On 31 March 2010, Pre-Trial Chamber II, by majority, granted the Prosecutor’s request to commence an investigation on crimes against humanity allegedly committed in the Republic of Kenya.
In the decision, the majority finds that upon examination of the available information, bearing in mind the nature of the proceedings under article 15 of the Statute, the low threshold applicable at this stage, as well as the object and purpose of this decision, the information available provides a reasonable basis to believe that crimes against humanity have been committed on Kenyan territory. The majority moreover found that all criteria for the exercise of the Court’s jurisdiction were satisfied, to the standard of proof applicable at this stage.
The majority therefore granted the Prosecutor’s request, and allowed him to commence an investigation covering alleged crimes against humanity committed during the events that took place between 1 June 2005 (i.e., the date of the Statute’s entry into force for the Republic of Kenya) and 26 November 2009 (i.e., the date of the filing of the Prosecutor’s Request).
In his dissenting opinion, Judge Hans-Peter Kaul held that the crimes committed in the Republic of Kenya do not qualify as crimes against humanity under the jurisdictional ambit of the Statute. In particular, Judge Kaul disagreed with the majority on the requirements of a “State or organizational policy” as set out in Article 7(2)(a) of the Statute. Given the fact that the fundamental rationale of crimes against humanity as codified in Article 7 of the Statute was to protect the international community against the extremely grave threat emanating from such policies, Judge Kaul concluded that it had to be adopted either by a State or at the policy-making level of a State-like organization. Upon analysis of the supporting material, Judge Kaul concluded that there was no reasonable basis to believe that the crimes committed on the territory of the Republic of Kenya in relation to the post-election violence of 2007-2008 were committed in an attack against a civilian population pursuant to or in furtherance of a policy stemming from a State or an organization. Hence, Judge Hans-Peter Kaul felt unable to authorize the commencement of an investigation in the Republic of Kenya.
Background information
The Republic of Kenya ratified the Rome Statute on 15 March, 2005 becoming a State Party on 1st June 2005. According to the Rome Statute, the Court may exercise its jurisdiction in situations where the alleged perpetrator is a national of a State Party or where the crime was committed in the territory of a State Party.
On 6 November 2009, the Presidency of the International Criminal Court (ICC) issued a decision assigning the situation in the Republic of Kenya to Pre-Trial Chamber II composed of Judges Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser. If the Prosecutor intends to commence an investigation proprio motu in the Kenyan situation, he must first obtain authorisation from this Chamber. That is what the Prosecutor sought for on 26 November 2009 filing his request together with 39 appended annexes in approximately 1,500 pages.
Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya
Photo (Associated Press): The International Criminal Court in The Hague, Netherlands
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Click here to read full story at www.amsterdam-advisor.com. The flying times refer commercial airliners and are averages. - - -
Report from: Aljazeera.net Date: Thursday, November 26, 2009 16:33 MECCA Time, 13:33 GMT
Title: Prosecutor requests Kenya inquiry
The prosecutor of the International Criminal Court has asked judges to allow him to launch a formal investigation into post-election in Kenya.
The ICC said on November 6 it would consider a prosecution request to investigate suspected crimes against humanity committed during the clashes, which left at least 1,300 people dead.
"There is a reasonable basis to believe that crimes against humanity within the jurisdiction of the court were committed," Luis Moreno-Ocampo said in The Hague, Netherlands, on Thursday.
"In particular, crimes of murder, rape and other forms of sexual violence, deportation or forcible transfer of population and other inhuman acts."
The violence broke out after Raila Odinga, now prime minister in a power-sharing government, accused his rival for the presidency, Mwai Kibaki, the incumbent president, of winning the December 27, 2007 poll through widespread fraud.
Hundreds of thousands of people were forced from their homes as the violence raged.
Investigation
Moreno-Ocampo has been conducting a preliminary investigation into the clashes since February last year and said during a visit to Kenya last month that he wished to pursue "those responsible".
This is the first time that the ICC prosecutor has sought to open an official investigation on his own initiative, one of three ways in which a case can come before the international court.
Other cases before the court had either been referred by countries that have signed up to the court's founding Rome Statute or by the UN Security Council, as in the case of the conflict in Darfur, Sudan.
