ICC gives green light for probe into Kenya’s post-election violence

The International Criminal Court (ICC) today granted the prosecutor’s request to investigate crimes against humanity allegedly committed in Kenya in post-election ethnic violence two years ago, when some 1,000 people were killed and 300,000 others forced to flee their homes.

Last November, prosecutor Luis Moreno-Ocampo sought authorization to open an investigation into the violence after the disputed December 2007 polls in which President Mwai Kibaki was declared winner over opposition leader Raila Odinga, who is now Prime Minister. Earlier this month in a sealed list to the ICC he named 20 people he says were most responsible.

“The information available provides a reasonable basis to believe that crimes against humanity have been committed on Kenyan territory,” the ICC’s Pre-Trial Chamber II found in a majority decision of two to one issued in The Hague, where the court is based. “The majority moreover found that all criteria for the exercise of the Court’s jurisdiction were satisfied, to the standard of proof applicable at this stage.”

Judge Hans-Peter Kaul, dissenting, held that the crimes in Kenya do not qualify as crimes against humanity under the jurisdictional ambit of the Rome Statute, which established the court, and which Kenya ratified in 2005.

He concluded that there was no reasonable basis to believe that the crimes in Kenya were committed in an attack against a civilian population pursuant to or in furtherance of a policy stemming from a State or an organization, which he said was required by Article 7 of the Statute.

The majority decision by Judges Ekaterina Trendafilova and Cuno Tarfusser cited the low threshold applicable at this stage of the proceedings.

When he sought the authorization, Mr. Moreno-Ocampo said Mr. Kibaki and Mr. Odinga, who agreed to serve in a power-sharing administration following the violence, had promised to cooperate with any investigation. “There is a reasonable basis to believe that the attacks against Kenyan civilians during the post-election violence constitute crimes against humanity under the ICC’s jurisdiction,” he said then.