chad have an 'obligation to cooperate with the Court' to enforce the warrants of arrest issued against Al Bashir by the ICC, according to the Chamber.

The ICC Registrar was ordered to immediately transmit these decisions to the Security Council and to the Assembly of States Parties. Previously, pursuant to the Pre-Trial Chamber decisions issuing two warrants of arrest against Omar Al Bashir, the ICC Registrar had issued and transmitted requests for arrest and surrender of Mr. Al Bashir to all States Parties to the Rome Statute, including the Republic of Kenya and the Republic of Chad.

On 4 March, 2009, Pre-Trial Chamber I of the ICC issued a first warrant of arrest against Mr. Al Bashir considering that there are reasonable grounds to believe that the suspect is criminally responsible for five counts of crimes against humanity and two counts for war crimes. A second warrant of arrest was issued against Mr. Al Bashir, on 12 July, 2010, for three counts of genocide.

The situation in Darfur was referred to the International Criminal Court by the United Nations Security Council's resolution 1593, on 31 March, 2005. In this situation, four cases are being heard: The Prosecutor v. Ahmad Muhammad Harun ('Ahmad Harun') and Ali Muhammad Ali Abd-Al-Rahman ('Ali Kushayb'); The Prosecutor v. Omar Hassan Ahmad Al Bashir; The Prosecutor v. Bahar Idriss Abu Garda and The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus."

II. STATEMENT BY EUROPEAN UNION OFFICIALS

i. "The High Representative of the European Union For Foreign Affairs And Security Policy/Vice President Of The Commission Catherine Ashton," 27 August 2010,
http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/116239.pdf

"The High Representative is concerned by the visit of President Omar Al-Bashir to Kenya, a State party to the Rome Statute of the International Criminal Court (ICC). She firmly recalls the importance of all Member States of the United Nations abiding by and implementing the resolutions adopted by the Security Council under Chapter VII of the UN Charter, in this case, UNSCR 1593 (2005). She urges Kenya to respect its obligations under international law to arrest and surrender those indicted by the ICC. She calls upon Kenya to continue to cooperate with the ICC in its investigation into the 2007-2008 post-election violence.

The European Union is a staunch supporter of the ICC as a valuable instrument of the international community to combat impunity for the most serious crimes of concern to the international community as a whole; genocide, crimes against humanity and war crimes must not go unpunished and their prosecution must be ensured by measures at both domestic and international level."

ii. "Statement By The Chairwoman Of European Parliament Subcommittee On Human Rights Heidi Hautala: Kenya must deny entry or arrest Sudanese President al-Bashir", 27 August 2010, http://www.heidihautala.fi/2010/08/kenya-must-deny-entry-or-arrest-sudanese-president-al-bashirkenya-must-deny-entry-or-arrest-sudanese-president-al-bashirkenya-must-deny-entry-or-arrest-sudanese-president-al-bashirkenya-must-deny-entr/

"According to information Chairwoman Hautala has received, Sudanese President Omar al-Bashir will be travelling to Kenya today, 27th of August. Hautala calls on the Kenyan authorities to either bar Mr al-Bashir from entering the country or to arrest him upon entering Kenyan territory.

Chairwoman Hautala has understood that Mr al-Bashir intends to travel to Kenya today to take part in the celebration of the new constitution of Kenya.Mr al-Bashir is wanted by the International Criminal Court (ICC) for crimes committed in Darfur, Sudan. The first warrant of arrest was issued in March 2009 for war crimes and crimes against humanity and the second in July 2010 for genocide.

Kenya is a party to the ICC and has committed itself to fully cooperate with the court. This includes an obligation to execute arrest warrants issued by the Court. Kenya is under investigation by the Court concerning crime and violence that took place after the 2007 general elections. 'Receiving Mr al-Bashir would not only cast severe doubts over the Kenyan commitment to uphold and respect the Rome Statute but also over the cooperation with the ICC over their own investigation.'

'By cooperating with the ICC and welcoming a new constitution, Kenya shows the great headway it has made towards making universal human rights effective. However, by welcoming this fugitive from justice Kenya would fail all of these achievements,' Ms Hautala underlined."

III. CICC STEERING COMMITTEE MEMBERS' REACTIONS

i. "Kenya: Arrest Bashir or Bar Him Entry: ICC Member States Obliged to Arrest Fugitives on Their Territories", Human Rights Watch, 27 August 2010, http://www.hrw.org/en/news/2010/08/26/kenya-arrest-bashir-or-bar-him-entry

"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."

ii. "President Bashir must imperatively be arrested in Kenya today", FIDH, 27 August 2010, http://www.fidh.org/President-Bashir-must-imperatively-be-arrested-in,8419

"FIDH and its member organisation in Sudan, the African Center for Justice and Peace Studies, are concerned that Omar El Bashir has arrived to Kenya to participate in the celebrations to promulgate the new constitution today.

President Bashir is sought by the International Criminal Court (ICC) for genocide, war crimes and crimes against humanity. As a Party to the Statute of the International Criminal Court, Kenya has therefore an unconditional obligation to arrest and transfer him to the Court without delay.

