International Decision: Situation in the Republic of Kenya: No. ICC-01/09-02/11-274 - Judgment on Kenya’s Appeal of Decision Denying Admissibility

Abstract

A fundamental pillar of the Rome Statute of the International Criminal Court (ICC) is Article 17, which enshrines the complementarity principle – the idea that ICC jurisdiction will only be triggered when states fail to act to prosecute genocide, crimes against humanity and war crimes within their national courts or in circumstances where they prove unwilling and or unable to do so. The problem is that, as shown in this case report in the American Journal of International Law on the first ICC Appeals Chamber ruling regarding a state party’s objection to the court’s assertion of jurisdiction over its nationals, the appellate chamber has wrongly interpreted the text and effectively killed the spirit of Article 17. It devised, in its Kenya judgment, an untenable legal test that states must prosecute the same persons for substantially the same conduct as the tribunal’s prosecutor in order to displace the court’s jurisdictional claims and successfully secure their first right to prosecute. This leaves no “margin of appreciation” for states to make different charging decisions of persons and conduct arising out of the same events. Thus, I argue that while in the short term this covert judicial offensive against the complementarity bargain struck by states may work for the ICC, at least in Kenya, in the long-term, it will not. The denial of Kenya's admissibility challenge when the state was taking some investigative steps to address the post-election violence is not only a missed opportunity for the ICC to show it is serious about “positive complementarity,” it may have set a dangerous precedent that will likely undermine the ICC’s future effectiveness.

Keywords: International Criminal Court, Appeals Chamber, Rome Statute, Article 17, proactive complementarity, Article 19, jurisdiction, admissibility, Kenya, Pre-Trial Chamber II, proprio motu prosecutorial investigations, crimes against humanity, state or organizational policy, authorization

JEL Classification: K14, K19, K33, N40