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Kenya Vs. the ICC Prosecutor View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Florida International University College of Law Florida International University College of Law eCollections Faculty Publications Faculty Scholarship 2012 Kenya vs. The ICC Prosecutor Charles Chernor Jalloh Florida International University College of Law, [email protected] Follow this and additional works at: https://ecollections.law.fiu.edu/faculty_publications Part of the Criminal Law Commons, and the International Law Commons Recommended Citation Charles Chernor Jalloh, Kenya vs. The ICC Prosecutor , 53 Harvard Int’l. L. J. Online 269 (2012). Available at: https://ecollections.law.fiu.edu/faculty_publications/249 This Article is brought to you for free and open access by the Faculty Scholarship at eCollections. It has been accepted for inclusion in Faculty Publications by an authorized administrator of eCollections. For more information, please contact [email protected]. HARVARD INTERNATIONAL LAW JOURNAL FEATURE Online AUGUST 2012 Volume 53 Kenya vs. The ICC Prosecutor Charles Chernor Jalloh* I. INTRODUCTION On August 30, 2011, the Appeals Chamber of the International Criminal Court (ICC), by a majority, rejected Kenya’s admissibility challenges under Article 19(2)(b) of the ICC Statute1 in cases involving several Kenyans who allegedly perpetrated crimes * Assistant Professor, University of Pittsburgh School of Law, Pennsylvania, U.S.A.; E-mail: [email protected]. This paper builds on arguments in a case note first published in the January 2012 issue of the American Journal of International Law. I wish to thank Janewa OseiTutu, FIU College of Law, for her usual wonderful feedback on an early draft. I am indebted to Sam Derrick, my former research assistant, for his excellent help researching for this article. I appreciate the hard work of the editors, especially Matthew Bobby and Lucianna Hayden. Errors and omissions are mine. 1 See Rome Statute of the International Criminal Court art. 19(2)(b), July 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute]. Copyright © 2012 by the President and Fellows of Harvard College. 270 Harvard International Law Journal Online / Vol. 53 against humanity during the December 2007 post-election violence.2 The ICC’s denial of Kenya’s admissibility challenge is significant because this is the first time since the Rome Statute entered into force on July 1, 2002 that a State Party has challenged the Court’s assertion of jurisdiction over its nationals on the basis that the State Party itself is investigating the incidents at issue. Accordingly, Kenya has argued it should therefore be given time and space to do its own investigation before interference from the Hague-based court. This important judgment therefore merits some attention, which this case note aims to help provide. The ICC’s involvement in Kenya began on March 31, 2010 when the Pre-Trial Chamber authorized then Prosecutor Luis Moreno-Ocampo to commence a formal investigation into the situation; the Pre-Trial Chamber ruled that potential cases from the East African nation would be admissible at the permanent Hague-based court because Kenya was not investigating or prosecuting the senior political and business leaders allegedly bearing greatest responsibility for the violence, which amounted to crimes against humanity within the ICC’s jurisdiction.3 A year later, at the prosecution’s request, the same judges issued summonses for six individuals associated with the current Kenyan government, namely: Uhuru Kenyatta (Deputy Prime Minister and Minister of Finance), Francis Muthaura (Head of the Public Service and Secretary to Cabinet), Mohammed Ali (Chief Executive and Head of the National Postal Corporation and former Chief of Police), William Ruto (Minister of Higher Education, Science and Technology), Henry Kosgey (Member of Parliament), 2 Prosecutor v. Ruto, Kosgey & Sang, Case No. ICC-01/09-01/11 OA, Judgment on the Appeal of the Republic of Kenya Against the Decision of Pre-Trial Chamber II of 30 May 2011 Entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute” (Aug. 30, 2011), http://www.icc-cpi.int/iccdocs/doc/doc1223134.pdf [hereinafter Appeals Chamber Judgment]; see also Prosecutor v. Ruto, Kosgey & Sang, Case No. ICC-01/09-01/11 OA, Judgment on the Appeal of the Republic of Kenya Against the Decision of Pre-Trial Chamber II of 30 May 2011 Entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute,” Dissenting Opinion of Judge Anita Ušacka (Sept. 20, 2011), http://www.icc- cpi.int/iccdocs/doc/doc1234872.pdf [hereinafter Dissenting Opinion]. 