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The ICC Kenya Case: Implications and Impact for Propio Motu and Complementarity

Publication Title

Washington University Global Studies Law Review

Abstract

The situation in Kenya culminating in the confirmation of charges against four individuals for crimes against humanity in the International Criminal Court (ICC) has significantly enhanced understanding of fundamental concepts contained within the Rome Statute, the Court’s controlling statute. For example, the jurisprudence in this case has further elucidated the principle of proprio motu as set forth in the Rome Statute as well as the particular contexts in which it may be appropriate for theProsecutor to exercise her authority to investigate a case under this principle. The situation in Kenya also sheds further light on the fundamental concept of “complementarity” within the ICC system since it is the first time a state party has challenged the admissibility of a case before the ICC under this principle. In particular, the case provides further clarification of the evolving criteria to be used to determine if the ICC must defer to a national jurisdiction under the complementarity principle.

This article will analyze in depth the Prosecutor’s request to investigate the situation in Kenya, the Pre-Trial Chamber’s (PTC’s) authorization of this investigation, Kenya’s application to the PTC to find the case inadmissible before the ICC under the complementarity principle, the determinations by the PTC and Appeals Chamber on the admissibility issue, and the PTC’s decision to issue summonses and subsequentlyconfirm charges for particular Kenyan defendants. Not only does this analysis provide a more nuanced understanding of the proprio motu power and complementarity principle that are central to the ICC’s functioning and continued existence, but it also helps to illuminate the evolution of the Kenya case from its pre-trial stages to its current point at the beginning of the trials, which have begun against two of the four individuals whose charges related to the post-election violence in Kenya were confirmed by the ICC. These individuals include prominent Kenyan officials, including the current Kenyan Deputy President.

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