ICC Prosecutor Seeks Permission to Investigate Kenyan Crimes Against Humanity

ICC Prosecutor Seeks Permission to Investigate Kenyan Crimes Against Humanity

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.