European States Ask Kenya to Explain Failure to Arrest Bashir

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The BBC reports that a number of European Union States have summoned Kenyan Ambassadors asking them to explain why Kenya failed to arrest Sudanese President Bashir when he visited Kenya last week. The International Criminal Court has issued two warrants for the arrest of President Bashir.

“They emphasized that the UK expects the government of Kenya to stand by its obligations under the Rome Statute, and as a UN member state,” a statement from the British High Commission in Nairobi said.

Should this be regarded as practice relevant for the interpretation of the relevant parts of the Statute of the International Criminal Court (Rome Statute)? Art. 31(3)a of the Vienna Convention on the Law of Treaties provides that in the interpretation of a treaty the interpreter shall take into account “subsequent practice in the application of the treaty”. Is the act of European countries with regard to Kenya and Bashir subsequent practice indicating the lack of immunity of Bashir though he is a sitting head of State? I think it is but one would have to set against it the practice of African States which seems to be the opposite. For subsequent practice to count under Art. 31 it must “establish the agreement of the parties regarding [the treaty’s] interpretation.”

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Julian Arato says

September 3, 2010

Interesting post, Dapo.

It's my understanding that for subsequent conduct to count as "subsequent practice establishing the agreement of the parties" it should be ideally a common practice, or at least one openly engaged in openly by one party with some consistency and met with the acquiescence of the other party or parties. If that's right, then even if European states put up a united front expressing their interpretation of the Rome Statute as granting no immunity to a sitting head of state would, as you suggest, seem insufficient to establish an agreement on interpretation when weighed against the blatant practice of the African States that have not acted on the arrest warrants thus far.

One possibility, though, would be to argue that there is subsequent practice (on the part of the Europeans who explicitly reject the idea of immunity in their conduct reprimanding Kenyan officials), and acquiescence on the part of the African States (on the precise point about immunity), qualifying their lack of action as "political" or a violation of the Rome Statute. But this would be something of a stretch of the notion of acquiescence, and seems like the kind of argument that would exacerbate concerns about the effect of the use of subsequent practice as an interpretive tool on stability in treaty relations.

Since you bring up the issue of subsequent practice in this context, it may also be worth considering that if the argument for a loose notion of acquiescence is accepted, it may be necessary to take into account some considerations that come up in customary law formation (a somewhat analogous process to interpretation on the basis of subsequent practice). If an interpretation is not evinced by the subsequent conduct of the Parties to a large multilateral treaty from one particular region, or by the group of Parties most specially affected, is there a problem with finding conduct evidencing a common understanding of a treaty aspiring to universality? The Rome Statute is an especially interesting case because it brings up so many North-South concerns.

Thanks for bringing this up!

Isaias says

September 11, 2010

Just a question: can this be framed in terms regional clash (between the EU and the AU)? If so, with what consequences? this issue also evokes the disagreement between the EU and the AU on the use/application of universal jurisdiction by some European states.