The International Criminal Court (icc) proceedings against Mr Ruto and Mr Kenyatta have been hindered by a series of arguments and counterarguments aiming either to avoid prosecution altogether or, at best, to cause significant delays. Moreover, the African Union (au) has repeatedly provided additional support to Kenya’s standpoint, furthering the interests of the region over international criminal justice. Following Kenya’s legitimate efforts to retain the jurisdiction over the crimes that took place in 2007–2008, the status of the defendants became an obstacle to effective prosecutions, giving rise to further areas of dispute, namely immunity, trial attendance and a general uncooperative attitude towards Prosecution requests, leaving the icc virtually unable to proceed. This article highlights the current problems encountered by the icc in relation to the Kenya situation, and argues that a stronger collaboration with the African Union (au) is vital for the icc effectiveness in that region.
Following the civil unrest in Kenya in 2008 and Kenya’s inability to prosecute the perpetrators of those crimes, the International Criminal Court (icc) prosecutor initiated proceedings proprio motu against Mr Uhuru Kenyatta and Mr William Ruto. Despite the impending prosecutions, Mr Kenyatta and Mr Ruto were elected as President and Deputy President of Kenya in 2013. Due to their prominent status, they both applied (separately) to be excused from continuous attendance at their trial proceedings. Mr Ruto’s argument was heard first, and Trial Chamber (A) granted the excusal request. In the course of Mr Kenyatta’s hearing by Trial Chamber (B), but before the Appeals Chamber reversed Mr Ruto’s Trial Chamber (A) decision, the issue of judicial economy was raised by the prosecution. Their contention was that Trial Chamber (B) should in fact wait for the Appeals Chamber’s final decision, but the Chamber dismissed the argument and proceeded with the decision at hand. This article contends that the Court missed a real opportunity to place judicial economy within the human rights discourse, particularly in the light of Article 21(3) of the Rome Statute of the International Criminal Court.
The International Criminal Court’s (ICC) policy and practice of self-referrals has attracted some degree of academic criticism. This has been due partly because the procedure itself was, according to some opinions, never quite envisaged in the original Rome Statute, and partly because the concept of a State self-referral appears to contradict the Rome Statute objective of the ICC as a Court of complementarity. Following Gabon’s self-referral in 2016, and in view of the recent termination of the ICC Prosecutor’s Preliminary Examinations in Gabon, this paper argues that African States’ self-referral practice continues to represent a step backwards for African local justice and accountability. The fact that in this particular situation the necessary threshold was not met is actually not relevant for the argument put forward in this paper, namely that this practice should now be put under scrutiny rather than accepting, at face value, a self-referral whenever an (African) State proposes it. The strengthening of local accountability and the transformation of the local justice landscape should be considered as the ICC long-term objectives, and more dialogue (as well as political pressure) should be contemplated in order to gently coerce States to take on investigations and prosecutions of international crimes.
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