Kenya’s Latest Attempt to Invoke Complementarity

The Kenyan government has filed a 30-page motion with the ICC’s Pre-Trial Chamber II arguing that recent improvements to the Kenyan criminal-justice system render the cases against the Ocampo Six inadmissible.  Here are the highlights of the reforms, from the motion’s introduction (para. 2):

2. The Government’s Application must be determined with a full understanding of the fundamental and far-reaching constitutional and judicial reforms very recently enacted in Kenya. Following a Governmental campaign of national unity and reconciliation, and a nationwide referendum, a new Constitution was adopted in August 2010:

• The new Constitution incorporates a Bill of Rights which significantly strengthens fair trial rights and procedural guarantees within the Kenyan criminal justice system,
• The Constitution gives effect to a comprehensive range of judicial reforms which fundamentally transform the administration of justice in Kenya. Deficiencies and weaknesses from the past have been specifically targeted to guarantee the independent and impartial dispensation of justice.
• National courts will now be capable of trying crimes from the post-election violence, including the ICC cases, without the need for legislation to create a special tribunal, thus overcoming a hurdle previously a major stumbling block,
• The new Constitution guarantees the independence of the State’s investigative organs and ushers in wide-ranging reforms to the police services.
• An independent Commission for the Implementation of the Constitution is established to monitor, facilitate and oversee the development of legislation and administrative procedures required to implement the Constitution.

These are welcome developments, and their importance should not be underestimated.  If the motion accurately reflects sentiment on the ground, Kenya does indeed seem to be in the process of creating a criminal-justice system that can handle high-profile, sensitive cases.  Moreover, the motion rightly emphasizes (para. 3) that the Kenyan government — at least the Executive branch — has fully cooperated with the ICC, resisting attempts by members of Parliament to force the government to withdraw from the Court.

That said, Kenya’s case for inadmissibility remains fatally deficient.  The problem is a simple one: the government is still not investigating the Ocampo Six.  Indeed, the motion admits — as obliquely as possible — that there is no guarantee the Ocampo Six will ever be investigated (emphasis mine):

32. The ICC case law has not authoritatively determined the meaning of the word “case” in Article 17(1). It is significant that for the purposes of authorising an investigation under Article 15 in respect of the Kenya Situation the Pre-Trial Chamber held that the admissibility of the case before the ICC must be determined by whether (i) the groups of persons that are the likely to be the object of an investigation by the ICC and (ii) the crimes that are likely to be the focus of such an investigation, are being investigated or prosecuted before the national courts. The Government accepts that national investigations must, therefore, cover the same conduct in respect of persons at the same level in the hierarchy being investigated by the ICC. The Kenyan national investigative processes do extend to the highest levels for all possible crimes, thus covering the present cases before the ICC.

Notice the motion’s sleight-of-hand here: the Kenyan government is promising (1) to investigate the same kinds of crimes that the Ocampo Six are alleged to have committed, and (2) to investigate suspects who are no less important than the Ocampo Six.  But it is not promising to investigate the Ocampo Six themselves — if it was, the motion would no doubt have stated directly that such investigations would begin as soon as the judicial reforms touted by the Kenyan government were complete.

The absence of such a promise is revealing.  Moreover, if you read the motion carefully, the Kenyan government is not even promising to investigate equivalent suspects anytime soon.  As paragraphs 70 and 71 make clear, the government intends to investigate (and presumably prosecute) the small fish before it investigates the big fish (emphasis added):

70. The findings and recommendations of the February 2009 Report to the Attorney General by the Team on the Review of Post-Election Violence Related Cases in Western, Nyanza, Central, Rift Valley, Eastern, Coast, and Nairobi Provinces, are presently being taken forward by the Directorate, As was noted in this Report, the investigation processes were not concluded – they were a first stage. The Report clearly recommended that speedy investigations of all allegations were required, and in particular that co-ordination and resources were needed to achieve this objective, As a result, investigators continue to be dispatched into the field to collect evidence and lay the groundwork for local trials. In addition, the investigations and findings of various international and national bodies, including the Waki Commission, are being relied upon to guide national investigations.

