JURIST - Paper Chase: ICC appeals chamber confirms admissibility of Kenya post-election violence cases

[JURIST] The Appeals Chamber of the International Criminal Court (ICC) [official website] on Tuesday rejected an appeal [press release] filed by the Kenyan government and confirmed a Pre-Trial Chamber ruling refusing to transfer two cases stemming from 2007 post-election violence to Kenyan courts. The Kenyan government appealed the previous decision in June after the ICC announced that they were denying [JURIST reports] Kenya's request to transfer the cases. The presiding judge denied the appeal stating that the Pre-Trial Chamber ruling contained no legal, factual or procedural errors. The Appeals Chamber also indicated that the Pre-Trial Chamber did not err when they found that there was insufficient evidence to support claims by the Kenyan government that they were actively prosecuting the accused defendants. The judge noted that in order for the ICC to lack jurisdiction a member nation must be conducting an investigation covering the same individuals and substantially the same issues as alleged before the ICC, and because no such investigation has been proven by the Kenyan government, the ICC's jurisdiction is valid. The men facing charges in front of the ICC are part of the "Ocampo Six," and are facing trial [JURIST report] for allegedly inciting violence during and after the December 2007 Kenyan elections [JURIST news archive]. The ICC initially claimed jurisdiction due to doubts that Kenya was willing to fully investigate the matter. The 2007 Kenyan post-election violence resulted in more than 1,100 deaths, 3,500 injuries, hundreds of rapes and up to 600,000 individuals being forcibly displaced.

The Ocampo Six include several high-ranking members of Kenya's government, the head of operations at Kass FM [official website] in Nairobi and the son of Kenya's first president, Jomo Kenyatta [Africa Within backgrounder]. Three of the men are members of the Orange Democratic Movement (ODM) [party website], and the other three are members of the opposing Party for National Unity (PNU). The ODM suspects are charged with fomenting violence against PNU members following the 2007 elections because they believed the election of Kenyan President Mwai Kibaki [official profile] to be rigged. In response, the PNU suspects are charged with the conspiring with the Mungiki criminal organization [Safer Access backgrounder, PDF] to attack members of the ODM party. The ICC summoned the suspects [JURIST report] after determining they would not be charged in Kenya for the alleged crimes. In April, Kenya requested that the ICC dismiss the case [JURIST report], arguing that the government is capable of prosecuting the six men domestically. Lawyers for the Ocampo Six called for the timely release of evidence [JURIST report] against their clients that month as well.