Skip to main content
SpringerLink
Log in

The Kenya Situation Before the ICC

  • Chapter
  • First Online:
The Post-Election Violence in Kenya

Part of the book series: International Criminal Justice Series ((ICJS,volume 2))

Abstract

As part of the road map for criminal accountability for the post-election violence in Kenya, parties which were involved in the violence agreed categorically that the ICC’s intervention would be invoked if the agreed domestic judicial mechanisms failed. This agreement would appear to be evidence of a strong determination to break the “culture of impunity” which had become entrenched in Kenya as far as gross violations of human rights are concerned. However, when the domestic mechanisms actually failed and the ICC intervened, both legal and political “battles” ensued. This chapter addresses the legal issues relating to or arising from the Kenya situation before the ICC, covering four main areas. Firstly, it clarifies and examines the trigger mechanism employed; jurisdictional issues and the scope of the charges and ICC investigations. Secondly, it identifies and analyses contentious legal issues arising in relation to the definition of crimes against humanity and the principle of complementarity. Thirdly, it evaluates Kenya’s legal responses as well as political and diplomatic strategies and reactions to the ICC’s intervention. Fourthly, it examines the future of the ICC process in Kenya in light of Kenya’s 2013 presidential election results and other specific developments at domestic level.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 84.99
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Hardcover Book
USD 109.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    The word “situation” as used in the ICC legal regime refers to events suggesting that a crime or crimes under the jurisdiction of the ICC have been or are being committed. It entails a general state of affairs defined in terms of temporal, territorial and personal parameters, thus specifying when, where and sometimes who committed or is committing the alleged crime(s). See Decision on the Applications for Participation in the Proceedings of VPRS1, VPRS2, PRS3, VPRS4, VPRS5 and VPRS6, Situation in the DRC (ICC-01/04-101-tEN), PTC, 17 January 2006, para 65.

  2. 2.

    For details on the procedural phases of proceedings before the ICC, i.e. pre-trial, trial and appeal phases, see DeSmet 2009, pp. 405–440; Kress 2003, pp. 606–14.

  3. 3.

    See Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19), PTC, 31 March 2010.

  4. 4.

    Decision on the Summonses to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Situation in the Republic of Kenya (ICC-01/09-01/11-01), PTC, 8 March 2011. This decision defines the first case out of the Kenya situation, hereafter cited as Ruto, Kosgey and Sang.

  5. 5.

    Decision on Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Situation in the Republic of Kenya (ICC-01/09-02/11-01), PTC, 8 March 2011. This decision defines the second case out of the Kenya situation, hereafter cited as Muthaura, Kenyatta and Ali.

  6. 6.

    Decision on the Confirmation of Charges, Ruto, Kosgey and Sang (ICC-01/09-01/11-373), PTC, 23 January 2012; Decision on the Confirmation of Charges, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-382-Red), PTC, 23 January 2012.

  7. 7.

    Decision on Prosecution Requests to add Witnesses and Evidence and Defence Requests to Reschedule the Trial Start Date, Ruto and Sang (ICC-01/09-01/11-762), TC, 3 June 2013.

  8. 8.

    See Statement by ICC Prosecutor on the notice to withdraw charges against Muthaura http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/OTP-statement-11-03-2013.aspx. Accessed August 2014.

  9. 9.

    The commencement date of the Kenyatta case was postponed several times on account of the many challenges faced by the Prosecution in preparing their case, including, inter alia, recantation of evidence by key witnesses and allegedly lack of cooperation from the Kenyan government (cf. infra Sects. 6.7.3 and 6.7.5). For the chronology of these postponements see Public Redacted Version of “Decision on Commencement Date of Trial”, Kenyatta (ICC-01/09-02/11-763-Red), TC, 20 June 2013; Decision Adjourning the Commencement of Trial, Kenyatta (ICC-01/09-02/11-847), TC, 31 October 2013; Order Vacating Trial Date of 5 February 2014, Convening a Status Conference, and Addressing other Procedural Matters, Kenyatta (ICC-01/09-02/11-886), TC, 23 January 2014; Decision on Prosecution’s Applications for a Finding of Non-compliance pursuant to Article 87(7) and for an Adjournment of the Provisional Trial Date, Kenyatta (ICC-01/09-02/11-908), TC, 31 March 2014; Prosecution Notice Regarding the Provisional Trial Date, Kenyatta (ICC-01/09/02/11-944), TC, 5 September 2014; Order vacating Trial Date of 7 October 2014, Convening two Status Conferences, and Addressing Other Procedural Matters, Kenyatta (ICC-01/09-02/11-954), TC, 19 September 2014.

  10. 10.

    ICC Statute, Articles 13(a) and 14. For details see Marchesi 2008, pp. 575–579. Note that according to Article 12(3) of the ICC Statute, a non-state party can also be referred through this mechanism but only if it has accepted the jurisdiction of the ICC.

  11. 11.

    ICC Statute, Article 13(b) read together with the UN Charter, Chapter VII, Article 39.

  12. 12.

    ICC Statute, Articles 13(c) and 15. For greater detail see Bergsmo and Pejic 2008a, pp. 581–593.

  13. 13.

    Available at http://www.icc-cpi.int/iccdocs/PIDS/legal-texts/RulesProcedureEvidenceEng.pdf. Accessed August 2014.

  14. 14.

    ICC Statute, Article 15(1).

  15. 15.

    See Ibid., Article 15(2) and (3), read together with Article 53(1)(a) (b) and (c) and Rule 48.

  16. 16.

    Four different evidentiary standards are used at different phases of proceedings under the ICC Statute. The lowest standard is “a reasonable basis to proceed with an investigation” (Articles 15 and 53), which is applied to determine whether an investigation should be authorized. The second higher standard is “reasonable grounds to believe” that the suspected person has committed a core crime (Article 58), which is applied to determine whether an arrest warrant or summons to appear should be issued. The third higher standard is “sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged” (Article 61(7)), which is applied to determine whether or not to confirm the charges against specific accused persons. The fourth and highest evidentiary standard is “proof beyond reasonable doubt” (Article 63(3)), which is applied to determine the guilt or innocence of the accused person. For more details, see Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19), PTC, 31 March 2010, paras 21–35.

  17. 17.

    Investigation will not be authorized if the request does not disclose a “reasonable basis to proceed”. However, it can be authorized subsequently based on new facts and evidence. See ICC Statute, Article 15(4) and (5).

  18. 18.

    Cap. 102 (R.E 2009). Pursuant to this legislation, the Waki Commission was established via the Kenya Gazette Notice No. 4473, Vol. CX-No. 41 of 23 May 2008.

  19. 19.

    See Parliament of Kenya 2008, Doc. Hansard 04.12.08, p. 3874; Parliament of Kenya 2009, Doc. Hansard 27.01.09, pp. 4426 et seq.

  20. 20.

    Guest lecture delivered on 9 March 2011 at the South African-German Centre for Transnational Criminal Justice, University of the Western Cape, South Africa. The author was in attendance.

  21. 21.

    So far, States have used simple letters to make self-referrals. See, e.g., ICC Press Release, ICC-OTP-20040419-50, 19 April 2004 (DRC referral) and ICC Press Release ICC-OTP-20050107-86, 7 January 2005 (Central African Republic referral).

  22. 22.

    In Kenya, the powers to ratify international treaties (and thus, to officially transact on behalf of Kenya with respect to issues pertaining to Kenya’s rights and obligations under such treaties) reside exclusively with the Executive. See infra Sect. 6.6.3.2.

  23. 23.

    See Prosecutor’s Request for Authorisation of an Investigation Pursuant to Article 15, Situation in the Republic of Kenya (ICC-01/09-3), 26 November 2009, p. 3.

  24. 24.

    See, e.g. OTP’s statement in relation to events in Kenya. http://www.icc-cpi.int/NR/rdonlyres/1BB89202-16AE-4D95-ABBB-4597C416045D/0/ICCOTPST20080205ENG.pdf. Accessed August 2014. See also “ICC Prosecutor reaffirms that the situation in Kenya is monitored by his office”. http://www.icc-cpi.int/NR/rdonlyres/06455318-783E-403B-8C9F-8E2056720C15/279793/KenyaOTPpubliccommunication20090211.pdf. Accessed August 2014.

  25. 25.

    See ICC Office of the Prosecutor 2009, p. 2; UN General Assembly 2009, para 49.

  26. 26.

    See Office of the Prosecutor 2006, pp. 2, 7; International Criminal Court 2003c. See also Ambos 2007, pp. 55–68; Cote 2012, pp. 408–410.

  27. 27.

    See Bergsmo and Pejic 2008a, pp. 581–585; Schabas 2011, pp. 176–182 (noting, at p. 177, that there was fear that the position of the prosecutor “might be occupied by an NGO-friendly litigator with an attitude”); William 2008, pp. 343–349. On the role of NGOs in the adoption of the ICC Statute, see Ellis 2011, pp. 146–148; Struett 2008.

  28. 28.

    Ambos 2007, pp. 55–56; Schabas 2011, p. 178; Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19), PTC, 31 March 2010, para 18.

  29. 29.

    See, e.g., Cote 2012, pp. 411–412; Hansen 2013. See Jalloh 2012b, pp. 203 et seq.; NewAfrican 2012, pp. 10–29 (NB. This entails a collection of articles taking a clearly biased perspective (against the ICC) on the work of the Court in Africa); Murungu 2011, pp. 1067 et seq.; Mills 2012, pp. 404 et seq.; Murithi 2012, pp. 4–9, Murithi 2013; Villa-Vicencio 2011, pp. 38–41; Werle et al. 2014. For more details see infra Sect. 6.7.4.

  30. 30.

    Cf. Ambos 2013, pp. 499 et seq.; Keppler 2011, pp. 1–14; Sriram 2009, pp. 320 et seq.

  31. 31.

    See International Criminal Court 2011. By the end of December 2013, for instance, the OTP had received a total of 10,470 requests for proprio motu investigations. See ICC-OTP, “Preliminary Examinations” http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/comm%20and%20ref/Pages/communications%20and%20referrals.aspx. Accessed September 2014.

  32. 32.

    See Muller and Stegmiller 2010, p. 1271.

  33. 33.

    This has, e.g., been described as a “ridiculous love of self-referrals”. See Heller 2011.

  34. 34.

    Cf. Akhavan 2005, p. 403 et seq.; Schiff 2008, pp. 198–199.

  35. 35.

    See Application on behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the ICC Statute, Ruto, Kosgey and Sang (ICC-01/09-02/11-26), PTC, 31 March 2011, para 3.

  36. 36.

    On this see generally Bantekas 2010, pp. 439–440; Hafner 2005, pp. 323 et seq.

  37. 37.

    Cf. Brown and Sriram 2012, pp. 244 et seq.

  38. 38.

    Prosecutor’s Request for Authorisation of an Investigation Pursuant to Article 15, Situation in the Republic of Kenya (ICC-01/09-3), PTC, 26 November 2009, para 50.

  39. 39.

    Ibid., para 93.

  40. 40.

    Ibid., para 114.

  41. 41.

    Ibid., para 3.

  42. 42.

    See Kenya National Commission on Human Rights 2007, p. 6.

  43. 43.

    Corrigendum to the Report on Victims’ Representations and Annexes 1 and 5, Situation in the Republic of Kenya (ICC-01/09-17-Corr-Red), PTC, 29 March 2010, paras 95–105.

  44. 44.

    Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19), PTC, 31 March 2010, para 205.

  45. 45.

    Ibid. (emphasis added).

  46. 46.

    Ibid., para 206 (emphasis added).

  47. 47.

