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

Judiciary – Key Decisions Admissibility
Government and the State’s apparent willingness to
substantively investigate the post-election violence.
However, Pre-Trial Chamber I had previously held in
the Lubanga case in the context of its decision on
the issuance of an arrest warrant that to render a
case inadmissible the national proceedings must
encompass the same conduct committed by the
same person or persons as the proceedings before
the ICC (the ‘same person/same conduct’ test). 1617 In
the present instance, Pre-Trial Chamber II found that
the Kenyan Government had erred by applying the
admissibility test as set forth in its 31 March 2010
decision, which the Chamber clarified, related to the
Situation stage of proceedings, not the case stage of
proceedings. In its 31 March 2010 decision authorising
the investigation into the Situation, the Pre-Trial
Chamber had stated that ‘national investigations must
[…] cover the same conduct in respect of persons at
the same level in the hierarchy being investigated by
the ICC’ and the Kenyan Government argued that as
such it would be sufficient to investigate persons at
the same level in the hierarchy. 1618 In its subsequent
30 May decision regarding the issuance of summonses
to appear, the Pre-Trial Chamber clarified the test for
admissibility at the situation stage of proceedings
as compared to the case stage. In line with previous
ICC jurisprudence, 1619 the Chamber reiterated that at
the case stage of proceedings the admissibility of a
case must be assessed against domestic proceedings
involving the same identified individuals (ie the ‘same
person/same conduct’ test). 1620
The Pre-Trial Chamber further held that the
Government’s erroneous interpretation of the
admissibility test actually cast doubt upon its
willingness to genuinely investigate the six
individuals. It found that the acknowledgement by the
Kenyan Government that its ongoing investigations
were focused on lower-level perpetrators was a clear
indication that there were in fact no proceedings
currently underway against the six suspects before the
Court. 1621
The Pre-Trial Chamber questioned the updated reports
that the Government of Kenya planned to submit
in order to demonstrate that proceedings were
ongoing, and stressed that if proceedings were indeed
currently underway, there was no compelling reason
to wait to submit these reports until July 2011. 1622
1617 ICC-01/04-01/06-8-Corr, paras 31 and 37-39.
1618 ICC-01/09-01/11-19 and ICC-01/09-02/11-26, para 32.
1619 ICC-01/04-01/06-8-Corr (Lubanga).
1620 ICC-01/09-01/11-101, para 54 and ICC-01/09-02/11-96,
para 50.
1621 ICC-01/09-01/11-101, para 62 and ICC-01/09-02/11-96,
para 58.
1622 ICC-01/09-01/11-101, para 63 and ICC-01/09-02/11-96,
para 59.
The Chamber also found that of the 29 annexes
submitted to it by the Government, only three related
to some extent to the investigative processes. Yet it
noted that neither of these provided substantiating
evidence that proceedings were ongoing. The Chamber
also dismissed the 14 April letter by the Attorney-
General, noting that the letter was dated two weeks
after the filing of the admissibility challenge. It thus
considered the letter to be a clear indication that at
the time of the filing of the challenge, proceedings
were not actually ongoing. 1623 It also found that the
Government had failed to provide evidence as to
the conduct, crimes or incidents upon which these
alleged national proceedings were based. 1624 Citing
the Appeals Chamber’s determination in Katanga
& Ngudjolo that admissibility must be determined
‘on the basis of the facts as they exist at the time
of the proceedings concerning the admissibility
challenge’, 1625 the Chamber concluded that the
inactivity on the part of the Kenyan Government in
relation to the investigation or prosecution of these six
individuals rendered the two cases admissible. 1626
In the decision on admissibility, the Chamber also
briefly addressed the Government’s request for
assistance, again expressing doubt about the timing
of the Government’s filing. The Chamber noted that
the request for cooperation was made three weeks
after the admissibility challenge, thus casting doubt
upon the necessity of the sharing of evidence for the
admissibility challenge. The Chamber handed down
a separate decision on the Government’s request for
cooperation on 29 June 2011. 1627
In the 29 June decision, the Pre-Trial Chamber
noted that it could only decide upon the possible
transmission of evidence already submitted to it by the
Prosecutor. It was for the Prosecutor himself to decide
upon the transmission of any other evidence in the
possession of the Prosecutor not yet transmitted to
the Chamber. 1628 Stressing that the key requirement
of Article 93(10) was the existence of ongoing or
completed national investigations, the Chamber did
not find that the cooperation request provided any
documentary evidence to establish the existence of
such proceedings and as such denied the request for
cooperation.
1623 ICC-01/09-01/11-101, para 66 and ICC-01/09-02/11-96,
para 62.
1624 ICC-01/09-01/11-101, para 69 and ICC-01/09-02/11-96,
para 65.
1625 ICC-01/04-01/07-1497, para 56.
1626 ICC-01/09-01/11-101, para 70 and ICC-01/09-02/11-96,
para 66.
1627 ICC-01/09-63.
1628 ICC-01/09-63, paras 30-31.
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