The U.N. recently issued updated its guidelines for its senior officials on the etiquette of consorting with world leaders and lesser suspects that stand accused of committing massive war crimes.
Seems that would be a pretty obvious "no, no," but it’s not as simple as it seems.
The latest regulations reaffirm existing U.N. guidelines restricting U.N. brass from most dealings with Sudan’s leader, Omar al-Bashir, who stands accused by the International Criminal Court (ICC) of masterminding a campaign of genocide in Darfur several years ago.
But there are virtually no restrictions on dealings with Kenya’s new leader, President Uhuru Kenyatta, who stands accused of orchestrating the killing, rape, and displacement of thousands of civilians from the cities of Nakura and Naivasha who were suspected of backing a rival political faction during the country’s disputed election in 2008.
So, what’s the difference between the court’s treatment of Bashir and Kenyatta?
For starters, Kenyatta has recognized the court’s legitimacy and appeared in The Hague to face the charges. Bashir hasn’t.
The U.N. policy is crafted to reward suspects who cooperate with the Hague-based tribunal. Under the new guidelines, the ICC will issue a summons to a suspected war criminal who volunteers to face charges before the Hague court. But if a suspect makes it clear they won’t appear, then the court will issue a formal arrest warrant, which places a legal obligation on governments that have ratified the treaty creating the war crimes court to surrender the individual.
The U.N., which signed a relationship agreement that requires it to refrain from undermining the ICC, reasons that contacts with cooperative suspects "do not undermine the authority of the court."
"U.N. officials may interact without restrictions with persons who are the subject of a summons to appear issued by the ICC and who are cooperating with the ICC," read the guidelines, which were presented to the U.N. Security Council earlier this month. A copy was obtained by Turtle Bay.
But the privilege can be taken away if Kenyatta halts his cooperation with the court. Kenyatta hinted at that possibility, declaring in his inauguration that Kenya intended to uphold its international obligations, but only if its relations with international institutions were based on "mutual respect" and affirmed Kenya’s sovereignty. Since then, Kenyan officials have been pushing back. Last week, Kenya’s deputy U.N. ambassador Koko Muli Grignon told the U.N. General Assembly that the ICC has no right to prosecute Kenyan nationals without the consent of the government, and that the case against Kenyatta and other Kenyan nationals should be transferred to a Kenyan court. The Hague-based tribunal, she added, "should be a "court of last resort."
Court observers find Kenyatta’s remarks troubling.
"I think there is a concern that they may be backtracking," said Richard Dicker, an expert at Human Rights Watch, who noted that the ICC is only pursuing the case because "the Kenyan authorities have failed for several years to take action domestically."
For the time being, Dicker said, the ICC guidelines make sense for legal and policy purposes. First, he said, they affirm the "presumption of innocence" for the accused, including Kenyatta, who has not been convicted of a crime. The policy also serves as an incentive for suspects to cooperate with the court.
There are also practical considerations for making an exception for someone like Kenyatta. The U.N.’s African headquarters is stationed in Nairobi, providing support for peacekeeping, humanitarian, and anti-poverty missions throughout the continent. A breakdown in the relationship with the Kenyan leader could complicate the U.N.’s ability to do its work. In a sign of Kenya’s importance, U.S. and European ambassadors attended Kenyatta’s presidential inauguration. And Ban Ki-moon even sent a letter congratulating Kenyatta for his win.
The U.N.’s experience in Sudan, where the international body manages several major stability operations, has demonstrated how difficult it can be to shun a leader in a country’s whose cooperation the U.N. depends on.
Ban’s office chided the former chief of the African Union-U.N. peacekeeping mission in Darfur, Ibrahim Gambari, for attending a wedding where Bashir was also a guest [*See note below]. Last month, a U.N. Development Program official in Chad participated in a diplomatic welcoming committee that received Bashir at the airport, which prompted a call by Tiina Intelmann, the president of the ICC’s Assembly of State’s Parties, to senior U.N. officials to express concern about the incident. UNDP acknowledged that it had erred.
"The Officer-in-Charge of UNDP’s country office in Chad…was requested by the Chad Government to form part of a receiving line for Heads of State arriving at the airport," said UNDP spokeswoman Christina LoNigro. "There he was introduced by President [Idriss] Deby to the Presidents of Senegal, Niger, Burkina Faso, Mali, Sudan, and Benin. UNDP has taken this encounter, which runs counter to UN policy seriously, and has drawn the attention of all staff in the region to the policy."
Intellman welcomed the U.N. decision to release the guidelines, and said that member states of the ICC treaty body are trying to negotiate their own guidelines. She also voiced sympathy for the challenge posed by U.N. officials.
“The situations in which UN officials find themselves are quite complex,” she told Turtle Bay. She acknowledged that there are legitimate cases "where U.N. officials have to make essential contacts with indictees," highlighting U.N. efforts to promote peace deals.
So, what then is a U.N. official to do avoid an inappropriate encounter with an alleged mass murder? Here are some key pointers, from the new guidelines:
• It can be anticipated that persons who are the subject of arrest warrants issued by the ICC may deliberately seek to meet with UN officials in order to demonstrate their contempt for the ICC and try to undermine its authority.
• Contacts between U.N. officials and person who are the subject to warrants of arrest issued by the ICC should be limited to those which are strictly required for carrying out essential UN mandate activities.
• As a general rule, there should be no meetings between U.N. officials and person who are the subject of warrants of arrest issued by the ICC.
• There should be no ceremonial meetings with such persons and standard courtesy calls should not be paid. The same holds true of receptions, photo opportunities, attendance at national day celebrations and so on. If the person holds a position of authority in a state, every effort should be made to meet and liaise with individuals other than the person in order to conduct business.
• This being said, there may be a need, in exceptional circumstances, to interact directly with a person who is subject of an ICC arrest warrant. Where this is imperative for the performance of essential U.N. mandate activities, direct interaction with such a person may take place to the extent necessary only.
The current guidelines also include an expl
icit exemption for the U.N. secretary general — who met with Bashir in Tehran in August — and the deputy secretary general to meet with Bashir and other accused war criminals "from time to time" in order to discuss "fundamental issues affecting the ability of the United Nations and its various offices, programs and funds to carry out their mandates in the country concerned, including vital matters of security."
Court advocates like Dicker say the exemption can be justified if used sparingly. "Making clear that there are some exceptions is acceptable, but the devil will be in the details." He said any exception should adhere to "an appropriately narrow application or interpretation." For instance, U.N. officials must learn to turn down invitations to war criminals’ nuptials. The trick, he said, is to insure this doesn’t become "the exception that ate the rule."
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*Note: an earlier version of this story incorrectly stated that Ibrahim Gambari attended the wedding of President Bashir’s daughter. It was the wedding of Janjaweed leader Musa Hilal. Bashir was in attendence.