    Rastan 2011, pp. 434–437.

  48. 48.

    E.g. the situation in the Central African Republic was referred to the ICC in 2005 following an attempted coup, and only one person, Jen-Pierre Bemba, was subsequently indicted in 2008. However, the Prosecutor left the investigations open-ended. Seven years later, in March 2013, when another coup happened, the Prosecutor issued a statement reminding the warring groups that still the ICC had jurisdiction on the basis of the 2005 referral. See Prosecutor’s Statement in relation to Central African Republic, 22 March 2013 http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports%20and%20statements/statement/Pages/otp-statement-CAR-22-03-2013.aspx. Accessed August 2014.

  49. 49.

    See, e.g. Bergsmo and Kruger 2008, pp. 1065–1076.

  50. 50.

    ICC Statute, Article 11(1).

  51. 51.

    Ibid., Article 21(2).

  52. 52.

    Decision on the Authorisation of an Investigation, Situation in the Republic of Cote D'ivoire (ICC-02/11-14), PTC, 3 October 2011, para 179. This is in line with a ruling of the Pre-Trial Chamber in the DRC situation, which noted that a single situation “can include not only crimes that had already been or were being committed at the time of the referral, but also crimes committed after that time, insofar as they are sufficiently linked to the situation of crisis referred to the Court as ongoing at the time of the referral”. See Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest against Callixte Mbarushimana, Situation in the DRC (ICC-01/04-01/10-1), PTC, 28 September 2010, para 6.

  53. 53.

    Corrigendum to the Report on Victims’ Representations and Annexes 1 and 5, Situation in the Republic of Kenya (ICC-01/09-17-Corr-Red), 29 March 2010, paras 109–113.

  54. 54.

    Prosecutor’s Request for Authorisation of an Investigation Pursuant to Article 15, Situation in the Republic of Kenya (ICC-01/09-3), PTC, 26 November 2009, para 93.

  55. 55.

    Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19), PTC, 31 March 2010, para 209.

  56. 56.

    ICC Statute, Article 15(5).

  57. 57.

    See also Kenya Truth, Justice and Reconciliation Commission Report 2013, Vol. III, pp. 39–80. See also supra Sect. 3.4.3.3.

  58. 58.

    Human Rights Watch 2008, pp. 11–14.

  59. 59.

    Ibid., pp. 27–28. See also generally Kenya National Commission on Human Rights 2008a; United Nations Development Programme 2009.

  60. 60.

    Human Rights Watch 2008, pp. 19–26.

  61. 61.

    See Kenya National Human Rights Commission 2008b, pp. 23–87 (documenting the medical reports of 26 victims, including pictures showing severe bodily injuries).

  62. 62.

    Human Rights Watch 2008, pp. 27–34; Human Rights Watch 2011.

  63. 63.

    Human Rights Watch 2008, pp. 39–42.

  64. 64.

    Ibid., p. 19.

  65. 65.

    Ibid., p. 15. See also Kenya National Commission on Human Rights 2008a, p. 20.

  66. 66.

    Human Rights Watch 2008, p. 45.

  67. 67.

    Kenya Truth, Justice and Reconciliation Commission Report 2013, Vol. IV, p. 68 (specifically see Annex 1, theme/subject no. 16).

  68. 68.

    See Ibid., para 133.

  69. 69.

    See Ocampo's statement on Kenya [video], published on You Tube by NTV Kenya, 1 April 2012 http://www.youtube.com/watch?v=Pg4jxfsXT98. Viewed September 2014.

  70. 70.

    See Document Containing Charges, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-257-AnxA), PTC, 19 August 2011, pp. 38–43; Document Containing Charges, Ruto, Kosgey and Sang (ICC-01/09-01/11-261-AnxA), PTC, 15 August 2011, pp. 35–38.

  71. 71.

    See Decision on the Confirmation of Charges, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-382-Red), PTC, 23 January 2012, paras 231–280; Decision on the Confirmation of Charges, Ruto, Kosgey and Sang (ICC-01/09-01/11-373), PTC, 23 January 2012, paras 223–281.

  72. 72.

    Document Containing Charges, Ruto, Kosgey and Sang (ICC-01/09-01/11-261-AnxA), PTC, 15 August 2011, paras 37 and 101.

  73. 73.

    Decision on the Confirmation of Charges, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-382-Red), PTC, 23 January 2012, para 268–269.

  74. 74.

    See e.g., Request by the Victims’ Representative for Authorisation by the Chamber to Make Written Submissions on Specific Issues of Law and/or Fact, Ruto, Kosgey and Sang (01/09-01/11-263), PTC, 15 August 2011.

  75. 75.

    ICC Statute, Article 7(2)(d) (emphasis added).

  76. 76.

    Decision on the Confirmation of Charges, Ruto, Kosgey and Sang (ICC-01/09-01/11-373), PTC, 23 January 2012, para 277.

  77. 77.

    Decision on the Confirmation of Charges, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-382-Red), PTC, 23 January 2012, para 279.

  78. 78.

    Ibid., para 286.

  79. 79.

    ICC Statute, Article 74(2).

  80. 80.

    Regulation 55 of the Regulations of the Court as amended, ICC-BD/01-02-07.

  81. 81.

    Judgment pursuant to Article 74 of the ICC Statute, Lubanga (ICC-01/04-01/06-2842), TC, 14 March 2012, para 7. See also Judgment on the appeals of Mr. Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled “Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”, Lubanga (ICC-01/04-01/06-2205), AC, 8 December 2009; Judgment on the appeal of Germain Katanga against the decision of Trial Chamber II of 21 November 2012 entitled “Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons”, Katanga (ICC-01/04-01/07 OA 13), AC, 27 March 2013.

  82. 82.

    Decision Establishing the Principles and Procedures to be Applied to Reparations, Lubanga (ICC-01/04-01/06-2904), TC, 7 August 2012, paras 226–230; Moffett 2012, pp. 1 et seq.

  83. 83.

    Stahn 2009, p. 255 (noting that this is one of the areas where “Judges are allowed to exercise scrutiny, but are not meant to replace prosecutorial judgment for reasons of institutional independence”). See generally Schabas 2009, pp. 227–246.

  84. 84.

    The Prosecutor had charged Lubanga with enlistment, conscription and active use of child soldiers being crimes committed in the context of an internal armed conflict under Article 8(2)(e)(vii) of the ICC Statute. This charge was confirmed. However, the Pre-Trial Chamber argued, having made suo motu assessment, that the crimes were also committed in the context of an international armed conflict under Article 8(2)(xxvi) of the ICC Statute. It then proceeded to also confirm the charges in this regard. The Prosecutor successfully appealed against the confirmation of charges for war crimes in the context of an international armed conflict which he had not presented, arguing that it was an imposition of an additional burden of proof on the Prosecution’s case. See Decision on the Prosecution and Defence Applications for Leave to Appeal the Decision on the Confirmation of Charges, Lubanga (ICC-01/04-01/06-915), PTC, 24 May 2007. See also Schabas and Shibahara 2008, pp. 1179–1180.

  85. 85.

    Cf. Renewed Request by Victims’ Representative for Authorization by the Chamber to Make Written Submissions on Specific Issues of law and/or Fact, Ruto, Kosgey and Sang (ICC-01/09-01/11-333), PTC, 16 September 2011, para 19.

  86. 86.

    The Prosecutor could have, for example, requested for an adjournment or could have appealed against the Pre-Trial Chamber’s decision on the matter.

  87. 87.

    Kenya National Commission on Human Rights 2008b, paras 638–648.

  88. 88.

    Cassese 2008, p. 123.

  89. 89.

    These are: murder; extermination; enslavement; deportation or transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; persecution against an identifiable group or a collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds; enforced disappearances; the crime of apartheid; and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or mental or physical health.

  90. 90.

    See ICC Statute, chapeau of Article 7.

  91. 91.

    Ibid., Article 7(2)(a).

  92. 92.

    For more details see Boot et al. 2008, pp. 176–180; Werle 2009, pp. 296–299.

  93. 93.

    For details see Decision on the Confirmation of Charges, Bemba (ICC-01/05-01/08-424), PTC, 15 June 2009, paras 75–81; Boot et al. 2008, pp. 180–181; Werle 2009, pp. 296–299.

  94. 94.

    For details see Boot et al. 2008, pp. 181–183.

  95. 95.

    Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19-Corr), PTC, 31 March 2010, para 36.

  96. 96.

    See generally Hansen 2011, pp. 1 et seq; Jalloh 2011, pp. 540 et seq.; Kress 2010, pp. 855 et seq.; Werle and Burghardt 2012, pp. 1151 et seq.

  97. 97.

    See Document Containing Charges, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-257-AnxA), PTC, 19 August 2011, paras 36 and 46–48.

  98. 98.

    Document Containing Charges, Ruto, Kosgey and Sang (ICC-01/09-01/11-261-AnxA), PTC, 15 August 2011, paras 65–66.

  99. 99.

    Ibid., para 41; Decision on the Confirmation of Charges, Ruto, Kosgey and Sang (ICC-01/09-01/11-373), PTC, 23 January 2012, paras 181–182.

  100. 100.

    Document Containing Charges, Ruto, Kosgey and Sang (ICC-01/09-01/11-261-AnxA), PTC, 15 August 2011, paras 45–54.

  101. 101.

    Ibid., paras 57–64.

  102. 102.

    Document Containing Charges, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-257-AnxA), PTC, 19 August 2011, para 35.

  103. 103.

    Ibid., paras 37 and 39.

  104. 104.

    Ibid., paras 40–41.

  105. 105.

    Specifically see Ruto and Sang’s Defence Challenge to Jurisdiction, Ruto, Kosgey and Sang (ICC-01/09-01/11-305), PTC, 30 August 2011; Application on behalf of Henry Kiprono Kosgey Pursuant to 119 of the ICC Statute, Ruto, Kosgey and Sang (ICC-01/09-01/11-306), PTC, 30 August 2011; Submissions on Jurisdiction on Behalf of Uhuru Kenyatta, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-339), PTC, 19 September 2011; Ali’s Defence Challenge to Jurisdiction, Admissibility and Prosecution’s Failure to Meet the Requirements of Article 54, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-338), PTC, 19 September 2011, For counter arguments by the Prosecutor see Prosecution’s Response to the Defence Challenges to Jurisdiction, Ruto, Kosgey and Sang (ICC-01/09-01/11-334), PTC, 16 September 2011.

  106. 106.

    Decision on the Confirmation of Charges, Ruto, Kosgey and Sang (ICC-01/09-01/11-373), PTC, 23 January 2012, para 186.

  107. 107.

    Ibid., para 185; Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19), PTC, 31 March 2010, para 93.

  108. 108.

    Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19), PTC, 31 March 2010, paras 89–92.

  109. 109.

    Ibid., paras 89–90 and 92.

  110. 110.

    Decision on the Confirmation of Charges, Ruto, Kosgey and Sang (ICC-01/09-01/11-373), PTC, 23 January 2012, para 210.

  111. 111.

    Note, however, that in Ruto et al. the majority found that there was only one policy, namely “to punish and expel from the Rift Valley those perceived to support PNU”. The alleged second policy, namely “to gain power and create a uniform ODM voting bloc” was rejected for not being a policy in itself but rather a motive of a policy. See Ibid., paras 209–221.

  112. 112.

    Judge Kaul noted in particular: “I agree with the majority that the policy, if not formally adopted, may be deduced from a variety of factors which, taken altogether, militate in favour of a policy, involving ways and means for the common purpose to attack a civilian population”. See Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19-Corr), PTC, 31 March 2010, para 41.

  113. 113.

    Ibid., para 51.

