On Thursday 7 April and Friday 8 April 2011, the ICC will hold its first hearing regarding the situation in Kenya. The hearing is pursuant to the summons to appear issued by the Pre-Trial Chamber for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang (to appear together on Thursday) and Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (to appear together on Friday). Alison Cole, Legal Officer with the Open Society Justice Initiative, sets out the key legal issues.

1. Why were the “Ocampo Six” investigated?

   The Rome Statute governs the ICC. There are three ways that an investigation can begin under Article 13 of the Rome Statute, including a referral by a State Party, or a referral by the Security Council, or the Prosecutor can apply to the judges to proceed with an investigation “proprio motu” meaning, based on his own discretion. The case must also be of sufficient gravity and take into consideration the interests of victims and the interests of justice under Article 53 of the Rome Statute. The Prosecutor has stated that he makes this assessment based on the scale of the crimes, the nature of the crimes, the manner the crimes were committed and the impact of the crimes . The Prosecutor has also stated that he will focus on those who bear the greatest responsibility for such crimes. Taking these factors into account, the Prosecutor decided “proprio motu” to start investigations into the 2007-2008 post-election violence in Kenya.

2. What is a summons to appear?

   The judges of the Pre-Trial Chamber decide whether an investigation can continue by issuing an arrest warrant or a summons to appear under Article 58 of the Rome Statute. A summons to appear may be issued if the judges find that there are reasonable grounds to believe that the person has committed a crime, but they are satisfied that the person will come to the ICC for their initial appearance before the judges. The summons to appear contain the criminal charges against the individual who is requested to appear before the ICC.

3. How is a summons different from an arrest warrant?

   If the judges are not satisfied that the persons identified by the Prosecutor will appear, or if there is a need to prevent any potential obstruction to justice or the commission of future crimes, the judges may issue a warrant of arrest. A summons to appear may be converted to an arrest warrant if necessary, or an arrest warrant can be issued without a summons depending on the assessment made by the judges. A warrant of arrest also contains the criminal charges against the individual who is subject to arrest. However, the ICC does not have a police force to implement arrests. Instead, the ICC would depend on assistance from national police. Countries who have accepted the Rome Statute are obliged to co-operate fully with the ICC, including by making arrests. So if there was a need to arrest the persons named in the Kenyan investigation to ensure their appearance at the ICC, it could be that the police in Kenya would be requested to implement the arrest.

4. What happens when someone appears at the court on the basis of a summons?

   The hearings being held on Thursday 7^th and Friday 8^th April 2011 are the very early stages of the process at the ICC, they are known as the “initial proceedings” under Article 60 of the Rome Statute. The purpose is for the judges to be sure that the persons named in the summons are informed of the crimes they are alleged to have committed and of their rights under the Rome Statute. There is no determination of guilt at this stage. Persons are presumed innocent until proven guilty, however, the close of the hearings do not mean the close of the case.

5. What happens after a summons?

   After the summons hearings, it is still necessary to hold the confirmation of charges hearings before the judges of the Pre-Trial Chamber, the date for which will be announced by the judges within a reasonable time after the summons hearings that will be held on Thursday 7^th and Friday 8^th April 2011. The purpose of the confirmation of charges hearing is to decide whether there is sufficient evidence to confirm the charges alleged by the Prosecutor. At the confirmation hearing, the persons under investigation are generally required to attend, however, there are provisions under Article 61 of the Rome Statute for the persons under investigation to waive their right to be present or for the confirmation hearing to proceed if the person has fled or cannot be found and all reasonable steps have been made to inform them of the hearing.  After the confirmation hearing, the judges decide whether there is enough evidence to go to a full trial in the Trial Chamber which will decide upon the guilt or innocence of the persons named in the Kenyan investigations. After the trial, there is still the possibility of an appeal.

6. What about the Government of Kenya’s application on lack of jurisdiction?

   The Kenyan Government recently made a filing to the judges based on Article 19 of the Rome Statute arguing that the Kenyan cases were inadmissible and should not continue at the ICC. The Government states that their reforms such as the new Kenyan Constitution mean Kenya can conduct its own prosecutions of the post-election violence, including for the six persons the Prosecutor of the ICC is investigating. The ICC only proceeds with cases if national legal systems are unwilling or unable to do it themselves. A State can only raise such a challenge once, unless the judges decide that exceptional circumstances apply.

7. How does the Government’s application impact on the summons?

   The summonses to appear remain valid and the summons hearings will proceed against the six persons under investigation, namely William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang on Thursday 7 April 2011 at 9:30 and Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali on Friday 8 April 2011 at 14:30.