After meeting the President and the Prime Minister in Kenya on 5 November 2009, the Office of the Prosecutor (OTP) of the International Criminal Court decided to request the Pre-trial Chamber’s of the ICC for authorization to investigate the Kenyan Situation. The decision was prompted when the Kenya government declined to refer the matter to the ICC according to Article 14 of the Rome Statute.
Pursuant to his decision, on 5 November 2009 the ICC Prosecutor Mr. Luis Moreno Ocampo notified the Court of his intention to submit a request for authorization of an investigation into that situation under article 15, paragraph 3 of the Rome Statute of the International Criminal Court by 1 December 2009. The Court on its part expeditiously decided on 6 November 2009 to assign the situation in the Republic of Kenya to Pre-Trial Chamber II with immediate effect. According to the Court, the request is based on the Prosecutor's determination that "there is a reasonable basis to proceed with an investigation into the Situation in the Republic of Kenya in relation to the post-election violence of 2007-2008".
Kenya ratified the Rome Statute on 15 March 2005, which entered into force for Kenya on 1 June 2005. In December 2008 Kenya domesticated the Statute by enacting the International Crimes Act of 2008. The Act, however, entered into force on 1 January 2009 and therefore it does not apply to the post election violence crimes according to the retrospective principle in the Constitution. The international jurisdiction of the ICC, however, applies to Kenya under the complementarity principle. According to this principle the ICC may intervene only if there are no national proceedings against those responsible for the crimes. This is the assurance Mr. Ocampo sought from the Kenyan authorities during his visit. But the response from the government was equivocal. While they promised to cooperate with the ICC they at the same time refused to refer the matter to the ICC but expressed their commitment to pursue national mechanism to deal with impunity.
The events in Kenya are of interest to international criminal justice and jurisprudence. Firstly, this is the first time the ICC Prosecutor is invoking the powers conferred to him under Article 15 to open proprio motu investigations on a situation occurring in a State Party to the ICC. The other situations under ICC investigation and prosecution, respective State Parties namely Uganda, the Democratic Republic of Congo (DRC), the Central African Republic (CAR) referred the matter to the ICC and the United Nations Security Council referred the situation in Darfur, Sudan (a non-State Party). Moreover, the situation in Kenya presents the ICC with its first case in which a request for authorization has been made by Prosecutor. The determination of the case will be precedent setting irrespective of the outcome.
Secondly, the application of the complementarity principle in the Situation in Kenya will be interesting to explore. According to the principle, States remain the primary enforcers of international criminal law, and the ICC is only a court of last resort established to complement national systems where they fail to conduct adequate investigations and prosecutions. The ICC cannot intervene if the State is willing and able to fulfill its primary responsibility. The question is whether Kenya has failed to conduct adequate investigations and prosecutions against those criminally responsible? The answer may seem quite obvious but the reasons may not be apparent. In my opinion, a thorough examination and analysis of reasons and thinking of the Kenya government and the Prosecutor could elucidate the issue further.
The Government of Kenya may be playing hide and seek game with the ICC but its options have run out. Despite Prosecutor’s indulgence on complimentarity basis the government has failed to establish a special court to deal with post-election impunity as required by the Waki Commission Report (Report of the Commission of Inquiry into Post Election Violence (CIPEV)). The government declines to admit it has failed. Its double edged statement after the meeting with the ICC Prosecutor in Nairobi confirms government’s motives. The government could be thinking that by allowing the Prosecutor to take the initiative, they still have room for maneuver if within the 30 days of notification of authorization by the Prosecutor of commencement of investigations it claims to have put in place local mechanisms by setting up a local tribunal. Such a move could slow down the ICC process but will not stall it as the Prosecutor could notwithstanding seek Court’s authorization to proceed. As argued below he has adequate reasons to do so.
From a political perspective the government’s refusal to refer the matter to the ICC may have been triggered by the fear of being declared a failed State. The motive of the government is not to be seen to have failed in its primary responsibility of punishing impunity. Otherwise, it will rank with other failed States such as DRC, CAR and Sudan. But covertly the government seems to want the intervention by the ICC.
The ICC Prosecutor seems to operate from a number of convictions. The first is that the government has failed in its primary responsibility of investigating and prosecuting those bearing greatest criminal responsibility and the ICC’s intervention is inevitable. The Prosecutor’s mission to Nairobi was to inform about the way forward to the government not to negotiate with it on national mechanisms. It was the Prosecutor’s expectation that the government would refer the matter to the ICC, and failure to do so that he would move to ICC. His prompt action to request authorization from the ICC was an anticipated reaction.
The second conviction was repeated in his statement in Nairobi. The Prosecutor said that he is of the opinion that crimes against humanity have been committed in Kenya. “In accordance with his preliminary examination of the situation, there is reasonable basis to believe that the attacks against Kenyan civilians during the post election violence, constitutes crimes against humanity under the jurisdiction of the ICC. In accordance to Article 7 of the Rome Statute, a crime against humanity means a widespread of systematic attack directed against the civilian population.”
The third conviction is based on the mandate of the ICC “to put an end to impunity and thereby contribute to prevention of future crimes” as provided in the Preamble of the Rome Statute. The Prosecutor is convinced of the urgency of investigations and prosecutions in the situation in Kenya because, according to him, it will contribute to justice and prevention of impunity in the coming general election 2012. He does not believe that a national process would act expeditiously and decisively before the next general election in 2012. As he has always insisted “the ICC is ready to make Kenya a model example in prevention of impunity”. This is an opportunity he would not like to slip away.
The fourth conviction is that ICC proceedings should go hand in hand with complementary investigations and prosecutions at the national level as well as healing and reconciliation processes. The Prosecutor does not exclude national proceedings aimed at dealing with numerous cases of impunity which the ICC cannot address. This is the basis for the Prosecutor’s three-prong approach: The ICC to try those bearing the greatest responsibility, a local tribunal to prosecute other offenders and the non-prosecutorial Truth, Justice and Reconciliation Commission for healing and reconciliation. Impunity is deeply ingrained in the Kenyan society and a single process such as the ICC cannot undo it. A combination of mechanisms seems appropriate.
The fifth conviction is that the Kenya government is committed to cooperate with the ICC. The litmus test for the government’s seriousness, however, will come when the warrants of arrest are issued. If the government does not comply with the arrest orders then its assurances will amount to mere political gimmicks and theatricals. The process is, however, inexorable.
Configuration of the factors above has set the stage for ICC intervention in the Situation in Kenya. Political intrigues and interests will undoubtedly attempt to derail the process but this tactics might not succeed this time. Even if politicians dither, the ICC Prosecutor is committed to ensure impunity is punished and future crimes are prevented. Besides, the ICC process has the support of the public and the international community. The engagement of the ICC in the Situation in Kenya is also an assurance to the victims that those bearing the greatest responsibility will not win again.
This article was first publishe in Pambazuka News on 26.11.2009