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africa-confidential

The International Criminal Court is to probe election violence and may put some leading politicians and business people on trial for crimes against humanity



The 31 March decision by the judges of the International Criminal Court to approve an investigation into the 2007 election violence follows two years of obfuscation and ambivalence by the Kenyan government (AC Vol 51 No 1). The Court's Prosecutor, Luis Moreno Ocampo, who recommended the investigation, has a list of 20 key suspects and says he plans to focus the probe on about six individuals. The cases may come to trial within 18 months. Many of the country's senior politicians oppose the ICC's intervention and fear that they or their political allies could be implicated in the probe - although few have been prepared to say so publicly.

This is also the first time that the ICC judges have approved a formal investigation on a recommendation from the Prosecutor: until now, the Court's cases have resulted from incumbent governments inviting the court to investigate suspected crimes or, in the case of Sudan, being directed by the United Nations Security Council to investigate the mass killing in Darfur.

Although former UN Secretary General Kofi Annan, who mediated negotiations to establish a grand coalition government in Kenya (see Feature), welcomed the ICC's decision as a move against impunity, the case will test the ICC's political standing and practical capacity to protect witnesses and uncover compelling evidence. Local rights activists say that the decision has come too long after the crimes, as the organisers of the violence have destroyed most of the evidence and intimidated possible witnesses. Organised militias and police killed over 1,100 civilians following President Mwai Kibaki's disputed election victory in December 2007 and chased more than 300,000 people from their homes.

Now the ICC can investigate crimes committed between 11 June 2005, when Kenya joined the ICC, and 26 November 2009, when Moreno Ocampo made his initial submission to the Court. In a two-to-one opinion, with Judges Ekaterina Trendafilova and Cuno Tarfusser in the majority, the Pre-Trial Chamber decided that the Kenya case met the threshold for the Court to take up the case under articles 15 and 7 of the Rome Statute which founded it. In their argument, the judges ruled that 'systematic and widespread...crimes against humanity' had been committed against civilians in pursuit of state or other organisational policies related to the 2007 post-election violence in Kenya and that nothing was likely to be done locally to prosecute those most responsible.

Potential damage to the court

Dissenting, Judge Hans-Peter Kaul said his two colleagues had set their threshold too low and had dangerously broadened the scope of the Court. He argued that their action could 'turn the ICC into a hopelessly overstretched inefficient court', could 'invite politically motivated and frivolous investigations' and could have 'a negative effect on its credibility'. Kaul insisted that 'widespread and systematic crimes against humanity' had to be authorised at the policy level by a high-level or a state-like organisation as opposed to what he termed 'human rights crimes'. According to Kaul, there was not a 'reasonable basis' to launch such an investigation in Kenya.

Judges Trendafilova and Tarfusser said that an 'attack consists of a campaign or operation carried out against the civilian population' and that for something to have been a state policy, it did not have to have been 'conceived at the highest level'. The key issue raised by the judges - and one likely to be central in any trial in the Hague - is the level of organisation behind Kenya's political violence. Many senior politicians claim that most of it was a spontaneous reaction to electoral fraud and the remainder was legitimate self-defence. The argument among the three judges deliberating on the extent of organisation behind the violence suggests much scope for defence lawyers to try to exonerate at least the most senior political figures.

In contrast to the other two judges, who argued that 'the formal nature of a group and the level of a group's organisation should not be the delineating criteria' but rather its 'ability to perform acts which infringe on basic human values', Kaul insisted that 'criminal gangs don't have the command and control to carry out policy', also questioning whether most non-state actors 'constitute an organisation' in terms of 'structure, membership, duration, and means to attack'.

Questioning the assessments of the Waki Commission and the Kenya National Commission on Human Rights, Kaul insisted that the submissions did not prove that the attacks had been instigated by state or organisational policies against civilians. He said, for instance, that he 'failed to see an organisation in the North Rift'; instead he attributed the post-election violence there to 'spontaneous gatherings of marauding youth gangs'. Kaul reached similar conclusions about other flashpoints.
Sponsors of violence may try to use similar arguments to counter allegations of their involvement. Kaul argued that the violence resulted from 'numerous violent attacks launched by different groups against different groups'. He suggests that the violence mostly stemmed from actions by 'local leaders' or 'partnerships of convenience'. Yet many human rights activists say that most of the local leaders were taking orders and supplies of weaponry from senior politicians.

The names in the envelope

The ICC has been doing a situation analysis in Kenya since December 2007. After the investigations, the Prosecutor's office will submit its findings to the Pre-Trial Chamber and issue summons to appear or warrants for the arrest of those named, either publicly or under seal. Before this, it will have to decide where to hold its trials, at the ICC headquarters in the Netherlands or elsewhere, whether to conduct its investigation from Kenya or outside the country and how to protect witnesses, given the already grave violence and intimidation perpetrated against them.

Two major investigations by the Waki Commission and the Kenya National Commission on Human Rights handed their evidence to the ICC in several boxes of files last year. The Waki Commission also handed to Kofi Annan a sealed envelope naming politicians it judged most responsible for the violence: that envelope is now with the ICC but the names are yet to be made public. If they are published - the names are thought to include at least two cabinet ministers - this may further polarise politics in Kenya.

Many months of tough investigation and negotiation lie ahead before warrants are likely to be issued and before arrests can be made. The ICC is critically dependent on the willingness of its member states to make arrests on its behalf. In the hope of effecting surprise arrests, the ICC may choose not to make the names public but hand sealed warrants to the authorities within Kenya or other countries. Yet it would be difficult to keep such warrants secret, given the high stakes involved.

Earlier this year Moreno Ocampo said the ICC had no witnesses as it had not yet got a case and until it had, it was up to the government of Kenya to protect witnesses. The ICC will have to move quickly to protect its evidence and sources. In spite of the horrific and widespread political violence seen in Kenya, it will struggle to collect testimony, establish criminal intent and definitively reply to some of Judge Kaul's objections about the 'spontaneity' of the violence which are likely to be raised by the defence.