71. An updated report on the state of these investigations and how they extend upwards to the highest levels and to all cases, including those presently before the ICC, will be submitted by the end of July 2011. The report will also outline the investigation strategy which, as envisaged by the February 2009 Report, is building on the investigation and prosecution of lower level perpetrators to reach up to those at the highest levels who may have been responsible. The experience of most international tribunals has been that it is by the pursuit first of suspects and offenders at a lower level – the “foot soldiers” of mass crimes – that higher level suspects fall for better consideration. In Kenya to date there have been investigations and prosecutions mostly of low level offenders involved in the 2007/8 violence. There is every reason to believe that continuing investigations under revived investigative systems pursuant to a “bottom up” exploration of what happened will be much to the advantage of the rule of law generally.

The government may well be right that a bottom-up prosecutorial strategy is better than a top-down one.  The problem is that such a strategy does not satisfy the complementarity requirements of Article 17 of the Rome Statute, which conditions a finding of inadmissibility on a state investigating the specific suspect summonsed to appear before the Court.  That is clear from the the text of the Article (emphasis mine):

1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(a) 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;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the complaint,

2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:

(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in
article 5;

(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

The bolded language indicates that a bottom-up investigative strategy does not render a specific case inadmissible.  Indeed, it indicates that it is not even enough to investigate suspects who are just as important as the suspects who are being investigated by the ICC.  Complementarity is satisfied only if the state is genuinely investigating the same suspects the ICC is investigating.  And as the motion admits, the Kenyan government is not currently investigating any of the Ocampo Six.

To be fair, the motion recognizes this problem.  That’s why it emphasizes in paragraph 32 that “[t]he ICC case law has not authoritatively determined the meaning of the word ‘case’ in Article 17(1).”  That is not completely true; as the motion acknowledges, Pre-Trial Chamber I held in Katanga and Chui — “Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga” — that “[w]hen, as in the present case, the existence of national proceedings is the sole reason for a possible finding of inadmissibility, it is a conditio sine qua non for such a finding that national proceedings encompass both the person and the conduct which is the subject of the case before the Court.”  The motion correctly notes that the Appeals Chamber declined to consider whether the Pre-Trial Chamber’s “same-conduct” test was correct.  But it conveniently fails to point out that the Appeals Chamber did expressly hold in Katanga and Chui that national proceedings must be underway against the particular suspect facing ICC prosecution in order to render the suspect’s case inadmissible (emphasis added):

78. Therefore, in considering whether a case is inadmissible under article 17 (1) (a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction has decided not to prosecute the person concerned.

80. … In its “Observations of the DRC on the challenge to admissibility made by the Defence for Germain Katanga” of 14 March 2009, the DRC confirmed that there were no investigations to establish the alleged criminal responsibility of the Appellant. For that reason alone, and irrespective of the willingness of the DRC to investigate or to prosecute the Appellant, the Appeals Chamber considers that article 17 (1) (a) does not present a bar to his prosecution before the International Criminal Court.

Those paragraphs, I think it is safe to say, doom the Kenyan government’s motion.  We should applaud the government’s efforts to reform Kenya’s criminal-justice system.  We should also hope that the government goes ahead with its plans to investigate and prosecute suspects responsible for the election-related violence in 2007 and 2008.  Until those efforts and plans specifically result in an investigation of the Ocampo Six, though, the ICC’s efforts to prosecute those six Kenyan officials should continue unabated.

POSTSCRIPT: I feel compelled to add that I think the Ocampo Six are ill-served by this motion — one that is clearly inadequate under Article 17 and that relies on misleading characterizations of Appeals Chamber jurisprudence.  If the OTP ever has doubts in the future about whether an investigation of the Ocampo Six is genuine, it could no doubt argue that this motion is itself circumstantial evidence that the Kenyan government’s real goal has always been to shield the Ocampo Six from prosecution, not to bring those most responsible for the election-related violence to justice.  The Kenyan government should thus have waited until it was actually investigating the Ocampo Six before filing its motion, especially as Article 19(4) of the Rome Statute indicates that a state may only challenge admissibility once unless there are “exceptional circumstances” justifying a second challenge.  The ICC may interpret “exceptional circumstances” liberally — but then again, it may not.