CASE NOTE

A CRITICAL REVIEW OF THE ICC’S RECENT PRACTICE

CONCERNING ADMISSIBILITY CHALLENGES AND
COMPLEMENTARITY
Case Note: The Kenya Decisions
CONTENTS

I Introduction ............................................................................................................... 1
II The Two-Fold Test in Art 17: From Pragmatic Assistance in Self-Referrals to
Rejection of State Parties’ Admissibility Challenges................................................ 3
III Determining Activity: Exporting the ‘Same Person/Same Conduct’ Test to
Contexts where State Parties Challenge Admissibility ............................................. 7
IV Setting Thresholds for Evidence of Investigatory Action at the National Level ...... 9
V Clarifying Procedural Issues with regard to Admissibility Challenges .................. 12
VI Should the ICC Judges Have Dismissed Kenya’s Admissibility Challenge on
Grounds of Inaction? ............................................................................................... 14
VII Conclusions ............................................................................................................. 17

I INTRODUCTION
The principle of complementarity, whereby national courts are given priority
in the prosecution of international crimes, has often been pointed to as the
cornerstone of the Rome Statute of the International Criminal Court (‘Rome
Statute’),1 a key concept which permeates the entire structure and functioning of
the International Criminal Court (‘ICC’).2 Although the legal literature has been
preoccupied with discussing the nature and scope of complementarity under the
Rome Statute, until recently the jurisprudence of the ICC has only to a limited
extent dealt with a number of key issues pertaining to complementarity.3
1 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187
UNTS 90 (entered into force 1 July 2002) (‘Rome Statute’). Citations of cases heard by the
International Criminal Court will adopt the conventional acronym of ‘ICC’.
2 See, eg, Markus Benzing, ‘The Complementarity Regime of the International Criminal
Court: International Criminal Justice between State Sovereignty and the Fight against
Impunity’ (2003) 7 Max Planck Yearbook of United Nations Law 591, 593; Jonathan I
Charney, ‘International Criminal Law and the Role of Domestic Courts’ (2001) 95
American Journal of International Law 120; Eve La Haye, ‘The Jurisdiction of the
International Criminal Court: Controversies over the Preconditions for Exercising Its
Jurisdiction’ (1999) 46 Netherlands International Law Review 1; Morten Bergsmo,
‘Occasional Remarks on Certain State Concerns about the Jurisdictional Reach of the
International Criminal Court, and Their Possible Implications for the Relationship between
the Court and the Security Council’ (2000) 69 Nordic Journal of International Law 87.
3 See, eg, Nidal Nabil Jurdi, ‘Some Lessons on Complementarity for the International
Criminal Court Review Conference’ (2009) 34 South African Yearbook of International Law
28, 28–9, who notes that
[t]he few decisions by the Pre-Trial, the Trial Chambers, and recently the Appeal
Chamber, have done little to fill the gaps, either within the legal constituencies of
article 17, or in terms of the role of complementarity in encouraging national
jurisdictions to prosecute international crimes.

1
2 Melbourne Journal of International Law [Vol 13

However, the Court’s recent practice — specifically a series of decisions,

including two Appeals Chamber decisions, rejecting an admissibility challenge
filed by the Government of Kenya4 — offers a significant contribution to the
understanding of complementarity. These decisions have not yet been
comprehensively assessed in the literature on the ICC and complementarity.5
Against the backdrop of existing case law and the literature on the topic, this
note identifies four key contributions of these decisions, each of which is
explored in turn.
First, as is examined in Part II, the decisions seem to present a final blow to
the perception that the principle of complementarity means that the ICC can only
step in if a state with jurisdiction is unwilling or unable to investigate and
prosecute the crime itself. Instead, the decisions suggest that art 17 of the Rome
Statute entails a two-fold test, where it must first be determined whether a
national proceeding in fact exists. Only if this can be answered in the affirmative
does it then become relevant to examine whether the state in question is
unwilling or unable to prosecute the crimes. Inactivity, it is held, therefore
automatically renders a case admissible before the Court. While in legal terms
this view would simply seem to consolidate the approach taken by the ICC so
far, these decisions differ because they relate not to a self-referral, as has been
the case previously, but rather to a state party which is opposed to the Court’s
intervention and challenges admissibility with reference to its willingness and
ability to try the crimes. The Court’s willingness to challenge Kenya — a state
party to the Rome Statute — on this issue points towards the development of a
stronger and more self-confident Court, as is discussed in this note’s conclusions.
Secondly, as discussed in Part III, the Court’s decisions clarify the meaning of
‘inactivity’. Once an arrest warrant or a summons to appear has been issued, it is
no longer sufficient for determining activity that the state with jurisdiction over
the crimes conduct investigations into the violence that triggered the Court’s
intervention. Instead, it is required that the state in question investigate the same
person as well as the same criminal conduct.
Thirdly, the decisions set standards in terms of the evidence required for a
determination that national proceedings exist, as is examined in Part IV. For

4 On 30 August 2011, the Appeals Chamber rendered two separate yet essentially identical
decisions, one pertaining to the so-called Party of National Unity (‘PNU’) case and the other
to the Orange Democratic Movement (‘ODM’) case. Both of these decisions affirmed the
Pre-Trial Chamber II’s decisions of 30 May 2011 to reject the admissibility challenge filed
by Kenya in respect of these cases: see Prosecutor v Muthaura (Judgment on the Appeal of
the Republic of Kenya against the Decision of Pre-Trial Chamber II of 30 May 2011
Entitled ‘Decision on the Application by the Government of Kenya Challenging the
Admissibility of the Case pursuant to Article 19(2)(b) of the Statute’) (ICC, Appeals
Chamber, Case No ICC-01/09-02/11-274, 30 August 2011) (‘Muthaura Appeal’);
Prosecutor v Ruto (Judgment on the Appeal of the Republic of Kenya against the Decision
of Pre-Trial Chamber II of 30 May 2011 Entitled ‘Decision on the Application by the
Government of Kenya Challenging the Admissibility of the Case pursuant to Article 19(2)(b)
of the Statute’) (ICC, Appeals Chamber, Case No ICC-01/09-01/11-307, 30 August 2011)
(‘Ruto Appeal’). Hereinafter, primary reference will be made to the Muthaura Appeal
(commonly known as the PNU case), although the corresponding part of the Ruto Appeal
(commonly known as the ODM case) will also be noted.
5 However, for a (short) comment on the decision of the Appeals Chamber, see Tom Maliti,
Appeals Chamber Dismisses Kenya Appeal to Have ICC Cases Stopped (30 August 2011)
International Criminal Court Kenya Monitor <http://www.icckenya.org/2011/08/appeals
-chamber-dismisses-kenya-appeal-to-have-icc-cases-stopped/>.
2012] Case Note: The Kenya Decisions 3

example, the Court clarifies that a state challenging admissibility at the case
stage must provide evidence pointing to specific investigative steps that have
already been taken, as opposed to simply stating that national proceedings have
commenced or offering promises that progress reports will be provided to the
Court in the future.
Finally, as discussed in Part V, the decisions make a number of important
clarifications concerning procedural issues, including the question of whether
there is a connection between admissibility challenges and requests for assistance
made under art 93(10) of the Rome Statute.
Having analysed the contributions of the decisions in the Kenyan cases, the
note discusses whether the Court was right in rejecting Kenya’s admissibility
challenge on the grounds of inactivity,6 and concludes by briefly considering
what consequences the decisions might have for future cases.

II THE TWO-FOLD TEST IN ART 17: FROM PRAGMATIC ASSISTANCE IN

SELF-REFERRALS TO REJECTION OF STATE PARTIES’ ADMISSIBILITY
CHALLENGES
Article 17(1)(a) of the Rome Statute provides that
the Court shall determine that a case is inadmissible where: The case is being
investigated or prosecuted by a State which has jurisdiction over it, unless the
State is unwilling or unable genuinely to carry out the investigation or
prosecution.
The question of whether this provision entails a single or a two-fold test to
determine whether a case is inadmissible has been subjected to considerable
controversy in the literature on the ICC. On the one hand, a significant
proportion of the scholarship argues that art 17 renders a case admissible before
the ICC only if the state with jurisdiction over the crime is unwilling or unable to
prosecute that crime.

