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David1 On 15th March 2011, the International Criminal Court (ICC) pre-trial chamber by a majority issued summons for the six persons suspected to bear the greatest responsibility for alleged crimes against humanity in the post election violence in Kenya in 2007 and 2008 (which claimed more than 1000 lives). The chamber had previously authorized the prosecutor’s investigations in March 2009, partly on the basis that Kenya failed to seriously investigate and prosecute the violence. The summons brought into stark relief the consequentialist debate over international criminal justice. Opponents of impunity celebrated the possibility that the international community might at last be willing to deal with the culture of impunity in Kenya. On the other hand, the summoned suspects and their supporters expressed fear that any steps to prosecute the suspects might set in motion steps that would take the country back to the brink of the precipice given the fear of recurrence of ethnic violence. This article examines the legal basis of the Kenyan government’s response to the ICC investigations and intended prosecutions. The article is underpinned by the recognition that states accede to the Rome Statute aiming to make a promise to deter mass atrocity and so join the Rome Statute to ensure that this outcome will be obtained. The ICC was in effect envisaged as an institution that will allow the international community to fulfill both its duty to protect and the post-Nuremburg promise of ending genocide and crimes against humanity. The ICC thus has a legal and political imperative to make its promises of prosecution, credible, or risk irrelevance. As a result of the prosecutor’s request for summons against the six suspects, parliament passed a resolution on December 22, 2010 calling for Kenya’s withdrawal from the Rome Statute. The other consequence of the request was that the government (or part of it) embarked on an initiative to use the African Union (AU) to lobby the United Nation’s Security Council to defer the proceedings under Article 16 of the Rome Statute. The rationale for the deferral request is to allow Kenya to deal with the alleged crimes. The last initiative is the announcement by the
1 LLB (Hons) The writer is a bar candidate at the Kenya School of Law.

A review of the modern conception of the doctrine of sovereignty does not avail to them this argument. The significance of international penal process and its accompanying tenet of international justice reflects an evolution in the perception of sovereignty heralding a qualitative shift which necessitates an ethical vision in which human values supersede state rights. Half a century later in 1625. French political thinker Jean Bodin offered the first systematic approach to the theory of sovereignty in his work. Lex Six Livres De La Republique in 1576. although the state in question could still avail itself of its rights under the principle of complementarity. maintained that the laws governing relations among nations must first safeguard the sovereignty of states themselves holding that the rules preventing interference in another state’s jurisdiction would safeguard this sovereignty. Justice and Foreign Affairs ministers that the government go before the court to challenge the court’s jurisdiction on the basis of the principle of complementarity. International penal process has significantly contributed to the overall concept of’s Attorney General. reality points to the fact that international law norms have developed rules whose aim is to modulate the behavior of states. In any case the sovereignty argument the basis for this argument is also misguided. He defined sovereignty as “State’s supreme authority over citizens and subjects”. the 1648 Peace of Westphalia attempted to codify an international system based on the coexistence of a plurality of states exercising unimpeded sovereignty within their territories thus enshrining untrammeled state sovereignty and freedom from outside interference as the foundation of modern international law. the proponents of the withdrawal argued in parliament that Kenya being a sovereign state could withdraw from the Rome Statute and thus will not be bound by any obligation to the ICC. Thus though states remain the principle actors on the international scene. This implies violation of or intrusion upon local authority. . there is a limitation on their internal power authority manifest in the international penal institutions like the ICC and ad hoc criminal tribunals in the enforcement of international criminal and humanitarian law. Although some (including Kenyan parliamentarians) still insist that states are supreme. Hugo Grotious in his seminal work De Jure Belli ac Pacis Libris Tres. The alternative of withdrawing is legally weak inasmuch as the state remains obliged to cooperate with respect with respect to ongoing proceedings as envisaged in article 127(2). Following the Thirty Years’ War.