  114. 114.

    Ibid. See also Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the Confirmation of Charges, Ruto, Kosgey and Sang (ICC-01/09-01/11-373), PTC, 23 January 2012, para 18.

  115. 115.

    Ibid., para 18. See also Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19-Corr), PTC, 31 March 2010, para 52.

  116. 116.

    Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the Confirmation of Charges, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-382-Red), PTC, 23 January 2012, paras 19–21; See also Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19-Corr), PTC, 31 March 2010, para 10.

  117. 117.

    Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19-Corr), PTC, 31 March 2010, para 55.

  118. 118.

    See Cupido 2011; Robinson 2011a.

  119. 119.

    See Chella 2004, p. 185; DeGuzman 2000, p. 368.

  120. 120.

    See the definitions of crimes against humanity under Articles 6(c), 3 and 5 of the IMT Charter, ICTR Statute and ICTY Statute, respectively. Generally see Badar 2004, pp. 73–144.

  121. 121.

    See, e.g. Judgment, Kayishema and Ruzindana (ICTR-95-1-T), 21 May 1999, para 124; see also Opinion and Judgment, Tadic (IT-94-1-T), 7 May 1997. At para 644, the ICTY’s Trial Chamber confirmed that for there to be an attack directed against any civilian population under the ICTY Statute, the attack must be committed pursuant to “some form of a governmental, organizational or group policy to commit these acts”. Further, The Chamber clarified, at para 655, that “although a policy must exist to commit these acts, it need not be the policy of a State”. For greater detail see Badar 2004, pp. 113–114; Robinson 1999, pp. 43 et seq.

  122. 122.

    Cupido 2011; Mettraux 2002, pp. 281–282.

  123. 123.

    See Judgment, Kunarac, Kovac and Vukovic (IT-96-23/1–A), 12 June 2002, para 98; Badar 2004, p. 113; Chella 2004, p. 187; Footnote 334.

  124. 124.

    Hansen 2011, p. 9; May 2010.

  125. 125.

    Decision on the Prosecutor’s Application for an Arrest Warrant, Bemba (ICC-01/05-01/08-14-tENG), PTC, 17 July 2008, para 33.

  126. 126.

    See Prosecutor’s Request for Authorisation of an Investigation Pursuant to Article 15, Situation in the Republic of Kenya (ICC-01/09-3), PTC, 26 November 2009, para 79.

  127. 127.

    See Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19), PTC, 31 March 2010, para 93.

  128. 128.

    See Decision on the Confirmation of Charges, Bemba (ICC-01/05-01/08-424), PTC, 15 June 2009, para 81 (emphasis added).

  129. 129.

    See Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19), PTC, 31 March 2010, para 48. See also Hansen 2011, p. 13, Footnote 57.

  130. 130.

    See Werle and Burghardt 2012, p. 1154.

  131. 131.

    For further details see DeGuzman 2008, pp. 702–712.

  132. 132.

    Adopted on 23 May 1969 and entered into force on 27 January 1980. Cf. Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19-Corr), PTC, 31 March 2010, paras 33–70.

  133. 133.

    There are only three circumstances (exceptions) under which the ordinary meaning can be dispensed with. These are (i) when the ordinary meaning would defeat the object and purpose of the treaty (Article 31(1)); (ii) when it is clear that the parties to the treaty intended to give a “special meaning” to a term over and above its ordinary meaning (Article 31(4)); and (iii) when the ordinary meaning would lead to ambiguity, obscurity, absurdity or unreasonableness. In the latter case, the travaux préparatoires can be consulted as a “supplementary means of interpretation” to resolve the problem (Article 32). A comparable approach is followed in the common law legal tradition. See, e.g., Costello 2006; Hall 1998, pp. 38 et seq.; Scott 2010, p. 346.

  134. 134.

    See Elements of Crimes http://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf. Accessed September 2014. The Elements are an aid to the interpretation and application of the crimes in the Statute. See ICC Statute Article 9.

  135. 135.

    Garner 1999, p. 1126.

  136. 136.

    Stevenson 2007, p. 2033.

  137. 137.

    See Werle and Burghardt 2012, pp. 1154–1156.

  138. 138.

    Cf. Werle 2009, pp. 297–299.

  139. 139.

    Cf. Schabas 2008, p. 974.

  140. 140.

    Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19-Corr), PTC, 31 March 2010, para 59.

  141. 141.

    Ibid., para 66.

  142. 142.

    Ibid.

  143. 143.

    For origins and mandate of the ICL see Schiff 2008, pp. 26–27 and 38; Bassiouni 1987, pp. 3–11.

  144. 144.

    The ILC Draft Code of Offenses against the Peace and Security of Mankind of 1996 proposed that for individual acts to qualify as crimes against humanity, they should be committed contextually in a systematic manner or on a large scale “directed by a Government or by any organization or group.” See Article 18 of the Draft Code. Although at the Rome conference the word a “group” was dropped and the rest of the wording retained, the ILC’s commentary on the provision stated clearly that the definition was intended “to take into account subsequent developments in international law since Nurnberg.” See UN International Law Commission 1996, p. 47.

  145. 145.

    Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19-Corr), PTC, 31 March 2010, para 65 (emphasis added).

  146. 146.

    Ibid., para 60–64.

  147. 147.

    See, e.g. Bassiouni 1992, pp. 248–249 (arguing that “crimes against humanity” are collective crimes which cannot be committed unless they are part of a given state’s policy because their commission requires the use of the state’s institutions, personnel and resources in order to commit, or refrain from preventing the commission of, the specific crimes described in Article 6(c) [of the IMT Charter]…. The rationale for this requisite of “state action or policy” is that “crimes against humanity,” like other international crimes such as genocide and apartheid, cannot be committed without it because of the nature and scale of the crime”); Schabas 2008, pp. 972–974. For more literature in support of the restrictive interpretation see Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19-Corr), PTC, 31 March 2010, footnotes 52 and 54.

  148. 148.

    E.g. Halling 2010, pp. 827 et seq. (suggesting, at p. 829, that the policy requirement for crimes against humanity in the ICC Statute should be removed altogether; or that if not, the word “organization” in Article 7(2)(a) of the Statute should be scribed “the widest definition” possible e.g. by relying on the definition in Article 2(a) of the UN Convention against Transnational Organized Crime of 2000 in which the word “organization” is defined as “a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes”, with a “structured group” defined in Article 2(c) as being “not randomly formed…and that it does not need to have formally defined roles for its members, continuity of its membership or a developed structure”); Hansen 2011, p. 37; Sadat 2012; Werle 2009 p. 302 (arguing, inter alia, that “threats to values protected by international law … can certainly arise from non-state actors or private persons …. As with genocide, in crimes against humanity participation of states or state-like organizations is the rule in practice, but not a legal requirement” Consequently, he argues that “in order to classify the attacks on the New York World Trade Centre and the Pentagon [and one could add the crimes perpetrated by the Boko Haram in Nigeria or the Al Shabaab in Somalia] as crimes against humanity, it does not matter whether the acts can be ascribed to a terrorist organization alone or also to a state-like entity”). For more literature with similar views see footnote 53 in the Dissenting Opinion of Judge Hans-Peter Kaul appended to Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19-Corr), PTC, 31 March 2010.

  149. 149.

    See Eskridge 1987, pp. 1479 et seq. (generally proposing a dynamic model for statutory interpretation, though not specifically for criminal law statutes). On how dynamic interpretation is relevant for international crimes, see Robinson 2010, pp. 145–147 (indicating that the dynamic interpretation approach is human rights-oriented. As such, it requires that “terms must be given meanings relevant to contemporary society” (p. 145), as “crimes appear to be growing broader in case after case” (p. 146)). Also see generally Schabas 2006b, pp. 93 et seq (critically discussing the “dynamism and radical evolution” of the interpretation of the crime of genocide by the ad hoc Tribunals); Watson 2003, pp. 871 et seq.; Askin 2002, pp. 903 et seq.

  150. 150.

    See generally Cassese 2013, pp. 84–108; Hwang 1998–1999, pp. 457 et seq.; Ratner et al. 2009, pp. 48–81.

  151. 151.

    IMT Charter, Article 6(c).

  152. 152.

    CCL No. 10, Article II(i)(c).

  153. 153.

    ICTR Statute, Article (3), SCSL Statute, Article 2.

  154. 154.

    Cf. Ambos 2010, pp. 161–162 (labelling this as a “congenital defect” of the ad hoc tribunals).

  155. 155.

    ICC Statute, Article 24(1) read together with Article 126, provide that the ICC has jurisdiction only over crimes committed on or after the Statute came into force i.e. 1 July 2002.

  156. 156.

    Sadat 2012a, p. 6.

  157. 157.

    Cf. Damgaard 2008, pp. 83–85.

  158. 158.

    Sadat 2012b, p. 6.

  159. 159.

    ICC Statute, Article 1.

  160. 160.

    On the amendment procedure, see Article 121 of the ICC Statute which requires that any amendment to a provision in the Statute must follow a similar procedure of ratification of the Statute. For the procedure of review of the Statute, see Article 123.

  161. 161.

    Cf. DeGuzman 2000, p. 340.

  162. 162.

    Others include, e.g., issues of self-referrals and also “inaction” as a ground for admissibility of a case.

  163. 163.

    For comprehensive literature on complementarity see Stahn and El Zeidy 2011.

  164. 164.

    See Batros 2011, pp. 589–592; Bekou 2011, pp. 833–835.

  165. 165.

    See Articles 9(2) and 8(2) of the ICTY and ICTR Statutes, respectively. For more details see El Zeidy 2008b, pp. 403 et seq.; Bekou 2011, p. 833.

  166. 166.

    See Nouwen 2011, pp. 206–220. See also Bushnell 2009, pp. 77–89; El Zeidy 2008a; Gioia 2006, pp. 1099–1102; Pichon 2008, pp.185 et seq.

  167. 167.

    Article 17 provides for “complementarity” and “gravity of offence” as two main grounds or tests on the basis of which the admissibility of a case before the ICC is determined. The two tests are independent of each other. However, as the analysis in this part only concerns complementarity, the provision that deals with the gravity-of-offence test (Article 17(1)(d)) is omitted from the quoted text.

  168. 168.

    Cf. Alai and Mue 2011, p. 1233. In this regard, Kenya was completely different from Rwanda whose judicial system could be described as “unavailable” immediately after the 1994 genocide, because most professionals, including prosecutors, judges and lawyers, had died or fled the country. Cf. Nash 2007, p. 79.

  169. 169.

    See supra Sect. 3.7. As the ICC Prosecutor rightly indicates, these allegations or perceptions per se do not play a role in assessing State’s “inability” for purposes of admissibility of a case at the ICC. See Moreno-Ocampo 2011, p. 23.

  170. 170.

    See, e.g., Sing’Oei 2010, pp. 11–15.

  171. 171.

    Nouwen 2011, pp. 208–212; Cf. Decision on the Admissibility of the Case, Gaddafi and Al-Senussi, (ICC-01/11-01/11-466-Red), PTC, 11 October 2013, paras 24–27.

  172. 172.

    See Office of the Prosecutor 2003a. For concurring views see Robinson 2011b, pp. 460–502. For dissenting views see Arsanjani and Reisman 2005, pp. 385 et seq.

  173. 173.

    See Office of the Prosecutor 2003b.

  174. 174.

    See Decision on Prosecutor’s Application for a Warrant of Arrest, Lubanga (ICC-01/04-01/06-Corr), PTC, 10 February 2006.

  175. 175.

    See Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber on the Admissibility of the Case, Katanga and Chui (ICC-01/04-01/07-1497), AC, 25 September 2009.

