August 27, 2010 (WASHINGTON) – The United States president Barack Obama and the European Union (EU) today criticized the decision of the Kenyan government to receive Sudanese president Omer Hassan Al-Bashir who is wanted by the International Criminal Court (ICC) for war crimes and genocide he allegedly masterminded in Darfur during the seven years conflict.
Bashir returned today from Nairobi after a short visit where he attended the ceremony of signing Kenya’s new constitution and swearing in of president Mwai Kibaki and prime minister Raila Odinga. Hypothetically Kenya as a signatory to the ICC’s founding treaty has an obligation to arrest Bashir once he entered its territory.
Following Bashir’s return to Khartoum, Sudan’s foreign minister Ali Karti said that “Kenya had invited A-Bashir to the summit in adherence with the African Union’s decision and it had shunned all the calls it received from many quarters and activists who stand behind the ICC and whose hopes were dissipated when Kenya welcomed Al-Bashir, especially that Kenya is a signatory of the ICC membership.”
The Kenyan government kept the visit under tight wraps and foreign ministry attendees list included only the First Vice President of Sudan and the president South Sudan Salva Kiir. Sudan official news agency (SUNA) released a statement on Thursday of Bashir’s planned visit.
This is not the first time Bashir risked arrest by travelling to a member state of The Hague-based court. Last month, he visited Chad after a thaw in relations between the two countries.
Bashir arrived on Friday accompanied by his adviser Mustafa Ismail, foreign minister Ali Karti and intelligence chief Mohamed Atta. The wanted president stood in a front-row position alongside other regional leaders during the ceremony. However, he later skipped a luncheon with Kibaki and returned home.
The presence of the Sudanese president took many by surprise including members of the Kenyan coalition government.
Al-Bashir was invited by the Kenyan foreign ministry in his capacity "as the head of a friendly, neighbouring country," the spokesman for Kenyan Prime Minister Raila Odinga told CNN. He said that he was "shocked" at al-Bashir’s presence and that his attendance was "out of the blue." He also said that he had not spoken to Odinga but described the situation that developed as "impossible."
The Deputy Defence Minister David Musila said Kenya had "brought shame to itself" adding that Bashir should be "arrested immediately and handed to the ICC."
Musila was quoted by ’The Standard’ newspaper as saying that Kenya "has suffered irreparable damage internationally" adding that it was incomprehensible for Kenya which he said was emerging from impunity with a new constitution "to allow Bashir to attend our ceremony."
But the Kenyan foreign minister Moses Wetangula dismissed the crictiscism saying that Bashir was invited as one of the country’s good neighbours.
"He [Bashir] was here today because we invited all neighbours and he is a neighbour." "There are no apologies to make about anybody we invited to this function because I am sure we are enhancing peace and security and stability of this region more than anything else," Wetangula said.
The top Kenyan diplomat also recalled the African Union (AU) decisions instructing its members not to arrest Bashir regardless of their obligations. He asserted that his country will not allow "anyone to make friends and enemies" for it, revealing that Kibaki himself extended the invitation to Bashir.
The chairman of the Parliamentarians for Global Action-Kenya Chapter (PGA) Musa Sirma echoed Musila’s position saying that "it was an ambush to us that a person of the nature of al-Bashir comes to Kenya for a function of democracy and human rights".
’The Standard’ said that other Kenyan MP’s including Abdul Bahari and David Were will seek a ministerial statement from the government on the circumstances that led to al-Bashir’s invitation and why he was not arrested.
In protest at Bashir’s presence, some European Union envoys and human rights activists boycotted Kibaki’s state luncheon.
The US Ambassador Michael Rannenberger declined to comment on the surprise visit, only stating, "Today I will only talk about the ceremony and nothing else." When Bashir entered the scene, the US envoy was reportedly was seen in animated conversation with Sudan ambassador in Nairobi Majok Guandong before walking back to his seat.