to the maintenance and restoration of peace”. in fact it is arguable that the Kenyan case was as was undertaken under the auspices of the AU through the intervention of the Panel of Eminent persons and the Waki Commission). A deferral under article 16 of the Rome Statute can be used only if the UN Security Council determines that there is a threat to international peace and security. It must be recalled that the African Union was behind a similar request for deferral regarding the Al-Bashir case. (It should be noted that none of the African cases apart from the Kenyan case was initiated at the prosecutor’s own motion. or to defer any proceedings already in progress. more fundamentally. more practically it means that any respite Kenya receives from the Security Council will be temporary-article 16 requires the annual renewal of any deferralwhereas the proper exercise of complementarity would offer a permanent opportunity for Kenya to pursue domestic mechanisms (on condition that the government is willing to and able to prosecute the offenders domestically). the African Union’s support for the deferral seems to be founded on the misguided notion that the ICC has been focusing only on situations in Africa. the proponents of the deferral can find solace in that there seems to be precedent for an expanded reading of the scope of Chapter VII of the United Nations Charter. The Kenyan request is fundamentally flawed as it not only misinterprets both the Rome Statute and the UN Charter through its expanded construction of the Security Council’s Chapter VII authority. Not only does this weaken the former in principle. Not even the most pessimistic assessment of the ICC’s involvement in Kenya would characterize it as such. In any case the Al-Bashir case request could be argued to have been justified given the international concern for the war in Darfur and the need to guarantee a peaceful referendum in . This view is informed by the language used by the Council in SC Res 1315(2000) on the Special Court for Sierra Leone that “in the particular circumstances……would contribute…. The power of the Security Council over ongoing proceedings before the ICC is that the council can adopt a resolution under Chapter VII of the UN Charter requesting the court not to commence an investigation or prosecution. At any rate.The Security Council deferral approach is also bad in law. However. This argument has at its core an expansive reading of the notion of threats to international peace and security. it conflates the principle of complementarity and the realpolitik exception in article 16 that allows international peace and security to temporarily suspend the pursuit of justice.

1422. under which the ICC must find a case inadmissible if it is being prosecuted by competent national authorities. or (2) have too little state capacity to initiate a credible prosecution or investigation. While it is possible that the two may align they do not in Kenya’s case. and .South Sudan that needed the co-operation of Sudan. the principle of complementarity is at the heart of the ICC system.S. and the U. (On July 12. (the alternative of complementarity jurisdiction is primacy jurisdiction) Because a state can avoid prosecution of its nationals by initiating a credible investigation or prosecution. Withdrew its demand. as we saw with SC Res. the Security Council passed resolution 1422 at the insistence of the United States granting immunity from prosecution UN peace keeping personnel from countries that were not party to the ICC. The outright refusal by the Security Council to accept such a request is instructive and suggests a similar fate for Kenya’s request.S. the only states likely to have their nations prosecuted are those that either (1) want prosecution to go forward (say because of domestic regime change) and wish the international community to bear the costs of prosecution. Indeed pursuing Security Council resolution under article 16 is fool’s errand: the temporary suspension of the threat of prosecution (and of the need to resort to domestic prosecutions to avoid it) is certain to expire when the political configurations in the Security Council changes. The ICCs jurisdiction is subject to the regime of complementarity described in article 17 of the Rome Statute. Aside from easing the concerns of states over threats to their sovereignty.) The deferral request conflates two distinct aspects of the ICC: the power given at Rome to the Security Council to halt proceedings for one year in order to maintain peace and security. More than being a presumption in favour of local prosecutions. but Kenya’s request seeks to use the means of article 16 to further the end of complementarity. Kenya forms a potential third category: a recalcitrant state that wishes to avoid prosecution. These two processes have differing ends and means. and the principle of complementarity which ensures that the ICC is a court of last resort that intervenes only when national jurisdictions are unwilling or unable to do so. however. troops abusing Iraqi prisoners in Abu Ghraib. such as the utility of local prosecutions. the Security Council refused to renew the exemption again in 2004 after pictures emerged of U. 2002 upon the entry into force of the Rome Statute. the principle serves nobler ends.

