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ICC Prosecutor holds press conference; NGO Media statements (FIDH, HRW, ICJ-Kenya); Related news
01 Apr 2010
Please find below latest information related to the recent decision by the International Criminal Court (ICC) to open an investigation into the Kenya situation
This message includes a press statement made by ICC Prosecutor Luis Moreno Ocampo (I), NGO media statements by FIDH, ICJ Kenya and Human Rights Watch (II) and related news (III).
Please also take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.
I. ICC DOCUMENTS
i. "OTP Press Conference on Kenya, Prosecutor Moreno-Ocampo's Statement", ICC Statement, 1 April 2010, http://www.icc-cpi.int/NR/exeres/6B518FB1-C68F-405A-887C-19CEACF91C05.htm
"The judges decided. There will be justice in Kenya. To contribute to the prevention of crimes during the next election we must proceed promptly. We will. There is a list of 20 suspects, but it is not binding. We envision at least two cases against one to three persons in each case. We will focus on those most responsible according to the evidence that will be impartially collected. We aim to finalize the bulk of the investigation during 2010. We will present our case before the Judges. They will decide. This is a judicial process.
The investigation will focus on those most responsible for the most serious incidents. We will try to conduct an expeditious investigation, aiming to present a sample representative of the crimes committed.
We envision at least two cases against one to three persons in each case. We will focus on those who, according to the evidence that will be collected in the course of our independent investigation, are most responsible.
The Office has presented a preliminary list of 20 political and business leaders to the Judges, belonging to or associated with both parties, the PNU and ODM. As you know, this list was just indicative. It is not binding.
We have to collect evidence to finally decide on the names of those who could go to trial. Our duty is to investigate both incriminating and exonerating information. Persons under suspicion can request to be interviewed by my Office in order to provide the explanation that they consider appropriate. We will respect the rights of suspects.
Now that the opening of the investigation has been authorized, I will travel to Kenya in May. I will meet with those who suffered from the violence, and I will visit some of the crime scenes. I will listen to the victims; respect their views and request justice for them in Court.
We have a duty to protect each of our witnesses and we will do it independently. It is also the responsibility of the Kenyan authorities to ensure that all those who speak in favour of justice are duly protected.
We normally call few witnesses to trial, around 30 in the Lubanga case, and a similar number in the Katanga/Ngdujolo case. We will try to present a reduced number of witnesses in the Kenyan cases in order to limit the risk of exposure.
We plan to finalize the bulk of the investigation during 2010. We will present our case before the Judges. They will decide. This is a judicial process.
We will evaluate the best way to ensure the appearance of the suspects in Court. We can request a sealed arrest warrant, a public arrest warrant or, if the suspects express willingness to cooperate and accept to appear voluntarily, a summons to appear. The judges will then decide.
I will engage in this process with the Kenyans, with all the communities. This Court is their Court. Kenyan leaders - women, youth, tribal, judicial, political, religious, all have a role to play. I want to understand them and analyze how my office and all Kenyans can work together to prevent of future violence. The 50th anniversary of Kenya's independence is coming; it will be a historic opportunity to show an example of how one country overcomes violence."
ii. The full speech of the Prosecutor is available at:
iii. To watch the video of the press conference in English: http://www.youtube.com/user/IntlCriminalCourt and French: http://www.youtube.com/user/IntlCriminalCourt#p/a/u/0/Di9O-B6Mg3s
iv. Kenya Situation: "Questions and Answers," ICC, March 2010, http://www.icc-cpi.int/Menus/Go?id=1cfb6062-610e-4430-a5cf-996286bede6d&lan=en-GB
v. Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya," ICC Pre-Trial Chamber II decision, No.: ICC-01/09, 31 March 2010, http://www.icc-cpi.int/menus/icc/situations and cases/situations/situation icc 0109/court records/chambers/pretrial chamber ii/19?lan=en-GB
II. NGO MEDIA STATEMENTS
i. "Prosecutor is given authorisation to open an investigation in Kenya", Press Release, International Federation for Human Rights (FIDH) Kenya Human Rights Commission (KHRC), 1 April 2010, http://www.fidh.org/Prosecutor-is-given-authorisation-to-open-an
"The FIDH and its member organisation, the Kenya Human Rights Commission (KHRC), welcome the decision rendered yesterday by the judges of Pre-Trial Chamber II of the International Criminal Court (ICC) authorising the Prosecutor to open an investigation into the crimes committed during the 2007/2008 post-election violence in Kenya. Given the issues at stake and the fact that threats to key witnesses have already been registered, FIDH and KHRC urge all actors involved to reinforce efforts directed at strengthening protection of victims and witnesses. In addition, FIDH and KHRC call upon the ICC Prosecutor to consider using his propio motu powers in other situations where intervention of the Court might be needed.
The Prosecutor sought authorisation from the judges, in accordance with Article 15 of the Statute, on 26 November 2009. In a majority decision, the judges authorised the Prosecutor to investigate crimes against humanity committed in Kenya between 1 June 2005 (date of entry into force of the Rome Statute for Kenya) and 26 November 2009.
