Kenya vs. The ICC Prosecutor

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. This Harvard International Law Journal essay evaluates that first ICC Appeals Chamber ruling on a State Party’s use of the complementarity principle to contest the court’s jurisdiction. It argues that the Court’s introduction of the “same person, substantially same conduct” test has effectively turned complementarity into primacy. Under primacy, which applied in the UN ad hoc tribunals, the national courts are obliged to relinquish their cases upon the request of the international tribunal. I argue that the ICC’s denial of Kenya’s admissibility challenge, when the state was taking some albeit admittedly imperfect investigative steps to address the 2007-2008 post-election violence, deviates from the underlying precepts of “positive complementarity”. The high threshold that the ICC judges have set for complementarity may limit the Court’s effectiveness because it undermines states’ ability to assert their first right to prosecute.

Keywords: International Criminal Court, Pre-Trial Chamber II, decision on the authorization of an investigation in Kenya, proprio motu prosecutorial investigations, crimes against humanity, Article7(2)(a) of the Rome Statute, contextual elements of crimes against humanity, state or organizational policy

JEL Classification: K14, K19, K32, K33, N40