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CICC Media Advisory: "ICC opens Kenya Investigation"

31 Mar 2010

Dear all,

Please find below the latest media advisory issued by the Coalition for the International Criminal Court (CICC) related to today's decision by the ICC to open an investigation into the Kenya situation.

Please also take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.

Best regards,

CICC Secretariat
www.coalitionfortheicc.org

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"ICC OPENS KENYA INVESTIGATION -- Court to Investigate Alleged Crimes Committed during 2007-2008 Post-Election Violence," CICC media advisory, 31 March 2010, http://www.coalitionfortheicc.org/documents/Kenya_Investigation_Opening_CICC_Advisory_31March2010.pdf

"WHAT: On 31 March 2010, Pre-Trial Chamber II of the International Criminal Court (ICC) authorized the Prosecutor of the ICC to open an investigation into crimes against humanity allegedly committed in Kenya in relation to the post-election violence of 2007-2008. In a majority decision, judges of Pre-Trial Chamber II held that there was a reasonable basis to proceed with an investigation and that the situation appears to fall within the jurisdiction of the Court.

WHY: On 26 November 2009, ICC Chief Prosecutor Luis Moreno-Ocampo sought authorization from Pre-trial Chamber II to open an investigation in relation to the crimes allegedly committed during the 2007-2008 post-election violence in Kenya. Kenya signed and ratified the Rome Statute and hence is a State Party to the ICC. By becoming a State Party, Kenya accepted the jurisdiction of the Court over war crimes, crimes against humanity, and genocide committed on its territory or by one of its nationals, thereby opening the door for the Prosecutor's investigation into acts which are not being investigated and prosecuted by national authorities. In order to decide whether to open an investigation, pre-trial judges, on 18 February 2010, requested clarification and additional information from the prosecutor. On 3 March 2010, the Prosecution filed his response to this clarification request.

HOW: The ICC Prosecutor's November request was the first time that he would seek to open an investigation on his own initiative i.e. proprio motu, in accordance with article 15 of the Rome Statute. The other situations currently dealt with by the Court were initially referred to the Prosecutor by States Parties or the United Nations Security Council. Indeed, for the Court to open an investigation, a situation can be referred to the Court by a State Party, the UN Security Council or initiated by the ICC prosecutor himself, with authorization of the Judges.

COMMENT AND BACKGROUND:

"The ICC judges decision formally authorizing the Office of the Prosecutor to open an investigation on crimes allegedly committed in Kenya during the 40 days of post-election violence in 2007 is significant: it is the first time that the Prosecutor has used his powers to initiate an investigation without first having received a referral from governments or by the UN Security Council in the case of Darfur," said William R. Pace Convenor of the Coalition for the International Criminal Court (CICC) - a global network of civil society organizations in 150 countries advocating for a fair effective and independent ICC. "This is also an important moment for victims and affected communities in Kenya. We urge the Court to develop a clear and tailored communications strategy, to enter in a dialogue with affected communities as soon as possible and to ensure the necessary protection of victims and witnesses," Pace added.

On 16 July 2009, the Prosecutor received six boxes containing documents and supporting material compiled by the Waki Commission, an international commission of inquiry established by the Government of Kenya to investigate the violence that occurred between December 2007 and February 2008, following the presidential elections. The documentation included a sealed envelope containing a list of suspects identified by the Waki Commission as those most responsible for the violence.

The Prosecutor also received information from Kenyan authorities on witness protection measures and on the status of legal proceedings carried out by national authorities. So far, national attempts at addressing the post-election violence have resulted in the establishment of the Kenyan Truth, Justice and Reconciliation Commission and discussions in the government to use the regular judicial apparatus instead of a specially constituted tribunal. Constitutional amendments that would have established a special tribunal, as recommended by the Waki Commission, failed to get the requisite consensus in parliament, which meant that the Kenyan Government missed the deadline for initiating prosecutions by the end of September 2009, a deadline agreed upon by both the ICC Prosecutor and the Kenyan Government delegation which visited the ICC on 3 July 2009.

The Prosecutor has alleged he supports a "three-pronged approach" to the Kenya situation that would involve prosecution by the ICC of those most responsible for the post-election violence coupled with national accountability proceedings for other perpetrators, the format for which would be determined by the Kenyan Parliament. The third prong would include other mechanisms, such as a Truth, Justice and Reconciliation Commission.

The ICC is the world's first permanent international court to prosecute war crimes, crimes against humanity and genocide. There are currently 110 ICC States Parties. Central to the Court's mandate is the principle of complementarity, which holds that the Court will only intervene if national legal systems are unable or unwilling to investigate and prosecute.

FOR MORE INFORMATION: See http://coalitionfortheicc.org/ for more...."

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CICC's policy on the referral and prosecution of situations before the ICC:

The Coalition for the ICC is not an organ of the court. The CICC is an independent NGO movement dedicated to the establishment of the International Criminal Court as a fair, effective, and independent international organization. The Coalition will continue to provide the most up-to-date information about the ICC and to help coordinate global action to effectively implement the Rome Statute of the ICC. The Coalition will also endeavor to respond to basic queries and to raise awareness about the ICC's trigger mechanisms and procedures, as they develop. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts.

Communications to the ICC can be sent to:

ICC
P.O. Box 19519
2500 CM the Hague
The Netherlands