Gender Report Card on the International Criminal ... - YWCA Canada

Judiciary – Key Decisions Admissibility
On 21 April 2011, the Government of Kenya submitted
22 annexes to its application, 1600 as evidence that
proceedings were underway. One of these annexes
is a letter of instruction dated 14 April 2011 from
Attorney-General Amos Wako, instructing the
Commissioner of Police ‘to ensure that all the cases
pending investigations are concluded expeditiously
… and to investigate all other persons against whom
there may be allegations of participation in the
Post-Elections Violence, including the six persons
who are the subject of the proceedings currently
before the International Criminal Court’. 1601 However,
as the response by the OPCV to the admissibility
challenge noted, the timing of this letter warranted
careful scrutiny as it was dated two weeks after the
filing of the admissibility challenge. 1602 The Defence
and Prosecutor also submitted responses to the
Government’s admissibility challenge. The Prosecution
submitted that, although welcoming the stated
commitment of the Kenyan Government to investigate
the post-election violence, 1603 the application by the
Government did not provide any indication that the
Government is currently conducting or has conducted
such investigations or prosecutions. 1604 The Defence
in both cases filed independent, though similar,
submissions on the admissibility challenge by the
Kenyan Government. 1605 The submissions underscored
that the Defence did not oppose the challenge by
the Kenyan Government, but reserved the right to
file submissions on admissibility independently at a
later stage of the proceedings. On 13 May 2011, the
Government submitted a reply to the responses of the
Prosecutor, the Defence and OPCV, including a further
seven annexes, reiterating its previously expressed
views that the cases are inadmissible. 1606
As part of its admissibility challenge, the Government
requested the Chamber to schedule a public oral
hearing, so as to enable the Government to address
the Pre-Trial Chamber in relation to its application. 1607
The Government further requested that it be granted
an opportunity to be heard during one or both of the
initial appearances of the suspects on 7 and 8 April
1600 ICC-01/09-01/11-64 and ICC-01/09-02/11-67, including
public annexes 1-22.
1601 ICC-01/09-01/11-64-Anx1 and ICC-01/09-02/11-67-
Anx1.
1602 ICC-01/09-01/11-70 and ICC-01/09-02/11-74, para 16.
1603 ICC-01/09-01/11-69 and ICC-01/09-02/11-71, para 2.
1604 ICC-01/09-01/11-69 and ICC-01/09-02/11-71, para 12.
1605 ICC-01/09-01/11-67 (Kosgey); ICC-01/09-01/11-68 (Ruto
and Sang); ICC-01/09-02/11-70 (Ali); ICC-01/09-02/11-72
(Muthaura and Kenyatta).
1606 ICC-01/09-01/11-89 and ICC-01/09-02/11-91.
1607 ICC-01/09-01/11-19 and ICC-01/09-02/11-26, paras 20-
21, 81.
2011. 1608 In two identical decisions filed on 4 April 2011
in both cases on the conduct of proceedings following
the Government’s admissibility challenge, Pre-Trial
Chamber II rejected the Government’s request to
participate in those hearings, reiterating the limited
purpose of the initial appearances. 1609 On 17 May 2011,
the Government filed a second application reiterating
its request for an oral hearing, 1610 which was again
rejected by the Pre-Trial Chamber on the grounds that
this was essentially a request for reconsideration, and
not provided for in the Court’s statutory provisions. 1611
On 21 April 2011, the Government of Kenya filed a
formal request for assistance to the ICC under Article
93(10). 1612 Kenya asserted that the Prosecutor may
be in possession of critical evidence ‘unavailable to
or not yet found by’ the Government, which could
significantly advance its national investigations and
thus impact upon its admissibility challenge before
the Court. 1613 The Government requested the Court
to submit all statements, documents and other types
of evidence in possession of the Prosecutor and the
Court to enable it to advance and complete its national
investigations. 1614
The Prosecutor filed a response to the request for
assistance on 10 May 2011, asserting that the
transmission of evidence would raise significant
concerns for the security of victims, witnesses,
potential witnesses and their families. 1615 The
Prosecutor also stressed that Kenya had not provided
convincing evidence that investigations were actually
ongoing, which could warrant the communication of
evidence.
On 30 May 2011, Pre-Trial Chamber II handed down a
decision rejecting the Kenyan Government’s challenge
to the admissibility of the two cases. 1616 The Chamber
welcomed the judicial reforms introduced by the
1608 ICC-01/09-01/11-19 and ICC-01/09-02/11-26, paras 22,
82.
1609 ICC-01/09-01/11-31 and ICC-01/09-02/11-40, para 11.
1610 ICC-01/09-01/11-94 and ICC-01/09-02/11-92.
1611 ICC-01/09-01/11-101, para 42 and ICC-01/09-02/11-96,
para 38.
1612 Article 93(10) provides that the Court may, upon request,
cooperate with and provide assistance to a State Party
conducting investigations into Rome Statute crimes.
Such assistance shall include the transmission of
statements, documents and other evidence obtained in
the course of an investigation or trial conducted by the
ICC.
1613 ICC-01/09-58, para 6.
1614 ICC-01/09-58, paras 3-4.
1615 ICC-01/09-01/11-83-Corr and ICC-01/09-02/11-86-Corr,
para 17.
1616 ICC-01/09-01/11-101 and ICC-01/09-02/11-96.
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