  176. 176.

    Decision on Prosecutor’s Application for a Warrant of Arrest, Lubanga (ICC-01/04-01/06-Corr), PTC, 10 February 2006, paras 31, 37 and 41; Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber on the Admissibility of the Case, Katanga and Chui (ICC-01/04-01/07-1497), AC, 25 September 2009, paras 75–79.

  177. 177.

    See Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), Katanga and Chui (ICC-01/04-01/07-1213-tENG), TC, 16 June 2009, paras 76–80; Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber on the Admissibility of the Case, Katanga and Chui (ICC-01/04-01/07-1497), AC, 25 September 2009, para 86. For more details see Akhavan 2010, pp. 110–111; Akhavan 2011, pp. 299–302; Office of the Prosecutor 2003a, pp. 19–20 and Footnote 24; William and Schabas 2008, p. 614, para 22.

  178. 178.

    Critics argued that the practice is a clear contravention of the complementarity principle, as it encourages states which are able to prosecute to neglect and shift their duty to the ICC. See e.g., Document in Support of Appeal of the Defence for Germain Katanga against the Decision of the Trial Chamber, Katanga and Chui (ICC-01/04-01/07-1279), AC, 8 July 2009, paras 62–72; Arsanjani and Reisman 2005, p. 397; Schabas 2006a, p. 32; Akhavan 2010, pp. 103 et seq.

  179. 179.

    Office of the Prosecutor 2003a, paras 17–20; Office of the Prosecutor 2003b, p. 5; Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber on the Admissibility of the Case, Katanga and Chui (ICC-01/04-01/07-1497), AC, 25 September 2009, paras 79–86; Batros 2011, p. 600; Benvenuti 2008, pp. 63–65.

  180. 180.

    Olasolo and Cernero-Rojo 2011, pp. 393 et seq. (discussing the admissibility of a “situation” and a “case” in view of the differences ascribed to the two notions by the ICC). See also Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19), PTC, 31 March 2010, para 43.

  181. 181.

    ICC Statute, Article 18(1). The notification must contain basic information about acts that may constitute crimes under the Statute, but the notified state may still request for more information from the Prosecutor. See also Rules 52–57.

  182. 182.

    ICC Statute, Article 18(2). See also Nsereko 2008, p. 632.

  183. 183.

    Nsereko 2008, pp. 628–629 and footnote 4.

  184. 184.

    See Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19), PTC, 31 March 2010, paras 50–52.

  185. 185.

    See Office of the Prosecutor 2003a, paras 24–26 and footnote 10; Olasolo and Cernero-Rojo 2011, p. 405.

  186. 186.

    Cf. Nsereko 2008, p. 632.

  187. 187.

    ICC Statute, Article 18(3).

  188. 188.

    Cf. Bantekas 2010, p. 433 (describing this as a “first (last minute) pick” given to a state before the ICC process commences).

  189. 189.

    See Seils 2011, p. 1011.

  190. 190.

    See ICC Press Release ICC-CPI-20090703-PR431, 3 July 2009; Office of the Prosecutor 2009.

  191. 191.

    Application on behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the ICC Statute, Ruto, Kosgey and Sang and Muthaura, Kenyatta and Ali (ICC-01/09-02/11-26), PTC, 31 March 2011, para 3.

  192. 192.

    See infra Sect. 6.6.1.

  193. 193.

    Decision Requesting Clarification and Additional Information, Situation in the Republic of Kenya (ICC-01/09-15I), PTC, 18 February 2010, paras 11 and 14.

  194. 194.

    Decision on the Authorization of an Investigation, Situation in the Republic of Kenya (ICC-01/09-19), PTC, 31 March 2010, paras 53–54 and 182; see also Olasolo 2012, pp. 51–59.

  195. 195.

    Decision on the Applications for Participation in the Proceedings of VPRS1, VPRS2, PRS3, VPRS4, VPRS5 and VPRS6, Situation in the DRC (ICC-01/04-101-tEN), PTC, 17 January 2006, para 65.

  196. 196.

    Cf. Jalloh 2012a, p. 273.

  197. 197.

    ICC Statute, Article 19(2)(b).

  198. 198.

    Application on behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the ICC Statute, Ruto, Kosgey and Sang and Muthaura, Kenyatta and Ali (ICC-01/09-02/11-26), PTC, 31 March 2011; see also Jalloh, 2012a, pp. 271–272.

  199. 199.

    Application on behalf of Kenyan Government Pursuant to Article 19, Situation in the Republic of Kenya (ICC-01/09-02/11-26), PTC, 31 March 2011, para 13.

  200. 200.

    Ibid., para 14.

  201. 201.

    Ibid., para 69.

  202. 202.

    Ibid., para 71.

  203. 203.

    See Filing of Annexes and Materials to the Application of the Government of Kenya Pursuant to Article 19 of the Rome Statute, Ruto, Kosgey and Sang (ICC-01/09-01/11-64), PTC, 21 April 2011.

  204. 204.

    Application on behalf of Kenyan Government Pursuant to Article 19, Situation in the Republic of Kenya (ICC-01/09-02/11-26), PTC, 31 March 2011, paras 6–33.

  205. 205.

    Prosecution Response to “Application on behalf of the Government of the Republic of Kenya pursuant to Article 19 of the ICC Statute”, Ruto, Kosgey and Sang (ICC-01/09-01/11-69), PTC, 28 April 2011, paras 16–29; Prosecution Response to “Application on behalf of the Government of the Republic of Kenya pursuant to Article 19 of the ICC Statute”, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-71), PTC, 28 April 2011, paras 22–29; Observations on behalf of victims on the Government of Kenya’s Application under Article 19 of the Rome Statute, Ruto, Kosgey and Sang (ICC-01/09-01/11-70), PTC, 28 April 2011, paras 8–46. See also Jalloh 2012a, pp. 272–274.

  206. 206.

    See Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, Ruto, Kosgey and Sang (ICC-01/09-01/11-101), PTC, 30 May 2011, paras 43–69; Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-96), PTC, 30 May 2011, paras 59–70; Judgment on the Appeal of the Kenyan Government against PTC II’s Decision on the Admissibility of the Case, Ruto, Kosgey and Sang (ICC-01/09-01/11-307), AC, 30 August 2011, para 39; Judgment on the Appeal of the Kenyan Government against PTC II’s Decision on the Admissibility of the Case, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-274), AC, 30 August 2011, paras 33–46.

  207. 207.

    Cf. Stigen 2008, p. 203.

  208. 208.

    Prosecutor Judgment on the Appeal of the Kenyan Government against PTC II’s Decision on the Admissibility of the Case, Ruto, Kosgey and Sang (ICC-01/09-01/11-307), AC, 30 August 2011, para 40.

  209. 209.

    Judge Anita Usacka’s Dissenting Opinion on Kenya’s Appeal against PTC’s Decision on Kenya’s Admissibility Challenge, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-342), AC, 20 September, 2011, paras 20–32; Judge Anita Usacka’s Dissenting Opinion on Kenya’s Appeal against PTC’s Decision on Kenya’s Admissibility Challenge, Ruto, Kosgey and Sang (ICC-01/09-01/11-336), AC, 20 September 2011, paras 20–32. See also Jalloh 2012a, p. 274.

  210. 210.

    Cf. Asaala 2012, pp. 132–134.

  211. 211.

    Document in Support of Appeal of the Government of Kenya against the Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-130), AC, 20 June 2011, para 82 (emphasis added).

  212. 212.

    Application on behalf of Kenyan Government Pursuant to Article 19, Situation in the Republic of Kenya, (ICC-01/09-02/11-26), PTC, 31 March 2011, para 32 (emphasis added).

  213. 213.

    Jalloh 2012a, pp. 277–278.

  214. 214.

    Ibid., p. 279.

  215. 215.

    Ibid., p. 278.

  216. 216.

    For details see Hall 2011, pp. 1014 et seq.

  217. 217.

    See Moreno-Ocampo 2011, pp. 21–32.

  218. 218.

    See Requests for Assistance on behalf of the Government of the Republic of Kenya pursuant to Article 93(10), Article 96 and Rule 194, Situation in the Republic of Kenya (ICC-01/09-58), PTC, 21April 2011 and (ICC-01/09-79), PTC, 16 September 2011.

  219. 219.

    See, e.g. Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber on the Admissibility of the Case, Katanga and Chui (ICC-01/04-01/07-1497), AC, 25 September 2009, para 81; Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-96), PTC, 30 May 2011, para 53; Judgment on the Appeal of the Kenyan Government against PTC II’s Decision on the Admissibility of the Case Muthaura, Kenyatta and Ali (ICC-01/09-02/11-274), AC, 30 August 2011, para 33; Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case, Katanga and Chui (ICC-01/04-01/07-1213-tENG), PTC, 16 June 2009, para 95. See also Boas et al. 2011, pp. 76–77.

  220. 220.

    See Prosecution Response to Motion Challenging the Admissibility of the Case by the Defence of Germain Katanga, Katanga and Chui (ICC-01/04-01/07-1007), PTC, 30 March 2009, paras 64–69; Prosecution’s Response to the “Appeal of the Government of Kenya against the Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-168), AC, 12 July 2011, para 95; Nouwen 2011, p. 211.

  221. 221.

    See Prosecutor’s Request for Authorisation of an Investigation, Situation in the Republic of Kenya (ICC-01/09-3), PTC, 26 November 2009, para 54 (stating that “there are no domestic prosecution [sic] for the crimes against humanity allegedly committed in Kenya”, and that there had only been “a limited number of proceedings for less serious offences in connection to the crimes allegedly committed during the post-election violence”).

  222. 222.

    See, e.g. Broomhall 1999, p. 149; Benzing 2003, p. 616; Carter 2010, p. 194.

  223. 223.

    Cf. supra Sect. 4.3.1.2.

  224. 224.

    Daily Nation, 4 March 2011.

  225. 225.

    See The Standard Digital, 9 February 2011.

  226. 226.

    For details, see Bergsmo and Pejic 2008b, pp. 595–604.

  227. 227.

    See the Letter of the Permanent Representative of Kenya to the United Nations to the President of the Security Council on Kenya’s deferral request, S 2011/201, 29 March 2011 http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Kenya%20S%202011%20201.pdf. Accessed September 2014.

  228. 228.

    See African Union, Decision on the Implementation of the Decisions on the International Criminal Court (ICC), Doc. Ex.CL/731(XXI) para 4. See also The Standard, 5 February 2011; Sunday Nation, 28 January 2011.

  229. 229.

    See Kuperstein 2011, p. 56.

  230. 230.

    Daily Nation, 9 April 2011.

  231. 231.

    UN Security Council 2013a, pp. 30–32.

  232. 232.

    See, for example, Preamble para 6 of the UNSC Resolution S/RES/827 (1993) of 25 May 1993 on the establishment of the ICTY; and Preamble para 7 of the UNSC Resolution 955 (1994) of 8 November 1994 on the establishment of the ICTR; Bergsmo and Pejic 2008b, p. 599.

  233. 233.

    UN Security Council 2013a, p. 31.

  234. 234.

    See Gevers and Du Plessis 2011.

  235. 235.

    See All Africa, 8 March 2011.

  236. 236.

    UN Security Council 2013a, p. 31.

  237. 237.

    See First Warrant of Arrest, Al Bashir (ICC-02/05-01/09-1), PTC, 4 March 2009 and Second Warrant of Arrest, Al Bashir (ICC-02/05-01/09-95), PTC, 12 July 2010.

  238. 238.

    See e.g., African Union, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Doc. Assembly/AU/13(XIII), 3 July 2009.