FIDH and KHRC consider that ICC investigations into the post-election violence are vital in combating impunity for these crimes and ensuring those individuals most responsible are brought to justice, all the more so since no genuine investigations have been conducted by the Kenyan Judiciary into the dramatic events. FIDH and KHRC hope that the investigation will also have a deterrent effect with regard to future violence, in particular around the upcoming 2010 referendum on the new Constitution and 2012 presidential elections.
At the same time, recalling that there have been no effective national proceedings, FIDH and KCHR call upon Kenya to set up mechanisms at the national level to complement ICC proceedings. This is of particular importance given that the ICC will only prosecute those individuals who are the most responsible. Therefore, it is for the Kenya to ensure that perpetrators that do not fall within the jurisdiction of the Court are brought to justice, that impunity is brought to an end and that victims have access to justice and reparations.
Given the various reports about threats and harassment of witnesses, victims and human rights defenders, and the security issues that may arise during the course of the investigation, FIDH and KHRC consider it of the utmost importance that satisfactory protection measures are in place. Therefore, FIDH and KHRC call upon the ICC to reinforce protection measures for witnesses and victims who may be at risk, and upon the Kenyan government to strengthen local protection mechanisms.
Finally, FIDH and KHRC recall that this is the first situation in which the Prosecutor has used his powers to request authorisation to open an investigation on his own initiative. FIDH and KHRC welcome this initiative and call upon the Prosecutor to consider using his propio motu powers in other situations around the world where intervention of the Court might be needed.."
ii. "ICC Judges Approve Kenyan Investigation," Human Rights Watch, 31 March 2010, http://www.hrw.org/en/news/2010/03/31/icc-judges-approve-kenyan-investigation
"A majority of a pre-trial chamber of International Criminal Court (ICC) judges today approved the ICC prosecutor's request to open an investigation into Kenya's 2007 post-election violence, Human Rights Watch said. The Kenyan inquiry is the first investigation begun by the prosecutor acting on his own initiative. All previous cases were referred either by the governments concerned or the United Nations Security Council.
The violence that followed Kenya's flawed 2007 general election left over 1,133 people dead, caused 400,000 to flee their homes, and brought Kenya to the brink of civil war. Kenya has a history of failing to pursue justice for election-related violence; those responsible for past episodes, in 1992 and 1997, have never been brought to justice.
'The decision today can help Kenya turn the corner," said Elizabeth Evenson, counsel in the International Justice Program at Human Rights Watch. "A full investigation into possible crimes against humanity can help restore confidence among Kenya's people that elections don't have to turn into bloodbaths.'
After more than a year of inaction by Kenya's authorities on national prosecutions for the most recent post-election violence, the ICC prosecutor, Luis Moreno Ocampo, sought permission, in November 2009, from a pre-trial chamber of three ICC judges to proceed with an investigation. In its decision today, the chamber by a majority approved that request.
Interest in the issue in Kenya is high, as shown by the near-constant attention by the media over the past year to prospects for an inquiry. The ICC has made efforts in recent weeks to provide basic information about the court to the Kenyan public. Human Rights Watch said the ICC effort has been helpful and urged it to carry out extensive outreach programs in communities affected by the election violence and broader communications efforts about its activities across the country.
Human Rights Watch also recommended that the ICC and its prosecutor apply lessons learned from the ICC's existing investigations to its new Kenyan inquiry. These include investigating all sides to the violence, and, where there is evidence, bringing charges that reflect the full range of the most serious crimes committed during the post-election violence.
Witness protection will be a key challenge as the ICC's investigation moves forward. Threats against individuals who witnessed incidents of post-election violence, including some who testified before two investigating panels, have reportedly increased in the months since the ICC prosecutor announced his intention to open a Kenya investigation. Kenya's existing witness protection system is widely acknowledged to be inadequate and is currently under reform. In January, the ICC prosecutor wrote to Kenya's justice minister to express concern over the escalation in threats.
'Keeping witnesses safe is a keystone of successful prosecutions, and the ICC should make it a priority to safeguard witnesses and victims in its investigations,' Evenson said.
Investigation and prosecution by the ICC will require the full cooperation of Kenyan authorities. The ICC's efforts, however, will only target a small number of senior officials. It will be essential for Kenya also to carry out investigations and prosecutions of other perpetrators at a national level to provide full accountability for the post-election violence, Human Rights Watch said. Although Kenyan authorities agreed in December 2008 to hold national trials for post-election violence suspects, several efforts to establish a special tribunal for Kenya failed to garner sufficient support in parliament. The failure to act has reinforced the perception that those responsible for the post-election violence will not be punished, Human Rights Watch said.
'ICC investigations are likely to target only a handful of those most responsible for the post-election violence," Evenson said. "Kenya's leaders still need to make good on their promise to complete the job with credible national trials.'" (...)
iii. "Pre Trial Chamber II's Decision on Kenya", Kenyan Section of the International Commission of Jurists (ICJ Kenya), 31 March 2010, http://www.icj-kenya.org/index.php?option=com_content&task=view&id=298&Itemid=70
"Pre Trial Chamber II's Decision to Authorise the International Criminal Court (ICC) Prosecutor's Request to Commence Investigations in Kenya. However ICJ Kenya cautions that this is just the beginning. It is at this juncture that the real challenges to realising justice for victims of international crimes arise. We urge the country to be alive to these challenges.
