The ICC Kenya case: implications and impact for proprio motu and complementarity. (International Criminal Court) (V. Kenya's Admissibility Challenge Under the Complementarity Principle and the ICC Response through Conclusion, with footnotes, p. 736-766)

• Published date: 22 December 2014
• Author: Totten, Christopher,Asghar, Hina,Ojutalayo, Ayomipo,Totten, Christopher^Asghar, Hina^Ojutalayo, Ayomipo
• Date: 22 December 2014

V. KENYA'S ADMISSIBILITY CHALLENGE UNDER THE COMPLEMENTARITY PRINCIPLE AND THE ICC RESPONSE

The Kenyan government did not support the ICC's intervention in the post-election violence inquiry because it perceived it as an incursion into its sovereignty. In particular, in a key filing before the ICC, the Kenyan government sought to establish the case against the suspects as inadmissible under the complementarity principle. (192) For example, in its filing, the Kenyan government cited judicial and constitutional reforms such as the drafting of a new constitution, which included strengthened trial rights and revamped national courts now able to try "crimes from the post-election violence, including the ICC cases ...," (193) Kenya also cited its efforts to investigate and prosecute a number of lower-level perpetrators in the post-election violence. (194) Moreover, Kenya emphasized that with the passage of the legislative International Crimes Act of 2008, Kenyan courts "have jurisdiction to prosecute all of the crimes included in the [Rome] Statute." (195) According to Kenya, it would appoint judges to the appropriate appellate court capable of dealing with post-election cases by a certain date, and it would continue to carry out investigations for those cases (and corresponding crimes). (196)

Kenya's request of the Pre-Trial Chamber to find the cases against the defendants inadmissible under the complementarity principle was denied, and the cases ruled admissible. (197) The PTC found that "there are no concrete steps showing ongoing investigations against the three suspects in the present case." (198) The PTC concluded that because of the "situation of [judicial] inactivity [against the particular suspects,] ... the Chamber [could not] but determine that the case is admissible." (199) Kenya appealed the decision; however, the Appeals Chamber agreed with the PTC, ruling that a state merely providing evidence of "ongoing investigations" would not suffice to dismiss an ICC investigation. On the contrary, to successfully challenge admissibility, Kenya would have to "provide the Court with evidence [consisting of] ... a sufficient degree of specificity and probative value that demonstrates that it is indeed investigating the case." (200)

The Appeals Chamber of the ICC ultimately rejected the challenges brought by Kenya under the complementarity principle. (201) These challenges constitute the first time that a state party has sought to have a case deemed inadmissible before the ICC on complementarity grounds. (202) The appeal essentially argued that the Pre-Trial Chamber's decision should be reversed because it was based on "factual, procedural and legal errors." (203)

The Kenyan government, in its appeal, sought a decision that favored deference to state jurisdiction under the Article 17 complementarity provisions. For example, Kenya argued that "the case is being investigated" language in Article 17(l)(a) did not mean, as the PTC had earlier determined, that "for a case to be inadmissible before the Court, a national jurisdiction must be investigating the same person and for the same conduct as in the case already before the Court." (204) That rather demanding test requires, for a case to be deemed inadmissible before the Court, that a criminal investigation at the national level encompass both the same conduct and the same person that are involved in the case before the Court. (205) Instead, Kenya claimed, the test should be whether the national proceedings "cover the same conduct in respect of persons at the same level in the hierarchy being investigated by the ICC." (206) Kenya thus envisioned that the complementarity principle of Article 17 carries a "presumption in favour of national jurisdictions" and "leaway [sic] in the exercise of discretion in the application of the principle of complementarity." (207)

In Kenya's appeal of the PTC's admissibility decision implicating the Article 17 complementarity provision, the Appeals Chamber ruled squarely on the "same-person, same-conduct" test. (208) The majority essentially adopted this test as the principal tool with which to evaluate the complementarity issue, concluding that "the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court." (209) For the Court, the language of Article 17 and the context of the particular case (i.e., at or after a warrant or summons has been issued by the Court, or after charges have been filed by the Prosecutor and confirmed by the PTC) provide the rationale for adoption of the more specific and demanding "same-person, substantially the same-conduct" test. (210) In particular, in the Kenya case, because a summons for particular suspects for specific conduct had already been issued, the "context" of the case meant that this test would apply.

