UN unlikely to punish Kenya for Bashir visit

The United Nations Security Council appears unlikely to take significant action against Kenya for hosting Sudan President Omar al-Bashir in defiance of Kenya ’s international treaty obligations as well as its own domestic law.

Turkey ’s ambassador to the UN, who is serving as president of the Security Council this month, told reporters here on Thursday that he is “not aware” of any plan to respond to the International Criminal Court’s referral of Kenya to the Security Council.

The ICC’s Pre-Trial Chamber asked the council’s member states on August 27 “to take any measure they may deem appropriate” in response to Kenya ’s disregard of its “clear obligation” to enforce arrest warrants issued against President Bashir.

Seven counts of war crimes and three counts of genocide have been filed against the Sudanese leader in relation to the conflict in the country’s Darfur region, which has taken an estimated 300,000 lives.

The Security Council has two Sudan-related items on its agenda for September. The head of a UN committee overseeing sanctions against Sudan is expected to report to the council this month, and the 15-member body is also scheduled to receive a briefing on preparations for the planned January secession referendum in South Sudan .

In the past, the Security Council “has been quite divided on many things concerning Sudan ,” Elise Keppler, a senior counsel for Human Rights Watch, told the Nation.

Ms Keppler, who said Kenya “has forever tarnished the celebration of its new constitution” by inviting President Bashir, added that it is uncertain how the Security Council will respond to the ICC’s referral because “we have not been down this road before.”

The council could issue a presidential statement criticising Kenya as well as Chad , another signatory of the ICC treaty that has recently hosted President Bashir. As a stronger move, the council could adopt a resolution sanctioning Kenya and Chad But China and Russia , two of the council’s five veto-wielding permanent members, have previously acted to soften UN actions pertaining to Sudan . In addition, three African states — Uganda, Nigeria and Gabon — currently hold rotating membership of the council and are likely to object to an effort to reprimand Kenya and Chad.

The African Union, which counts those countries and 44 others among its current members, recently warned the Security Council not to take punitive action against Kenya or Chad .

The AU said that because the Security Council includes states that are not party to the ICC treaty, it “has no moral authority to sit in judgment over Chad and Kenya .”

Three permanent members of the Security Council — China , Russia and the United States — have not ratified the Rome statute establishing the ICC.

In a statement issued on August 29, the AU argued that it is “a matter of survival” for Kenya , Chad and other neighbouring countries to promote stability in Sudan . And stability can be achieved only by “continuous engagement with the elected government of that country,” the AU declared.

Ms Keppler of Human Rights Watch says the AU stance “does not help ensure justice for the most serious sorts of crimes.”
She adds that Kenya ’s own law requiring cooperation with the ICC “demands the same respect as a law against robbing banks.”

Section 10 of Kenya ’s International Crimes Act of 2009 states that “a person who willfully attempts in any manner to obstruct, pervert or defeat the course of justice of the ICC is guilty of an offence and liable on conviction to imposition of a term of not more than five years.”

The Security Council did hold a session in June partly devoted to Kenya ’s alleged failure to cooperate with another international judicial body in regard to a different fugitive from genocide charges.

Diplomats representing several UN member-states criticised Kenya for not providing sufficient information to the International Criminal Tribunal for Rwanda in regard to the whereabouts of Felicien Kabuga. He has been charged with helping organise the 1994 genocide that took the lives of an estimated 800,000 Rwandans.

The Security Council took no formal action against Kenya on that occasion, but the criticisms expressed in the global forum served to embarrass the country.