The ICC Kenya case: implications and impact for proprio motu and complementarity. (International Criminal Court) (Introduction through IV. Prosecutor's Request to Investigate Proprio Motu in Kenya and the Response by the PTC, p. 699-736)

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

INTRODUCTION

The situation in Kenya culminating in the confirmation of charges against four individuals for crimes against humanity in the International Criminal Court (ICC) has significantly enhanced understanding of fundamental concepts contained within the Rome Statute, the Court's controlling statute. (1) For example, the jurisprudence in this case has further elucidated the principle of proprio motu as set forth in the Rome Statute as well as the particular contexts in which it may be appropriate for the Prosecutor to exercise her authority to investigate a case under this principle. (2) The situation in Kenya also sheds further light on the fundamental concept of "complementarity" within the ICC system since it is the first time a state party has challenged the admissibility of a case before the ICC under this principle. (3) In particular, the case provides further clarification of the evolving criteria to be used to determine if the ICC must defer to a national jurisdiction under the complementarity principle.

This article will analyze in depth the Prosecutor's request to investigate the situation in Kenya, the Pre-Trial Chamber's (PTC's) authorization of this investigation, Kenya's application to the PTC to find the case inadmissible before the ICC under the complementarity principle, the determinations by the PTC and Appeals Chamber on the admissibility issue, and the PTC's decision to issue summonses and subsequently confirm charges for particular Kenyan defendants. Not only does this analysis provide a more nuanced understanding of the proprio motu power and complementarity principle that are central to the ICC's functioning and continued existence but it also helps to illuminate the evolution of the Kenya case from its pre-trial stages to its current point at the beginning of the trials, which have begun against two of the four individuals whose charges related to the post-election violence in Kenya were confirmed by the ICC. (4) These individuals include prominent Kenyan officials, including the current Kenyan Deputy President. (5)

This article consists of seven parts. Part I of the article provides background information pertaining to the situation in Kenya, summarizing the events and factors that led up to the post-election violence. Part II will address the efforts made by the Kenyan government to address the violence and punish the perpetrators of the post-election violence, including the formation of the Commission of Inquiry into Post-Election Violence (CIPEV), or Waki Commission. (6) Part III highlights important aspects of ICC law as it relates to the progress of the Kenya case thus far. Part IV is devoted to the PTC's authorization of the Prosecutor's request to commence an investigation proprio motu into the situation in Kenya. Part V discusses Kenya's application to the PTC to find the case inadmissible under the complementarity principle, and the PTC's and Appeal Chamber's "precedent-setting" response. Part VI will examine the summonses issued and charges confirmed against particular Kenyan defendants, two of whom continue to face charges before the Court. Part VII will explore the impact and implications to date of the Kenya case for future ICC investigations and prosecutions. In particular, it will analyze the Pre-Trial Chamber's "supervisory" role over the ICC Prosecutor's proprio motu power and the criteria offered by the ICC judges with which to assess the complementarity issue.

Ultimately, the Article argues that the Kenya case supports the notion that the PTC is taking its supervisory role "seriously" by placing reasonable limits on the Prosecutor's potentially broad and robust proprio motu power. In addition, in light of the somewhat overly rigid test for states created by the ICC in the Kenya case through which to evaluate the complementarity principle (i.e., the "same person, substantially the same conduct" test), the Article puts forth an alternative test that aims to be more responsive to the shared role of national jurisdictions and the ICC under the Rome Statute in combating and ending impunity for grave crimes. This test is supported, in part, by both the Rome Statute and recent jurisprudence by the Court in the Libya case. In light of the shared role, the Article proposes that the definition of "investigation" for purposes of the complementarity principle be expanded to include less "traditional" methods used by states to address periods of mass crime, such as truth commissions and other local approaches. In this way, state sovereignty would be further protected from undue encroachment by the Court. Finally, the Article, while ultimately agreeing with the ICC finding of admissibility under the complementarity principle in the Kenya case, suggests that Kenya still has a more limited opportunity to end ICC intervention in the case if it begins to sufficiently investigate or prosecute grave crimes related to the post-election violence. This opportunity, however, is quickly diminishing as the ICC trials have begun against two of the four defendants for whom charges were confirmed, including Kenya's Deputy President. Moreover, Kenya's own truth commission recently revealed in its final report that the Kenyan government still needs to investigate further perpetrators of the election-related violence.