6 A discussion that is also taken up by dissenting Appeals Chamber Judge Anita Ušacka.
While the key argument of Judge Ušacka is that Pre-Trial Chamber II erred procedurally by
failing to grant Kenya a number of rights, the judge also implies a more fundamental
criticism of the decision’s premises: see Prosecutor v Muthaura (Judgment on the Appeal of
the Republic of Kenya against the Decision of Pre-Trial Chamber II of 30 May 2011 entitled
‘Decision on the Application by the Government of Kenya Challenging the Admissibility of
the Case pursuant to Article 19(2)(b) of the Statute’) (ICC, Case No ICC-01/09-02/11-342,
20 September 2011) (Judge Ušacka) (‘Muthaura Appeal Dissent’). See also Prosecutor v
Ruto (Judgment on the Appeal of the Republic of Kenya against the Decision of Pre-Trial
Chamber II of 30 May 2011 Entitled ‘Decision on the Application by the Government of
Kenya Challenging the Admissibility of the Case pursuant to Article 19(2)(b) of the Statute’)
(ICC, Appeals Chamber, Case No ICC-01/09-01/11-336, 20 September 2011) (Judge
Ušacka) (‘Ruto Appeal Dissent’).
4 Melbourne Journal of International Law [Vol 13

As Darryl Robinson has noted:

Anyone familiar with the literature on complementarity will have seen on
countless occasions assertions such as, ‘under the principle of complementarity,
[the ICC] will assert jurisdiction only if a state is unwilling or unable to
investigate or prosecute an alleged crime itself’.7
Accordingly, this view implies that if a state fails to investigate or prosecute, not
because it is unable or unwilling but for other reasons, the ICC does not have
jurisdiction. On the other hand, a number of commentators have noted that the
wording of art 17 means that the question of unwillingness or inability only
becomes relevant once it has been asserted that national proceedings have in fact
been commenced. Markus Benzing, for example, argues that the ‘[m]ere inaction
of a state in the face of crimes having been or being committed thus leads to the
admissibility of situations and cases before the ICC’.8 This interpretation, which
appears widely accepted in contemporary accounts of the complementarity
principle,9 has consistently been endorsed by the ICC. The Court has on several
occasions stated that the determination of admissibility must rely on a two-fold
test whereby any assessment of unwillingness or inability can only take place if
it has first been established that there is actual investigatory or prosecutorial

7 Darryl Robinson, ‘The Mysterious Mysteriousness of Complementarity’ (2010) 21 Criminal

Law Forum 67, 72, quoting Julie B Martin, ‘The International Criminal Court: Defining
Complementarity and Divining Implications for the United States’ (2006) 4 Loyola
University Chicago International Law Review 107, 107. See also Mahnoush H Arsanjani
and W Michael Reisman, ‘The Law-in-Action of the International Criminal Court’ (2005)
99 American Journal of International Law 385; Federica Gioia, ‘State Sovereignty,
Jurisdiction and “Modern” International Law: The Principle of Complementarity in the
International Criminal Court’ (2006) 19 Leiden Journal of International Law 1095, 1106;
David Hunt, ‘The International Criminal Court: High Hopes, “Creative Ambiguity” and an
Unfortunate Mistrust in International Judges’ (2004) 2 Journal of International Criminal
Justice 56, 63; H Abigail Moy, ‘The International Criminal Court’s Arrest Warrants and
Uganda’s Lord’s Resistance Army: Renewing the Debate over Amnesty and
Complementarity’ (2006) 19 Harvard Human Rights Journal 267, 273.
8 Benzing, above n 2, 601. See also Bruce Broomhall, International Justice and the
International Criminal Court: Between Sovereignty and the Rule of Law (Oxford University
Press, 2003) 91.
9 See, eg, Jurdi, above n 3, 29–30, noting that ‘[i]t is only once national courts fail to take any
action or are unwilling or unable to conduct investigations and prosecutions, that the ICC
will find the situation admissible’ and ‘[t]he third scenario is the case of inaction, which
under article 17’s negative phrasing, does not require that the elements of “unwillingness”
or “inability” be satisfied’. See similarly Mohamed M El Zeidy, The Principle of
Complementarity in International Criminal Law: Origin, Development and Practice
(Martinus Nijhoff, 2008) 161, 221, 229–30; William W Burke-White and Scott Kaplan,
‘Shaping the Contours of Domestic Justice: The International Criminal Court and an
Admissibility Challenge in the Ugandan Situation’ (2009) 7 Journal of International
Criminal Justice 257, 260.
2012] Case Note: The Kenya Decisions 5

activity in the state concerned.10 This view was most clearly stated by the
Appeals Chamber in Prosecutor v Katanga (‘Katanga’):11
in considering whether a case is inadmissible under article 17(1)(a) and (b) of the
Statute, the initial questions to ask are (1) whether there are ongoing
investigations or prosecutions, or (2) whether there have been investigations in
the past, and the State having jurisdiction has decided not to prosecute the person
concerned. It is only when the answers to these questions are in the affirmative
that one has to look to the second halves of sub-paragraphs (a) and (b) and to
examine the question of unwillingness and inability. To do otherwise would be to
put the cart before the horse. It follows that in case of inaction, the question of
unwillingness or inability does not arise; inaction on the part of a State having
jurisdiction (that is, the fact that a State is not investigating or prosecuting, or has
not done so) renders a case admissible before the Court, subject to article 17(1)
(d) of the Statute.12
As William Schabas has noted, this approach
has the advantage of accommodating cases that arrive at the Court through
self-referrals, where it might otherwise be argued that by its cooperation the State
Party is in fact demonstrating its willingness to investigate and prosecute.13
In other words, the early use of the two-fold test is generally accepted to have
served pragmatic purposes, allowing the Court to exercise jurisdiction in cases
where the relevant governments were supportive of ICC intervention and the
Court could thus rely on the cooperation of the government. For example, in a
move seemingly unforeseen by the drafters of the Rome Statute, in December
2003 the Government of Uganda chose to utilise art 14 of the Rome Statute to
refer crimes committed within its own territory — as opposed to the territory of
another state party — to the ICC prosecutor. It has been suggested that the
leadership in Kampala used the ICC intervention as a tool in the toolbox dealing
with the Lord’s Resistance Army (‘LRA’), hoping that arrest warrants would add
pressure on the rebel leaders.14 Subsequently, the Government of the Democratic
Republic of Congo similarly triggered ICC jurisdiction by making a

