Dear Readers,

The following commentary first ran in Legal Eye on the ICC, a regular e-letter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and works with women most affected by the conflict situations under investigation by the ICC. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. To read the full version of the Legal Eye newsletter, click here.

On March 30, 2011, the Kenyan Government filed a legal challenge to the admissibility of the cases against Ruto, Kosgey and Sang, and against Muthaura, Kenyatta and Ali under Article 19 of the Statute.[1] Article 19 allows a state that would normally have jurisdiction over the crimes in question to argue that the case is inadmissible before the ICC because it is investigating or prosecuting the case itself. This is essentially the principle of complementarity, which means that the ICC will only investigate or prosecute a case if the national authorities are inactive or are unable or unwilling to do so. This is the first time the admissibility of a case has been challenged by a State Party. The Kenyan Government claimed that the cases should be ruled inadmissible as it had recently implemented substantial judicial and constitutional reforms and that it intended to carry out its own investigations into the post-election violence which occurred in 2007 and 2008. The Government acknowledged that no national proceedings were currently under way against the six individuals named as suspects by the ICC, but explained that its strategy was to follow a ‘bottom-up’ approach by concentrating its initial investigations and prosecutions on lower-level perpetrators first, before moving on to higher-level suspects.[2]

On May 30, 2011, the Pre-Trial Chamber rejected the Kenyan Government’s challenge to the admissibility of the two cases.[3] The Chamber welcomed the judicial reforms introduced by the Government and the state’s apparent willingness to substantively investigate the post-election violence. However, the Court had previously held that, to make a case inadmissible, the national proceedings must encompass the same conduct committed by the same person or persons as the proceedings before the ICC (the ‘same person/same conduct’ test).[4] The Pre-Trial Chamber held that the acknowledgment by the Kenyan Government that its ongoing investigations were focused on lower-level perpetrators was a clear indication that there were in fact no proceedings currently under way against the six suspects before the Court.[5] On that basis, the Chamber concluded that the inactivity on the part of the Kenyan Government in relation to the investigation or prosecution of these six individuals rendered the two cases admissible.[6]

On June 6, 2011, the Kenyan Government filed an appeal against the decision of the Pre-Trial Chamber.[7] In its document in support of the appeal, filed on 20 June 2011,[8] the Government of Kenya argued that the Pre-Trial Chamber erred in finding that there were at present no investigations against the six individuals. The Government stressed that the Chamber too hastily rejected the admissibility challenge without taking into account the additional information the Government intended to submit during an oral hearing. The Government also argued that the Chamber failed to address the legal arguments put forward by the Government in its admissibility challenge regarding the correctness of the ‘same person/same conduct’ test. At the time of writing, no decision has yet been issued on this appeal.

Read the Kenyan Government’s admissibility challenge in the two cases.

Read the Pre-Trial Chamber’s decision rejecting the admissibility challenge by the Kenyan Government in the case of Ruto, Kosgey and Sang and in the case of Muthaura, Kenyatta and Ali.

For more information about the Kenya Situation, see the Gender Report Card 2010.