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Judiciary – Key Decisions Admissibility
The Government’s appeals
On 6 June 2011, the Kenyan Government filed an
appeal against the admissibility decision of the Pre-
Trial Chamber. 1629 It filed its document in support of
the appeal on 20 June 2011. 1630 Article 82(1)(a) and
Rule 154(1) provide for an automatic right to appeal
decisions with respect to admissibility. At the same
time, the Government requested the Pre-Trial Chamber
leave to appeal what it saw as a procedural error in the
Pre-Trial Chamber’s decision on admissibility, arguing
that the Chamber had erred in finding that it did not
have to rule on the State’s request for assistance before
ruling on the admissibility challenge.
Asserting that the cooperation decision of 29 June also
pertained to admissibility and as such was subject
to an automatic right to appeal, on 4 July 2011 the
Government of Kenya also appealed the decision on
cooperation. 1631 The Government submitted that
the Pre-Trial Chamber erred in fact by finding that
there was no documentary proof of the existence of
investigations and that it erred in law in its finding
that it could not order the Prosecutor to transmit
evidence. In the event that the Appeals Chamber not
accept the automatic appeal, the Government also
filed a request for leave to appeal with the Pre-Trial
Chamber. 1632
In the 6 June appeal of the 30 May decision on the
admissibility challenge the Government of Kenya
argued that the Pre-Trial Chamber erred in procedure,
in its factual findings and in law. It contested the
Pre-Trial Chamber’s finding that Kenya was unwilling
to conduct investigations and asserted that it was
actually unable to carry out these investigations, for
lack of evidence. The Government submitted that the
Pre-Trial Chamber erred procedurally by refusing the
Government request for a status conference and/
or oral hearing. The Government argued that the
Chamber’s failure to rule on its request for assistance
before issuing its decision on the admissibility left it
without evidence ‘that might be of great importance
to its investigations. The Government of Kenya is thus
less able – through no fault of its own – to support its
admissibility arguments.’ 1633
The Government also submitted that the Chamber
erred in fact, postulating that ‘there is a “universe”
of evidence about the Post-Election Violence in Kenya
but that only part of that “universe” may be available
to Kenya and only part – almost certainly a different
1629 ICC-01/09-01/11-109 and ICC-01/09-02/11-104.
1630 ICC-01/09-01/11-135 and ICC-01/09-02/11-130.
1631 ICC-01/09-70.
1632 ICC-01/09-71.
1633 ICC-01/09-01/11-109 and ICC-01/09-02/11-104, para 27.
part – available to the Prosecutor of the ICC’ (emphasis
in original). 1634 The Government argued that any
determination on the evidence presented must be
done with the recognition of these two ‘universes’. In
addition, the Government postulated that ‘as a matter
of law, the Government of Kenya cannot be expected
to investigate those against whom it may have no
evidence, especially when the Prosecutor, who has
evidence it appears, has declined to make his evidence
available to the Government of Kenya’ (emphasis in
original). 1635
Overall, the Kenyan Government asserted that the
Pre-Trial Chamber erred in finding that there were at
present no investigations against the six individuals.
The Government stressed that the Chamber too
hastily rejected the admissibility challenge without
taking into account the additional information the
Government intended to submit during an oral
hearing. The Government also argued that the
Chamber failed to address the legal arguments
put forward by the Government in its admissibility
challenge regarding the correctness of the ‘same
person, same conduct’ test as applied by the Pre-Trial
Chamber.
On 4 July 2011, as indicated in its admissibility
challenge, the Government of Kenya submitted
its first updated investigation report, as further
evidence in support of its appeal that investigations
were ongoing. 1636 The report explained that an
investigation team, composed of ten senior police
officers, was appointed shortly after the naming of the
six individuals by the Prosecutor and was currently
conducting investigations on the ground. The team
had interviewed at least 35 witnesses, but was still
experiencing difficulties in locating witnesses it
wished to interview. According to the Government,
the ongoing investigations by this team have not
as yet produced any evidence linking the six ICC
suspects to the crimes alleged. With this submission,
Kenya attempted to substantiate its assertion that it
was unable to carry out proceedings against the six
persons because of the unavailability of evidence, not
because of unwillingness on the part of the State to
carry out such investigations.
On 30 August 2011 the Appeals Chamber, by majority
decision, confirmed the Pre-Trial Chamber’s decision
rejecting the admissibility challenge. 1637 Judge Ušacka
issued a dissenting opinion, dissenting from the entire
decision. The dissenting opinion and the majority
decision are discussed in detail below.
1634 ICC-01/09-01/11-109 and ICC-01/09-02/11-104, para 29.
1635 ICC-01/09-01/11-109 and ICC-01/09-02/11-104, para 36.
1636 ICC-01/09-01/11-159-Anx1 and ICC-01/09-02/11-153-
Anx1.
1637 ICC-01/09-01/11-307 and ICC-01/09-02/11-274.
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