10 See Prosecutor v Chui (Decision on the Evidence and Information Provided by the
Prosecution for the Issuance of a Warrant of Arrest) (ICC, Pre-Trial Chamber I, Case No
ICC-01/04-01/07-262, 6 July 2007) [21] (‘Chui Arrest Warrant’); Prosecutor v Harun
(Decision on the Prosecution Application under Article 58(7) of the Statute) (ICC, Pre-Trial
Chamber I, Case No ICC-02/05-01/07-1-Corr, 27 April 2007) [24]; Prosecutor v Katanga
(Decision on the Evidence and Information Provided by the Prosecution for the Issuance of
a Warrant of Arrest) (ICC, Pre-Trial Chamber I, Case No ICC-01/04-01/07-55, 5 November
2007) [20] (‘Katanga Arrest Warrant’); Prosecutor v Lubanga (Decision on the
Prosecutor’s Application for a Warrant of Arrest) (ICC, Pre-Trial Chamber I,
Case No ICC-01/04-01/06-8-US-Corr, 10 February 2006) [30]–[32] (‘Lubanga Arrest
Warrant’).
11 Prosecutor v Katanga (Judgment on the Appeal against the Oral Decision of Trial Chamber
II of 12 June 2009 on the Admissibility of the Case) (ICC, Appeals Chamber,
Case No ICC-01/04-01/07-1497, 25 September 2009) (‘Katanga Admissibility Appeal’).
12 Ibid [78].
13 William A Schabas, An Introduction to the International Criminal Court (Cambridge
University Press, 2011) 192–3.
14 See, eg, Payam Akhavan, ‘Developments at the International Criminal Court: The Lord’s
Resistance Army Case: Uganda’s Submission of the First State Referral to the International
Criminal Court’ (2005) 99 American Journal of International Law 403.
6 Melbourne Journal of International Law [Vol 13

self-referral.15 In both cases, the ICC accepted jurisdiction on the ground that
there was inactivity at the national level, thereby avoiding having to deal with the
sensitive issue of unwillingness and inability.
However, the decisions made in connection to the Kenyan cases are
fundamentally different in that they concern a situation where the state with
territorial jurisdiction over the crimes — or more precisely, significant parts of
the leadership in that country — is opposed to ICC intervention and therefore
invokes the complementarity scheme in an effort to end the Court’s
proceedings.16 For the first time in the history of the ICC, it is thus a state party
that seeks to challenge admissibility by making reference to the existence of
national proceedings.17
However, despite the unique circumstances of the Kenyan situation, Pre-Trial
Chamber II relied on the two-stage test articulated by the Appeals Chamber in
Katanga when dealing with the admissibility challenge filed by the Government
of Kenya on 31 March 2011.18 So did the Appeals Chamber, which noted:
It should be underlined … that determining the existence of an investigation must
be distinguished from assessing whether the State is ‘unwilling or unable
genuinely to carry out the investigation or prosecution’, which is the second
question to consider when determining the admissibility of a case. For assessing
whether the State is indeed investigating, the genuineness of the investigation is
not at issue; what is at issue is whether there are investigative steps.19
Consequently, states that are opposed to ICC intervention and claim that a
domestic investigation is taking place are not in the first place evaluated on the
standards of unwillingness or inability. Instead, the Court will base its
assessment of admissibility challenges on the judge-made criteria concerning the
existence of national proceedings, which will be described in detail below in Part
III. While decisions pertaining to admissibility should in principle be made
without considering how the Court’s jurisdiction was triggered, the decision to
‘export’ the two-fold test developed in the context of the self-referrals to
instances where the relevant government claims to be both willing and able to

15 See, eg, Phil Clark, ‘Law, Politics and Pragmatism: The ICC and Case Selection in Uganda
and the Democratic Republic of Congo’ in Nicholas Waddell and Phil Clark (eds), Courting
Conflict? Justice, Peace and the ICC in Africa (Royal African Society, 2008) 37, 39–42.
16 For a further analysis of how a divided Kenyan leadership has responded to ICC
intervention, see Thomas Obel Hansen, ‘Transitional Justice in Kenya? An Assessment of
the Accountability Process in light of Domestic Politics and Security Concerns’ (2011) 41
California Western International Law Journal 1.
17 Unlike the Katanga Admissibility Appeal (ICC, Appeals Chamber, Case No ICC-01/04
-01/07-1497, 25 September 2009), the ruling in the Kenyan case(s) relates to an
admissibility challenge filed in a scenario where the national authorities claim that domestic
proceedings are in fact ongoing.
18 Prosecutor v Muthaura (Decision on the Application by the Government of Kenya
Challenging the Admissibility of the Case pursuant to Article 19(2)(b) of the Statute) (ICC,
Pre-Trial Chamber II, Case No ICC-01/09-02/11-96, 30 May 2011) [44]
(‘Muthaura Pre-Trial’); Prosecutor v Ruto (Decision on the Application by the Government
of Kenya Challenging the Admissibility of the Case pursuant to Article 19(2)(b) of the
Statute) (ICC, Pre-Trial Chamber II, Case No ICC-01/09-02/11-101, 30 May 2011) [48]
(‘Ruto Pre-Trial’).
19 Muthaura Appeal (ICC, Appeals Chamber, Case No ICC-01/09-02/11-274, 30 August 2011)
[40] (citations omitted); Ruto Appeal (ICC, Appeals Chamber, Case No ICC-01/09-01/11
-307, 30 August 2011) [41].
2012] Case Note: The Kenya Decisions 7

prosecute and investigate the crimes is significant, and may have ramifications
beyond the Kenyan situation, as is discussed in this note’s conclusions.

III DETERMINING ACTIVITY: EXPORTING THE ‘SAME PERSON/SAME CONDUCT’

TEST TO CONTEXTS WHERE STATE PARTIES CHALLENGE ADMISSIBILITY
The Rome Statute itself offers little guidance concerning the criteria that
should be used to determine whether national proceedings exist — or, in the
words of the Statute, whether a ‘case is being investigated or prosecuted’.20 As a
consequence of self-referrals, the ICC prosecutor early on adopted a policy
towards this issue whereby national investigations must involve the same suspect
as well as the same conduct in order for such investigations to render a case
inadmissible.21 In Prosecutor v Lubanga (‘Lubanga’),22 the suspect Lubanga
was detained by DRC authorities on suspicion of having committed other (and
arguably more serious) crimes in the country when the ICC prosecutor requested
an arrest warrant for the war crime of conscripting child soldiers.23 To solve such
obstacles to admissibility, the Pre-Trial Chambers have so far been forthcoming
in applying the so-called ‘same person/same conduct’ test as the threshold for
assessing whether prosecutorial or investigative activity exists. In Lubanga, for
example, Pre-Trial Chamber I stated that a determination of the inadmissibility
of a case requires that the ‘national proceedings … encompass both the person
and the conduct which is the subject of the case before the Court’.24
However, until its decisions in the Kenyan cases, the Appeals Chamber had
not yet ruled on the correctness of the same person component of the test.25 The
question of whether national investigations must always involve the same person
in order for them to render a case inadmissible before the ICC had thus so far
remained unanswered in the jurisprudence of the Appeals Chamber.
In order to fully understand the implications of the Appeals Chamber’s recent
decisions, it is first necessary to point out that the Appeals Chamber endorsed a
distinction according to which art 17 must be applied differently depending on
the stage of the ICC proceedings. As such, the Appeals Chamber noted that art
17 applies to the determination of admissibility at the preliminary stages under

20 Rome Statute art 17(1)(a).

21 For a further discussion of the Prosecutor’s policy, which was based on an informal expert
paper, and its implications, see, eg, William A Schabas, ‘“Complementarity in Practice”:
Some Uncomplimentary Thoughts’ (2008) 19 Criminal Law Forum 5. See also ICC-OTP,
‘The Principle of Complementarity in Practice’ (Informal Expert Paper, 2003).
22 Lubanga Arrest Warrant (ICC, Pre-Trial Chamber I, Case No ICC-01/04-01/06-8-US-Corr,
10 February 2006).
23 On this aspect of Lubanga Arrest Warrant, see Clark, above n 15, 39–42.
24 Lubanga Arrest Warrant (ICC, Pre-Trial Chamber I, Case No ICC-01/04-01/06-8-US-Corr,
10 February 2006) [31]. A similar approach was taken in Katanga Arrest Warrant (ICC,
Pre-Trial Chamber I, Case No ICC-01/04-01/07-55, 5 November 2007) [20] and Chui Arrest
Warrant (ICC, Pre-Trial Chamber I, Case No ICC-01/04-02/07-262, 6 July 2007). For some
critical reflections on this practice, see, eg, Jurdi, above n 3, 36–7.
25 As noted by the Appeals Chamber in the Muthaura Appeal (ICC, Appeals Chamber, Case
No ICC-01/09-02/11-274, 30 August 2011) [34] and the Ruto Appeal (ICC, Appeals
Chamber, Case No ICC-01/09-01/11-307, 30 August 2011) [35]. In Katanga Admissibility
Appeal (ICC, Appeals Chamber, Case No ICC-01/04-01/07-1497, 25 September 2009) the
Appeals Chamber had declined to rule on the correctness or otherwise of the ‘same conduct’
component of the ‘same person/same conduct’ test because this question was not decisive
for the determination of that appeal.
8 Melbourne Journal of International Law [Vol 13

