ICC Prosecutor Moves To Obtain Authorization to Open Investigations Into Kenya
Even as the debate raged over the involvement of the ICC following the report of the Commission on post election violence in Kenya, it had become apparent to those closely following discussions that President Mwai Kibaki and Prime Minister Raila Odinga were unlikely to refer Kenya to the ICC for investigation of alleged crimes. This conclusion has turned out to be accurate.
Godfrey Musila, Senior Researcher, International Crime in Africa Program, ISS Pretoria
Even as the debate raged over the involvement of the ICC following
the report of the Commission on post election violence in Kenya, it had
become apparent to those closely following discussions that President
Mwai Kibaki and Prime Minister Raila Odinga were unlikely to refer
Kenya to the ICC for investigation of alleged crimes. This conclusion
has turned out to be accurate.
Speaking in Nairobi on 6 November, ICC Prosecutor Louis
Moreno-Ocampo announced that he will invoke his powers (article 15 of
the Rome Statute) to commence investigations into crimes against
humanity allegedly committed during the post electoral violence. He
stated that he has concluded that the evidence reveals crimes against
humanity and that the required gravity test – which entails weighing of
the scale, nature, scale and impact of crimes – can be met. More
surprising, perhaps, was the fact that the two Principals, while not
agreeing to refer the situation to the ICC for investigations, pledged
to cooperate fully with Ocampo going forward.
What is important to note is that on the eve of Ocampo`s arrival
in Nairobi, one call recall the rancorous exchange between Mr Thuita
Mwangi (Permanent Secretary in the Ministry of Foreign Affairs) and
Prof Anyang’ Nyong’o (ODM) who argued for two opposing approaches on
the ICC. While the former suggested ICC involvement would be premature,
the latter suggested that the ICC should be allowed to come in as soon
as possible. This, and other verbal skirmishes that occurred between
dominant voices in PNU and ODM on this issue tell us more than the
broad smiles at the orderly media conference attended by Ocampo.
The reluctance by the Principals to refer the situation – thereby
avoiding the authorization from judges that Ocampo now has to seek –
points to the lack of consensus and the fact that the two do not want
to be seen as ‘traitors’ in the eyes of trusted supporters. These
dynamics – in particular the apparent lack of consensus – have a bearing
on future government behavior and on whether the pledge to cooperate
is genuine.
It remains to be seen whether the Principals will contain
disruptive elements and establish a sustainable cooperation
relationship with the Court. Crucially, the much-criticized Attorney
General – recently banned from traveling to the US for allegedly
`impeding reforms and aiding impunity` – remains the technical focal
point for cooperation.
All requests for cooperation from the Court will be addressed to
his office. The police – whose role in the violence has been questioned
– remain key in providing security and other forms of assistance to
ICC investigators and staff, victims and witnesses. Moreover, the
Government has to issue travel visas to ICC agents and arrest suspects
when called upon. Whether the government is committed can only be
gauged once this process begins. One can recall that in Uganda, after
much fanfare and media frenzy when President Museveni referred Uganda
to the ICC, of the five indicted, no single individual has been
arrested.
In terms of the process to be followed going forward, in terms of
article 15.3 and 15.4 of the Rome Statute, the Prosecutor is required
to make his case to the judges of a Pre-Trial Chamber and argue
convincingly that there is reasonable basis to proceed with
investigations. Mr Ocampo has announced that he will approach Pre-Trial
Chamber I on 27th November to make his case. Victims who wish to make
representations before the Chapter – for or against the opening of
formal investigations – have been asked to organize themselves.
The purpose of this authorization proceeding is to ensure that the
Prosecutor actually has a case and that the Court will not be wasting
scarce resources on unfounded investigations. If Pre-Trial Chamber
judges agree with him – that evidence suggests there are international
crimes and gravity is met –, they will then issue authorization to the
Prosecutor to open formal investigations into crimes committed in Kenya
(article 15.4 Rome Statute). In terms of article 15.6 of the Rome
Statute, the judges could reject the Prosecutor`s request, if they
conclude that the conditions above are not met.
If authorization is refused, the Prosecutor can abandon
investigations into Kenya completely, or search for more information
that can establish that crimes against humanity were committed, and
that satisfy the gravity threshold. In this case, he can approach those
who provided information in the first place to establish whether they
can assist him further (article 15.5 Rome Statute). He can then attempt
to obtain permission afresh to open investigations.
Should investigations begin, they will be geared towards making a
case against specific individuals on the Waki List. In view of costs –
prosecuting international crimes is a complex, expensive affair –
Ocampo will almost certainly not indict all 12 on that list. What is
clear is that it is just the second chapter in a long saga that has now
begun.