  239. 239.

    See generally Ciampi 2008, pp. 885 et seq.; Weldehaimanot 2011, pp. 208 et seq.

  240. 240.

    See UN Security Council Res. 1593 of 31 March 2005.

  241. 241.

    UN Security Council 2013a, p. 32.

  242. 242.

    Decision Informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s Presence in the Territory of the Republic of Kenya, Al Bashir (ICC-02/05-01/09-107), PTC, 27 August 2010.

  243. 243.

    See Letter by Prof. Peter Anyang’ Nyong’o, Secretary-General of the ODM, to the President of the UN Security Council, 11 March 2011 http://newmedia-pirate.blogspot.com/2011/03/letter-by-odm-to-un-security-council.html. Accessed September 2014.

  244. 244.

    UN Security Council 2013a, p. 31.

  245. 245.

    Cf. Werle et al. 2014.

  246. 246.

    Generally see Abass 2013a, pp. 933 et seq.; Abass 2013b, pp. 27 et seq.; Ambos 2013, pp. 499 et seq.; Murungu 2011, pp. 1067 et seq.

  247. 247.

    See generally Dersso 2012.

  248. 248.

    The Protocol for the Court was adopted in June 2014. See Protocol on the Amendment to the Protocol on the Statute of the African Court of Justice and Human Rights, Assembly/AU/Dec.529(XXIII)—Doc. Assembly/AU/8(XXIII), Twenty-Third Ordinary Session of the AU Assembly, 26–27 June 2014, Malabo, Equatorial Guinea.

  249. 249.

    The EAC is presently constituted by 5 States, Tanzania, Kenya, Uganda, Rwanda and Burundi.

  250. 250.

    Radio Netherlands Worldwide, 24 May 2012.

  251. 251.

    See Resolution of the Assembly Seeking the EAC Council of Ministers to Implore the International Criminal Court, EA Legislative Assembly, 26 April 2012 (on the Transfer of the Case of the Accused Four Kenyans Facing Trial in Respect of the Aftermath of the 2007 Kenya General Elections to the East African Court of Justice and to Reinforce the Treaty Provisions). This Resolution was subsequently endorsed by the EAC General Assembly. See Joint Communiqué of the 10th Extraordinary Summit of EAC Heads of State, 28 April 2012, para 20.

  252. 252.

    Cf. Ngari 2012.

  253. 253.

    ICC Statute, Article 1.

  254. 254.

    Cf. Abass 2013a, pp. 941–943. This is contrary to the contention (see Murungu 2011, pp. 1075 et seq.) that such regional courts would be incompatible with the ICC Statute.

  255. 255.

    Cf. Murungu 2011, p. 1081.

  256. 256.

    Al Shahid, 1 May 2012.

  257. 257.

    Parliament of Kenya 2010a, pp. 30–45; and Parliament of Kenya 2010b, pp. 66–83.

  258. 258.

    See supra Sect. 3.5.3.

  259. 259.

    ICC Statute, Article 127(1).

  260. 260.

    ICC Statute, Article 127(2). This is in line with Article 70(1)(a) of the Vienna Convention on the Law of Treaties which provides that unless the parties otherwise agree, termination of a treaty “does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination”.

  261. 261.

    But currently under Kenyan Treaty Making and Ratification Act No. 45 of 2012, Part III, ss. 7–12, both Parliament (lower house) and Senate (Upper House) clearly have a say in the ratification of international treaties, such that if the two Houses do not approve ratification of a treaty proposed by Executive, such a treaty cannot be ratified. However, this legislation is not clear as regards the role of the two Houses in relation to withdrawal from treaties.

  262. 262.

    See Statement of the Government of Kenya on the ICC Process in Parliament of Kenya 2010a, pp. 23–45. Although this was the official position of the Kenyan government, it was still reported that subsequently, Kenya attempted to solicit a mass withdrawal of African countries from the Statute. See Akande 2011; The Standard, 10 January 2011.

  263. 263.

    NB. In September 2013, immediately prior to the original date set for the commencement of trials in respect of the Kenyan President and Deputy President at the ICC, the Kenyan Parliament and Senate passed another resolution to withdraw Kenya from the Statute. However, this move, too, did not result in a withdrawal.

  264. 264.

    Cf. Heller 2010. For greater detail see Clark 2008, pp. 1178–1179.

  265. 265.

    E.g., on 3 November 1999 the Appeals Chamber of the ICTR dismissed the indictment of Jean-Bosco Barayagwiza on procedural grounds thereby ordering his “immediate release”. See Decision, Barayagwiza ICTR, Appeals Chamber, 3 November 1999. The government of Rwanda, which was interested in having Barayagwiza punished for his alleged role in the 1994 genocide, was infuriated with this decision. It stated expressly that unless Barayagwiza was tried by the Tribunal, Rwanda would no longer cooperate with the ICTR. The Appeal Chamber’s decision was reinstituted 4 months later upon review by the Appeals Chamber on the basis of “new facts”. See Decision, Barayagwiza (ICTR-97-19-AR72), 31 March 2000. However, the period between the dismissal of the indictment and the reinstitution of the case was hard for the ICTR Prosecutor as regards in situ investigations of other cases. The Prosecutor told the Appeals Chamber that in view of Rwanda’s express unwillingness to cooperate, she had been denied visa to enter Rwanda, and that 16 witnesses in other cases pending before the ICTR were stopped by Rwandan authorities from testifying before the Tribunal. See Jalloh 2010.

  266. 266.

    After the indictment of Al Bashir, the Sudanese government is alleged to have told the ICC Prosecutor that “if you send an investigation team, you may already prepare a second one because the first one will not survive”. See Ambos 2007, p. 68.

  267. 267.

    Decision on the Appeals of Ruto and Joshua Sang against the Pre-Trial Chamber’s decision on the Confirmation of Charges, Ruto, Kosgey and Sang (ICC-01/09-01/11-414), AC, 24 May 2012; Decision on the Appeal of Muthaura and Kenyatta against the Pre-Trial Chamber’s Decision on the Confirmation of Charges, Muthaura, Kenyatta and Ali (ICC-01/09-02/11-425), AC, 24 May 2012.

  268. 268.

    Daily Nation, 23 December 2012.

  269. 269.

    See Mueller 2014, p. 25.

  270. 270.

    See Daily Nation, 28 January 2012; Daily Nation, 24 November 2012; The Star, 23 February 2013.

  271. 271.

    E.g. see, Ipsos Synovate 2013, International Crisis Group 2012, pp. 13–16; Kenya Citizen Tv, Dissecting the Opinion Polls, video published on You Tube, 19 February 2013 http://www.youtube.com/watch?feature=player_embedded<&v=ROyf9H929eY#. Viewed September 2014.

  272. 272.

    See, for example, Kenya National Dialogue and Reconciliation Monitoring Project 2013, para 77; International Crisis Group 2013, pp. 17–19; International Commission of Jurists et al. 2012; The Standard, 20 December 2012.

  273. 273.

    The Standard, 20 December 2012.

  274. 274.

    See, e.g. Standard Group, Kenya Presidential Debate 2013 [Full Video], published on You Tube, 12 February 2013 http://www.youtube.com/watch?v=i89bSa88dOE. Viewed September 2014; International Crisis Group 2013, p. 17.

  275. 275.

    International Crisis Group 2013, p. 17.

  276. 276.

    Daily Nation, 13 February 2013.

  277. 277.

    Daily Nation, 7 February 2013.

  278. 278.

    Daily Nation, 8 February 2013.

  279. 279.

    See, New Vision, 10 April 2013.

  280. 280.

    The International Centre for Policy and Conflict and 7 Others v. The Hon. Attorney General and 4 Others, [2013] eKLR (hereafter “Integrity Judgment”).

  281. 281.

    Constitution of Kenya of 2010, Article 73(1)(a)(iii).

  282. 282.

    Ibid., Article 73(1)(a)(iv).

  283. 283.

    Ibid., Article 73(2(a).

  284. 284.

    Integrity Judgment, paras 13 and 41.

  285. 285.

    ICC Statute, Article 63.

  286. 286.

    Integrity Judgment, paras 15, 38 and 39.

  287. 287.

    Ibid., para 16. For petitioners’ arguments on sovereignty see para 40.

  288. 288.

    Ibid., para 17.

  289. 289.

    Ibid.

  290. 290.

    Ibid., para 23.

  291. 291.

    Ibid., paras 59 and 60.

  292. 292.

    Ibid., paras 154–156 and 168(d).

  293. 293.

    See Kenya Section of the International Commission of Jurists v. Attorney General and Another [2011] eKLR.

  294. 294.

    ICC Statute, Article 66.

  295. 295.

    Decision on the Confirmation of Charges, Katanga and Chui (ICC-01/04-01/07-717), PTC, 30 December 2008, para 64.

  296. 296.

    ICC Statute, Article 66(3).

  297. 297.

    Cf. See Decision on Ruto’s Request for Excusal from Continuous Presence at Trial, Ruto and Sang (ICC-01/09-01/11-777), TC, 18 June 2013, para 96 (in which the Trial Chamber stated that “it is not…a valid legal proposition that a person charged with a crime may neither run for public office nor be elected as such, even as he enjoys the presumption of innocence until found guilty beyond a reasonable doubt …. Such a proposition requires a clear and solid basis in the law. The Chamber is unaware of any norm of international law that supports such a bar”).

  298. 298.

    See Raila Odinga v. the Independent Electoral and Boundaries Commission and Three Others, Petitions No. 5, 4 and 3 of 2013, Supreme Court at Nairobi, [2013] eKLR.

  299. 299.

    BBC News, 9 April 2013.

  300. 300.

    Daily Nation, 8 February 2013; Daily Nation, 27 February.

  301. 301.

    The Guardian, 11 March 2013.

  302. 302.

    Prosecution Notification of Withdrawal of the Charges against Francis Muthaura, Muthaura and Kenyatta (ICC-01/09-02/11-687), TC, 11 March 2013, para 11 and Decision on the Withdrawal of Charges against Muthaura, Muthaura and Kenyatta (ICC-01/09-02/11-696), TC, 18 March 2013.

  303. 303.

    Daily Nation, 11 May 2013; Capital News, 5 April 2013.

  304. 304.

    See also Aljazeera, 27 April 2013.

  305. 305.

    Concurring Opinion of Judge Christine Van den Wyngaert (annexed to Decision on Defence Application pursuant to Article 64(4) and Related Requests) Kenyatta (ICC-01/09-02/11-728-Anx2), TC, 26 April 2013.

  306. 306.

    See Warrant of Arrest, Walter Barasa (ICC-01/09-01/13-1-Red2), PTC, 2 August 2013. Up until August 2014, Barasa, who had been arrested by Kenyan authorities, had not been transferred to the ICC. His transfer was still a subject of legal contestation before the Kenyan Courts.

  307. 307.

    See “Former Mungiki Boss Links Attempt on His Life to ICC Ties” [video] K24TV, published 30 May 2014 http://www.youtube.com/watch?v=bpe3sZ2R5Pk. Viewed September 2014. See also The Star, 31 May 2014.

  308. 308.

    See Sudan Tribune, 12 October 2013.

  309. 309.

    See Opening and Closing Remarks of Tedros Adhanom Ghebreyesus, Minister for Foreign Affairs of the Federal Democratic Republic of Ethiopia and Chairperson of the Executive Council of the African Union at the 15th Extraordinary Session of the Executive Council of the African Union, 11 October 2013 http://www.au.int/en/content/extraordinary-session-assembly-african-union. Accessed September 2014.

  310. 310.