'Omar El Bashir is under two ICC arrest warrants. Kenya, which ratified the Statute of the ICC and has publicly pledged to cooperate with the Court, is obliged to arrest and transfer him to The Hague. This arrest would also be a strong signal from the Kenyan authorities of their commitment to deliver justice to victims of the most serious crimes, as the ICC is also conducting an investigation into crimes committed in Kenya,' said Souhayr Belhassen, President of FIDH.

The ICC issued 2 arrest warrants against President Bashir : the first in March 2009 for crimes against humanity and war crimes, the second in July 2010 for the crime of genocide. He is accused of the murders of thousands of people, acts of rape and torture and forced displacement of the population of Darfur.

The NGOs insist on the obligation of States parties to the Statute of the ICC, like Kenya, to cooperate with it, and then execute the arrest warrants issued by the Court.

This is the second time that President El Bashir goes to the territory of a State party to the Court since the issuance of arrest warrants. After Chad, last July, Kenya, by not carrying arrest warrants would be an accomplice of the Sudanese regime and the atrocities attributed to him.

iii. "Kenya Must Arrest President Omar al-Bashir", Statement by Alison Smith, Legal Counsel of No Peace Without Justice, 27 August 2010, http://www.npwj.org/ICC/NPWJ-"Kenya-must-arrest-President-Omar-al-Bashir".html

"No Peace Without Justice and the Transnational Nonviolent Radical Party call upon the Kenyan authorities to arrest President Omar Al-Bashir and hand him over to the International Criminal Court. As a State Party to ICC, which has implemented its Statute in its domestic law, Kenya is under a legal obligation to arrest President Al-Bashir or lose any legitimacy as a law-abiding country.

It seems remarkably ill-advised for Kenyan leaders to be flirting with President Al-Bashir's anti-ICC campaign right now, given that many of them are currently under investigation themselves by the Court in The Hague. The flaunting of the arrest warrant by Kenyan leaders may be the last straw that removes all political obstacles to their own indictment for crimes against humanity committed during the post election violence in late 2007 and early 2008.

While it is certainly in the interest of President Al-Bashir to expand the range of countries where he is seen to travel with impunity, it is not in Kenya's interest, nor in the interest of its leaders. Should Kenyan leadership decide to throw their lot in with President Al-Bashir and other international fugitives, they will reap what they sow: if they are indicted by the ICC, like him they will enjoy no respite and will be hounded until they will be eventually caught and prosecuted. Arresting President Al-Bashir while he is in Kenya is in their own interest, and it is the law.

We call on all ICC States Parties to speak out strongly against Kenya's embrace of President Al-Bashir and to use all possible channels to press the Kenya Government to execute the arrest warrant before he leaves the country."

iv. "Kenya: Refusal to arrest Sudanese president is 'regrettable'", Amnesty International, 27 August 2010, http://www.amnesty.org.uk/news_details.asp?NewsID=18970

Amnesty International has criticised the Kenyan government for its failure to arrest Sudan's President Omar al-Bashir during his visit to the country to join celebrations ushering in Kenya's new constitution today, viewing the refusal to arrest President al-Bashir as an obstruction of justice for victims in Darfur.

The President of Sudan is the subject of an arrest warrant by the International Criminal Court for genocide, crimes against humanity and war crimes in Darfur.

Amnesty International's Africa Deputy Programme Director Michelle Kagari said:

'Kenya has regrettably followed the example of Chad, which violated its obligations under international law by providing safe haven to President Bashir during his visit to the country last month.'

As Kenya has ratified the Rome Statute of the International Criminal Court, the national authorities are obliged to cooperate with the Court, including arresting anyone charged by the Court.

Amnesty International regrets that African states - which led efforts to create the International Criminal Court - last month undermined their commitment to international justice by renewing an African Union decision not to arrest President al-Bashir.

Michelle Kagari continued:

'We are calling on those 31 African states that have ratified the Rome Statute to support international justice and uphold efforts to deliver justice, in particular in countries like Sudan where victims have no prospect of justice before national courts.

'Kenya's failure to arrest President Bashir is a worrying indication of its unwillingness to cooperate with the International Criminal Court's new investigations and future prosecution of crimes committed in Kenya during the post-election violence in 2007-2008.

'It is disturbing that the Kenyan government is celebrating a new constitution - the national centrepiece of the rule of law - while obstructing justice for victims of such serious human rights violations in a neighbouring country."

v. "Press Release: Kenya must arrest President Omar al Bashir," ICJ-Kenya, 27 August 2010 http://www.coalitionfortheicc.org/documents/ICJ_Kenya_PR27August2010_en.pdf

"The invitation of President Omar al Bashir by the government of Kenya is both Unconstitutional and a breach of Kenya's International obligations. Omar al Bashir is expected to attend the celebrations for the promulgation of a new constitutional order which upholds Human Rights, the Rule of Law and Social Justice scheduled to take place later on today (27th August 2010).

