Kenya’s Latest Attempt to Invoke Complementarity

by Kevin Jon Heller

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.

http://opiniojuris.org/2011/04/04/kenyas-latest-attempt-to-invoke-complementarity/

9 Responses

  1. Kevin,

    I think you might be reading the Appeals Chamber a little too broadly.  To me, it indicates to me that an ongoing investigation that has excluded or will never include a suspect does not satisfy complementarity.  Other than that, it appears to suggest that a serious, ongoing investigation of the matters to which an ICC case is connected is sufficient. 

    I don’t read the motion to say that a decision has been reached not to prosecute the Ocampo Six.  It seems to clearly state that they are well within the scope of the investigation.

    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.”
    If their goal is to shield the Ocampo Six from prosecution, why make this promise?  They didn’t give themselves much time to dither.  Do we really think that the ICC will allow them to delay much without “calling their bluff” if that is what this is?
    Additionally, I tend to take the government at its word that,

    11.  It is submitted that to concentrate on the six named individuals will have the effect of letting it seem that by their standing trial in The Hague the whole tragic history of 2007/8 is put to rest. It is the Government’s firm view that such an outcome would be most unfortunate. Only by trying people in Kenya itself, and ensuring an even-handed investigation and prosecution of all those on whom suspicion rightly falls, may the national process of dealing with the tragedy be properly balanced. Moreover, Kenya itself trying all cases arising from the 2007/8 violence will certainly build public confidence in the police and the judicial process.”

    In other words, this motion is not meant to “serve” the Ocampo Six.  It is intended to serve the longer term interests of the Kenyan people.

    I tend to believe this, or at least to be willing to let things play out, because I had the privilege of taking students to Vukovar and Bosnia last summer to informally examine these issues (among others as we also visited Dachau, Nuremberg and The Hague).  The lack of “connection” of the Croats we met to the ICTY prosecutions was palpable.  Some even indicated that the ICTY prosecutions meant nothing to them because the individuals who had injured them or killed their family members were still walking around free.  Obviously this is anecdotal, but was quite compelling to the students.

    I also tend to believe that the adoption of a new Constitution, including substantial reform of the judiciary and national prosecutor’s office, should qualify as “exceptional circumstances” warranting a second admissibility challenge.  As you state, though, and the motion makes clear, it may still be a bit early to claim that these changes warrant deferral.  Many key positions are yet to be filled. 
    At bottom, I think you may be reading the motion a bit too critically (or maybe I should say suspiciously), but are fairly raising the question of whether these reforms and investigations render the cases inadmissible at this time.

  2. John,

    I thought I was being quite generous in my reading.  I want to leave open the possibility that Kenya might eventually satisfy complementarity, because that is the ideal outcome, and I made clear my approval of the new reforms.  I also agree that the completion of the reforms may well qualify as exceptional circumstances justifying a second admissibility challenge.  But this motion is clearly premature, clearly inadequate, and I think can fairly be described as slippery in its attempt to argue that complementarity can be satisfied without a current investigation of the Ocampo Six.

    As for the Appeals Chamber, I have to disagree with you.  I think the Chamber is quite clear in the decision that a case is admissible unless the state challenging admissibility is currently investigating the suspect who is facing ICC prosecution. Indeed, the contrary position would make a mockery of complementarity, divesting the Court of jurisdiction as long as at some unspecified point in the future the state promises to get around to investigating the suspect.  Is the ICC simply supposed to defer its proceedings for years while the Kenyans work their way up the food chain, on the ground that the investigation is somehow “connected” to the Ocampo Six?

    Your interpretation of the Appeals Chamber’s decision — that an investigation that has excluded a suspect does not satisfy complementarity — is also difficult to reconcile with Article 17(1)(b), which specifically states that a case is inadmissible if it 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.” There is nothing wrong with a genuine investigation not resulting in charges; such an investigation, however, obviously has to focus on the specific suspect whose case is being challenged as inadmissible.

