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The International Criminal Court (ICC) and Kenya

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The ICC is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although jurisdiction for the crime of aggression will not be awakened until 2017 at the earliest).

The ICC was created by the Rome Statute, which came into force on July 1, 2002. The court has established itself in The Hague, The Netherlands, but its proceedings may take place anywhere.

It is intended to complement existing national judicial systems and may only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes.

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Currently, 122 states are state parties to the Statute of the Court, including all of South America, nearly all of Europe, most of Oceania, and roughly half of the countries in Africa. A further 31 countries, including Russia, have signed but not ratified the Rome Statute. The law of treaties obliges these states to refrain from “acts which would defeat the object and purpose” of the treaty until they declare that they do not intend to become a party to the treaty.

Israel, Sudan, and the United States have informed the UN Secretary-General that they no longer intend to become state parties and, as such, have no legal obligations arising from their former representatives’ signature of the statute. Forty—one United Nations member states have neither signed nor ratified or acceded to the Rome Statute. Some of them, including China and India, are critical of the court.

Many parties, including the African Union, have accused the ICC of primarily targeting people from Africa.

To date, most of the ICC’s cases are from African countries. However, four of the eight current investigations originate from the referral of the situations to the court by the concerned state parties themselves

The chief prosecutor of the ICC has opened investigations into eight situations in Africa: The Democratic Republic of the Congo, Uganda, the Central African Republic, Darfur, Sudan, Kenya (the trial of President Uhuru Kenyatta, his deputy William Ruto, and broadcaster Joshua arap Sang), the Libyan Arab Jamahiriya, Cote d’lvoire and Mali.

The Uganda, Democratic Republic of the Congo, Central African Republic and Mali cases were referred to the court by the concerned state parties. The Darfur and Libya cases were referred by the United Nations Security Council, and the Kenya and Cote d’Ivoire cases were begun of the prosecutor’s own volition. Additionally, by power of attorney from the Union at the Comoros, a law firm referred the situation on the Comorian-flagged mv Mavi Marmara vessel to the court, prompting the prosecutor to initiate a preliminary examination.

Jurisdiction of ICC

The court has four mechanisms that grant it jurisdiction:

First, if the accused is a national of a state party to the Rome Statute.

Second, if the alleged crime took place on the territory of a state party.

Third, if a situation is referred to the court by the United Nations Security Council.

Fourth, if a state not party to the statute “accepts” the court’s jurisdiction.

The ICC is intended to complement existing national judicial systems and may only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes. The current ICC president, Sang—Hyun Song, has described the court as a “failsafe” justice mechanism that holds that states have the primary responsibility to investigate and prosecute Rome Statute crimes occurring within their jurisdiction.

ICC and Kenya

The Kenyan cases at the ICC relate to the 2007/2008 post – election violence which followed the presidential election that was held on 27 December, 2007.

After the Electoral Commission of Kenya officially declared that the incumbent, President Mwai Kibaki, was re-elected, supporters of opposition candidate Raila Odinga accused the Government of electoral fraud and rejected the results. A series of protests and demonstrations followed and fighting — mainly along tribal lines — led to many deaths, injuries, and displacements.

After failed attempts to conduct a criminal investigation of the key perpetrators of the violence, the matter was referred to the International Criminal Court in The Hague.

In 2010, chief prosecutor Luis Moreno Ocampo named six people: Deputy Prime Minister Uhuru Kenyatta, Industrialisation minister Henry Kosgey, Education minister William Ruto, head of the Civil Service and Secretary to the Cabinet Francis Muthaura, radio executive Joshua arap Sang, and former Police Commissioner Mohammed Hussein Ali – all accused of crimes against humanity.

The cases against Muthaura, Kosgey and Ali have since been dropped.

The trial of Ruto and Sang began on September l0, 2013, while that of President Kenyatta was initially scheduled to begin on 12 November, 2013, but has now been pushed to February, 2014.

The Government has appealed to both the United Nations Security Council and the court itself regarding the admissibility of the cases. The National Assembly has voted in favour of removing Kenya as a state party to the Rome Statute, the international treaty that established the ICC.