3 Situation in the Republic of Kenya, Case No. ICC-01/09-19, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (Mar. 31, 2010), http://www.icc-cpi.int/iccdocs/doc/doc854562.pdf; see Charles Chernor Jalloh, International Decision: Situation in the Republic of Kenya, No. ICC-01/09-19, Decision on the Authorization of an Investigation, 105 AM. J. INT’L L. 540 (2011) (discussing the significance of the decision, which contains a seminal ruling regarding the scope of crimes against humanity). 2012 / Kenya vs. The ICC Prosecutor 271 and Joshua Sang (Head of Operations of a private radio station, Kass FM).4 The Court recently confirmed charges in four of those cases.5 Three weeks later, Kenya requested that the Pre-Trial Chamber rule the matters involving its six nationals inadmissible before the Court.6 The application, which was supported by some of the suspects and opposed by the ICC prosecutor and victims of the post-election violence, was unanimously denied on May 30, 2011. Kenya then lodged its appeal, arguing that the Pre-Trial Chamber decision should be reversed because it contained serious legal, factual, and procedural errors.7 II. KENYA’S ARGUMENTS: WE ARE INVESTIGATING (BUT NEED TIME TO MAKE REFORMS) Kenya’s appeal raised several issues of law, fact, and procedure. The factual and procedural issues are beyond the scope of this piece, but we will focus on legal issues. In any case, the appeal turned on the appropriate test that should be used under Article 17(1)(a) of the Rome Statute of the International Criminal Court. Under that provision, which enshrines the foundational complementarity principle giving states the primary responsibility to investigate and prosecute offenses within ICC jurisdiction, the Court “shall determine that a case is inadmissible where: (a) [t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”8 It was obvious that Kenya, an ICC State Party, had jurisdiction over the shocking post-election violence that occurred on its territory following the disputed presidential 4 See Prosecutor v. Muthaura, Kenyatta & Ali, Case No. ICC-01/09-02/11, Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Mar. 8, 2011), http://www.icc- cpi.int/iccdocs/doc/doc1037052.pdf; Prosecutor v. Ruto, Kosgey & Sang, Case No. ICC- 01/09-01/11, Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang (Mar. 8, 2011), http://212.159.242.181/iccdocs/doc/doc1037044.pdf. 5 See Kenyatta and Ruto to Face ICC Trial Over Kenya Violence, BBC (Jan. 23, 2012), http://www.bbc.co.uk/news/world-africa-16675268. 6 Since Kenya’s admissibility challenge was denied, the ICC Pre-Trial Chamber has confirmed charges against four of these six suspects that Kenyan media had dubbed the Ocampo Six (that presumably will now become the Ocampo Four). See Prosecutor v. Ruto, Kosgey & Sang, Case No. ICC-01/09-01/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (Jan. 23, 2012), http://www.icc- cpi.int/iccdocs/doc/doc1314535.pdf; Prosecutor v. Muthaura, Kenyatta & Ali, Case No. ICC- 01/09-02/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (Jan. 23, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1314543.pdf. 7 Appeals Chamber Judgment, supra note 2, ¶ 13. 8 See Rome Statute, supra note 1, art. 17(1)(a) (emphasis added). 272 Harvard International Law Journal Online / Vol. 53 elections. Since Kenya was before the Court insisting that it was willing and able to carry out the investigations or prosecutions, the real debate was what Article 17(1)(a) of the Rome Statute means in practice when it says that the ICC should find that “the case is being investigated” in order for the national jurisdiction to be able to pre-empt its work. The government argued that the Pre-Trial Chamber had misconstrued that phrase and, further, that it erred by failing to address Kenya’s challenge of the so-called “same person/same conduct” test that had been used as the benchmark for admissibility assessments.9 That test, which the pre-trial judges assumed Kenya had misunderstood, would require that a national criminal investigation encompass (1) the same person and (2) the same conduct that is the subject of the ICC “case” to be rendered inadmissible before the Court.10 Instead, according to the government, the better test that should have been used is whether the national proceedings capture the “same conduct in respect of persons at the same level in the hierarchy being investigated by the ICC.”11 In any event, the complementarity principle gives states a first right to carry out investigations and prosecutions in their own courts before the ICC jurisdiction would be triggered.
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