arts 15 and 18 of the Rome Statute (and the prosecutor’s decision under art 53(1))
as well as the determination of admissibility under art 19 where a suspect or a
state with jurisdiction challenges the admissibility of a specific case.26
At the preliminary stages where the Rome Statute speaks of a ‘situation’ as
opposed to a ‘case’,27 and when the suspects have typically not yet been
identified, the Appeals Chamber implied that the inadmissibility test should be
based on the question of whether the state is investigating the same overall
conduct which is being investigated by the ICC.28 Consequently, it must be
assumed that the Appeals Chamber would not have objected to the criteria
applied by Pre-Trial Chamber II in its decision to open an investigation into
Kenya’s post-election violence, according to which
[a]dmissibility at the situation phase should be assessed against certain criteria
defining a ‘potential case’ such as: (i) the groups of persons involved that are
likely to be the focus of an investigation for the purpose of shaping the future
case(s); and (ii) the crimes within the jurisdiction of the Court allegedly
committed during the incidents that are likely to be the focus of an investigation
for the purpose of shaping the future case(s).29
The Government of Kenya had submitted that the same or similar criteria
should apply in connection to its admissibility challenge filed according to art
19(2)(b) at the point where Pre-Trial Chamber II had already summoned the
suspects to appear before the Court. Although the government accepted that
national investigations must involve the same overall conduct that is being
investigated by the ICC, it claimed that a case is inadmissible as long as this
conduct is being attributed to ‘persons at the same level in the hierarchy being
investigated by the ICC’.30 To support this interpretation, the government argued
that national authorities do not always have the same evidence available as the
ICC prosecutor and may therefore not be investigating the same suspects as the
Court.
This was rejected by Pre-Trial Chamber II, which held:
The test is more specific when it comes to an admissibility determination at the
‘case’ stage [meaning that] the admissibility determination must be assessed
against national proceedings related to those particular persons that are subject to
the Court’s proceedings.31

26 Muthaura Appeal (ICC, Appeals Chamber, Case No ICC-01/09-02/11-274, 30 August 2011)

[37]; Ruto Appeal (ICC, Appeals Chamber, Case No ICC-01/09-01/11-307, 30 August
2011) [38].
27 See, eg, Rome Statute arts 13–15, 18.
28 Muthaura Appeal (ICC, Appeals Chamber, Case No ICC-01/09-02/11-274, 30 August 2011)
[38]; Ruto Appeal (ICC, Appeals Chamber, Case No ICC-01/09-01/11-307, 30 August
2011) [39].
29 Situation in the Republic of Kenya (Decision pursuant to Article 15 of the ICC Statute on the
Authorization of an Investigation into the Situation in the Republic of Kenya)
(ICC, Pre-Trial Chamber II, Case No ICC-01/09-19, 31 March 2010) [50].
30 Prosecutor v Ruto (Application on behalf of the Government of the Republic of Kenya
pursuant to Article 19 of the ICC Statute) (ICC, Pre-Trial Chamber II, Case No ICC-01/0
9-01/11-19, 31 March 2011) [32] (‘Ruto Admissibility Challenge’).
31 Muthaura Pre-Trial (ICC, Pre-Trial Chamber II, Case No ICC-01/09-02/11-96, 30 May
2011) [50]; Ruto Pre-Trial (ICC, Pre-Trial Chamber II, Case No ICC-01/09-02/11-101, 30
May 2011) [54].
2012] Case Note: The Kenya Decisions 9

The Appeals Chamber generally agreed with Pre-Trial Chamber II, noting that
that for a case to be inadmissible under art 17(1)(a) of the Rome Statute in
connection to an application filed under art 19, ‘the national investigation must
cover the same individual and substantially the same conduct as alleged in the
proceedings before the Court’.32 The Appeals Chamber explained as follows:
Kenya’s submission that ‘it cannot be right that in all circumstances in every
Situation and in every case that may come before the ICC the persons being
investigated by the Prosecutor must be exactly the same as those being
investigated by the State if the State is to retain jurisdiction’ cannot be accepted. It
disregards the fact that the proceedings have progressed and that specific suspects
have been identified. At this stage of the proceedings, where summonses to
appear have been issued, the question is no longer whether suspects at the same
hierarchical level are being investigated by Kenya, but whether the same suspects
are the subject of investigation by both jurisdictions for substantially the same
conduct.33
However, a state’s ability to successfully challenge admissibility does not only
depend on the criteria used for determining activity, but also on the Court’s
requirements as to the evidence for such activity, a topic discussed in the
following Part.

IV SETTING THRESHOLDS FOR EVIDENCE OF INVESTIGATORY ACTION AT THE

NATIONAL LEVEL
In its admissibility challenge, the Government of Kenya had seemingly
pursued a strategy whereby it was principally argued that investigations into the
crimes committed in 2008 were ongoing at the time of filing the admissibility
challenge. To the extent that the Court did not support this finding, reference was
also made to ongoing judicial reforms, which were seemingly thought to make
credible the claim that a national process would at least commence in the near
future.34 More specifically, the government argued that investigations of crimes
committed in the context of the post-election violence would ‘continue over the
coming months’, and that the steps already undertaken and those envisaged with
respect to all cases at different levels would be finalised by September 2011.35
Further, the government promised that by the end of July 2011, it would provide
the Pre-Trial Chamber with a progress report regarding the investigations carried

32 Muthaura Appeal (ICC, Appeals Chamber, Case No ICC-01/09-02/11-274, 30 August 2011)

[39]; Ruto Appeal (ICC, Appeals Chamber, Case No ICC-01/09-01/11-307, 30 August
2011) [40].
33 Muthaura Appeal (ICC, Appeals Chamber, Case No ICC-01/09-02/11-274, 30 August 2011)
[41]; Ruto Appeal (ICC, Appeals Chamber, Case No ICC-01/09-01/11-307, 30 August
2011) [42].
34 Ruto Admissibility Challenge (ICC, Pre-Trial Chamber II, Case No ICC-01/09-01/11-19, 31
March 2011) [2], [5], [9], [12]. In its appeal, however, the Government of Kenya appeared
to give a stronger emphasis to the claim that investigations were in fact already ongoing: see
Prosecutor v Ruto (Appeal of the Government of Kenya against the ‘Decision on the
Application by the Government of Kenya Challenging the Admissibility of the Case pursuant
to Article 19(2)(b) of the Statute’) (ICC, Appeals Chamber, Case No ICC-01/09-01/11-109,
6 June 2011) [30].
35 Ruto Admissibility Challenge (ICC, Pre-Trial Chamber II, Case No ICC-01/09-01/11-19, 31
March 2011) [13].
10 Melbourne Journal of International Law [Vol 13

out which would ‘extend up to the highest levels’.36 The government also stated
that its application ‘must be determined with a full understanding of the
fundamental and far-reaching constitutional and judicial reforms very recently
enacted in Kenya’.37 The argument made by the government that institutional
and legal reforms could be relevant for determining admissibility might have
been influenced by Pre-Trial Chamber II’s proprio motu examination of
admissibility in the Ugandan situation, in which it was held that the provisions
for accountability measures in the peace agreements signed by the government of
Uganda and the LRA had no bearing on the determination of admissibility since
these provisions had not yet been turned into law.38 The Government of Kenya
may have interpreted this ruling as if the judicial reforms envisaged in the
Constitution of Kenya of 2010 — and partly implemented through various legal
acts at the time of filing the admissibility challenge — could be a relevant factor
for assessing admissibility.
Pre-Trial Chamber II ‘welcome[d] the express will of the Government of
Kenya to investigate the case sub judice, as well as its prior and proposed
undertakings’.39 However, the Chamber’s finding that there nonetheless
remained ‘a situation of inactivity’ was in part reached on the ground that the
government had contradicted itself by arguing that the ongoing investigations
would later extend to the highest level of the hierarchy, while at same time
stating that there were actually ongoing investigations in relation to the six
suspects involved in the cases under the Chamber’s consideration.40 Pre-Trial
Chamber II thus made it clear that for an admissibility challenge to succeed
investigations at the national level concerning the same suspects must be
ongoing, as opposed to some future investigations (perhaps implying that
reference to future investigatory activities can be seen as an indication that these
are non-existent in the present).41 Further, Pre-Trial Chamber II held that it is
insufficient for a state with jurisdiction over the crimes to merely claim that there
is an ongoing investigation; there must also be ‘concrete evidence of such steps’

