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.

 2. Distinction between a “Situation” and a “Case”

The Pre-Trial Chamber identifies that at the stage of admissibility, the Rome Statute distinguishes between a “situation” and a “case”.  According to the Pre-Trial Chamber, the admissibility of a “case” is not required to be considered until the Court is asked to issue an arrest warrant or a summons to appear in court.  Prior to this, the admissibility of a “situation” must be considered when deciding whether to grant the Prosecutor authorisation to conduct investigations.

The admissibility of a “situation”, however, is not considered in the abstract, but rather in the context of potential “cases”.  We are told that this is apparent from the fact that the drafters chose to use the word “case” in Article 15(4) but the word “situation” in Article 15(5) and Article 15(6).  According to the Pre-Trial Chamber, this was deliberate, and as it is not possible to have a “case” prior to the commencement of the investigation, the use of the word “case” in Article 15 indicates that the assessment of the admissibility of a “situation” must be made in the context of potential “cases”.

Consequently, in order to decide whether a situation is admissible at the investigatory stage, the Prosecutor is required to provide the Pre-Trial Chamber with a preliminary assessment of the groups of persons or incidents likely to be investigated.  This is almost certainly the reason why on 18 February 2010 the Pre-Trial Chamber used its powers under Rule 50(4) to request clarification and additional information from the Prosecutor, who had initially given no indication on the groups of persons or incidents he was proposing to investigate.  The lesson for the Prosecutor to learn from this part of the judgment is that, even at this preliminary stage, he or she will always be required to provide the Pre-Trial Chamber with an indication on the persons and incidents to be investigated.

 3. Meaning of “Organisational Policy” in the Definition of “Crimes Against Humanity”

The most contentious aspect of the Pre-Trial Chamber’s decision concerns the manner in which it interprets “organisational policy” in the context of a crime against humanity, with the Chamber unable to reach a consensus on this point.  Article 7(2)(a) of the Rome Statute provides that for a crime to amount to a “crime against humanity”, it must be made “pursuant to or in furtherance of a State or organisational policy”.  In an extension of previous jurisprudence on this point, the majority decides that it is possible for crimes against humanity to be committed by groups that are not States or even “State-like”, so long as the violence is “organised”.  According to the majority, the question to be considered is whether the organised group have “the capability to perform acts which infringe on basic human rights.”  The majority supports its position merely by reference to academic articles and a 1991 commentary of the International Law Commission to its Draft Code (A/CN.4/SER.A/1991/Add.1).

The majority lists a number of factors that may be taken into account in determining whether a group that commits violations of human rights can be said to be “organised” for the purposes of crimes against humanity:

(a)    Whether the group is under a responsible command, or has an established hierarchy;

(b)   Whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population;

(c)    Whether the group exercises control over part of the territory of a State;

(d)   Whether the group has criminal activities against the civilian population as a primary purpose;

(e)    Whether the group articulates, explicitly or implicitly, an intention to attack a civilian population; and

(f)     Whether the group is part of a larger group which fulfils some or all of the above criteria.

The majority then concludes that, even in the absence of any evidence of a policy on the part of the Government of Kenya to attack a civilian population, it is nevertheless satisfied that there is a reasonable basis for concluding that crimes against humanity have been committed.  The majority makes little reference to the above criteria but nevertheless finds that crimes against humanity may have been committed because the violence was planned, directed and organised by “various groups, including local leaders, businessmen and politicians.”

Judge Kaul dissents on this point and finds that that there was no evidence of a State or organisational policy to commit an attack on a civilian population.  Conscious of the need to maintain a clear demarcation between domestic crimes and crimes against humanity, Judge Kaul holds that evidence of violence being organised is not in itself sufficient for the violence to amount to a crime against humanity.  Judge Kaul finds that, whilst the English text of the Rome Statute seems to merely require that the violence be “organised”, the equally-authoritative French, Spanish and Arabic texts leave no doubt that the policy of violence be adopted by an “organisation”.  Judge Kaul accepts that an “organisation” may be a private entity or a non-state actor so long as it is an entity which “may act like a State”.  Such an organisation would be one which:

(a)    Is a collectivity of persons;

(b)   Which was established and acts for a common purpose;

(c)    Over a prolonged period of time;

(d)   Which is under responsible command or adopted a certain degree of hierarchical structure, including, as a minimum, some kind of policy level;

(e)    With the capacity to impose the policy on its members and to sanction them; and

(f)     Which has the capacity and means available to attack any civilian population on a large scale.