    See Daily Standard, 13 October 2013 (reproducing fully Kenyatta’s speech at the Extraordinary Session of the African Union).

  311. 311.

    Three weeks before Kenyatta’s speech, during the ongoing trial of William Ruto, the Prosecution had suggested, through an oral submission to the Trial Chamber, that Mr. Ruto’s functions of Deputy President of Kenya should be delegated to “an appropriate person” so that his trial at the ICC could continue uninterrupted i.e. so that he would not have an excuse to ask for frequent adjournments. The Prosecution was responding to Mr. Ruto’s request for a 1-week adjournment so that he could go back to Kenya to assist the President to attend to an urgent matter, a deadly terrorist attack that had happened in Nairobi.

  312. 312.

    See Remarks by Mr. Hailemariam Dessalegn, Prime Minister of the Federal Democratic Republic of Ethiopia and Chairperson of the African Union at the Extraordinary Session of the Assembly of Heads of State and Government of the African Union, 12 October 2013, p. 7 http://www.au.int/en/content/extraordinary-session-assembly-african-union. Accessed September 2014.

  313. 313.

    See African Union, Decision Ext/Assembly/AU/Dec.1(Oct. 2013).

  314. 314.

    Ibid., para 4.

  315. 315.

    Ibid., paras 5, 9 and 10 (ii).

  316. 316.

    Ibid., paras 6 and 10 (iii) and (ix).

  317. 317.

    Ibid., paras 10(x) and (xi).

  318. 318.

    See UN Security Council 2013c.

  319. 319.

    See Mail Online, 22 September 2013.

  320. 320.

    Azerbaijan, China, Morocco, Pakistan, Russia, Rwanda and Togo.

  321. 321.

    Argentina, Australia, France, Guatemala, Luxembourg, Republic of Korea, UK and USA.

  322. 322.

    See UN Security Council 2013b.

  323. 323.

    Daily Nation, 2 November 2013.

  324. 324.

    See Materu 2014.

  325. 325.

    Constitution of Kenya of 2010, Article 143(1).

  326. 326.

    Ibid., Article 143(4).

  327. 327.

    See African Union, Decision Ext/Assembly/AU/Dec.1(Oct.2013), para 10 (iv) and (vii).

  328. 328.

    See e.g., Defence Request for Mr Kenyatta to be Present during Trial via Video Link, Muthaura and Kenyatta (ICC-01/09-02/11-667), TC, 28 February 2013.

  329. 329.

    See Decision on Ruto’s Request for Excusal from Continuous Presence at Trial, Ruto and Sang (ICC-01/09-01/11-777), TC, 18 June 2013; Decision on Defence Request for Conditional Excusal from Continuous Presence at Trial, Kenyatta (ICC-01/09-02/11-830), TC, 18 October 2013.

  330. 330.

    See Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber on Ruto's Request for Excusal from Continuous Presence at Trial, Ruto and Sang (ICC-01/09-01/11-1066), AC, 25 October 2013; Decision on the Prosecution's motion for reconsideration of the decision excusing Mr Kenyatta from Continuous Presence at Trial, Kenyatta (ICC-01/09-02/11-863), TC, 26 November 2013.

  331. 331.

    See Kemp 2014, Sect. 6.6.1.

  332. 332.

    See Resolution ICC-ASP/12/Res.7, 27 November 2013: Amendments to the Rules of Procedure and Evidence, adopted at the 12th Plenary Meeting of the ICC Assembly of States Parties.

  333. 333.

    See Ibid., Rule 134 bis.

  334. 334.

    See Ibid., Rules 134 ter and 134 quarter.

  335. 335.

    See Reasons for the Decision on Excusal from Presence at Trial under Rule 134 quarter, Ruto and Sang (ICC-01/09-01/11-1186), TC, 18 February 2014.

  336. 336.

    See African Union Decision Assembly/AU/Dec.493 (XXII), January 2014, On the Progress Report of the Commission on the Implementation of the Decisions on the International Criminal Court, para 10.

  337. 337.

    Cf. Mueller 2014, pp. 33–35.

  338. 338.

    See Wanyeki 2012, pp. 15–19.

  339. 339.

    ICC Press Release ICC-OTP-20090716-PR439, 16 July 2009. See also “Ocampo’s statement on Kenya” [video] published by NTV Kenya on You Tube, 1 April 2012 http://www.youtube.com/watch?v=Pg4jxfsXT98. Viewed September 2014.

  340. 340.

    See Daily Nation, 5 April 2013.

  341. 341.

    Cf. Wanyeki 2012, pp. 16–17.

  342. 342.

    Of course, this would not abate the “danger” that even after withdrawal from the Statute a situation in Kenya could still be referred to the ICC by the UN Security Council. However, this could be dealt with more easily by political means, including through lobbying.

References

  • Abass A (2013a) Prosecuting international crimes in Africa: rationale, prospects and challenges. Eur J Int Law 24(3):933–946

    Google Scholar 

  • Abass A (2013b) The proposed international criminal jurisdiction for the African Court: some problematical aspects. Neth Int Law Rev LX:27–50

    Google Scholar 

  • African Union, Decision Ext/Assembly/AU/Dec.1 (Oct. 2013) on Africa’s relationship with the International Criminal Court (ICC), adopted at the extra-ordinary session of the Assembly of African Union, Addis Ababa, Ethiopia, 12 Oct 2013

    Google Scholar 

  • Akande D (2011) Is Kenya pushing a mass African withdrawal from the ICC. EJIL Talk. http://www.ejiltalk.org/is-kenya-pushing-for-a-mass-african-withdrawal-from-the-icc/. Accessed Sept 2014

  • Akhavan P (2005) 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. Am J Int Law 99:403–421

    Article  Google Scholar 

  • Akhavan P (2010) Self-referrals before the International Criminal Court: are states the villains or the victims of atrocities? Crim Law Forum 21:103–120

    Article  Google Scholar 

  • Akhavan P (2011) International criminal justice in the era of failed states: the ICC and the self-referral debate. In: Stahn C, El Zeidy M (eds) The International Criminal Court and complementarity, vol I. Cambridge University Press, New York

    Google Scholar 

  • Ambos K (2007) Prosecuting international crimes at national level: between justice and realpolitik. In: Kalek W et al (eds) International prosecution of human rights crimes. Springer, Berlin

    Google Scholar 

  • Ambos K (2010) International criminal law at the crossroads: from ad hoc imposition to a treaty-based universal jurisdiction. In: Stahn C, Van den Herik L (eds) The future perspectives of international criminal justice. T.M.C Asser Press, The Hague

    Google Scholar 

  • Ambos K (2013) Expanding the focus of the African Criminal Court. In: McDermott Y et al (eds) Ashgate research companion to international criminal law: critical perspectives. Ashgate Publishing Company, Aldershot

    Google Scholar 

  • Alai C, Mue N (2011) Complementarity and the impact of the Rome Statute and the International Criminal Court in Kenya. In: Stahn C, El Zeidy M (eds) The International Criminal Court and complementarity, vol II. Cambridge University Press, New York

    Google Scholar 

  • Arsanjani MH, Reisman W (2005) The law-in-action of the International Criminal Court. Am J Int Law 99(2):385–403

    Article  Google Scholar 

  • Asaala EO (2012) The International Criminal Court factor on transitional justice in Kenya. In: Ambos K, Maunganidze OA (eds) Power and prosecution: challenges and opportunities for international criminal justice in Sub-Saharan Africa. Universitätsverlag, Göttingen

    Google Scholar 

  • Askin KD (2002) Reflections on some of the most significant achievements of the ICTY. New Engl Law Rev 37(4):903–914

    Google Scholar 

  • Badar ME (2004) From the Nuremberg Charter to the Rome Statute: defining the elements of crimes against humanity. San Diego Int Law J 5(73):73–144

    Google Scholar 

  • Bantekas I (2010) International criminal law, 4th edn. Hart Publishing, Portland

    Google Scholar 

  • Batros B (2011) The evolution of the ICC jurisprudence on admissibility. In: Stahn C, El Zeidy M (eds) The International Criminal Court and complementarity, vol I. Cambridge University Press, New York

    Google Scholar 

  • Bassiouni MC (1987) A draft international criminal code and draft Statute for an international criminal tribunal. Martinus Nijhoff Publishers, Dordrecht

    Google Scholar 

  • Bassiouni MC (1992) Crimes against humanity in international criminal law. Martinus Nijhoff Publishers, Leiden

    Google Scholar 

  • Bekou O (2011) In the hands of states: implementing legislation and complementarity. In: Stahn C, El Zeidy M (eds) The International Criminal Court and complementarity, vol II. Cambridge University Press, New York

    Google Scholar 

  • Benzing M (2003) The complementarity regime of the International Criminal Court: international criminal justice between states sovereignty and the fight against impunity. Max Plank Yearb U N Law 7:591–632

    Google Scholar 

  • Bergsmo M, Kruger P (2008) Article 53: Initiation of an investigation. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court: observers’ notes article by article, 2nd edn. Verlag C.H Beck oHG, München

    Google Scholar 

  • Bergsmo M, Pejic J (2008a) Article 15: Prosecutor. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court: observers’ notes article by article, 2nd edn. Verlag C.H Beck oHG, München

    Google Scholar 

  • Bergsmo J, Pejic J (2008b) Article 16: Deferral of investigation or prosecution. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court: observers’ notes article by article, 2nd edn. Verlag C.H Beck oHG, München

    Google Scholar 

  • Boas G et al (2011) International criminal law practitioner library. International criminal procedure. Cambridge University Press, New York

    Book  Google Scholar 

  • Boot M et al (2008) Article 7: Crimes against humanity. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court: observers’ notes article by article, 2nd edn. Verlag C.H Beck oHG, München

    Google Scholar 

  • Broomhall B (1999) The International Criminal Court: a checklist for national implementation. Nouvelles Etudes Penales 13:113–159

    Google Scholar 

  • Brown S, Sriram CL (2012) The big fish won’t fry themselves: criminal accountability for post-election violence in Kenya. African Aff 111(443):244–260

    Article  Google Scholar 

  • Bushnell D (2009) Re-thinking international criminal law: re-connecting theory with practice in the search for justice and peace. Aust Yearb Int Law 28:57–89

    Google Scholar 

  • Carter LE (2010) The principle of complementarity and the International Criminal Court: the role of ne bis in idem. Santa Clara J Int Law 8(1):165–198

    Google Scholar 

  • Cassese A (2008) International law, 2nd edn. Oxford University Press, New York

    Google Scholar 

  • Chella J (2004) Persecution: a crime against humanity in the Rome Statute of the International Criminal Court. LL.M Dissertation, University of Bond

    Google Scholar 

  • Ciampi A (2008) The proceedings against President Al Bashir and the prospects of their suspension under Article 16 ICC Statute. J Int Crim Justice 6:885–897

    Article  Google Scholar 

  • Clark RS (2008) Article 27: Withdrawal. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court: observers’ notes article by article, 2nd edn. Verlag C.H Beck oHG, München

    Google Scholar 

  • Costello G (2006) Statutory interpretation: general principles and recent trends, CRS Report for Congress, updated 30 March 2006. Congressional Research Service, Library of Congress

    Google Scholar 

  • Cote L (2012) Independence and impartiality. In: Reydams L et al (eds) International prosecutors. Oxford University Press, Oxford

    Google Scholar 

  • Cupido M (2011) The policy underlying crimes against humanity: practical reflections on a theoretical debate. Crim Law Forum [Online] 22(3). file:///C:/Users/Materu/Downloads/SSRN-id1959777.pdf. Accessed Sept 2014