36 Ibid [72], [79].

37 Ibid [2].
38 Prosecutor v Kony (Decision on the Admissibility of the Case under Article 19(1) of the
Statute) (ICC, Pre-Trial Chamber II, Case No ICC-02/04-01/05-377, 10 March 2009)
[49]–[52].
39 Muthaura Pre-Trial (ICC, Pre-Trial Chamber II, Case No ICC-01/09-02/11-96, 30 May
2011) [41]; Ruto Pre-Trial (ICC, Pre-Trial Chamber II, Case No ICC-01/09-02/11-101, 30
May 2011) [45].
40 Muthaura Pre-Trial (ICC, Pre-Trial Chamber II, Case No ICC-01/09-02/11-96, 30 May
2011) [58], [66]; Ruto Pre-Trial (ICC, Pre-Trial Chamber II, Case No ICC-01/09-02/
11-101, 30 May 2011) [62], [70].
41 In each case, the Pre-Trial Chamber II noted:

In the view of the Chamber, it remains unclear why the Government of Kenya has
not so far submitted a detailed report on the alleged ongoing investigations. If
national proceedings against the three suspects subject to the Court’s proceedings are
currently underway, then there is no convincing reason to wait until July 2011 to
submit the said first report.
Muthaura Pre-Trial (ICC, Pre-Trial Chamber II, Case No ICC-01/09-02/11-96, 30 May
2011) [59]; Ruto Pre-Trial (ICC, Pre-Trial Chamber II, Case No ICC-01/09-02/11-101, 30
May 2011) [63].
2012] Case Note: The Kenya Decisions 11

with regard to the suspects named by the Court.42 For example, Pre-Trial
Chamber II noted that although the information provided by the government
revealed that instructions were given to investigate the suspects subject to the
Court’s proceedings, ‘the Government of Kenya does not provide the Chamber
with any details about the asserted, current investigative steps undertaken’.43 In
sum, though the Pre-Trial Chamber did not assert that national investigations
must have reached a particular stage for an admissibility challenge to succeed, it
held that concrete, progressive investigative steps must have been taken and
demonstrated at the time at which an admissibility challenge is filed.44
In its review of Pre-Trial Chamber II’s ruling, the Appeals Chamber clarified
that ‘a State that challenges the admissibility of a case bears the burden of proof
to show that the case is inadmissible’.45 The Appeals Chamber further explained:
To discharge that burden, the State must provide the Court with evidence of a
sufficient degree of specificity and probative value that demonstrates that it is
indeed investigating the case. It is not sufficient merely to assert that
investigations are ongoing.46
Consequently, the Appeals Chamber dismissed the Government of Kenya’s
claim that art 17 does ‘not require that the details of an investigation be provided
to the Court’ and that ‘the statements of State Parties are to be respected and
must be presumed to be accurate and made in good faith unless there is
compelling evidence to the contrary’.47 Rather, the Appeals Chamber asserted
that the state in question is required to submit concrete evidence which points to
specific investigative steps, such as police reports attesting to the time and
location of visits to crime scenes and documentation demonstrating that
witnesses and the (ICC) suspects have been interviewed by the authorities.48
The Court’s establishment of thresholds for evidence is closely related to how
it approached a number of procedural issues, as explained in the following Part.

42 Muthaura Pre-Trial (ICC, Pre-Trial Chamber II, Case No ICC-01/09-02/11-96, 30 May

2011) [60]; Ruto Pre-Trial (ICC, Pre-Trial Chamber II, Case No ICC-01/09-02/11-101, 30
May 2011) [64].
43 Muthaura Pre-Trial (ICC, Pre-Trial Chamber II, Case No ICC-01/09-02/11-96, 30 May
2011) [64] (emphasis in original); Ruto Pre-Trial (ICC, Pre-Trial Chamber II, Case No
ICC-01/09-02/11-101, 30 May 2011) [68].
44 Muthaura Pre-Trial (ICC, Pre-Trial Chamber II, Case No ICC-01/09-02/11-96, 30 May
2011) [60]; Ruto Pre-Trial (ICC, Pre-Trial Chamber II, Case No ICC-01/09-02/11-101, 30
May 2011) [64].
45 Muthaura Appeal (ICC, Appeals Chamber, Case No ICC-01/09-02/11-274, 30 August 2011)
[61] (citations omitted); Ruto Appeal (ICC, Appeals Chamber, Case No ICC-01/09-01/11
-307, 30 August 2011) [62] (citations omitted).
46 Muthaura Appeal (ICC, Appeals Chamber, Case No ICC-01/09-02/11-274, 30 August 2011)
[61] (citations omitted); Ruto Appeal (ICC, Appeals Chamber, Case No ICC-01/09-01/11
-307, 30 August 2011) [62] (citations omitted).
47 Muthaura Appeal (ICC, Appeals Chamber, Case No ICC-01/09-02/11-274, 30 August 2011)
[62], quoting Prosecutor v Muthaura (Document in Support of the ‘Appeal of the
Government of Kenya against the Decision on the Application by the Government of Kenya
Challenging the Admissibility of the Case pursuant to Article 19(2)(b) of the Statute’) (ICC,
Appeals Chamber, Case No ICC-01/09-02/11-130, 20 June 2011) [6], [8] (‘Kenya’s
Document in Support of Appeal Application’); Ruto Appeal (ICC, Appeals Chamber, Case
No ICC-01/09-01/11-307, 30 August 2011) [63].
48 Muthaura Appeal (ICC, Appeals Chamber, Case No ICC-01/09-02/11-274, 30 August 2011)
[40], [68]; Ruto Appeal (ICC, Appeals Chamber, Case No ICC-01/09-01/11-307, 30 August
2011) [41], [69].
12 Melbourne Journal of International Law [Vol 13