Whilst Judge Kaul accepts that the post-electoral violence may have been organised and planned in advance, the absence of an “organisation” implementing a policy to attack a civilian population prevented His Excellency from being satisfied that there was a reasonable basis for concluding that crimes against humanity had been committed.  On this basis, Judge Kaul dissents and denies the Prosecutor’s request to conduct investigations.

 4. The Principle of Complementarity

The Pre-Trial Chamber’s decision is disappointingly brief in its dealing of the principle of complementarity in Article 17(1)(a).    The Pre-Trial Chamber simply concludes that there is no need to consider whether Kenya is “unwilling or unable” to investigate or prosecute because Article 17(1)(a) provides that a case may only be inadmissible where it is being “investigated or prosecuted by a State.”  As there have been no investigations or prosecutions against the most senior leaders or in relation to the most serious incidents, the Pre-Trial Chamber finds that there are no grounds upon which to rule the potential cases inadmissible.

No reference at all is made to the work of the Truth, Justice and Reconciliation Commission and we are therefore left uncertain as to when, and in what circumstances, the establishment of such an institution is sufficient to render cases inadmissible before the Court.

Of greater concern, however, is that only passing consideration is given to the proposed special tribunal.  The Pre-Trial Chamber finds that the failure of a special tribunal to be established to date serves as an indication of “inactivity on the part of Kenyan authorities to address the potential responsibility of those who are likely to be the focus of the Court’s investigation.”  The Chamber does not discuss recent attempts to establish a special tribunal or what impact this may have on the admissibility of the case.  One cannot help but speculate as to how the Pre-Trial Chamber will respond should a special tribunal be established to try those bearing the greatest responsibility for the post-electoral violence.

 5. Gravity

The most elucidating part of the judgment concerns the test the Pre-Trial Chamber adopts for assessing gravity in Article 17(1)(d).   Following from its findings in relation to “situations” and “cases”, the Pre-Trial Chamber states that “gravity” must be examined against the backdrop of the likely set of cases that would arise from investigations.  According to the Pre-Trial Chamber, the gravity of a situation must be assessed according to the modus operandi of the crimes.

In conformity with the small amount of existing jurisprudence on assessing gravity, the Pre-Trial Chamber states that “it is not the number of victims that matter but rather the existence of some aggravating or qualitative factors attached to the commission of the crimes, which makes it grave.”  The Pre-Trial Chamber then goes further in listing factors that that may be taken into account in assessing gravity.  Borrowing from the factors that are to be considered when sentencing convicted persons, the Pre-Trial Chamber provides the following criteria:

(a)    The scale of the alleged crimes (including assessment of geographical and temporal intensity;

(b)   The nature of the crimes allegedly committed;

(c)    The manner in which the crimes were committed; and

(d)   The impact of the crimes and the harm caused to victims and their families.

The Pre-Trial Chamber, influenced by the large number of crimes, the brutality of the crimes, and the trauma that these crimes caused to victims, subsequently finds that the threshold of gravity is satisfied.

 6. Interests of Justice

Finally, the Pre-Trial Chamber confirms that the “interests of justice” test in Article 53(1)(c) does not require the Prosecutor to show that investigations are in the interests of justice and that the Prosecutor need not present any reasons or supporting material in this respect.  Somewhat surprisingly, the Pre-Trial Chamber goes even further than this and seems to suggest that it may never review the Prosecutor’s determination that investigations are in the interests of justice.  The position seems to be that, as the Prosecutor is under no obligation to inform the Pre-Trial Chamber of why he considers the investigations to be in the interests of justice, the Pre-Trial Chamber therefore has no power to review this decision.  By contrast, when the Prosecutor decides that an investigation would not be in the interests of justice, he is under an obligation to notify the Chamber of the reasons for the decision, thereby triggering the review power of the Chamber under Article 53(3)(b).  If this understanding of the Pre-Trial Chamber’s decision is correct, it leads to the remarkable position whereby the decision of the Prosecutor that the conduct of investigations is in the interests of justice would always be unreviewable.

1.  Background and Applicable Procedure

In a previous post, I discussed the events that led to the Prosecutor of the International Criminal Court becoming involved in the Kenyan situation.  In this post, I will consider that legal issues that arise from this involvement.