I. BACKGROUND

Kenya ratified the Rome Statute in March of 2005 and became a state party to the ICC. (7) By becoming a state party, Kenya accepted the jurisdiction of the Court in certain cases over international crimes committed on its territory or by one of its nationals, thereby opening the door for the ICC prosecutor's investigation into potential international criminal acts within Kenya. In particular, the Court would be able to exercise its jurisdiction in certain cases over war crimes, crimes against humanity, and genocide committed by Kenyan nationals or on Kenyan territory on or after March 15, 2005, the date that Kenya ratified the Rome Statute. (8)

The conflict that occurred in Kenya in the 2007 post-election period was a product of deep-rooted ethnic rivalries. (9) Rivalries between the Masaai and Kikuyu ethnicities (10) stem from disputes over land allocations by government leaders in the Rift Valley since the post-independence period in Kenya." In Kenya, political leaders have been successful in aligning their platforms along ethnic lines and polarizing the country. Kenya's political scene focuses on ethnicity as opposed to the performance of politicians. Clashes in the Rift Valley are not new phenomena in Kenya; indeed, violence has erupted in Kenya around election time in recent years and investigations have identified political leaders as the main culprits of this violence. (12) Along with this political involvement in election-time violence, there has been a culture of impunity toward the perpetrators of violence. (13) There has been no previous legal action taken against those that are alleged to have incited violence prior to 2007. This history of violence and impunity laid the groundwork for the violent outbreaks that followed the December 2007 elections. (14)

Even though the political violence in Kenya has very deep roots, the actual trigger for the violence that began after the December 2007 elections was the manipulation of the election outcome. Before the election took place, the campaign atmosphere was dominated by socio-ethnic polarization between the communities of the two main contenders: Mwai Kibaki and Raila Odinga. (15) This polarization, in turn, led to an extremely hostile environment in the candidates' respective strongholds. Leaflets were circulated and text messages were sent from undisclosed locations containing hate speech from both of the contenders' camps. (16)

Some violence began to break out prior to the actual election; (17) however, the strongest and most widespread violence began hours after the results were announced. (18) The beginning stages of the tabulation process indicated that opposition leader Raila Odinga carried a lead of about a million votes. (19) Even though there were reported irregularities throughout the election process, it was towards the end of tallying the votes where the most damaging acts of fraud were committed. (20) In particular, when the Electoral Commission of Kenya (ECK) presided over the tallying processes, it was seen by many as a "desperate last-minute attempt to rig the contest in favor of incumbent Mwai Kibaki." (21) The lead by Mr. Odinga quickly ceased to exist under reported irregular proceedings, which in turn resulted in a victory for Mr. Kibaki by a very slim margin of votes. (22)

The electoral processes were soon engulfed in confusion. The Kenyan public became quite upset and there was also pressure from other outlets to reverse the election outcome. (23) From this outcry over the electoral process, officials from the electoral commission "denounced the apparent fraud;" furthermore, the head of the ECK announced that he was personally unsure of which candidate actually won the election. (24) In the face of this clearly disputed result, and before the public had time to voice their "concerns" over the skewed election results, Mr. Kibaki quickly had himself sworn into another term in office. (25) At that point, election observers issued reports "condemning the tallying process" officially casting doubt on the election outcome. (26)

In addition to the uncertainties surrounding the results of the election and the hurried swearing in of Mr. Kibaki, the press was ordered to suspend live broadcasts of the elections. (27) This action led to rising levels of anxiety among Kenyans because they were unable to examine the election process. (28) As a result of the delay in making election results known, incidents of violence began to emerge in Kenya. Once the results were finally announced publicly, the violence spread. (29) There have been explicit reports by...