In an historic decision, a majority of the Pre-Trial Chamber of the International Criminal Court has given the Prosecutor the benefit of the doubt and has authorised him to conduct official investigations into crimes against humanity believed to have been committed in Kenya. Kenyan hopes for an end to impunity now rest with Ocampo as he seeks to secure the cooperation of the Kenyan Government, to ensure that all witnesses remain protected, and to secure convictions prior to the commencement of the 2012 elections.
In a previous post, I discussed the legal issues likely to be raised by the Prosecutor’s application. This piece provides an analysis of the most significant aspects of the Pre-Trial Chamber’s lengthy 163-page decision. In particular, it considers:
(1) The Pre-Trial Chamber’s definition of “reasonable basis” in Article 15;
(2) The distinction the Chamber makes made between a “situation” and a “case”;
(3) The Chamber’s extension of the meaning of “organisational policy” in the definition of crimes against humanity;
(4) The lack of guidance provided for the test of complementarity in Article 17;
(5) The criteria provided for assessing “gravity” in Article 17; and
(6) The Chamber’s interpretation of the “interests of justice” test in Article 53(1)(c).
1. What is a “Reasonable Basis”?
Article 15 of the Rome Statute provides that the Prosecutor’s determination that there is a “reasonable basis” to proceed with an investigation shall be reviewable by the Pre-Trial Chamber. In the decision, the Pre-Trial Chamber begins by stating that the “reasonable basis” standard of proof is even lower than that provided under Article 58 of the Statute concerning the issuance of arrest warrants. It then provides further guidance by stating that Article 15 requires the Pre-Trial Chamber to satisfy itself that there is a “sensible or reasonable justification” for the Prosecutor to conduct an investigation.
Whilst concurring with this interpretation of Article 15, the dissenting opinion of Judge Kaul cautions against the Pre-Trial Chamber’s review function becoming summary in nature whereby any information may satisfy this low standard. Judge Kaul expresses his concern that if the standard were to be set so low that the Court becomes a mere “rubber stamp” for the Prosecutor, it may result in the Court commencing investigations without the Court having jurisdiction. Read the rest of this entry…