Elizabeth Evenson, counsel in the international justice programme of Human Rights Watch, said: "The ICC is a court of last resort, and when national authorities are unwilling to act, it is supposed to step in.
"Today's announcement shows that the ICC prosecutor can and will act on his own in situations of serious crimes."
The Kenyan government has yet to act on the recommendation of its own inquiry that a special tribunal be set up to investigate the violence.
Moses Wetangula, the Kenyan foreign minister, said earlier this month that Nairobi would assist any ICC to investigation, but was committed to a "local solution".
In July, Kofi Annan, the former UN secretary-general who helped broker the power-sharing deal between Kenya's leaders, sent the ICC a list of names of key suspects that is believed to include senior government officials.
Click here for photo - Moreno-Ocampo, left, has been carrying out his own investigation since February last year [AFP] - with thanks to Aljazeera.net - - -
Luis Moreno Ocampo, a graduate of the University of Buenos Aires Law School, is currently in private practice in Buenos Aires, where he specializes in corruption control programs for large organizations. He also serves as an adjunct professor of Penal Law at his alma mater.
Mr. Moreno Ocampo played a key role in the trials related to Argentina's democratic transition.
He was the assistant prosecutor in the trials against the military junta (1985), and in the trials against the chief of the Buenos Aires Police (1986).
When he served as District Attorney for the Federal Circuit of the City of Buenos Aires from 1987 to 1992, he was in charge of the trials against the military responsible for the Falklands [Malvinas] war (1988), those who headed the military rebellions in 1988, and prosecuted many large public corruption cases.
He has worked with both the Inter-American Development Bank and the United Nations, aiding governments to establish systems to control corruption.
He was the co-founder of Poder Ciudadano, a non-governmental organization which promotes citizen responsibility and participation.
Mr. Moreno Ocampo is a member of the Advisory Committee of Transparency International, a world-wide organization that reduces corruption in international business transactions; in addition he serves as its President for Latin America and the Caribbean.
His publications include In Self Defense, How to Avoid Corruption (1993) and When Power Lost the Trial: How to Explain the Dictatorship to Our Children (1996). He has developed methods to teach law and conflict resolution through a daily television show called Forum.
Click here to see Dr. Moreno Ocampo's books listed on Amazon.co.uk
Here is a snapshot of my search today on Amazon.co.uk
Books › "Luis Moreno Ocampo" Showing 4 Results
1. En Defensa Propia - Como Salir de la Corrupcion by Luis Moreno Ocampo (Paperback - Dec 1993) 2 Used & new from £29.95
2. La Hora De La Transparencia En America Latina: El Manual De Anticorrupcion En La Funcion Publica (Etica y Transparencia) by Valeria Merino, Juan Lozano, and Luis Moreno Ocampo (Paperback - 1 Mar 1998) Buy new: £12.00 18 Used & new from £5.85 Usually dispatched within 3 to 5 weeks Eligible for FREE Super Saver Delivery.
3. Brida by Paulo Coelho and Luis Gabriel Moreno Ocampo (Paperback - Jun 1998) 3 Used & new from £43.80
4. Cuando El Poder Perdio El Juicio by Luis Moreno Ocampo (Paperback - Jun 1996) 1 Used & new from £27.59
Front cover of Dr. Moreno Ocampo's book. Source: Amazon.co.uk website, with thanks. - - -
Photo: The Chief Prosecutor Mr. Luis Moreno Ocampo, sworn in on the 16th of June 2003. (Source: ICC / Sudan Watch archives February 27, 2007)
Photo: ICC to name first Darfur suspects - ST/Reuters (Source: Sudan Watch archives February 27, 2007)
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YouTube: ICC's Moreno Ocampo on arrest warrant for Sudanese President Omar Al-Bashir
Posted to YouTube by EUXTV, March 04, 2009with the following caption and tags under the category of News & Politics:
Luis Moreno-Ocampo, the prosecutor of the International Criminal Court (ICC) in The Hague, reacts to the court's decision to issue an arrest warrant for Omar al-Bashir, the President of Sudan. Al-Bashir is accused of war crimes and crimes against humanity.