    Google Scholar 

  • Damgaard C (2008) Individual criminal responsibility for core international crimes. Springer, Heidelberg

    Book  Google Scholar 

  • DeGuzman MM (2000) The road from Rome: the developing law of crimes against humanity. Hum Rights Q 22(2):335–403

    Article  Google Scholar 

  • DeGuzman MM (2008) Article 21: Applicable law. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court: observers’ notes article by article, 2nd edn. Verlag C.H Beck oHG, München

    Google Scholar 

  • Dersso SA (2012) African solutions to African problems should be more than just a Cliché. Institute of Security Studies. http://www.polity.org.za/article/african-solutions-to-african-problems-should-be-more-than-just-a-clich-2012-03-30. Accessed Sept 2014

  • DeSmet S (2009) A structural analysis of the role of the Pre-Trial Chamber in the fact-finding process of the ICC. In: Stahn C, Sluiter G (eds) The emerging practice of the International Criminal Court. Martinus Nijhoff Publishers, Leiden

    Google Scholar 

  • Ellis MS (2011) The contribution of non-governmental organizations to the creation of international criminal tribunals. In: Brown BS (ed) Research handbook on international criminal law. Edward Elgar, Cheltenham

    Google Scholar 

  • El Zeidy MM (2008a) The principle of complementarity in international criminal law: origin, development and practice. Martinus Nijhoff Publishers, Leiden

    Book  Google Scholar 

  • El Zeidy MM (2008b) Form primacy to complementarity and backwards: (re)-visiting Rule 11 bis of the ad hoc tribunals. Int Comp Law Quart 57(2):403–415

    Article  Google Scholar 

  • Eskridge WN (1987) Dynamic statutory interpretation. Univ Pa Law Rev 135:1479–1555

    Article  Google Scholar 

  • Garner BA (1999) Black’s law dictionary, 7th edn. West Group, St Paul

    Google Scholar 

  • Gevers C, Du Plessis M (2011) Another stormy year for the International Criminal Court and its work in Africa. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1870965. Accessed Sept 2014

  • Gioia F (2006) State sovereignty, jurisdiction and “modern” international law: The principle of complementarity in the International Criminal Court. Leiden J Int Law 19(4):1095–1123

    Article  Google Scholar 

  • Hafner G (2005) An attempt to explain the position of the USA towards the ICC. J Int Crim Justice 3:323–332

    Article  Google Scholar 

  • Hall GR (1998) Statutory interpretation in the Supreme Court of Canada: the triumph of a common law methodology. Advocates Q 21:38–65

    Google Scholar 

  • Hall CK (2011) Positive complementarity in action. In: Stahn C, El Zeidy MM (eds) The International Criminal Court and complementarity, vol II. Cambridge University Press, New York

    Google Scholar 

  • Halling M (2010) Push the envelope—watch it bend: removing the policy requirement and extending crimes against humanity. Leiden J Int Law 23:827–845

    Article  Google Scholar 

  • Hansen TO (2011) The policy element in crimes against humanity: lessons from and for the case of Kenya. George Wash Int Law Rev 43:1–41

    Google Scholar 

  • Hansen TO (2013) Africa and the International Criminal Court. In: Murithi T (ed) Handbook of Africa’s international relations. Routledge, New York

    Google Scholar 

  • Heller KJ (2010) Kenya moves closer to withdrawing from the ICC. Opino Juris. http://opiniojuris.org/2010/12/23/kenya-moves-closer-to-withdrawing-from-the-icc/. Accessed Sept 2014

  • Heller KJ (2011) The irritating ICC prosecutor. Opino Juris. http://opiniojuris.org/2011/04/09/. Accessed Sept 2014

  • Human Rights Watch (2008) All the men have gone. In: War crimes in Kenya’s Mount Elgon conflict. Human Rights Watch, New York. ISBN:1-56432-363-3

    Google Scholar 

  • Human Rights Watch (2011) ”Holding Your Hear”: waiting for justice in Kenya’s Mount Elgon Region. Human Rights Watch, New York. ISBN 1-56432-818-X

    Google Scholar 

  • Hwang P (1998–1999) Defining crimes against humanity in the Rome Statute of the International Criminal Court. Fordham Int Law J 22:457–504

    Google Scholar 

  • International Commission of Jurists-Kenya et al (2012) Report on the implications of a Kenyatta/Ruto Presidency in Kenya. http://kenyastockholm.files.wordpress.com/2013/02/kenyatta-ruto-report.pdf. Accessed Sept 2014

  • International Criminal Court (2003a) Informal expert paper: the principle of complementarity in practice. http://www.iclklamberg.com/Caselaw/OTP/Informal%20Expert%20paper%20The%20principle%20of%20complementarity%20in%20practice.pdf. Accessed Sept 2014

  • International Criminal Court (2003b) Paper on some policy issues before the office of the prosecutor. http://www.icc-cpi.int/NR/rdonlyres/1FA7C4C6-DE5F-42B7-8B25-60AA962ED8B6/143594/030905_Policy_Paper.pdf. Accessed Sept 2014

  • International Criminal Court (2003c) Second assembly of states parties to the Rome Statute of the International Criminal Court Report of the Prosecutor of the ICC, Mr Luis Moreno-Ocampo, 8 Sept 2003. http://www.icc-cpi.int/NR/rdonlyres/C073586C-7D46-4CBE-B901-0672908E8639/143656/LMO_20030908_En.pdf. Accessed Sept 2014

  • International Criminal Court (2011) Report on preliminary examination activities. http://www.icc-cpi.int/NR/rdonlyres/63682F4E-49C8-445D-8C13-F310A4F3AEC2/284116/OTPReportonPreliminaryExaminations13December2011.pdf. Accessed Sept 2014

  • International Crisis Group (2012) Kenya: impact of the ICC Proceedings. Africa briefing No. 84. http://www.crisisgroup.org/~/media/Files/africa/horn-of-africa/kenya/B084%20Kenya%20—%20Impact%20of%20the%20ICC%20Proceedings. Accessed Sept 2014

  • International Crisis Group (2013) Kenya’s 2013 elections. Africa report No. 197. http://www.crisisgroup.org/~/media/Files/africa/horn-of-africa/kenya/197-kenyas-2013-elections. Accessed Sept 2014

  • Ipsos Synovate (2013) Presidential race too close to call—an inevitable runoff? http://www.rich.co.ke/rcfrbs/docs/Ipsos%20Synovate%20Polls%20_President_Alliances%20Support%20Levels_January%202013.pdf. Accessed Sept 2014

  • Jalloh CC (2010) Kenyan parliament endorses Ruto Motion calling for withdrawal from ICC Statute. International criminal law in ferment blog. http://iclferment.blogspot.com/2010/12/kenyan-parliament-endorses-ruto-motion.html. Accessed Sept 2014

  • Jalloh CC (2011) International decision: situation in the Republic of Kenya No. ICC-01/09-19, decision on the authorization of an investigation. Am J Int Law 105:541–547

    Google Scholar 

  • Jalloh CC (2012a) Kenya vs. The ICC Prosecutor. Harv Int Law J Online 53:269–285

    Google Scholar 

  • Jalloh CC (2012b) Lecture: Africa and the International Criminal Court: collision course or cooperation? N C Cent Law Rev 34:203–229

    Google Scholar 

  • Kemp G (2014) The implementation of the Rome Statute in Africa. In: Werle G et al (eds) Africa and the International Criminal Court. T.M.C Asser Press, The Hague

    Google Scholar 

  • Kenya National Commission on Human Rights (2007) “Still behaving badly” second periodic report of the election-monitoring project. KNCHR, Nairobi

    Google Scholar 

  • Kenya National Commission on Human Rights (2008a) “The Mountain of Terror”: a report on the investigations of torture by the military at Mount Elgon. KNCHR, Nairobi

    Google Scholar 

  • Kenya National Commission on Human Rights (2008b) On the brink of the precipice: a [Report on] human rights account of Kenya’s post-2007 election violence. KNCHR, Nairobi

    Google Scholar 

  • Kenya National Dialogue and Reconciliation (KNDR) Monitoring Project (2013) Kenya’s 2013 general election: review of preparedness (Report). Nairobi

    Google Scholar 

  • Kenya Truth, Justice and Reconciliation Commission (2013) Final report of the Kenyan Truth, Justice and Reconciliation Commission, Volumes I, IIA, IIB, IIC, III and IV. Nairobi

    Google Scholar 

  • Keppler E (2011) Managing setbacks for the International Criminal Court in Africa. J Afr Law 1–14

    Google Scholar 

  • Kress C (2003) The procedural law of the International Criminal Court in outline: Anatomy of a unique compromise. J Int Crim Justice 1:603–617

    Article  Google Scholar 

  • Kress C (2010) On the outer limits of crimes against humanity: the concept of organization within the policy requirement: some reflections on the March 2010 ICC Kenya decision. Leiden J Int Law 23:855–873

    Article  Google Scholar 

  • Kuperstein S (2011) Updates from the international criminal tribunals. Human Rights Brief 18(3):56–57

    Google Scholar 

  • Marchesi A (2008) Article 14: Referral of a situation by a state party. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court: observers’ notes article by article, 2nd edn. Verlag C.H Beck oHG, München

    Google Scholar 

  • Materu SF (2014) A strained relationship: reflections on the AU’s stand towards the ICC from the Kenyan experience. In: Werle G et al (eds) Africa and the International Criminal Court. T.M.C Asser Press, The Hague

    Google Scholar 

  • May L (2005) Crimes against humanity: a normative account. Cambridge University Press, Cambridge

    Google Scholar 

  • May L (2010) A note on state policy and crimes against humanity. In: Oxford transitional justice research working paper series. http://www.csls.ox.ac.uk/documents/May_StatePolicy_Final_OTJR.pdf. Accessed Sept 2014

  • Mettraux G (2002) Crimes against humanity in the jurisprudence of the international criminal tribunals for the Former Yugoslavia and for Rwanda. Harv Int Law J 43:237–316

    Google Scholar 

  • Mills K (2012) “Bashir is dividing Us”: Africa and the International Criminal Court. Human Rights Q 34(2):404–417

    Article  Google Scholar 

  • Moreno-Ocampo L (2011) A positive approach to complementarity: the impact of the office of the prosecutor. In: Stahn C, El Zeidy MM (eds) The International Criminal Court and complementarity: from theory to practice, vol I. Cambridge University Press, New York

    Google Scholar 

  • Mueller SD (2014) Kenya and the International Criminal Court (ICC): politics, the election and the law. J East Afr Stud 8(1):25–42

    Article  Google Scholar 

  • Muller AT, Stegmiller I (2010) Self-referrals on trial: from panacea to patient. J Int Crim Justice 8:1267–1294

    Article  Google Scholar 

  • Murithi T (2012) Africa’s relationship with the ICC: a need for restoration? Perspectives 1(12). http://www.boell.de/sites/default/files/2012-08-Perspectives_Africa_1_12.pdf. Accessed Sept 2014

  • Murithi T (2013) The African Union and the International Criminal Court: an embattled relationship? Policy brief No. 8, March 2013. Institute for Justice and Reconciliation. http://ijr.org.za/publications/pb10.php. Accessed Sept 2014

  • Murungu CB (2011) Towards a Criminal Chamber in the African Court of Justice and Human Rights. J Int Crim Justice 9:1067–1088

    Article  Google Scholar 

  • Nash K (2007) A comparative analysis of justice in post genocidal Rwanda: fostering a sense of peace and reconciliation? Africana 1(1):59–100

    Google Scholar 

  • NewAfrican (2012) ICC versus Africa: the scales of injustice. http://www.exacteditions.com/read/new-african/march-2012–30589/3/3. Accessed Sept 2014