Article 15(1) provides that the Prosecutor may initiate investigations proprio motu on crimes that fall within the jurisdiction of the Court.  Article 15(3) provides that “if the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorisation of an investigation, together with any supporting material collected.”  Once such a request has been made, the Pre-Trial Chamber shall, in accordance with Article 15(4) authorise the commencement of the investigation where it is satisfied that there is a “reasonable basis to proceed with an investigation” and that the case “appears to fall within the jurisdiction of the Court”.  Rule 48 of the Rules of Procedure and Evidence provides that in determining whether there is a reasonable basis to proceed with an investigation under Article 15(3), the Prosecutor is required to consider the matters set out in Article 53(1), namely:

(a)    Whether there is a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed;

(b)   Whether the case would be admissible under Article 17; and

(c)    Whether, taking into account the interests of victims and the gravity of the crime, it would be in the interests of justice to proceed with an investigation.

2. Within the Jurisdiction of the Court

As the alleged crimes were committed on Kenyan territory, and more than two years after Kenya ratified the Rome Statute, the only issue to be determined in order to satisfy Article 12 is whether the alleged crimes amounted to crimes against humanity.

Article 7 defines “crimes against humanity” to mean the commission of one of the acts in the Article “when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack.”

In Bemba, Pre-Trial Chamber III held that “widespread” referred to the “large-scale nature of the attack and the numbers of targeted persons.”  According to the Waki Commission, the post-electoral violence lasted for two months, occurred in six out of Kenya’s eight provinces and resulted in the killing of 1,133 persons, the forced displacement of 300,000 persons, and the rape and sexual assault of many others.  The Pre-Trial Chamber should therefore be satisfied that there was a “widespread” attack against a “civilian population”.  In the alternative, the same Pre-Trial Chamber stated that “systematic” referred to the “organised nature of the acts of violence and the improbability of their random occurrence.”  The Waki Commission identifies several factors that indicate that at least some of the post-electoral violence in Kenya was planned, including incitement to violence by politicians and business leaders, warnings sent out to victims of the impending attacks, and the organised and orchestrated nature of the violence itself.  The Pre-Trial Chamber could therefore also decide that the attacks were “systematic”.

The failure of the Prosecutor to name any particular suspects, however, may prevent the Pre-Trial Chamber from satisfying itself that crimes against humanity were committed in Kenya. This is because it is not certain whether the mens rea requirement for crimes against humanity has been satisfied.  Article 7(2) requires that the attack against a civilian population be “pursuant to or in furtherance of a State or organisational policy to commit such an attack.”  In elucidating this requirement, the ICC’s Explanatory Note on Elements of Crimes looks to the mental element of the alleged perpetrator. Consequently, the approach of the Pre-Trial Chambers to date has been to consider whether there were reasonable grounds for believing that the alleged perpetrator knew that the acts being committed were part of a widespread or systematic attack.  (See, for example, Katanga, pages 5-6; Chui, pages 5-6; and Bemba para 36,).  The Prosecutor argues, however, that the authorisation of an investigation pursuant to Article 15 “is not the opportunity to proceed with the identification of individual criminal liability.”  (Request for Authorisation, para 102)  Instead, the Prosecutor is asking the Pre-Trial Chamber to find that there is a reasonable basis for believing that some persons in Kenya committed crimes in furtherance of a State or organisational policy, even if the Prosecutor is unwilling or unable to disclose which persons in particular may have had this mental element.  The Pre-Trial Chamber, on the above authority, may find that the absence of named individuals in the request prevents it from finding that crimes against humanity have occurred.

The answer may lie in recognising a distinction between a “situation” and a “case”.  Pre-Trial Chamber I has previously held that the Statute, the Rules of Procedure and Evidence, and the Regulations of the Court draw a distinction between “situations” and “cases”.  The Pre-Trial Chamber stated that “situations, which are generally defined in terms of temporal, territorial and in some cases personal parameters … entail the proceedings envisaged in the Statute to determine whether a particular situation should give rise to a criminal investigation.”  By contrast, “cases, which comprise specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects, entail proceedings that take place after the issuance of a warrant of arrest or a summons to appear.”  For our purposes, we may conclude that the Prosecutor’s request for authorisation to investigate is a request to investigate the “situation” in Kenya, and therefore does not require the individual perpetrator to be identified, as was required in the “cases” listed above.  Whilst the Prosecutor does not make this argument in his request, it is nevertheless open to the Pre-Trial Chamber to make such a distinction, thereby permitting it to authorise the request in the absence of names being disclosed.