Category: News & Politics
Tags: Luis Moreno Ocampo war crimes Sudan Darfur Omar al Bashir president Africa Chad EUFOR MINURCAT genocides tubemogul eux eux.tv the hague icc international criminal court tsjaad soedan khartoum al-Bashir goz beida EUX.TV European elections 2009 European Union European Parliament EuropeanUnion EuropeanParliament EUX EUXTV
International Criminal Court Prosecutor Louis Moreno Ocampo will on Monday open the envelope containing the names of key Government officials and prominent businessmen suspected of perpetrating post-election mayhem.
Mr Ocampo has confirmed he will open the envelope and other documents handed over to him by former UN Secretary General Kofi Annan.
Dr Annan gave the documents to Ocampo on Thursday. The former UN chief has had the documents since he received them from Justice Philip Waki in October, last year. Justice Waki chaired the commission that investigated post-election violence.
Ocampo said: "On Monday (tomorrow), I will be back in my office and probably open the envelopes to understand what they say. But I will seal them again."
The news of the opening of the envelope will further heighten the anxiety that has gripped the country.
Up to now, it is only Justice Philip Waki who knows the contents of the envelope he gave Annan when he completed work of the Commission of Inquiry Into Post-Election Violence.
Justice Waki’s mandate was to investigate the facts and circumstances surrounding the violence, the conduct of State security agencies, and to make recommendations on these and other matters.
Speaking in the Democratic Republic of Congo (DRC) on Saturday, Ocampo recalled the visit by a Kenyan delegation to his offices at The Hague, late last month.
"They confirmed the commitment of Kenya to end impunity for the crimes committed during the post-election time, "said Ocampo, in the interview, with The Standard on Sunday stringer, then in the DRC.
He said the delegation comprising Justice Minister Mutula Kilonzo, Attorney General Amos Wako, and Lands Minister James Orengo, informed him the Government plans to establish a local tribunal to try the suspects.
But Ocampo said, they also told him Parliament had a different position and wants suspects of post-election chaos referred to the International Criminal Court.
Post-election violence
"In the meantime, they commit themselves to provide all the information they have, on the allegations and crimes committed," said Ocampo.
It was after this, Ocampo disclosed, that Annan called him, saying: "Hey, look. I also have to give you the information I have. And he handed over boxes with documents and an envelope with names of persons under suspicion that the Waki commission considered we have to investigate."
While handing over the envelope to Ocampo, Annan "welcomed the Government’s renewed efforts to implement the recommendations of the Waki Commission and to establish a special tribunal".
Annan said: "Any judicial mechanism adopted to bring the perpetrators of post-election violence to justice must meet international legal standards and be broadly debated with all sectors of the Kenyan society to bring credibility to the process."
The former UN chief, who headed the Panel of Eminent Persons that brokered peace in Kenya early last year, said it "reaffirms its conviction that combating impunity and bringing to justice the perpetrators of the post-election violence in Kenya is fundamental to the country’s reform agenda".
Mr Annan added: "Justice delayed is justice denied. The people of Kenya want to see concrete progress on the fight against impunity. Without such progress, the reconciliation between ethnic groups and the long-term stability of Kenya is in jeopardy."
On Monday, Ocampo will be back at The Hague after a tour of African countries that took him to Ethiopia and the DRC.
"So on Monday (tomorrow), I will open the envelopes to understand what they say, but will seal them again. It is just advice. I have to make my own impartial judgement," he said, in Kinshasa, the DRC capital.
He reiterated that Kenya is committed to deal with the post-election atrocities. But he pointed out: "If they cannot do it, assuming it is clear they cannot do it, and they refer the case to me or not I will be ready with all the information I need to start a very fast investigation".
War crimes
At least 1,200 Kenyans were killed in the violence, 600,000 displaced, and many jobs lost. Most of those displaced in the post-2007 General Election violence are yet to be resettled.
Ocampo spoke as an African Union (AU) panel led by former South Africa President Thabo Mbeki backed the ICC indictment of Sudanese officials, including President Omar Hassan al-Bashir, for war crimes.
The panel’s recommendation showed the differences around Africa over the indictment for crimes in the Darfur conflict.
An AU summit in Libya last week voted to suspend co-operation with the ICC on the matter.
Mr Mbeki told reporters that the panel of eight eminent Africans had consulted widely in and outside Sudan.
"The consensus is that those charged with war crimes and crimes against humanity should appear in court and defend themselves," he said.