V CLARIFYING PROCEDURAL ISSUES WITH REGARD TO ADMISSIBILITY

CHALLENGES
The decisions relating to the Kenyan cases also provide clarification on
several key procedural issues surrounding admissibility challenges. First, the
decisions elaborate on the question of when an admissibility challenge should be
filed. Article 19(5) of the Rome Statute requires that a state which wishes to
challenge the admissibility on the ground that it is investigating or prosecuting
the case do so ‘at the earliest opportunity’. Article 19(4) further lays down a final
deadline for this, stipulating that the admissibility challenge must be filed prior
to the commencement of the trial. According to the same provision, a state that
claims jurisdiction because of national proceedings may only once challenge the
admissibility of a case (though in ‘exceptional circumstances’ the Court may
grant leave for another challenge). The Government of Kenya seems to have
understood these provisions as entailing an obligation, or at the least a strong
encouragement to states, to file the admissibility challenge once summonses or
arrest warrants against the suspects have been issued.49 Accordingly, the
government asserted that it was ‘[c]onstrained to act at the earliest moment by
the Rome Statute’ and could therefore not be criticised for not having ‘prepared
every aspect of its Admissibility Application in detail in advance [to the
summonses being issued]’.50 The Appeals Chamber, however, made it clear that
this position is misconceived as art 19(5) ‘requires a State to challenge
admissibility as soon as possible once it is in a position to actually assert a
conflict of jurisdictions’, but not just because the Court has issued a summons to
appear.51
Secondly, the Appeals Chamber made some elaborations concerning when the
ruling on an admissibility challenge should be delivered. One complaint of the
Government of Kenya with regard to Pre-Trial Chamber II’s handling of the
admissibility challenge was that the Chamber failed to give Kenya the time it
needed to submit additional evidence before ruling on the application.52
However, the Appeals Chamber concluded that a period of around two months
between receiving the admissibility challenge and ruling on it is acceptable.53
Although it would have been open to Pre-Trial Chamber II to allow the filing of
additional evidence, the Appeals Chamber noted that ‘it was not obliged to do so,

49 See, eg, Prosecutor v Ruto (Reply on behalf of the Government of Kenya to the Responses of
the Prosecutor, Defence, and OPCV to the Government’s Application pursuant to Article 19
of the Rome Statute) (ICC, Pre-Trial Chamber II, Case No ICC-01/09-01/11-89, 13 May
2011) [26] (‘Ruto Admissibility Reply’), with its seven annexes.
50 Kenya’s Document in Support of Appeal Application (ICC, Appeals Chamber, Case No
ICC-01/09-02/11-130, 20 June 2011) [83], quoting Ruto Admissibility Reply (ICC, Pre-Trial
Chamber II, Case No ICC-01/09-01/11-89, 13 May 2011) [26]–[28].
51 Muthaura Appeal (ICC, Appeals Chamber, Case No ICC-01/09-02/11-274, 30 August 2011)
[45]; Ruto Appeal (ICC, Appeals Chamber, Case No ICC-01/09-01/11-307, 30 August
2011) [46].
52 See, eg, Kenya’s Document in Support of Appeal Application (ICC, Appeals Chamber, Case
No ICC-01/09-02/11-130, 20 June 2011) [12], [60], [63].
53 Muthaura Appeal (ICC, Appeals Chamber, Case No ICC-01/09-02/11-274, 30 August 2011)
[96]; Ruto Appeal (ICC, Appeals Chamber, Case No ICC-01/09-01/11-307, 30 August
2011) [98].
2012] Case Note: The Kenya Decisions 13

nor could Kenya expect to be allowed to present additional evidence’.54 Rather,

the Appeals Chamber held that it was up to the Government of Kenya to ensure
that the admissibility challenge was sufficiently substantiated by evidence at the
point when it was filed.55 Thus, a state challenging admissibility cannot expect to
be allowed to amend an admissibility challenge, nor can it expect that it will be
allowed to submit a substantial amount of additional evidence once the
admissibility challenge has already been filed. The dissenting judge of the
Appeals Chamber, Judge Anita Ušacka, strongly disagreed with this view, noting
that that ‘the assessment of complementarity is the outcome of an ongoing
process’.56 Judge Ušacka explained that Pre-Trial Chamber II should have
granted the government more time to submit additional evidence and could have
requested Kenya to provide additional documentation to support the claim that a
national investigation was in fact ongoing, rather than simply dismissing the
challenge on the basis of the information provided by government.57
Thirdly, the Appeals Chamber elaborated on some of the procedural rights
relevant for a state which wishes to challenge the admissibility of a case. The
Government of Kenya had argued that Pre-Trial Chamber II had erred by
refusing it the possibility of presenting its arguments in an oral hearing before
deciding on the admissibility challenge. In particular, the government wanted its
police commissioner to testify before the Chamber concerning the progress of
the national proceedings.58 However, the Appeals Chamber asserted that
‘although there might have been reasons to hold an oral hearing’, the Pre-Trial
Chamber’s choice to decide the application only on the basis of the written
documents submitted did not constitute an abuse of that Chamber’s discretion.59
Finally, the Appeals Chamber elaborated on the question of whether there is a
procedural connection between an admissibility challenge and a request for
assistance under art 93(10) of the Rome Statute. Article 93(10)(a) stipulates:
The Court may, upon request, cooperate with and provide assistance to a State
Party conducting an investigation into or trial in respect of conduct which
constitutes a crime within the jurisdiction of the Court or which constitutes a
serious crime under the national law of the requesting State.

54 Muthaura Appeal (ICC, Appeals Chamber, Case No ICC-01/09-02/11-274, 30 August 2011)

[96]; Ruto Appeal (ICC, Appeals Chamber, Case No ICC-01/09-01/11-307, 30 August
2011) [98].
55 Muthaura Appeal (ICC, Appeals Chamber, Case No ICC-01/09-02/11-274, 30 August 2011)
[64]–[65], [96]–[99]; Ruto Appeal (ICC, Appeals Chamber, Case No ICC-01/09-01/11-307,
30 August 2011) [64]–[65], [98]–[101].
56 Muthaura Appeal Dissent (ICC, Case No ICC-01/09-02/11-342, 20 September 2011) [20];
Ruto Appeal Dissent (ICC, Appeals Chamber, Case No ICC-01/09-01/11-336, 20 September
2011) [20].
57 See, eg, Muthaura Appeal Dissent (ICC, Case No ICC-01/09-02/11-342, 20 September
2011) [21], [24], [28]; Ruto Appeal Dissent (ICC, Appeals Chamber, Case No ICC-01/09
-01/11-336, 20 September 2011) [21], [24], [28].
58 Kenya’s Document in Support of Appeal Application (ICC, Appeals Chamber, Case No
ICC-01/09-02/11-130, 20 June 2011) [66], [67].
59 Muthaura Appeal (ICC, Appeals Chamber, Case No ICC-01/09-02/11-274 30, August 2011)
[108]–[112]; Ruto Appeal (ICC, Appeals Chamber, Case No ICC-01/09-01/11-307, 30
August 2011) [110]–[114]. Judge Ušacka also disagreed with the majority on this issue,
strongly implying that Pre-Trial Chamber II should have granted Kenya the possibility to
present its arguments in an oral hearing: Muthaura Appeal Dissent (ICC, Case No
ICC-01/09-02/11-342, 20 September 2011) [24]; Ruto Appeal Dissent (ICC, Appeals
Chamber, Case No ICC-01/09-01/11-336, 30 August 2011) [24].
14 Melbourne Journal of International Law [Vol 13

On 21 April 2011, the Government of Kenya attempted to make use of this

provision, requesting
the transmission of all statements, documents, or other types of evidence obtained
by the Court and the Prosecutor in the course of the ICC investigations into the
Post-Election Violence in Kenya, including into the six suspects presently before
the ICC.60
While the government had requested Pre-Trial Chamber II to decide on this
request before ruling on the admissibility challenge, the Pre-Trial Chamber did
not agree that there was any connection between the two filings, and hence did
not find any obstacles to ruling on the request for assistance (against the
government) only after the admissibility challenge had been decided.61 In its
appeal, the Government of Kenya stated that receiving assistance from the ICC
prosecutor was directly relevant to the admissibility challenge, and that it was
therefore ‘unfair to have denied [Kenya] the opportunity to rely on such evidence
in its national investigations and consequently its admissibility challenge’.62 The
Appeals Chamber noted in this regard that although the Pre-Trial Chamber
‘could have first decided on the Request for Assistance and then on the
Admissibility Challenge, it was not obliged to do so’.63