3.  Admissibility under Article 17

Assuming that the Pre-Trial Chamber finds that there is a reasonable basis for concluding that crimes against humanity have been committed, it must then consider whether the case would be admissible under Article 17.  This essentially requires the Pre-Trial Chamber to consider two issues:

(a)    Whether the principle of complementarity has been satisfied; and

(b)   Whether the requirement of sufficient gravity has been satisfied.

(a) The Principle of Complementarity

Pre-Trial Chamber I, in Lubanga, stated that the principle of complementarity is the “first part of the admissibility test”.  Article 17(1)(a) provides that a case will be inadmissible where it is “being investigated by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”

The Kenyan case raises many difficult questions on complementarity for the Pre-Trial Chamber.  First, can it be said that a State is “willing” to prosecute when leaders of its government publicly support the trial of suspected perpetrators, but the government then fails to establish the necessary implementing legislation?  Second, how long should the ICC be expected to wait for domestic investigations and prosecutions to commence?  Finally, in the absence of any prosecutions, does the existence of the Truth Justice and Reconciliation Commission, which begins its work later this year, make the Kenyan cases inadmissible under Article 17?

In Katanga, the Appeals Chamber stated that “inaction on the part of a State having jurisdiction … renders a case admissible before the Court”.  In his Request for Authorisation, the Prosecutor argues that the failure of the Grand Coalition Government to establish a Special Tribunal for Kenya amounts to inaction because it has resulted in no investigations or proceedings having commenced against those bearing the greatest responsibility for the crimes allegedly committed.

Whilst it has been nearly 18 months since the Waki Commission recommended the establishment of a Special Tribunal, of concern to the Pre-Trial Chamber in granting the Prosecutor authorisation to proceed is that discussions on how to establish a Special Tribunal are likely to continue to be discussed in Cabinet meetings.  It is then possible that a Special Tribunal is established after the Pre-Trial Chamber authorises formal investigations, thereby rendering the case inadmissible under Article 17.  The Pre-Trial Chamber may therefore be reluctant to authorise official investigations whilst domestic investigations and prosecutions remain a possibility.

(b) The Principle of Sufficient Gravity

Article 17(1)(d) provides that a case will be inadmissible where it is “not of sufficient gravity to justify further action by the Court.”  The term “gravity” is not defined in the Rome Statute, nor in the Rules of Procedure and Evidence, but in Lubanga, the Pre-Trial Chamber held that “gravity” requires two factors to be considered:

(a)    whether the situation was “systematic” or “large-scale”; and

(b)   whether the situation caused “social alarm” in the “international community”.

The first criterion is consistent with previous case law on crimes against humanity and, for the reasons outlined in the above discussion on that requirement, would appear to be satisfied in this case.  The second criterion, however, is without precedent and its meaning is somewhat uncertain, but given that the disputed election was mediated by the Panel of Eminent African Personalities, chaired by former UN Secretary General Kofi Annan, it would seem reasonable to assume that this criterion is also satisfied.

In the same decision, however, the Pre-Trial Chamber subsequently spoke at some length about the alleged perpetrator needing to be a person who “bears the greatest responsibility” in order for the gravity threshold to be established, with the Chamber particularly influenced by whether the individual is a “senior leader”.  This again presents a potential obstacle for the Prosecutor, who has elected not to reveal the identities of the suspects.  In its Request for Authorisation, the Prosecutor does not at any stage address the Lubanga Pre-Trial Chamber’s observations on “gravity”.  It is possible to again distinguish this case, however, because it concerned a “case” and not a “situation”.  The Pre-Trial Chamber may decide that the “gravity” requirement for a “situation” is satisfied in the absence of suspected perpetrators (and their level of seniority) being identified.

Interests of Justice

Once the Prosecutor has taken into account the gravity of the crime and the “interests of victims”, Article 53(1)(c) then states that the Prosecutor must consider whether there are “substantial reasons to believe that an investigation would not serve the interests of justice.”  The Prosecutor is of the opinion that, where the other criteria in Article 53 have been satisfied, there is a presumption in favour of investigation.  In other words, the Prosecutor is not required to establish that an investigation or prosecution is in the interests of justice, but rather shall proceed with the investigation unless there are particular circumstances that provide substantial reasons why it is not in the interests of justice to do so.