Dutch Ambassador Laetitia Van Assum said the government had hidden information of Bashir’s visit from the international community, therefore, pulling a fast one on them.
"We had been told that Salva Kiir was the one coming. But we were surprised and the atmosphere became quite strange when Bashir arrived," she said.
A source in New York told Sudan Tribune that Kenyan civil society tried their best to exert immense pressure on their government to arrest Al Bashir "but the odds were against them".
"Al Bashir’s visit to the country was well orchestrated by his hosts the Kenyan government who made sure that no one knew of his visit. Consequently, many civil society activists were caught off guard by his visit," said the source.
"They ensured that there would be no magistrates to receive an application or applications for the arrest of Al Bashir on the day that he arrived this is because Kenyan magistrates and judges were taking a new oath today" he added.
The U.S. president released a statement on Friday congratulating Kenya on the new constitution but directed criticism at it for allowing Bashir to attend.
"I am disappointed that Kenya hosted Sudanese President Omar al-Bashir in defiance of International Criminal Court arrest warrants for war crimes, crimes against humanity, and genocide," Obama’s statement read.
"The Government of Kenya has committed itself to full cooperation with the ICC, and we consider it important that Kenya honour its commitments to the ICC and to international justice, along with all nations that share those responsibilities. In Kenya and beyond, justice is a critical ingredient for lasting peace".
But some Sudan advocacy groups in Washington indirectly blamed Obama for Kenya’s decision not to arrest Bashir.
“This is a clear challenge for U.S. diplomacy at a critical moment. It’s incumbent upon the Obama administration to strongly support both justice and peace in Sudan and ensure accountability for war crimes, crimes against humanity, and genocide. It seems clear that countries in the region see U.S. support for justice as little more than rhetoric at this point” said David Sullivan of the Enough Project.
"There can be little doubt that the United States, Brazil, and major European governments knew about Bashir’s trip in advance. Had they wanted to expend significant diplomatic capital, they likely could have stopped it. But here Bashir is on to something important: he knows that governments supportive of the ICC probably won’t have the patience and focus to maintain that effort" wrote American University’s School of International Service professor David Bosco in Foreign Policy magazine.
In Brussels, the European Union’s foreign policy chief Catherine Ashton urged Kenya to arrest Mr. Bashir and ensure its own cooperation with the ICC over the 2008 violence.
“She urges Kenya to respect its obligations under international law to arrest and surrender those indicted by the ICC,” an Ashton spokesman said. “She calls upon Kenya to continue to cooperate with the ICC in its investigation into the 2007-2008 post-election violence.”
In a less direct statement, U.N. spokesman Martin Nesirky said Secretary-General Ban Ki-moon “urges all states party to the Rome Statute to cooperate with the court” in line with their obligations under a Security Council resolution.
In The Hague, Netherlands, where the ICC is based, the judges said in a written order that Kenya "has a clear obligation to cooperate" in enforcing arrest warrants. The court also ordered its registrar to inform the U.N. Security Council of al-Bashir’s presence in Kenya "in order for them to take any measure they may deem appropriate."
The Hague-based ICC has no police force and relies on member states to enforce its arrest warrants.
They issued a similar order with regard to Chad as well which is also an ICC member that received the Sudanese president last month.
The Coalition for the International Criminal Court (CICC) called in a statement released today on the Assembly of States Parties to the Rome Statute as well as on the United Nations Security Council to take the necessary measures to ensure the full implementation of ICC decisions, including the execution of all pending warrants of arrest.
“The failure of Kenyan authorities to arrest Al-Bashir constitutes a serious breach of Kenya’s international obligations under not only the ICC Statute and the United Nations Charter, but also under its national legislation, including its new constitution, which recognizes the direct applicability of international law,” said CICC Convenor William R. Pace. “What should have been a day of celebration of Kenya’s commitment to human rights, democracy and rule of law is now marred by welcoming an international fugitive and disregarding the plight of the thousands of victims in Darfur.”