it would have positive effects for the ICC beyond diluting the mounting tension in the country. Kenya presents an opportunity to do so. notably whether the norm or institutional process was validated through commonly accepted means. whether it cohered with other norms and institutions. Therefore. should Kenya be allowed to do so. the greater the degree of compliance that the rule or institution would command. This would be a sad reflection on domestic legal systems in Africa. its ‘compliance pull’ would be very weak. . Kenya has one of the best developed judiciaries in Africa. there is a danger in refusing Kenya the opportunity to exercise its jurisdiction over the crimes under the principle of complementarity. and would embolden those who wish to present the ICC as an imperialistic mechanism on a “civilizing mission”. should Kenya genuinely wish to conduct local trials. and whether it was well-grounded in secondary rules of international law concerning law formation. If Kenya does not meet the threshold of complementarity. whether it was clearly understood by those upon whom it operated. it would relieve pressure on an already overburdened ICC. Second. In fact. and to issue authoritative decisions will be severely inhibited if not crippled. The Power of Legitimacy among Nations (1990))postulated that the legitimacy of international norms and institutions rested in large part upon certain important factors. there are a number of reasons for allowing it to do so. First. It is also one of the few African states to have domesticated the Rome Statute. Franck. making the principle a dead letter in Africa. until recently. The late Thomas Franck (T. It would demonstrate to detractors in Africa that the ICC is designed to function only when national legal systems are unwilling or unable to prosecute international crimes.recognises the very real limitations of an ICC with potentially universal jurisdiction. complementarity has never been put to any real work. even though it is designed as an integral part of the Rome System. Where an international rule or institution lacked legitimacy. and without which support. Fourth. the ability of the ICC to investigate suspects. Kenya was a model ICC state. the implication is that neither would the overwhelming majority of African states. to take into custody indictees. If the principle is to become effective. Thus given that the ICC depends heavily on perception of its authority to galvanize the support of states and non-state actors. and the resulting legislation is impressive and progressive. Third. Thus Franck posited that the greater the legitimacy enjoyed by a rule or institution. it must be taken to a test drive.

complementarity is in substance a continuing assessment. If that was the true domestic motive for invoking complementarity.Procedurally speaking. The prosecutor could then monitor the proceedings in Kenya and if. that success would place a heavy burden on the country-to show the world that its courts and prosecutors are genuinely willing and able to . If Kenya’s complementarity request is approved. There is no direction on the statute on what new facts and information might form the basis for such a decision. the country’s envisaged domestic prosecutions might be accommodated by the prosecutor exercising his discretion under article 53(4) of the Rome Statute to halt his investigation on his own accord based on new facts and information. To consider it formalistically-as a static determination reified in time.” or exceptionally later if it is based on double jeopardy considerations i. Kenya’s dilatory response to the atrocities means it has already missed chances to halt proceedings on the basis of complementarity. They guarded against it by insisting that the complementarity principle may not be abused by a state merely wishing to shield its own from justice. there is no limitation on when such a decision can be taken. then the framers made it clear that the ICC would close the impunity gap and be accorded jurisdiction. the prosecutor might use this article to conditionally suspend his investigation on the understanding that Kenya pursues its own investigations and prosecutions.would allow the ICC to turn a blind eye to positive legal developments and undermine the principle’s worth. this is given the absence of a guarantee that the ICC will secure the country’s cooperation in any ICC-related investigation in the future. But there are reasons for the prosecutor to be cynical about Kenya’s newfound enthusiasm for domestic trials. either resumes his investigations or (if necessary) approach the pretrial chamber for a renewed mandate to do so. However. he is not satisfied with them. Presuming there is genuine political will in the country to pursue a local mechanism. The limit on complementarity challenges is set out in article 19(4): “The challenge shall take place prior to or at the commencement of the trial. The framers of the Rome Statute foresaw any attempt at political maneuvering that many suspect the Kenyan government to be engaged in. but the initiation of local proceedings could qualify. Based on the increased push for the country to be allowed to deal with the matter itself.e. article 17(1) (c). What is more.

’ or were otherwise not conducted independently and impartially. the ICC can exercise jurisdiction if a state shows an unwillingness or inability to genuinely prosecute crimes. . Kenya should thus be careful what it wishes for. This determination lies solely with the ICC itself. Article 17 of the Statute outlines processes for judicial review of national court decisions. Thus any quest or hope of evading justice through a local process is misguided and wishful thinking. The ICC will be able to assume jurisdiction over a person who has already been subjected to court proceedings in a domestic court if the ICC determines that the proceedings were undertaken ‘for the purpose of shielding the person concerned from criminal responsibility. then the ICC will remain in the picture. Under the theory of complementary jurisdiction. And if Kenya’s posturing is a political ploy to protect its’ powerful.prosecute domestically.