  • Ngari A (2012) Kenya’s ongoing battle with complementarity at the ICC. http://www.icckenya.org/2012/05/kenyas-ongoing-battle-with-complementarity-at-the-icc/. Accessed Sept 2014

  • Nouwen SMH (2011) Fine-Tuning Complementarity. In: Brown BS (ed) Research handbook on international criminal law. Edward Elgar, Northampton

    Google Scholar 

  • Nsereko DDN (2008) Article 18: Preliminary rulings regarding admissibility, In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court: observers’ notes article by article, 2nd edn. Verlag C.H Beck oHG, München

    Google Scholar 

  • Office of the Prosecutor (2003a) Informal paper: the principle of complementarity in practice. http://www.iclklamberg.com/Caselaw/OTP/Informal%20Expert%20paper%20The%20principle%20of%20complementarity%20in%20practice.pdf. Accessed Sept 2014

  • Office of the Prosecutor (2003b) Paper on some policy issues before the office of the prosecutor. http://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25-60aa962ed8b6/143594/030905_policy_paper.pdf. Accessed Sept 2014

  • Office of the Prosecutor (2006) Report on the activities performed during the first three years (June 2003–June 2006). http://www.icc-cpi.int/NR/rdonlyres/D76A5D89-FB64-47A9-9821-725747378AB2/143680/OTP_3yearreport20060914_English.pdf. Accessed Sept 2014

  • Office of the Prosecutor (2009) Agreed minutes of the meeting between Prosecutor Moreno-Ocampo and the Delegation of the Kenyan government. http://www.icc-cpi.int/NR/rdonlyres/1CEB4FAD-DFA7-4DC5-B22D-E828322D9764/280560/20090703AgreedMinutesofMeetingProsecutorKenyanDele.pdf. Accessed Sept 2014

  • Olasolo H (2012) Essays on international criminal justice. Hart Publishing, Portland

    Google Scholar 

  • Olasolo H, Cernero-Rojo E (2011) The application of the principle of complementarity to the decision of where to open an investigation: the admissibility of “situation”. In: Stahn C, El Zeidy MM (eds) The International Criminal Court and complementarity, vol I. Cambridge University Press, New York

    Google Scholar 

  • Parliament of Kenya (2008) Official Hansard reports. Doc. Hansard 04.12.08. Nairobi

    Google Scholar 

  • Parliament of Kenya (2009) Official Hansard reports. Doc. Hansard 27.01.09. Nairobi

    Google Scholar 

  • Parliament of Kenya (2010a) Official Hansard reports. Doc. Hansard 16.12.10P. Nairobi

    Google Scholar 

  • Parliament of Kenya (2010b) Official Hansard reports. Doc. Hansard 22.12.10P. Nairobi

    Google Scholar 

  • Pichon J (2008) The principle of complementarity in the cases of Sudanese nationals Ahmed Harun and Ali Kushaby before the International Criminal Court. Int Crim Rev 8:185–228

    Article  Google Scholar 

  • Rastan R (2011) Situation and case: defining the parameters. In: Stahn C, El Zeidy MM (eds) The International Criminal Court and complementarity, vol I. Cambridge University Press, New York

    Google Scholar 

  • Ratner SR et al (2009) Accountability for human rights atrocities in international law: beyond the Nuremberg Legacy, 3rd edn. Oxford University Press, New York

    Google Scholar 

  • Robinson D (1999) Crimes against humanity at the Rome Conference. Am J Int Law 93(1):43–57

    Article  Google Scholar 

  • Robinson D (2010) The two liberalisms of international criminal law. In: Stahn C, Van den Herik L (eds) Future perspectives on international criminal justice. T.M.C. Asser Press, The Hague

    Google Scholar 

  • Robinson D (2011a) Essence of crimes against humanity raised by challenges at ICC. EJIL: Talk (The blog of the European Journal of International Law). http://www.ejiltalk.org/essence-of-crimes-against-humanity-raised-by-challenges-at-icc. Accessed Aug 2014

  • Robinson D (2011b) The inaction controversy: neglected words and new opportunities. In: Stahn C, El Zeidy MM (eds) The International Criminal Court and complementarity, vol I. Cambridge University Press, Cambridge

    Google Scholar 

  • Sadat LN (2012a) Emerging from the shadow of Nuremberg: crimes against humanity in the modern age. http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=leilasadat. Accessed Sept 2012

  • Sadat LN (2012b) Crimes against humanity in the modern age. In: Washington University in St. Louis egal Studies Research Paper Series Paper No. 11-11-04. file:///C:/Users/Materu/Desktop/SSRN-id2013254.pdf. Accessed Sept 2014

    Google Scholar 

  • Schabas WA (2000) Perverse effects of the Nulla Poena principle: national practice and ad hoc tribunals. Eur J Int Law 11:521–539

    Article  Google Scholar 

  • Schabas WA (2006a) First prosecutions at the International Criminal Court. Hum Rights Law J 27(1–4):25–40

    Google Scholar 

  • Schabas WA (2006b) The “Odious Scourge” evolving interpretations of the crime of genocide. Genocide Stud Prev 1:93–106

    Google Scholar 

  • Schabas WA (2007) An introduction to the International Criminal Court, 3rd edn. Cambridge University Press, New York

    Book  Google Scholar 

  • Schabas WA (2008) State policy as an element of international crimes. J Crim Law Criminol 98(3):953–982

    Google Scholar 

  • Schabas WA (2009) Prosecutorial discretion and gravity. In: Stahn C, Sluiter G (eds) The emerging practice of the International Criminal Court. Martinus Nijhoff Publishers, Leiden

    Google Scholar 

  • Schabas WA (2010) Prosecuting Dr. Strangelove, Goldfinger, and the Joker at the International Criminal Court: closing the loopholes. Leiden J Int Law 23:847–853

    Article  Google Scholar 

  • Schabas WA (2011) An introduction to the International Criminal Court, 4th edn. Cambridge University Press, New York

    Book  Google Scholar 

  • Schabas WA, Shibahara K (2008) Article 61: confirmation of charges before trial. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court: observers’ notes article by article, 2nd edn. Verlag C.H Beck oHG, München

    Google Scholar 

  • Schiff BN (2008) Building the International Criminal Court. Cambridge University Press, New York

    Book  Google Scholar 

  • Scott J (2010) Codified cannons and common law of interpretation. Georgetown Law J 98(341):341–431

    Google Scholar 

  • Seils PF (2011) Making complementarity work: maximizing the limited role of the prosecutor. In: Stahn C, El Zeidy MM (eds) The International Criminal Court and complementarity, vol II. Cambridge University Press, New York

    Google Scholar 

  • Sing’Oei AK (2010) The ICC Arbiter in Kenya’s post-election violence. Minnesota J Int Law Online 19:5–20

    Google Scholar 

  • Sriram CL (2009) The International Criminal Court Africa experiment—The Central African Republic, Darfur, Northern Uganda and the Democratic Republic of the Congo. In: Sriram CL, Pillay S (eds) Peace versus justice? The dilemma of transitional justice in Africa. University of KwaZulu-Natal Press, Cape Town

    Google Scholar 

  • Stahn C (2009) Judicial review of prosecutorial discretion: five years on. In: Stahn C, Sluiter G (eds) The emerging practice of the International Criminal Court. Martinus Nijhoff Publishers, Leiden

    Google Scholar 

  • Stahn C, El Zeidy M (eds) (2011) The International Criminal Court and complementarity, vol I. Cambridge University Press, New York

    Google Scholar 

  • Stevenson A (ed) (2007) Shorter Oxford English dictionary, 6th edn. Oxford University Press, Oxford

    Google Scholar 

  • Stigen J (2008) The relationship between the International Criminal Court and national jurisdictions: the principle of complementarity. Nijhoff Martinus Publishers, Leiden

    Book  Google Scholar 

  • Struett MJ (2008) The politics of constructing, the International Criminal Court: NGOs, discourse and agency. Palgrave Macmillan, New York

    Google Scholar 

  • United Nations Development Programme (2009) Mount Elgon conflict: a rapid assessment of the underpinning socio-economic, governance and security factor. In: Amani Papers. http://www.ke.undp.org/content/kenya/en/home/operations/projects/peacebuilding/amani-papers-/. Accessed Sept 2014

  • United Nations General Assembly (2009) Report of the International Criminal Court to the United Nations for 2008/2009, UN Doc. A/64/356, 17 Sept 2009

    Google Scholar 

  • United Nations International Law Commission (1996) Yearbook of the international law commission, vol II, Part 2. United Nations, New York

    Google Scholar 

  • United Nations Security Council (2013a) The rule of law: the Security Council and accountability, cross-cutting report No. 1, 18 Jan 2013

    Google Scholar 

  • United Nations Security Council (2013b) Security Council resolution seeking deferral of Kenyan leaders’ trial fails to win adoption, with 7 voting in favour, 8 abstaining. http://www.un.org/News/Press/docs/2013/sc11176.doc.htm. Accessed August 2014

  • United Nations Security Council (2013c) Identical letters dated 21 October 2013 from the Permanent Representative of Kenya to the United Nations addressed to the Secretary-General and the President of the Security Council, S/2013/624, 22 October 2013. http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2013_624.pdf. Accessed Sept 2014

  • Villa-Vicencio C (2011) The ICC in Africa. Think 26:38–41

    Google Scholar 

  • Wanyeki LM (2012) The International Criminal Court’s cases in Kenya: origin and impact. In: Institute of Security Studies, paper no 237. http://www.issafrica.org/uploads/Paper237.pdf. Accessed Sept 2014

  • Watson G (2003) The changing jurisprudence of the International Criminal Tribunal for the Former Yugoslavia. N Engl Law Rev 37(4):871–885

    Google Scholar 

  • Weldehaimanot SM (2011) Arresting Al-Bashir: the African Union’s opposition and the legalities. Afr J Int Comp Law 19(2):208–235

    Article  Google Scholar 

  • Werle G (2009) Principles of international criminal law, 2nd edn. T.M.C Asser Press, The Hague

    Book  Google Scholar 

  • Werle G, Burghardt B (2012) Do crimes against humanity require the participation of a state or a “State-Like” organization? J Int Crim Justice 10(5):1151–1170

    Article  Google Scholar 

  • Werle G et al (eds) (2014) Africa and the International Criminal Court. T.M.C Asser Press, The Hague

    Google Scholar 

  • Williams SA (2004) Cambodian extraordinary chambers—a dangerous precedent for international justice. Int Crim Law Q 53:227–245

    Google Scholar 

  • William SA (2008) Article 13: Exercise of Jurisdiction. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court: observers’ notes article by article, 2nd edn. Nomos Verlagsgesellschaft, Baden-Baden

    Google Scholar 

  • William SA, Schabas WA (2008) Article 17—Issues of admissibility. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court: observers’ article by article, 2nd edn. Verlag C.H Beck oHG, München

    Google Scholar 

Download references

Author information

Authors and Affiliations

  1. Faculty of Law, University of Dar Es Salaam, Dar es Salaam, Tanzania

    Sosteness Francis Materu

Authors
  1. Sosteness Francis Materu
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Sosteness Francis Materu .

Rights and permissions

Reprints and permissions

Copyright information

© 2015 T.M.C. Asser Press and the author

About this chapter

Cite this chapter

Materu, S.F. (2015). The Kenya Situation Before the ICC. In: The Post-Election Violence in Kenya. International Criminal Justice Series, vol 2. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-041-1_6

Download citation

Publish with us

Policies and ethics

Societies and partnerships

Search

Navigation