25 November 2009: ICC Prosecutor Moves To Obtain Authorization to Open Investigations Into Kenya
Godfrey Musila, Senior Researcher, International Crime in Africa Program, ISS Pretoria
Even as the debate raged over the involvement of the ICC following the report of the Commission on post election violence in Kenya, it had become apparent to those closely following discussions that President Mwai Kibaki and Prime Minister Raila Odinga were unlikely to refer Kenya to the ICC for investigation of alleged crimes. This conclusion has turned out to be accurate.
Speaking in Nairobi on 6 November, ICC Prosecutor Louis Moreno-Ocampo announced that he will invoke his powers (article 15 of the Rome Statute) to commence investigations into crimes against humanity allegedly committed during the post electoral violence. He stated that he has concluded that the evidence reveals crimes against humanity and that the required gravity test – which entails weighing of the scale, nature, scale and impact of crimes – can be met. More surprising, perhaps, was the fact that the two Principals, while not agreeing to refer the situation to the ICC for investigations, pledged to cooperate fully with Ocampo going forward.
What is important to note is that on the eve of Ocampo`s arrival in Nairobi, one call recall the rancorous exchange between Mr Thuita Mwangi (Permanent Secretary in the Ministry of Foreign Affairs) and Prof Anyang` Nyong`o (ODM) who argued for two opposing approaches on the ICC. While the former suggested ICC involvement would be premature, the latter suggested that the ICC should be allowed to come in as soon as possible. This, and other verbal skirmishes that occurred between dominant voices in PNU and ODM on this issue tell us more than the broad smiles at the orderly media conference attended by Ocampo.
The reluctance by the Principals to refer the situation – thereby avoiding the authorization from judges that Ocampo now has to seek – points to the lack of consensus and the fact that the two do not want to be seen as ‘traitors` in the eyes of trusted supporters. These dynamics – in particular the apparent lack of consensus – have a bearing on future government behavior and on whether the pledge to cooperate is genuine.
It remains to be seen whether the Principals will contain disruptive elements and establish a sustainable cooperation relationship with the Court. Crucially, the much-criticized Attorney General – recently banned from traveling to the US for allegedly `impeding reforms and aiding impunity` – remains the technical focal point for cooperation.
All requests for cooperation from the Court will be addressed to his office. The police – whose role in the violence has been questioned – remain key in providing security and other forms of assistance to ICC investigators and staff, victims and witnesses. Moreover, the Government has to issue travel visas to ICC agents and arrest suspects when called upon. Whether the government is committed can only be gauged once this process begins. One can recall that in Uganda, after much fanfare and media frenzy when President Museveni referred Uganda to the ICC, of the five indicted, no single individual has been arrested.
In terms of the process to be followed going forward, in terms of article 15.3 and 15.4 of the Rome Statute, the Prosecutor is required to make his case to the judges of a Pre-Trial Chamber and argue convincingly that there is reasonable basis to proceed with investigations. Mr Ocampo has announced that he will approach Pre-Trial Chamber I on 27th November to make his case. Victims who wish to make representations before the Chapter – for or against the opening of formal investigations – have been asked to organize themselves.
The purpose of this authorization proceeding is to ensure that the Prosecutor actually has a case and that the Court will not be wasting scarce resources on unfounded investigations. If Pre-Trial Chamber judges agree with him – that evidence suggests there are international crimes and gravity is met –, they will then issue authorization to the Prosecutor to open formal investigations into crimes committed in Kenya (article 15.4 Rome Statute). In terms of article 15.6 of the Rome Statute, the judges could reject the Prosecutor`s request, if they conclude that the conditions above are not met.
If authorization is refused, the Prosecutor can abandon investigations into Kenya completely, or search for more information that can establish that crimes against humanity were committed, and that satisfy the gravity threshold. In this case, he can approach those who provided information in the first place to establish whether they can assist him further (article 15.5 Rome Statute). He can then attempt to obtain permission afresh to open investigations.
Should investigations begin, they will be geared towards making a case against specific individuals on the Waki List. In view of costs – prosecuting international crimes is a complex, expensive affair – Ocampo will almost certainly not indict all 12 on that list. What is clear is that it is just the second chapter in a long saga that has now begun.