As there is no real threat of ICC investigations further destabilising the region, it would appear to be reasonable to assume the proceeding with investigations in Kenya would be in the interests of justice.  The Request for Authorisation nevertheless provides the Pre-Trial Chamber with the opportunity to state whether its understanding of the provision confirms with that of the Prosecutor’s.

Conclusion – Is There a “Reasonable Basis” Upon Which to Proceed?

The above discussion has identified three bases upon which the Pre-Trial Chamber may find that there is no “reasonable basis to proceed with an investigation” and thereby deny the Prosecutor’s Request for Authorisation:

(1)   The failure of the Prosecutor to identify the suspected perpetrators prevents the Pre-Trial Chamber from satisfying itself that crimes against humanity have been committed;

(2)   The establishment of the Truth Justice and Reconciliation Commission and/or the potential future establishment of the Special Tribunal for Kenya prevents the Prosecutor from complying with the principle of complementarity in Article 17; and

(3)   The failure of the Prosecutor to identify the suspected perpetrators prevents the Pre-Trial Chamber from satisfying itself that the crimes were of sufficient gravity for the ICC to justify investigations.

Ultimately, however, the decision of the Pre-Trial Chamber in relation to each of these issues will be determined by how it chooses to define “reasonable basis”.  The Rome Statute provides four different standards of certainty for Chambers to satisfy themselves of, depending on the issue under consideration.  In descending order, these are:

(1)   The conviction of the accused where his guilt is “beyond a reasonable doubt” (Article 66(3));

(2)   The confirmation of charges against the accused where there are “substantial grounds” for believing he committed the crimes charged (Article 61(7));

(3)   The issue of a warrant against the accused where there are “reasonable grounds” for believing he committed the crimes charged (Article 58(1)); and

(4)   The initiation of an investigation where there is a “reasonable basis” for believing crimes were committed.

With the Prosecutor only being required at this stage of the proceedings to satisfy the lowest of these four standards of certainty, the Pre-Trial Chamber may be cognisant of the concerns raised above, but may nevertheless grant the Request for Authorisation.  In other words, the Pre-Trial Chamber may provide the Prosecutor with the benefit of any doubt.  Regardless of the Pre-Trial Chamber’s conclusion, the reasoning in the decision will hopefully provide greater clarity on several crucial elements of the Rome Statute.

Lionel Nichols is a research student in the Faculty of Law, University of Oxford. He is an executive member of the Oxford Transitional Justice Research Group and has prevously interned at the International Criminal Tribunal for the Former Yugoslavia and the Special Court for Sierra Leone.

Earlier this month, the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo announced that he will seek permission in December from the ICC’s Pre-Trial Chamber to initiate an investigation into crimes alleged to have been committed during the 2007 post-election violence in Kenya. The announcement signalled that Ocampo’s patience in relation to the situation in Kenya had finally expired.  Ocampo has waited over a year for Kenya’s Grand Coalition Government to establish a Special Tribunal for Kenya to try those suspected of being responsible for the 2007 post-electoral violence. Now, for the first time, he is using his powers under Article 15 of the ICC Statute to initiate proceedings in the ICC propio motu (on his own motion).

The investigations into the Kenya situation will build upon the work of the Commission of Inquiry on Post Election Violence (Waki Commission), which issued its report on 15 October 2008 (see here).  The Waki Commission found that, in the violence that followed Mwai Kibaki’s claim to have won the December 2007 presidential elections, at least 1,133 people were killed and more than 300,000 were left homeless.  Assuming paramount importance amongst the list of recommendations made by the Waki Commission was the establishment of a Special Tribunal for Kenya to try those persons suspected of being responsible for the violence.  To coerce the Grand Coalition Government into adopting the recommendation, the names of at least 10 persons believed to have been responsible for orchestrating the violence were placed into a sealed envelope and threatened to be handed over to Ocampo should the Government fail to establish a Special Tribunal by January 2009.

Despite extensions being granted, the Government has failed to make any progress in its efforts to establish the Tribunal.  Publicly, MPs express their distaste for the local option because they fear that Kenya’s culture of impunity will make it impossible for the high-level perpetrators to be brought to justice.  Privately, however, many would have their own personal apprehensions at the prospect of themselves being prosecuted for their involvement in the violence.  It is likely that each of these factors have conspired to defeat the Tribunal’s establishment.