  3. Kevin,

    Regarding the last paragraph of your comment, I did not in any way discuss a completed investigation, nor did you, nor the Appeals Chamber.  In that case, your statement that “the Chamber is quite clear in the decision that a case is admissible unless the state challenging admissibility is currently investigating the suspect who is facing ICC prosecution” is also irreconcilable with 17(1)(b).  The underlying assumption of our earlier comments is that we are not discussing a 17(1)(b) situation (hence my reference to “an ongoing investigation that has excluded or will not include” and “serious, ongoing investigation of the matters to which an ICC case is connected” — although perhaps I should have said “pertains” rather than “is connected”). 

    Additionally, I did not suggest that the ICC should wait years, but that they could defer for now and relook the issue if the Kenyan government does not follow through on its statement in para. 71 (which we both quoted above).  In terms of weeks, months or years, it can wait as long as it needs — until it is satisfied that some aspect 17(2) is satisfied with regard to either an investigation or prosecution.  It says,
    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.

     

    For now, I hold to the view that an ongoing investigation of matters pertaining to cases (and not excluding suspects) before the ICC is at least prima facie evidence that the case is inadmissible.  Of course, the OTP is always free to argue some aspect of 17(2) is present. 

    Given that the case is already before the ICC, I agree with you that the challenge may be premature, especially given the significant items to be addressed before the new prosecutorial and judicial systems are fully in place.  I simply don’t agree with your assertions that the motion ”relies on misleading characterizations of Appeals Chamber jurisprudence,” and 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.”  You may ultimately be proven correct, but I am willing to let things develop further before reaching that conclusion.  Given the substantial benefits of national prosecutions, I hope that the Pre-Trial Chamber will be a little more patient too. 

  4. Thanks Kevin and John for this illuminating discussion. I do not want to weigh on what the correct characterization of the Appeals Chamber decision is here.

    My five cents is that the ongoing skirmishes between the two partners in  the coalition government in Kenya about the reform agenda are likely to affect the pace and outcome of the reform agenda. More significantly, the already heated succession politics of the 2012 presidential electoral cycle that involves two of the O’Campo six is likely to leave little structural and operational autonomy for the new office holders to conduct investigations and/or prosecutions.

    The most vivid example of this is that Uhuru Kenyatta one of the O’Campo six is Deputy Prime Minister and Minister of Finance – he literally holds the purse strings to funding those new Constitutional Offices that would be responsible for undertaking investigations of those most responsible like him. Such funding or the lack of it would obviously affect whether or not these offices were not only functional, but also able to discharge their roles effectively and without undue influence and political interference. 

    Going by Uhuru’s past record with regard having long delayed funding the Committee of Experts that helped usher in the 2010 Constitution, I am not sure we can take everything the Kibaki side of the government is saying in its inadmissibility motion without taking into account the larger context of the reform process.

    Perhaps that is why every poll conducted in the last several months (including one this week) has the public overwhelmingly favoring prosecutions in the Hague. For more see http://afjil.wordpress.com/ 

  5. Thanks, James, for that very important context.  I read your linked post with much interest.  

    You are not clear on something that to me seems critical.  At some points you seem to be indicating that Kenya is or may well be acting in good faith in pursuit of its reforms but will ultimately fail because of the politically powerful.  At others you appear to be implying that Kenya’s actions in all of these matters are being orchestrated by the political powerful for the purpose of shielding them from prosecution – more akin to Kevin’s position.  Which is it?

    For example, you conclude your linked post by saying,
    “In the best case scenario, one could argue Kenya should be given the benefit of the doubt – Kenya does really intend to implement all these reforms. Such a good faith case may in fact exist – but it is simply that, a theoretical possibility, a wish-list and a good one at that. There is also the reality on the ground and that does not measure up very well in favor of inadmissibility.”
    Above, you say,

    “the ongoing skirmishes between the two partners in  the coalition government in Kenya about the reform agenda are likely to affect the pace and outcome of the reform agenda. More significantly, the already heated succession politics of the 2012 presidential electoral cycle that involves two of the O’Campo six is likely to leave little structural and operational autonomy for the new office holders to conduct investigations and/or prosecutions.”