The presence of President Bashir against whom there are two pending arrest warrants from the ICC in relation to his involvement in war crimes, crimes against humanity and genocide committed in Darfur, could not be more unwelcome especially at a time when Kenya is celebrating the passage of a new Constitution. Taking into account that this Constitution is a result of the reform process initiated following the post poll crisis 2007-2008, which has also resulted to the Kenya being put under investigation by the ICC for crimes against humanity it is therefore unacceptable that the Kenyan government can play host to a indictee of the ICC.

Victims of post election violence in Kenya suffered violations concurrent with crimes against humanity as set out in the Rome Statute, including systematic acts of rape and other forms of sexual and gender based violence. Similarities can be drawn between the harm suffered by victims in Kenya and Darfur notwithstanding the difference in scale. By inviting President Bashir, given his inability to travel to other parts of the world, the Kenyan government is effectively endorsing international crimes, particularly crimes against humanity as suffered by both Kenyan and Sudanese victims.

The new Constitution is clear that International Law is a source of law in Kenya, recognizing also that Kenya is a signatory to the Rome statute and is obliged both the Statue and the international crimes act to cooperate with the ICC. On 6 th March 2009 Kenya received a request to arrest and surrender Omar al Bashir to the ICC, this request still stands and Kenya is expected to arrest and surrender President Omar al Bashir, on his arrival in Kenya.

The new constitutional order that will be ushered in is one of respect for the Rule of law, Human Rights and governmental obligations nationally and internationally, the government can therefore not begin implementing the new Constitution in a manner that defeats the spirit of the Constitution.

Other State Parties to the Rome Statute have been clear on their obligations under the treaty in relation to the ICC's arrest warrants against President Bashir. South Africa, Nigeria and Uganda expressly stated that they would be under an obligation to arrest President Bashir were he to set foot on their territory. We expect no less of the Kenyan Government."

IV. RELATED NEWS ARTICLES

i. "ICC reports Bashir in Kenya to UN Security Council", AFP, 27 August 2010, http://www.expatica.com/nl/news/dutch-news/icc-reports-bashir-in-kenya-to-un-security-council-court_92423.html

ii. "Kenya defends inviting al-Bashir despite ICC warrants", AFP, 27 August 2010, http://www.mg.co.za/article/2010-08-27-kenya-defends-inviting-albashir-despite-icc-warrants

iii. "Annan Praises Kenya", Sam Otieno (The Standard), 27 August 2010, http://www.standardmedia.co.ke/InsidePage.php?id=2000016966&cid=4

iv. "Sudan's Bashir in Kenya for new constitution rite", Richard Lough (Reuters), 27 August 2010, http://www.reuters.com/article/idUSMCD730308

v. "Kenya president ratifies new constitution", BBC, 27 August 2010, http://www.bbc.co.uk/news/world-africa-11106558

vi. "Kenyan president signs new constitution amid fanfare", David McKenzie (CNN), 27 August 2010, http://edition.cnn.com/2010/WORLD/africa/08/27/kenya.new.constitution/#fbid=r3gF6vCgP7a&wom=false

vii. "Sudan Leader Travels Despite Warrant", Alan Cowell (The New York Times), 27 August 2010, http://www.nytimes.com/2010/08/28/world/africa/28sudan.html?_r=1&adxnnl=1&adxnnlx=1282921202-VPVYJekvL/K+KNGpZDxbGA

viii. "Kenya Charter Ceremony Overshadowed by Wanted Genocide Suspect Al-Bashir", Sarah McGregor (Bloomberg), 27 August 2010, http://www.bloomberg.com/news/2010-08-27/kenya-charter-ceremony-overshadowed-by-suspected-genocide-guest-al-
bashir.html

ix. "Kenyan constitution signed into law", Xan Rice (The Guardian), 27 August 2010, http://www.guardian.co.uk/world/2010/aug/27/kenya-constitution-law

x. "Sudan's President Visits Kenya Despite Genocide Charges", Voice of America, 27 August 2010, http://www.voanews.com/english/news/Sudans-President-Visits-Kenya-Despite-Genocide-Charges-101633168.html

xi. "Kenya comes under fire for agreeing to receive Sudan president", The Sudan Tribune, 27 August 2010, http://www.sudantribune.com/spip.php?article36085

xii. "Bashir's visit to Kenya stirs anger", James Ratemo (The Standard), 27 August 2010, http://www.standardmedia.co.ke/InsidePage.php?id=2000016961&cid=4&ttl=Bashir's visit to Kenya stirs anger

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CICC's policy on the referral and prosecution of situations before the ICC:

The Coalition for the ICC is not an organ of the court. The CICC is an independent NGO movement dedicated to the establishment of the International
Criminal Court as a fair, effective, and independent international organization.
The Coalition will continue to provide the most up-to-date information about the ICC and to help coordinate global action to effectively implement the Rome Statute of the ICC. The Coalition will also endeavor to respond to basic queries and to raise awareness about the ICC's trigger mechanisms and procedures, as they develop. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts.

Communications to the ICC can be sent to:

ICC
P.O. Box 19519
2500 CM the Hague
The Netherlands