It was the post-electoral violence’s chief mediator who first lost his patience.  Following a failed meeting with a Kenyan Government delegation in Geneva in July 2009, Kofi Annan handed the envelope to Ocampo.  The Prosecutor’s “unsealing” of the envelope, coupled with his conducting of “informal investigations”, failed to serve as the stick many hoped it would be and today we are seemingly no closer to the establishment of a Special Tribunal than we were 12 months ago.  With 2012 election clock continuing to tick in the background, Ocampo was left with no option but to seek permission to initiate formal investigations.

In order to do so, he will have to satisfy the Pre-Trial Chamber that the Kenyan Government is “unwilling or unable genuinely to carry out the investigation or prosecution” of suspects.  The Pre-Trial Chamber must consider this issue with great care.  On the one hand, the Kenyan Government has consistently expressed its intention to try suspects through domestic mechanisms (see here); has enacted legislation which makes crimes against humanity crimes under Kenyan law (see here); and has debated three separate Bills relating to the establishment of a Special Tribunal (see here).  On the other hand, the Government has said that if it does not establish a Special Tribunal it will refer the matter to the ICC (see here); the legislation defining crimes against humanity as crimes under domestic law does not apply to the post-electoral violence (see here); and earlier this month the latest Bill attempting to establish a Special Tribunal failed to be debated because of a lack of quorum (see here).

Should the Pre-Trial Chamber authorise Ocampo to conduct formal investigations, this will raise at least four other important issues.  First, to what extent will the Kenyan public authorities provide cooperative assistance to the ICC as it conducts its investigations and issues arrest warrants?  Kenyan Prime Minister Raila Odinga has said that the Kenyan Government “will not shield or protect” (see here) its senior members should they be indicted, but this is far from the end of the story.  Domestic legislation establishes the Attorney-General’s Office as the point of contact for ICC officials, the very same Office that had its credibility and integrity brought into question by the UN’s Special Rapporteur on Extrajudicial Executions earlier this year.  Further, the ICC will be reliant upon the cooperation of the Kenyan Police Force, a body that the Waki Commission condemned in the strongest terms for its fostering of impunity and for the ethnic biases of its members.

Second, how much faith may we reasonably place in the ability of the ICC to reduce the scale and scope of violence at the next presidential elections by proceeding with prosecutions?  Ocampo has stated publicly (see here) that Kenya will serve as an example for the rest of the world, leading to speculation that the Kenyan cases may be fast-tracked.  Given that the accused must be afforded fair trial rights such as the right to adequate preparation of one’s defence and the right to appeal, it is difficult to envisage any prosecutions being completed prior to the 2012 elections.  It is therefore possible that international criminal prosecutions may do little to prevent future violence.    Further, many experts have stressed that the post-electoral violence were not sporadic acts of violence in response to a disputed election result, but rather were a culmination of deep-seated and pent-up ethnic tensions.  It would appear that more tools from the transitional justice toolkit are required than just criminal prosecutions.

This leads to a third issue – how successfully will the ICC’s prosecutions interact with the other transitional justice mechanisms adopted?  With the ICC only capable of prosecuting high-level officials, the establishment of the Special Tribunal remains necessary in order to try the physical perpetrators of the violence.  Should the Special Tribunal be established, this raises questions on the relationship between the two tribunals.  Is there an obligation upon one to co-operate with the other and if so, to what extent?  In the event of a conflict, which mechanism should be given priority?  How will the split in jurisdictions be perceived by the local communities?  The situation is further complicated by the recent enactment of the Truth Justice and Reconciliation Act, establishing a Truth Justice and Reconciliation Commission that is expected to commence hearings in mid-2010.  Is it possible for all three mechanisms to exist simultaneously and still operate effectively?

Finally, there is issue of what political ramifications may follow from a fifth prosecution in Africa.  Following the issuing of arrest warrants in the Democratic Republic of the Congo, Uganda, the Central African Republic and Darfur, some commentators have criticised the ICC for focussing only on conflicts that occur on the continent of Africa (see discussion of this issue here on EJIL:Talk!).  The decision of the Prosecutor to seek to commence formal investigations and the possibility of further arrest warrants being issued against Africans unquestionably provides support for such criticisms.

We have reached a critical juncture in the history of both Kenya and the International Criminal Court.  The manner in which Ocampo proceeds is likely to have significant ramifications for each.