ICC judges request clarification and additional information with regard to the situation in Kenya

ICC-CPI-20100219-PR497

Situation: Kenya

On 18 February 2010, ICC judges of Pre-Trial Chamber II requested the Prosecutor to provide, no later than 3 March, 2010, clarification and additional information in the process of assessing whether or not to authorise the Prosecutor to commence an investigation with regard to the situation in the Republic of Kenya. According to rule 50(4) of the Rules of Procedure and Evidence, the Pre-Trial Chamber may request additional information from the Prosecutor, if it considers it appropriate, in order to properly exercise its function under article 15 of the Rome Statute.

On 26 November 2009, the Prosecutor sought authorisation from Pre-Trial Chamber II to commence an investigation in relation with the crimes within the jurisdiction of the Court allegedly committed on the territory of the Republic of Kenya within the context of the 2007-2008 post-election violence. The Prosecutor claims that the alleged crimes appear to constitute crimes against humanity.

The judges requested the Prosecutor to provide additional information and clarification with respect to (1) the State and/or organisational policy under article 7(2)(a) of the Rome Statute and (2) the admissibility within the context of the situation in the Republic of Kenya. With regard to the first issue, the Chamber requested additional information and more clarity on the linkage between, on the one hand, the events, the persons, and the acts of violence allegedly committed in the various regions of the Republic of Kenya during different periods of time and, on the other hand, a policy of a State or one or more organisations.

With regard to the second issue, the Chamber requested more recent information on: (1) the incidents that are likely to be the focus of an investigation; (2) the groups of persons involved that are likely to be the target of an investigation for the purpose of identifying the potential cases under consideration; and (3) domestic investigations, if any, with respect to those potential cases.

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 40 appended annexes in approximately 1,500 pages.

On 3 February 2010, the Chamber rejected the Amicus Curiae Application submitted by professors Max Hilaire and William A. Cohn.

The decision on the Prosecutor request for authorisation to commence an investigation in the situation in the Republic of Kenya is pending. No deadline is provided for in the Rome Statute to issue such a decision.

Decision Requesting Clarification and Additional Information

Questions and Answers

---

For further information please contact: (in The Hague) Ms Claudia Perdomo, Head of Outreach Unit, at +31 (0)70 515-8514 or +31 (0) 6 25 22 11 77 or at claudia.perdomo@icc-cpi.int, or (in Kenya) Ms Maria Kamara, Field Outreach Coordinator for Kenya, at +254 (0)7 3 7085 668 or at maria.kamara@icc-cpi.int