We urge all actors in the process to support the Court in its quest for justice and accountability by actively co-operating with the ICC in the course of investigations and eventual prosecution. The state is obliged under domestic law through the International Crimes Act to provide assistance to the Court in all aspects of its investigations.
The Pre Trial Chamber decision reaffirms that the ICC operates on the principle of complementarity which means that states, including Kenya, have the primary responsibility to investigate and prosecute crimes under the Rome Statute. This means that the Kenyan government still has a crucial role to play and should not view the decision as an excuse to dispense with its responsibility under the Statute.
Further, the decision brings to the fore the issue of Witness Protection which has not been sufficiently addressed through existing legislation and available mechnisms. Yesterday's decision calls for more urgency on the part of government to put in place urgent measures to protect victims and witnesses.
In addition, the ICC prosecutor envisaged a three pronged strategy to deal with impunity in Kenya:
1. ICC Prosecution for those bearing the greatest responsibility;
2. A Special Tribunal for Kenya to deal with mid to lower level perpetrators of the post election violence and;
3. A credible truth, justice and reconciliation process to address historical injustices which contributed to the underlying triggers of violence.
ICJ Kenya calls for full cooperation and active engagement with all these components of accountability. In the words of our national anthem: 'Justice be our shield and defender'!
Albert Kamunde, Chair, ICJ Kenya"
III. RELATED NEWS
i. "The ICC looks into Kenyan election violence," Newhour programme, BBC, 31 March 2010, http://www.bbc.co.uk/programmes/p006x9lr [Audio]
The program includes interview of William Pace, CICC Convener (at the 7th minute)
ii. "Kenya: Statement from the Chairman of the AU Panel of Eminent African Personalities", 31 March 2010, http://allafrica.com/stories/201003310912.html
Kofi Annan: "I salute the decision taken by the Pre-Trial Chamber II to grant the request by Mr. Luis Moreno-Ocampo, Prosecutor of the International Criminal Court (ICC), to commence an investigation on crimes against humanity allegedly committed in Kenya.
This is an important day for justice in Kenya. Justice for the victims suddenly looks brighter. I urge all concerned to fully cooperate with the ICC."
iii. "EU asks for proper witness protection" Daily Nation, 31 March 2010, http://www.nation.co.ke/News/EU asks for proper witness protection /-/1056/890784/-/60jd6wz/-/index.html
iv. "Ocampo's Intervention Welcome", Neto Agostinho, African Executive, 31 March 2010: http://www.africanexecutive.com/modules/magazine/news.php?id_news_main=1&id_news=77
v. "ICC Prosecutor Authorized to Investigate Kenya", Reed Stevenson, NY Times, March 31 2010, http://www.nytimes.com/reuters/2010/03/31/world/international-us-icc-kenya.html?_r=1
vi. "ICC to investigate Kenya 2007 election violence", BBC News, 31 March 2010, http://news.bbc.co.uk/2/hi/africa/8597211.stm
vii. "Int'l court to probe Kenya's election violence", Mike Corder, AP/Washington Post, 31 March 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/03/31/AR2010033100951.html
viii. "Tame political ogre tackle political risk", Business Daily Africa, 31 March 2010,
http://www.businessdailyafrica.com/Opinion & Analysis/Tame political ogre tackle political risk/-/539548/889766/-/8cnwhgz/-/
ix. "Hague Report on Violence Victims to Go Public", Daily Nation/NEXIS, 30 March 2010, http://w3.nexis.com/new/results/docview/docview.do?docLinkInd=true&risb=21_T8967146209&format=GNBFI&sort=BOOLEAN&startDocNo=1&resultsUrlKey=29_T8967146213&cisb=22_T8967146212&treeMax=true&treeWidth=0&csi=8320&docNo=7
x. "ICC outlines Kenya probe plan", Al Jazeera, 1 April 2010, http://english.aljazeera.net/news/africa/2010/04/2010418421935945.html
xi. "Kenya and the International Criminal Court", The Hauser Center for Nonprofit Organizations at Harvard University Justice and Human Rights Domain, 1 April 2010, http://www.internationalcriminaljustice.net [Documentary]
CICC's policy on the referral and prosecution of situations before the ICC:
The Coalition for the ICC is not an organ of the court. The CICC is an independent NGO movement dedicated to the establishment of the International Criminal Court as a fair, effective, and independent international organization. The Coalition will continue to provide the most up-to-date information about the ICC and to help coordinate global action to effectively implement the Rome Statute of the ICC. The Coalition will also endeavor to respond to basic queries and to raise awareness about the ICC's trigger mechanisms and procedures, as they develop. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts.
Communications to the ICC can be sent to:
P.O. box 19519
2500 CM the Hague