VI SHOULD THE ICC JUDGES HAVE DISMISSED KENYA’S ADMISSIBILITY

CHALLENGE ON GROUNDS OF INACTION?
Although the Government of Kenya has officially expressed its commitment
to ICC intervention in the country,64 it is a well-known ‘secret’ that large
segments of the political leadership remain opposed to the prospects of
international justice (or any other form of criminal justice) with regard to the
individuals responsible for orchestrating the 2008 post-election violence. As a
clear indication of political elites’ opposition to the ICC, the Kenyan Parliament
passed a motion in December 2010, which requires the government to withdraw
from the Rome Statute (which the government however did not act on, probably
due to the correct understanding that doing so would not have any ramifications

60 Situation in the Republic of Kenya (Request for Assistance on behalf of the Government of
the Republic of Kenya pursuant to Article 93(10) and Rule 194) (ICC, Pre-Trial Chamber II,
Case No ICC-01/09-58, 21 April 2011) [2].
61 Muthaura Pre-Trial (ICC, Pre-Trial Chamber II, Case No ICC-01/09-02/11-96, 30 May
2011) [30], [31]; Ruto Pre-Trial (ICC, Pre-Trial Chamber II, Case No ICC-01/09-01/11
-101, 30 May 2011) [34], [35]; Situation in the Republic of Kenya (Decision on the Request
for Assistance Submitted on behalf of the Government of the Republic of Kenya pursuant to
Article 93(10) of the Statute and Rule 194 of the Rules of Procedure and Evidence) (ICC,
Pre-Trial Chamber II, Case No ICC-01/09-63, 29 June 2011).
62 Kenya’s Document in Support of Appeal Application (ICC, Appeals Chamber, Case No
ICC-01/09-02/11-130, 20 June 2011) [74], [77].
63 Muthaura Appeal (ICC, Appeals Chamber, Case No ICC-01/09-02/11-274, 30 August 2011)
[121]; Ruto Appeal (ICC, Appeals Chamber, Case No ICC-01/09-01/11-307, 30 August
2011) [123].
64 For a recent statement confirming the government’s commitment to the ICC process, see
Office of the Government Spokesperson, ‘Government Response to the Media Statement by
ICC Prosecutor Luis Moreno Ocampo’ (Press Release, 14 March 2011)
<http://www.communication.go.ke/media.asp?id=1278>, noting that ‘[t]he government
wishes to inform the world that we understand, appreciate and respect the Rome Statute, the
rights enshrined by the United Nations and the ICC process’.
2012] Case Note: The Kenya Decisions 15

for the government’s obligations in connection to the ongoing ICC cases).65

Further, given that the Government of Kenya made reference to ongoing
domestic accountability efforts in connection to the admissibility challenge, it is
rather contradictory that the government at the same time has claimed that an
accountability process involving high-profile politicians is undesirable because it
presents a danger to peace and stability (a claim that was made in connection to
the attempt to obtain a UN Security Council deferral of the ICC cases).66
This resistance to the accountability process is hardly surprising given that
some of those charged by the ICC are among the country’s top politicians and
government officials. Though Uhuru Kenyatta was forced to resign as Minister
of Finance following Pre-Trial Chamber II’s ruling in January 2012 that he will
stand trial, he continues to serve as Deputy Prime Minister and has made it clear
that he intends to run for the presidency in the 2013 elections. William Ruto,
who was also committed for trial, does not hold any government posts, but is
similarly considered among the frontrunners for the 2013 presidential elections.
A third suspect, Francis Muthaura, held the position of head of Kenya’s civil
service at the point when the admissibility challenge was filed, but has recently
stepped aside as a consequence of the January 2012 ruling that he too will stand
trial.67
Examined in this context, the present author is not alone in assuming that the
real objective of the Government of Kenya’s admissibility challenge was to
construct another obstacle to the criminal prosecution of those responsible for
planning and organising the 2008 post-election violence.68 After all, the
government had had more than three years to prosecute those responsible for the
post-election violence, but the political leadership has on several occasions voted
down bills to establish a local tribunal to the deal with the violence.69 Statements
made by high-ranking government officials support the interpretation that the

65 For a detailed analysis of the various moves made by the leadership aimed at ending ICC
involvement, see Hansen, above n 16.
66 Ibid.
67 Ibid. For a brief comment on the events after Pre-Trial Chamber II confirmed the charges
against four of the original six suspects, see, eg, Bernard Namunane, ‘Timeline: ICC Cases
against Kenya’s Ocampo Six’, Daily Nation (online), 26 January 2012
<http://www.nation.co.ke/ICCLive>.
68 The Director of the Kenyan branch of the International Commission of Jurists, George
Kegoro, explains:
The government has the right to challenge admissibility, but if wise counsel
prevailed, they would spend that time doing something else. If government was
saying it has got something of its own that it’s falling back on, then you would
sympathise with the government. But they are saying let’s not have ICC and instead
let’s have nothing. They are saying — leave us alone.
George Kegoro quoted in Mugumo Munene, ‘State Enlists Queen’s Counsel in Hague
Cases’, Daily Nation (online), 12 March 2011
<http://www.nation.co.ke/News/politics/State+enlists+Queens+Counsel+in+Hague+cases+/
-/1064/1123962/-/6qr9cm/-/index.html>.
69 The Kenyan Parliament and cabinet have on various occasions rejected bills that would have
established a special tribunal as recommended by the Panel of Eminent African Experts,
headed by former UN Secretary General Kofi Annan. See further South Consulting, ‘Kenya
National Dialogue and Reconciliation Monitoring Project: Reforms and Preparedness for
Elections’ (Review Report, May 2012) [14] <http://www.dialoguekenya.org/
Monitoring/MAY%20REPORT%20%28Released%20June%202012%29.pdf>. For an
analysis of the motives behind these moves, see generally Hansen, above n 16.
16 Melbourne Journal of International Law [Vol 13

important parts of the leadership in Kenya remain opposed to the accountability

process, and would perhaps have interfered in any potential domestic
accountability process. Vice President Kalonzo Musyoka, for example, has stated
as follows:
You [Ruto and Kenyatta] should not lose hope because of being named in the ICC
list. The Government will do its best to assist you because we want to ensure that
every Kenyan feels part and parcel of the next dispensation.70
With this in mind, the ICC judges certainly seem to have reached a reasonable
conclusion when rejecting Kenya’s admissibility challenge. However, when
analysing the information provided by the Government of Kenya in objective
terms, it is hard to reach a conclusion that there was investigatory ‘inaction’ in
the country within any ordinary meaning of that word.71 As noted by dissenting
Judge Ušacka, the material that Kenya submitted ‘contained specific information
as to the investigations that were carried out by Kenya’, including information
that indicated that a case file had been opened on one of the ICC suspects,
William Ruto.72 More specifically, the information provided by Kenya ‘referred
to him as “suspect”, indicated his case file number, and stated where the case
was pending’.73 It also contained information indicating ‘the scope of the
investigations and the allegations against Mr Ruto, including the location and
time of the alleged criminal conduct’.74 As further noted by Judge Ušacka, the
government had provided information indicating that ‘orders had been given,

