Developments in Emerging I.C.C. Situations – Kenya and Guinea

The Pre-Trial Chamber II of the I.C.C. asked for clarification and additional information regarding the situation in Kenya this past week. The bloody aftermath of the 2007 Kenyan elections resulted in the deaths of around 1,000 people. Following a preliminary investigation, I.C.C. Chief Prosecutor asked to The Chamber to conduct an official investigation proprio motu last November. The Chamber issued a request for information this week questioning the link between the violence and state policy, and also questioning the admissibility of the context of the situation. The Court this week From the I.C.C.:

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.

Meanwhile, I.C.C. Deputy Prosecutor Fatou Bensouda issued a statement following her visit to Conakry saying that the visit left her “certain that crimes constituting crimes against humanity were committed…” in Guinea during the incident in the capital occurring on September 28th of last year. Soldiers killed over 150 pro-democracy demonstrators during the incident and raped dozens of women in the streets. The Office of the Prosecutor of the I.C.C. launched a preliminary investigation into the situation in Guinea in October.

Deputy Prosecutor Bensouda proclaimed in her statement that, “…those bearing the greatest responsibility for the crimes (can) not go unpunished. They should be tried by either the Guinean authorities or the International Criminal Court. There is no third way.”