    Both of these statements indicate that you believe all current, good faith attempts at reform will ultimately fail due to future manipulation by the politically powerful. 

    But in the linked post you also say,

    “Thus while the application makes a whole lot of the need to respect the sovereignty and integrity of national criminal justice systems and that there is no evidence that Kenya is shielding anyone or engaged in an unjustified delay, there is simply nothing to show an investigations or proceedings are underway (or that all these reforms are not really being undertaken as smokescreen to shield those most responsible from the Hague).”  (emphasis mine)

    As I read it, 17(2) ultimately prefers a finding that there is an intent not to prosecute.  The proceedings or national decision are “for the purpose of shielding the person concerned from criminal responsibility.” 17(2)(a)  An unjustified delay “which in the circumstances is inconsistent with an intent to bring the person concerned to justice.”  17(2)(b)  The proceedings are not impartial, etc. “or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.”  17(2)(c)

    So to bring the point home, based on your knowledge of the facts on the ground, on what grounds should the ICC find the case admissible?  Do you believe that there is currently sufficient evidence of an intent or purpose not to prosecute such that the court could reasonably conclude that while there may be an ongoing investigation (assuming there is, I guess, because you say evidence of that is lacking), “the State is unwilling … genuinely to carry out the investigation or prosecution”?  17(1)(a)(emphasis mine)  Or, slightly differently, do you think do you think there is currently sufficient evidence that “the State is … unable genuinely to carry out the investigation or prosecution” 171(a)(emphasis mine) because the reforms are not yet complete, or because the politically powerful will undoubtedly prevent it? 

  6. Thanks John. There is in fact a lot of ambiguity about what to make of the ongoing reform agenda.
    Clearly, the reform agenda is proceeding even if with the uncertainty of its manipulation by the powerful or by other anti-reform elements who have re-grouped within the government.
    I think the government makes a good case about the fact that coalition governments are difficult to run smoothly. On this argument, the government claims that the reform process needs time to come to fruition so that independent constitutional offices such as those of the Chief Justice, Deputy Public Prosecutor among others are established. Taking the government seriously here means believing that there is a process towards establishing impartial and independent investigatory and prosecutorial agencies filled with credible and well funded office-holders.
    The government’s case is predicated on being given time to show both its intent to genuinely investigate and prosecute post election violence offenders at a future date. (my emphasis ). The premise is that at the current moment steps are being taken to set in motion the institutional architecture to set such investigations and prosecutions in motion.
    In my view, that premise (that time is needed to let the reform agenda proceed to establish independent investigatory and prosecutorial agencies) and the fact that at this moment nothing exists to show that there is a credible ongoing investigation or prosecution of either senior/influential personalities or even of lower and middle level perpetrators weighs in favor of finding that at the moment there is no intent on the part of the government to prosecute. (my emphasis). Prior history of lack of similar investigations and prosecutions following post election violence buttress the case that there is no intent to investigate or prosecute particularly senior/influential politicians.
    Notably, when Parliament rejected a domestic tribunal in February 2009, a section of the Members of Parliament who rejected it did so because they did not have faith that Kenya’s justice system could try senior and influential politicians. This lack of faith in local processes continues to be the case not only with regard to high crimes but also with regard to corruption offences against senior and influential politicians. It is too early to tell if the factionalism within the coalition government and more important the yet-to-be-changed political culture of impunity and lack of accountability is going to be transformed by the ongoing implementation of the new Constitution. Hence my claim that the government’s case is built on a theoretical or hypothetical outcome of the reform process.
    The government’s motion plays up the promise of new Constitution in establishing new institutions and values, an undoubtedly significant milestone in Kenya’s political history. But its implementation is already heavily contested not least by those within the government whose interests are threatened by the new Constitutional order. High on that list of such politicians within the government are the O’Campo six. That is why the long drawn out process of implementing the Constitution is heavily contested – there is within the government neither urgency nor a strong political consensus to implement the Constitutional reform process without delay. It is in the interest of senior influential politicians including the O’Campo six to delay and if possible avoid investigations and prosecutions. Two of the O’Campo six have already announced their bid to run a joint campaign for the Presidency in 2012 and have received the blessings of President Mwai Kibaki. That is one of the big reasons why the government’s inadmissibility case (built on the hope of a new Constitutional order) cannot be taken at face value.
    In any event, if we give the government the benefit of doubt as to the seriousness of the reform agenda, it is too early to tell whether the reform process once complete will result in investigatory or prosecutorial agencies “for the purpose of shielding the person concerned from criminal responsibility” per Article 17(2)(a).  Right now we only have an inchoate constitutional reform process that is arguably being used to shield the O’Campo six from criminal responsibility.
    If we accept the government’s case that it needs time to effectuate the reform agenda, then arguably there has been no “unjustifiable delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice,” per Article 17(2)(b). And clearly there is no way to currently assess whether or not investigations are “being conducted independently or impartially” and under circumstances “inconsistent with an intent to bring the person concerned to justice” since the government is seeking more time to put into place the institutions that would undertake such investigations and prosecutions. Clearly, the government is acknowledging that as of now (emphasis) the investigatory and prosecutorial agencies are incapable of undertaking credible investigations and prosecutions.
    Ultimately, my point is whether or not the case is admissible, the broader context of the reform agenda must be taken into account. Now that the Pre-Trial Chamber has set April 28th as the date on which replies to the government’s inadmissibility motion should be filed, more will be known about the direction of the reforms. Even more will be known by the time of the hearings on the motion and even more by the time it is eventually determined and as I suspect appealed. If the motion were to be decided today, I would clearly vote for admissibility.
     

