ICC complementarity not an alibi for impunity

 
Today, Tuesday 30 August 2011, the Appeals Chamber of the International Criminal Court (ICC) has confirmed the decision of Pre-Trial Chamber II and therefore the admissibility in the two cases[1] relating to crimes against humanity allegedly committed in Kenya during the post-election violence from December 2007 (Post-Election Violence). On 31 March 2011, the Kenyan Government had challenged the admissibility of the two cases, invoking the ICC founding principle of complementarity, whereby the ICC only has jurisdiction when a State is "unable or unwilling" to investigate and prosecute crimes under its jurisdiction.
 
 
Statement by Alison Smith, Legal Counsel of No Peace Without Justice:
 
“No Peace Without Justice (NPWJ) and the Nonviolent Radical Party, Transnational and Transparty (NRPTT) welcome today’s decision of the Appeals Chamber, which recognised that the Kenyan authorities have not shown to be willing or able to provide effective redress for the victims of Post-Election Violence in Kenya.”
 
“Standing as the ultimate guardian of justice, the ICC only acts when the competent State does not genuinely investigate and prosecute the most serious crimes of concern to the international community within its national jurisdiction. In line with the principle of complementarity on which the ICC is based, it is the primary responsibility of States to investigate and prosecute the crimes under the jurisdiction of the Court. However, the Appeals Chamber confirmed the Pre-Trial Chamber II finding that the Kenyan Government applications do not provide concrete evidence of ongoing investigations or proceedings before national judges against the same persons for the crimes alleged.”
 
“Unless and until the Kenyan Government can show that they are willing and able to deal with the Post Election Violence cases nationally, the ICC remains the only opportunity for the victims of the crimes committed during the Post-Election Violence to seek redress and justice. The Kenyan Government has failed to take a clear and firm stance against politically motivated violence, particularly when it involves powerful political actors. The -ICC's involvement is therefore of the utmost importance for Kenya to break the cycle of impunity, to send a loud and unequivocal message that politically-motivated mass crimes will not be tolerated or rewarded and to prevent future violence before the next elections in 2012.”
 
“Now that the cases are going ahead, the ICC must intensify its efforts to reach out to the people of Kenya, particularly since the confirmation of charges hearings will take place in The Hague on 1 September 2011 in the Ruto et al case and on 21 September 2011 in the Muthaura et al case. There is an urgent need to engage directly with those affected by the violence in order to promote understanding of the Court and manage expectations. NPWJ and the NRPTT urge States to engage with the ICC to intensify its outreach in Kenya and to ensure the ICC has sufficient resources to carry out this essential work, which is critical for the ICC to reach its constituencies, maximise its impact and ensure a positive and lasting legacy in Kenya.”
 
 
For further information, please contact Alison Smith, phone +32 2 548 39 12, email asmith@npwj.org or Nicola Giovannini, phone +32-2-548-3915, email ngiovannini@npwj.org

[1] The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang and The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali.