International Criminal Court


ity to initiate investigations proprio motu on the basis of crimes within the Court’s jurisdiction].3


Moreover, under article 15, the Prosecutor may initiate an investigation proprio motu (“on one’s own initiative”) based on the reasonable belief that a crime within the ICC’s jurisdiction - war crimes, crimes against humanity, genocide, or ag- gression - has been committed. But, under article 13(c), a proprio motu investigation is feasible only if the state or non-state party has consented to the exercise of its jurisdiction through ratifying the Rome Statute or a special declaration. Here, the Rome Statute distinguishes between a state’s duty to consent to the ICC’s jurisdiction (and later coop- erate with its investigation) and how far its jurisdiction actually extends.


20


Putting it another way, the Rome Statute adheres to the legal cus- tom of state consent, espoused by the Vienna Convention on the Law of Treaties4


election results. However, the inter-communal violence that ignited following the 2007 general election was unprecedented, unlike any other civil strife seen before in the nation’s history. By the time the dust had settled, over 1,000 Kenyans were killed and nearly 700,000 others displaced.5


Following the violence, Kofi Annan, on behalf of the African Union’s (AU) Panel of Eminent African Personalities, directed efforts to negotiate an end to the violence.6


ker a power-sharing agreement,7


He was eventually able to bro- which included a


safety clause that provided that if the government was unable or unwilling to set up a domestic tribunal,8


the While many Kenyan officials,


including President Kenyatta, have publically affirmed their support for the ICC, the government repeatedly refused to cooperate.


AU Panel would have the dis- cretion to refer the case to the ICC. Finally, after three years of inaction, the ICC interceded in March 2010, initiating an inves- tigation proprio motu for the first time in its existence.9


The investigation culminated : if a state does


not consent, the ICC cannot force it to cooper- ate. State consent to be bound by a treaty is pre- requisite for it to be considered legitimate under international law. States’ reasons for consenting to a treaty are generally twofold: (1) to comport with recognized legal standards, either domes- tic or international in scope; and (2) to minimize the impact of the treaty on state sovereignty to conduct its own domestic affairs. However, as in the case of Kenya, discussed below, even with prior state consent, cooperation is not an abso- lute guarantee.


In the Case of Kenya: Initiating a Proprio Motu Investigation


Since the development of the multi-party politi- cal system in Kenya in 1991, electoral violence is a frequent occurrence in response to disputed


in charges against six officials—among them, the current Kenyan President Uhuru Kenyatta and Vice President William Ruto—for crimes against hu- manity of murder, deportation or forcible transfer, rape, persecution, and other inhuman acts alleg- edly committed during the post-electoral period.10 Even though the ICC intended to act as a neutral investigator by independently administering jus- tice, its indictment of key officials inflamed politi- cal sentiments in Kenya and abroad.


From the outset of the trial, the Kenyan govern- ment attempted to obstruct proceedings through a panoply of methods, such as requesting the United Nations Security Council to defer the case and challenging its jurisdiction to voting to amend the ICC Rules of Procedure and Evidence. The government’s numerous attempts to avoid compli- ance are emblematic of a larger issue faced by the Court. While the ICC independently renders deci- sions and the Office of the Prosecutor retains the


ILSA Quarterly » volume 23 » issue 1 » October 2014


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