"[The Kenyan] case is only inadmissible before the court if the same suspects are being investigated by Kenya for substantially the same conduct. The words 'is being investigated', in this context, signify the taking of [specific] steps directed at ascertaining whether those suspects are responsible for that conduct, for instance by interviewing witnesses or suspects, collecting documentary evidence, or carrying out forensic analyses." (211)

The Appeals Chamber concluded that Kenya was not actively taking these "specific steps":

 [The relevant documents provided by Kenya] made reference, in a
                 general manner, to alleged investigations against all the suspects
                 in the case[; however,] they do not provide any details as to the
                 steps Kenya may have taken to ascertain whether they were
                 responsible for the conduct that is alleged against them in the
                 proceedings before the Court.... The only suspect specifically
                 named in [the relevant documents] is Mr Ruto ... However, even this
                 information falls short of substantiating what has been done to
                 investigate him for that conduct. (212)
                

VI. THE DEFENDANTS, THE SUMMONSES, AND THE CHARGES

The Kenyan defendants were charged with crimes against humanity. Crimes against humanity require that the acts prosecuted be "part of a widespread or systematic attack directed against ... [a] civilian population," and that the perpetrator know about the overall attack. (213) The most recent list of acts constituting crimes against humanity in the Rome Statute includes:

(a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or severe deprivation of physical liberty in violation of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group ... on political, racial, national, ethnic, cultural, religious, gender ... or other grounds universally recognized as impermissible under international law, in connection with any act referred to [in the same paragraph] or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) ... apartheid; (k) [and] [o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. (214)

The ICC Prosecutor divided the situation in Kenya into two cases. The original defendants in the first case were William Samoei Ruto, Henry Kiprono Kosgey, and Joshua Arap Sang. The original defendants in the second case were Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali. (215)

As reflected in the ICC Prosecutor's application for summonses, "[William Samoei Ruto] ('Ruto') and [Henry Kiprono Kosgey] ('Kosgey'), prominent leaders of the Orange Democratic Movement ('ODM') political party, began preparing a criminal plan to attack those identified as supporters of the Party of National Unity ('PNU')." (216) "[Joshua Arap Sang] ('Sang'), a prominent ODM supporter, was a crucial part of the plan, using his radio program to collect supporters and provide signals to members of the plan on when and where to attack." (217) In order to meet their goal, Ruto, Kosgey, and Sang "coordinated a series of actors and institutions to establish a network, using it to implement an organizational policy to commit crimes." (218) "Their two goals were: (1) to gain power in the Rift Valley Province, Kenya ("Rift Valley"), and ultimately in the Republic of Kenya, and (2) to punish and expel from the Rift Valley those perceived to support the PNU (collectively referred to as 'PNU supporters')." (219) Supporters groomed by Ruto, Kosgey and Sang carried out "their plan by attacking PNU supporters immediately after the announcement of the [Kenyan] presidential election results....," (220) Their attacks focused on specific locations "including Turbo town, the greater Eldoret area (Huruma, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town." (221) Supporters "burn[ed] down PNU supporters' homes and businesses, killing civilians, and systematically driving them from their homes." (222) In addition, a church "was attacked and burned with more than one hundred people inside. At least 17 people died." (223) Each attack was carried out "in a uniform fashion." (224)

According to the ICC Prosecutor, as a result of the attacks orchestrated by Ruto, Kosgey, and Sang on PNU supporters, and in order to manage protests organized by the ODM, Kenyan officials Francis Kirimi Muthaura ("Muthaura"), Uhuru Muigai Kenyatta ("Kenyatta"), and Mohammed Hussein Ali ("Ali") "developed and executed a plan to attack perceived ODM supporters in order to keep the PNU in power." (225) Under the National Security Advisory Committee, which was led by Muthaura and participated in by Ali, the Kenyan police were "deployed into ODM strongholds where they used excessive force against civilian protesters in Kisumu (Kisumu...