  7. Thanks again, James.  It’s always great to have the views of an expert in the specific issues, facts and circumstances of a case. 

    Based on what you say, I think (for what it’s worth) that you are on sounder ground voting for admissibility on the basis of an inability to genuinely investigate or prosecute, given the inchoate reforms, rather than an intent or purpose not to genuinely investigate or prosecute.  That, to me, seems to be better supported by the evidence you cite, including the facts asserted in the motion itself.  It may also be less of a blow to the reform process on the chance that it is genuinely in progress and may ultimately come to fruition.

  8. Thanks John. I think this is plausible. I agree that the inchoate reform agenda and the presence of five of the O’Campo six within the government ought not to be simplistically construed as evidence of regime survival and as such as evidence of an intent or purpose not to genuinely investigate or prosecute.

    Now that the initial appearances of the O’Campo six have ended at the Hague, some members of Parliament are beginning to urge their colleagues to speed up the passage of the reform agenda so that in September when the confirmation of the charges is scheduled, a stronger case can exist that there ought to be  no vote for admissibility on the basis of an inability to genuinely investigate or prosecute, or even on the basis of an absence of intent or purpose to genuinely investigate or prosecute.

    If the ICC process can spur the reform agenda forward that would be great. It however remains to be seen if this reform process will change the culture of impunity and lack of accountability.

  9. It seems to me that it is also important to distinguish between a “situation” and a “case”.   A Situation is an event or events occurring in a particular country, while a case involves the particular charges filed against an individual as result of the situation investigation.  Kenya seems to be making the rather preposterous argument that as long as they are investigating the situation in general, the ICC does not have jurisdiction over anyone who could potentially be charged in that investigation.   It that is what was intended, the Statute would have used the word “situation” rather than “case”.
    The matter can also be looked at as one of “standing”.  The accused always has standing to bring an Art. 17 challenge, but this one was brought by the government of Kenya.  Under Art. 19(2)(b), they have to show that they are “investigating or prosecuting the case” to even have standing to object.  Again, “case” necessarily refers to an individual here, because you can’t have a prosecution without a defendant.
    Don Shaver, ABA SIL Int. Criminal Law Comm

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