Media Briefing Note

The International Criminal Court and Post-Election Violence in Kenya

The Role of the ICC The International Criminal Court, which sits at The Hague in the Netherlands, is the first permanent international tribunal established to prosecute ‘the most serious crimes of international concern’. These are generally categorized as genocide, crimes against humanity and war crimes. It was established by the Rome Statute – which was adopted in 1998 and entered into force in 2002, and can only deal with alleged crimes to have occurred from 2002 onwards. 148 countries have signed the treaty, with Kenya among the 110 to have fully ratified the treaty. The ICC currently has active cases in five countries including Kenya, along with Uganda, the Democratic Republic of Congo, the Central African Republic and Darfur, Sudan.

Involvement in Kenya An ICC team originally conducted a preliminary investigation in Kenya just months after the deadly post-election violence of 2007/8. As allegations began to surface of the involvement of high profile politicians and business leaders in orchestrating the post-election violence, the prospect of a full ICC investigation and trials moved closer. For nearly 18 months, a debate raged over the best arena in which to try suspected masterminds of the violence: a dedicated ‘Special Tribunal’ in Kenya or international justice at The Hague. As deadlines to establish a Special Tribunal passed, the Commission of Inquiry in the Post Election Violence (the Waki Commission), sent six boxes of evidence to the ICC. This included a sealed list of 20 high-profile suspects. Ultimately, the ICC Prosecutor used his proprio motu power to formally open an investigation into the Kenyan violence. Kenya is the first case not to have been formally referred for investigation by the state in question or United Nations Security Council.

Timeline so far • February 2008: ICC Preliminary Investigation Team visits Kenya • March 2009: Deadline to ratify Kenyan Special Tribunal Bill passes without agreement; extended to September 2009, with ultimatum that sealed envelope of suspects’ names will be handed to ICC if missed again • July 2009: Kenyan Government delegation meets with ICC Prosecutor • July 2009: Waki Commission evidence, and sealed envelope, sent to ICC before second Special Tribunal deadline • September 2009: Prosecutor states preference for ‘three-pronged’ approach to justice in Kenya • November 2009: Prosecutor requests approval from Pre-Trial chamber for full investigation • December 2009: Prosecutor meets Kenyan President and Prime Minister, informs them he believes there is sufficient evidence to investigate allegations of crimes against humanity • March 2010: Pre-Trial Chamber approves full investigation • May 2010: Prosecutor returns to Kenya to commence full investigation

‘Three-Pronged’ Justice The Prosecutor, Luis Moreno-Ocampo has publicly stated his desire to see a ‘three-pronged’ approach to justice in Kenya. The Prosecutor’s view is that the ICC should handle those ‘most responsible’ for the post election violence, whilst nationally established structures such as the Special Tribunal should try other perpetrators. The third-prong would come in the form of the now established, although not untroubled, Truth, Justice and Reconciliation Commission.

What Happens Next? • 2010: Full investigation in order to determine key suspects (not exclusively from the sealed list of 20) and charges • 2011: First cases filed, ‘confirmation hearings’ held • 2012: Trials to commence, only 2 or 3 cases expected with a handful of suspects for each.