Erga Omnes

The dispute over whether Sudanese president Omar Hassan al-Bashir should be arrested if he returns to Kenya is a case study in the politics of universal jurisdiction—and its ripple effects.  Here’s the chronology:

• March 2009:  The ICC issues an arrest warrant for al-Bashir, charging him with war crimes, genocide, and crimes against humanity in Darfur
• July 2010:  The ICC follows up with state parties to the Rome Statute (including Kenya), urging them to cooperate; the African Union meanwhile calls for the arrest warrant to be suspended—on the grounds that seeking justice prematurely will undermine peace and the ICC is biased in its targeting of African dictators
• August 2010:  al-Bashir joins other dignitaries in Kenya on the occasion of the country’s new constitution
• October 2010:  The Kenyan section of the International Commission of Jurists responds by seeking an order enforcing the arrest warrant against al-Bashir
• November 2011:  The High Court rules that Kenya’s government is obligated to execute the arrest warrant if al-Bashir steps foot in the country
• December 2011:  Kenya’s Attorney General files an appeal; and despite assurances to Sudan’s government that the finding will be overturned, Sudan expels Kenya’s ambassador

That local rights organizations would seek cooperation with the ICC is of course unsurprising.  Neither is the government’s stance that the arrest warrant undermines bilateral relations.  More noteworthy, for what it highlights about clashing international norms and state sovereignty, is the government’s claim about universal jurisdiction—that it doesn’t apply because al-Bashir enjoys immunity as a sitting head of state.

Far more intriguing, though, is the Kenyan High Court’s insistence that the government not interfere with its judgment.  There’s more here than just a global-regional tug of war, or Kenya’s judiciary taking sides between the ICC and the AU.  The Kenyan court seems highly attuned to asserting its institutional standing at home, taking its place in the structure of democratic governance.

Regardless of how it plays out, the controversy over universal jurisdiction is serving as a catalyst for domestic political struggles, having little per se to do with punishing al-Bashir but carrying high stakes for ordinary Kenyans.