"The warrant has been issued. There is nothing that can be done."
The ICC has indicted Bashir on seven counts of war crimes and crimes against humanity, including murder, rape and torture.
But he has dismissed the allegations as part of a Western conspiracy, and the AU has sought a deferment of the indictment, saying it has complicated peace efforts in Darfur.
UN officials say the Darfur conflict in Sudan’s western region has killed as many as 300,000 people since 2003.
Three Kenyan Government officials briefed the ICC's chief prosecutor on plans to prosecute those who committed violence during post-election upheavals.
The International Criminal Court Chief Prosecutor Louis Moreno-Ocampo has his eyes trained on Kenya following the handing over of the envelope containing the names of suspects by Chief Mediator Kofi Annan.
KTN’s Beatrice Marshall interviewed Ocampo last week. Here are excerpts of the interview.
Question: You met members of the Kenyan delegation recently and reached an agreement on certain issues. Could you clarify?
Answer: Yes I met three Kenyan Government officials and they were briefing me on plans to prosecute those who committed violence during post-election upheavals. They informed me they have to go to Parliament to make a decision. However, they also expressed commitment that should they fail to pass a law, they will refer the case to the International Criminal Court (ICC).
Q: Following the meeting, there are details emerging in Kenya to the effect that the deadline has been extended to July 2010. Could you confirm this?
A: As a prosecutor I respect genuine national proceedings. Kenya has already conducted national inquiries including the work done by the (Justice Philip) Waki Commission. At the moment Kenya is not doing anything and that is why it was important to have the meeting. Since they have informed us they are doing something, I would like to respect this. In the meantime, I asked them to provide me with certain information, which they committed to do as soon as possible.
I am collecting information and building my case and should they fail then I will step in immediately.
Q: Is there a timeline provided?
A: Kenya is a sovereign country my duty is not to give timelines or guidelines. The Kenyan Government promised during the meeting that they would have a detailed plan presented to us in September. They further indicated they suspect the process of investigation would take one year, which I presume is from September once they hand over the plan on how they intend to implement the investigations.
Q: There has been concern in Kenya that if the case were referred to the ICC proceedings would take long. How much of a priority is Kenya to ICC and if you intervene how fast will the process be?
A: In the Darfur case, the government was against the process, so the case took 20 months. In the case of Lord’s Resistance Army, the Ugandan government co-operated and provided information and the case took nine months. Kenya is providing information that is already being consolidated. If they do not start genuine proceedings, by next year I will be ready to start the case.
Q: After your talks with the Kenyan delegation, do you think the Kenyan political leadership is unwilling or unable to set up a Special Tribunal because the deadline keeps shifting?
A: I cannot make that judgement and have to be objective and look at the national proceedings and establish if the process is genuine.
Q: Has ICC started investigations into the Kenyan situation?
A: I am already collecting information and preparing my case to establish whether crimes against humanity were committed. In the next one month, in September, the Kenyan delegation promised to be back with a detailed plan. For now, let us wait and see. However, it is better a country establishes national proceedings. Colombia has done it and they are doing quite well
Q: Does the Kenyan situation warrant ICC intervention?
A: Serious crimes against humanity are systematic attacks against civilian population, and from what happened the crimes were probably crimes against humanity.
Q: It has been acknowledged the violence may have been as a result of the stiff competition between President Mwai Kibaki and Prime Minister Raila Odinga. Based on the African Union position on the warrant of arrest for President Bashir of Sudan, is there hope for Kenyan people?
A: We have to differentiate between political responsibility and criminal responsibility. We are not doing a political analysis of the situation but rather want to prosecute those who did the crimes. No one is immune, no one is above the law and that is a promise to Kenyan people there will be no impunity. Depending on how it ends, it may end up being a classic model on how to handle conflict.
Sudan: UN Security Council Private Meeting 29 Apr
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Report from United Nations
Security Council Report (SCR)
*What’s In Blue*
Dated Sunday, 28 April 2024 - here is a full copy:
*Sudan: Private Meeting*
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Kenyan ICC suspect loses US$10 million at airport?
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Comment of the Day
Something’s not right here. $10,000,000 in $100 would weigh 100 kg. He
couldn’t be carrying that in a backpack. I doubt the story
April ...
