The Appeals Chamber (“the Chamber”) of the International Criminal Court (“ICC”) rejected the appeal of Kenya on an application challenging the admissibility of the case against six prominent Kenyans following the contested 2007 Presidential Election. In so doing, the Appeals Chamber affirmed that the principal of complementary jurisdiction required Kenya to investigate the same conduct and same persons indicted by the ICC.
However, the Appeals Chambers did not establish a bright-line rule that an investigation at the ICC and a national investigation must always investigate the same person and same conduct. Instead, the Appeals Chamber held that because the ICC proceedings were at such an advanced stage, Kenya’s investigation should have investigated the same person and conduct. By considering the respective stages of proceedings at the ICC and Kenya, the Chamber implicitly judged the unwillingness of Kenya to pursue an investigation and prosecution in the case by the “unjustified delay in the proceedings, which in the circumstances is inconsistent with an intent to bring the person concerned to justice.” This implicit judgment better achieves the purpose of complementary jurisdiction but blurs the line between the two-step analysis of Article 17(1) established by the Chambers in Katanga.
Kenya is a formal British colony in the Horn of Africa region. It is a multi-ethnic society whose diversity was exploited by British imperial powers to agitate relations among the various indigenous groups in order to conquer and exploit the natural resources of the land.
An anomalous Kenyan nationalist coalition successfully negotiated independence in 1964, but subsequent leaders employed the resources of the colonial administration-cum-state to the benefit of favored families and ethnic groups. In 1972, Daniel Arap Moi ascended to the Presidency and ruled the country for thirty plus years. As reforms were slowly pushed through, Moi was prohibited from seeking re-election in 2002. The opposition National Rainbow Coalition (“NARC”) candidate, Mwai Kibaki was elected in 2002. In 2005, a new opposition was formed to prevent the ratification of a new constitution. The Orange Democratic Movement (“ODM”) succeeded in voting down the Constitution and formed itself as a political party.
In 2007, ODM leader, Raila Odinga, and President Kibaki campaigned in a rigorous and disputed election. International and domestic observers reported widespread irregularities in the election. Disregarding these observations, the Kenyan Election Commission declared President Kibaki the outright winner.
Massive violence followed, largely along ethnic lines, which the British previously exploited. Over 1,000 were killed and numerous cases of rape were reported. Only through the intervention of former U.N. Secretary-General Kofi Annan were Odinga and Kibaki able to negotiate a unity government and save Kenya from dissolving into civil war.
As part of the negotiation, Kofi Annan sealed six names in an envelope and promised to deliver them to the U.N. Security Council and the ICC Prosecutor, Luis Moreno Ocampo, if Kenya did not pursue the prosecutions. These six Kenyans, William Samoei Ruto, Henry Kiprono Kosgey, Joshua Arap Sang, Francis Kirimi Muthara, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali, are high-ranking members of the Kibaki and Odinga political organization.
At his own motion, Ocampo launched an investigation into the post-election violence in Kenya and subsequently indicted the six Kenyans also known as the “Ocampo Six.”
The decision of the Appeals Chamber of August 21, 2011 came after a long series of procedural moves by Kenya to exempt the Ocampo Six from the jurisdiction of the ICC. The objections at issue in this appeal related to Kenyan’s own investigation of the case. Under Article 17(1)(a) of the ICC Statute, the Court decide a case is inadmissible when, “the 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.”
Kenya sought to have the Prosecutor’s case against the Ocampo Six deemed inadmissible because Kenya was conducting an investigation into the same conduct, but not necessarily the same people. Kenya argued that Article 17(1)(a) only required that a State investigate the same conduct and not the same person, because it was unreasonable to assume that the ICC and State party always had the same information relevant to the alleged crimes and that a State party could likely be investigating another suspect.
In the Katanga decision, the Appeals Chamber held that determining whether a case was inadmissible under Article 17(1)(a) was a two step analysis that considered: 1) whether there are ongoing investigations or prosecutions; and, if this question is answered in the affirmative, then 2) the unwillingness and inability of the state to carry out the investigation. Factors to consider when determining the unwillingness and inability of a state to carry out on investigation or prosecution are described in Article 17(2) and include a) the prosecution or investigation was undertaken to shield the person for crimes within the jurisdiction of the court; b) there has been an unjustified delay in the proceedings inconsistent with an intent to bring the person to justice; and c) the proceedings are not conducted independently or impartially, and were being conducted in an matter inconsistent with an intent to bring the person concerned to justice.
In the Ocampo Six decision, the Appeals Chamber held that to satisfy the first question (whether there are ongoing investigations or prosecutions) a State must be investigating or prosecuting the same person for the substantially same conduct because the proceedings regarding the situation in Kenya were at such an advanced stage. However, this conclusion blurs the clean two-step analysis created by the Court in Katanga.
The existence of an ongoing investigation or prosecution is a wholly objective one: Is there, in fact, an investigation? Kenya argued it unequivocally satisfied this question. The Court, however, disagreed because Kenya was not investigating the same person and should have been doing so at this stage of the proceedings. But the Court’s reasoning implicitly considered the qualitative substance of the Kenyan investigation and its delay in proceedings. Secondly, the Court also considered whether the Kenyan investigation was “carrying out steps directed at ascertaining whether these suspects [the Ocampo Six] are responsible for substantially the same conduct as is the subject of the proceedings before the Court.” Moreover, the Statute itself only explicitly considers a State’s investigation or prosecution of a person in Article 17(2).
The Court’s considerations are directed toward the quality and genuineness of Kenya’s investigation –not whether there is simply an investigation. The Court adopted a process where the quality of a State’s investigation or prosecution is always subject to the Court’s consideration, and rightfully so. Continued reliance on the Katanga case’s two-step analysis, as opposed to the Ocampo Six holistic approach, would permit States to immediately stall ICC investigations by merely opening unsubstantial investigations or prosecutions.
This latest decision regarding the Ocampo Six can be considered a purposive one, which better combats impunity and promotes accountability for perpetrators of gross violations of human rights.
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