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ICC Pre-Trial Chamber Gives Ocampo the Green Light in Kenya

Published on April 15, 2010        Author: 

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…

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Will the ICC’s Pre-Trial Chamber give Ocampo the Benefit of the Doubt in Kenya?

Published on February 18, 2010        Author: 

On 26 November 2009, the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, requested permission from the ICC’s Pre-Trial Chamber II to conduct formal investigations in Kenya, the first time he has ever sought to use his proprio motu powers to initiate an investigation.  In what will be an historic and significant decision, the Pre-Trial Chamber will have the opportunity to provide clarification on a number of contentious issues of international criminal law, including the principle of complementarity, the gravity threshold, the meaning of “interests of justice” and the definition of “crimes against humanity”.  After providing a brief background on the conflict in Kenya and describing the applicable procedure from the Rome Statute, this piece will consider some of the issues that will likely be occupying the minds of the three judges that comprise the Pre-Trial Chamber.

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.

Read the rest of this entry…


ICC Prosecutor Seeks Permission to Investigate Kenyan Crimes Against Humanity

Published on November 17, 2009        Author: 

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. Read the rest of this entry…