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

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.

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.