70 ‘Raila Rivals Toy with Single Candidate Plan’, Daily Nation (online), 16 January 2011
<http://www.nation.co.ke/News/politics/Raila+rivals+toy+with+single+candidate+plan++/-/
1064/1090904/-/13rakrr/-/index.html>.
71 See generally Ruto Admissibility Challenge (ICC, Pre-Trial Chamber II, Case No
ICC-01/09-01/11-19, 31 March 2011) in combination with the 22 annexes filed with
Prosecutor v Ruto (Filing of Annexes of Materials to the Application of the Government of
Kenya pursuant to Article 19 of the Rome Statute) (ICC, Pre-Trial Chamber II, Case No
ICC-01/09-01/11-64, 21 April 2011); Ruto Admissibility Reply (ICC, Pre-Trial Chamber II,
Case No ICC-01/09-01/11-89, 13 May 2011).
72 Muthaura Appeal Dissent (ICC, Case No ICC-01/09-02/11-342, 20 September 2011) [8];
Ruto Appeal Dissent (ICC, Appeals Chamber, Case No ICC-01/09-01/11-336, 20 September
2011) [8]. Judge Ušacka cites annex 2 attached to the 13 May 2011 reply by Kenya, which
is a report conducted by the director of Kenya’s Criminal Investigations Department
concerning the progress of investigations into the 2008 post-election violence: see Ruto
Admissibility Reply (ICC, Pre-Trial Chamber II, Case No ICC-01/09-01/11-89-Anx2, 13
May 2011) (‘Ruto Admissibility Reply (Annex 2)’).
73 Muthaura Appeal Dissent (ICC, Case No ICC-01/09-02/11-342, 20 September 2011) [8];
Ruto Appeal Dissent (ICC, Appeals Chamber, Case No ICC-01/09-01/11-336, 20 September
2011) [8]. See also further Ruto Admissibility Reply (Annex 2) (ICC, Pre-Trial Chamber II,
Case No ICC-01/09-01/11-89-Anx2, 13 May 2011).
74 Muthaura Appeal Dissent (ICC, Case No ICC-01/09-02/11-342, 20 September 2011) [8];
Ruto Appeal Dissent (ICC, Appeals Chamber, Case No ICC-01/09-01/11-336, 20 September
2011) [8]. See further Ruto Admissibility Reply (Annex 2) (ICC, Pre-Trial Chamber II, Case
No ICC-01/09-01/11-89-Anx2, 13 May 2011) 2–3, which states:
The investigations have not been completed for various reasons that include
unreliable s [sic] and uncooperative witnesses. Some of the prominent pending cases
include: Nakuru CID Inquiry file No 10/2008, the suspect in this inquiry is Hon
William Samoei Ruto — immediate former Minister for Agriculture. The allegations
were that, the Minister together with others from the Kalenjin community incited
Kalenjin youths to commit violence against non-Kalenjins living in some parts of
Rift Valley Province. The matter is still under investigation because there are some
areas requiring further corroboration inorder to reach to a fair conclusion [sic].
2012] Case Note: The Kenya Decisions 17

apparently by the authorities in charge, to start investigations against the other

five persons under investigation by the Court’.75 In other words, the problem in
Kenya is not that there was a complete absence of investigatory action at the
point when the Court rejected the admissibility challenge, but rather that the real
purpose of the investigative steps made was to succeed with the admissibility
challenge rather than to ensure accountability for the post-election violence.
It would therefore had been more obvious had the Court cited art 17(2) of the
Rome Statute, according to which the Court can determine unwillingness if the
national proceedings are being undertaken for the purpose of ‘shielding the
person concerned from criminal responsibility’, or if those proceedings are not
being ‘conducted independently or impartially, and they were or are being
conducted in a manner which, in the circumstances, is inconsistent with an intent
to bring the person concerned to justice’.76 As will be argued below, the decision
to reject on grounds of inaction, as opposed to unwillingness, should not be
understood as a mere technical question of using the most fitting provisions in
the Rome Statute, as this decision may have implications beyond the Kenyan
cases.

VII CONCLUSIONS
It seems as if international justice is entering a new era. After ten years of
operation, the ICC increasingly appears as an institution with teeth; a Court that
acts decisively, even when its interventions are against the will of state parties.
While the Court’s early years of operation were often characterised, or even
defined, by respect for state sovereignty, there are signs that the balance is now
tipping in favour of international justice.
Perhaps the clearest indication of this shift concerns the struggle over
complementarity that has been canvassed in this note. In the past, the principle of
complementarity was seemingly perceived as a barrier that the ICC needed to
find its way around in order to exercise jurisdiction in instances where states
with territorial jurisdiction over the crimes were supportive of ICC intervention,
though not necessarily unwilling or unable to prosecute themselves. While the
criteria used by the Court to determine investigatory activity at the national
level — namely the test whereby national proceedings must relate to the same
person as well as the same conduct — were developed as a result of the
self-referrals, they have with the Kenyan decisions been ‘exported’ to another
context, as of yet without much controversy. However, there is a fundamental
difference between applying this test in the context of self-referrals as a means of
ensuring that cases can be handled by the ICC when a state party with territorial
jurisdiction so wishes — despite it not necessarily being unwilling or unable to

75 Muthaura Appeal Dissent (ICC, Case No ICC-01/09-02/11-342, 20 September 2011) [8];

Ruto Appeal Dissent (ICC, Appeals Chamber, Case No ICC-01/09-01/11-336, 20 September
2011) [8]. See also Ruto Admissibility Reply (Annex 2) (ICC, Pre-Trial Chamber II, Case No
ICC-01/09-01/11-89-Anx2, 13 May 2011) 3–4, which states:
the Commissioner of Police … tasked the team of investigators to carry out
exhaustive investigations relating to the Ocampo six and other high ranking citizens
[and further noted that the] team is currently on the ground conducting the
investigations as directed.
76 Rome Statute art 17(2).
18 Melbourne Journal of International Law [Vol 13

prosecute the crimes itself — and applying the test where a state with territorial
jurisdiction claims it has the will and ability to try the crimes at issue.
While the recent practice of the ICC concerning complementarity could
simply be seen as a continuation of earlier practice, it could also be seen to
reflect a more general trend of judicial activism in international tribunals,
whereby the judges of the ICC increasingly grant themselves powers that were
not clearly envisaged by the drafters of the Rome Statute.77
Though a seemingly strengthened and active ICC is from some perspectives a
positive development, there is also the danger that the Court might be granting
itself powers that could undermine key principles of the Rome Statute. The
Court’s interpretation of the complementarity principle could end up being an
example of this. Relying on a two-fold test in combination with high thresholds
for determining activity could potentially allow the Court to intervene in
situations where the state in question is both willing and able to prosecute
atrocities, but where the local accountability process does not involve the same
persons and same crimes dealt with by the ICC. For example, should the ICC
exercise jurisdiction in instances where a state has experienced a regime change
and the new government commences a credible accountability process to deal
with the crimes committed by its predecessor, but this process does not end up
targeting the same suspects as implicated in an ICC case, or deals with crimes
not covered by the ICC charges?78
Though in some ways different from the problems related to the Kenyan
situation, it will be interesting to see how the Court decides to deal with the
Libyan situation, where the transitional government has made it clear that it
wishes to prosecute the ICC suspects domestically. At the time of writing, it
appears that another clash between the Court and an African state is under way,
as Pre-Trial Chamber I ruled in early April 2012 that no additional delays will be
accepted and that Libya must start making arrangements for the transfer of Saif
al-Islam Gaddafi to The Hague, while the transitional government has made it
clear that it will file an admissibility challenge.79

THOMAS OBEL HANSEN*

77 See further William A Schabas, ‘Prosecutorial Discretion v Judicial Activism at the

International Criminal Court’ (2008) 6 Journal of International Criminal Justice 731; Jared
Wessel, ‘Judicial Policy-Making at the International Criminal Court: An Institutional Guide
to Analyzing International Adjudication’ (2006) 44 Columbia Journal of Transnational Law
377.
78 Because the crimes falling under the ICC’s jurisdiction are typically committed by a large
number of individuals, such a situation is not a mere theoretical construct, but a rather likely
scenario. On the selectivity of prosecutions of international crimes, see generally Mark A
Drumbl, Atrocity, Punishment, and International Law (Cambridge University Press, 2007)
151–4.
79 Prosecutor v Gaddafi (Decision regarding the Second Request by the Government of Libya
for Postponement of the Surrender of Saif al-Islam Gaddafi) (ICC, Pre-Trial Chamber I,
ICC-01/11-01/11-100, 4 April 2012).
* BSc (Aalborg); LLB, LLM, PhD (Aarhus), Assistant Professor of International Law,
Department of International Relations, United States International University, Kenya. The
author wishes to thank the anonymous referees for their insightful comments on an earlier
draft of this case note.