Witness Protection Key Challenge in Investigation
March 31, 2010
The decision today can help Kenya turn the corner. A full investigation into possible crimes against humanity can help restore confidence among Kenya’s people that elections don’t have to turn into bloodbaths.
Elizabeth Evenson, International Justice Program counsel

(The Hague) - A majority of a pre-trial chamber of International Criminal Court (ICC) judges today approved the ICC prosecutor's request to open an investigation into Kenya's 2007 post-election violence, Human Rights Watch said. The Kenyan inquiry is the first investigation begun by the prosecutor acting on his own initiative. All previous cases were referred either by the governments concerned or the United Nations Security Council.

The violence that followed Kenya's flawed 2007 general election left over 1,133 people dead, caused 400,000 to flee their homes, and brought Kenya to the brink of civil war. Kenya has a history of failing to pursue justice for election-related violence; those responsible for past episodes, in 1992 and 1997, have never been brought to justice.

"The decision today can help Kenya turn the corner," said Elizabeth Evenson, counsel in the International Justice Program at Human Rights Watch. "A full investigation into possible crimes against humanity can help restore confidence among Kenya's people that elections don't have to turn into bloodbaths."

After more than a year of inaction by Kenya's authorities on national prosecutions for the most recent post-election violence, the ICC prosecutor, Luis Moreno Ocampo, sought permission, in November 2009, from a pre-trial chamber of three ICC judges to proceed with an investigation. In its decision today, the chamber by a majority approved that request.

Interest in the issue in Kenya is high, as shown by the near-constant attention by the media over the past year to prospects for an inquiry. The ICC has made efforts in recent weeks to provide basic information about the court to the Kenyan public. Human Rights Watch said the ICC effort has been helpful and urged it to carry out extensive outreach programs in communities affected by the election violence and broader communications efforts about its activities across the country.

Human Rights Watch also recommended that the ICC and its prosecutor apply lessons learned from the ICC's existing investigations to its new Kenyan inquiry. These include investigating all sides to the violence, and, where there is evidence, bringing charges that reflect the full range of the most serious crimes committed during the post-election violence.

Witness protection will be a key challenge as the ICC's investigation moves forward. Threats against individuals who witnessed incidents of post-election violence, including some who testified before two investigating panels, have reportedly increased in the months since the ICC prosecutor announced his intention to open a Kenya investigation. Kenya's existing witness protection system is widely acknowledged to be inadequate and is currently under reform. In January, the ICC prosecutor wrote to Kenya's justice minister to express concern over the escalation in threats.

"Keeping witnesses safe is a keystone of successful prosecutions, and the ICC should make it a priority to safeguard witnesses and victims in its investigations," Evenson said.

Investigation and prosecution by the ICC will require the full cooperation of Kenyan authorities. The ICC's efforts, however, will only target a small number of senior officials. It will be essential for Kenya also to carry out investigations and prosecutions of other perpetrators at a national level to provide full accountability for the post-election violence, Human Rights Watch said. Although Kenyan authorities agreed in December 2008 to hold national trials for post-election violence suspects, several efforts to establish a special tribunal for Kenya failed to garner sufficient support in parliament. The failure to act has reinforced the perception that those responsible for the post-election violence will not be punished, Human Rights Watch said.

"ICC investigations are likely to target only a handful of those most responsible for the post-election violence," Evenson said. "Kenya's leaders still need to make good on their promise to complete the job with credible national trials."

Background
Following the violence generated by the controversial 2007 presidential elections, leaders of both parties agreed to set up the Commission to Investigate the Post-Election Violence (the Waki commission, after its chairman, Justice Philip Waki). They also established an independent review committee to look at the flaws in the election (the Kriegler committee), and a truth, justice, and reconciliation commission to help heal historical grievances dating from well before the 2007 general elections.

The Waki commission recommended wide-ranging reforms of the police as well as the creation of a special tribunal for Kenya, independent of the judiciary, anchored in a constitutional amendment and staffed by both Kenyan and international judges and prosecutors. In the event no special tribunal was established, the Waki commission recommended that former UN Secretary-General Kofi Annan - the chair of the negotiations that led to the current coalition government - hand over a sealed envelope containing the names of suspects to the ICC. Annan handed over the envelope and other materials from the Waki commission to the ICC prosecutor in July 2009.

The ICC is the world's first permanent court mandated to bring to justice perpetrators of war crimes, crimes against humanity, and genocide when national courts are unable or unwilling to do so. Currently, 110 states are parties to the ICC.

The Kenyan investigation will be the ICC's fifth investigation, and its first opened by the prosecutor using his "proprio motu" powers under article 15 of the Rome Statute. Following voluntary referrals, the ICC prosecutor previously opened investigations in the Democratic Republic of Congo, northern Uganda, and the Central African Republic. The UN Security Council referred the Darfur region of Sudan to the prosecutor. Based on those investigations, 13 arrest warrants and one summons to appear have been issued.

The investigation in Kenya was authorized by a majority of three judges sitting as an ICC pre-trial chamber. In a dissenting opinion, Judge Hans-Peter Kaul held that the crimes committed during the post-election violence did not fall within the ICC's jurisdiction because there was no reasonable basis to believe that those crimes were committed pursuant to a state or organizational policy, a requirement of a crime against humanity under article 7(2)(a) of the Rome Statute.

The ICC prosecutor is also looking at a number of other situations in countries around the world. These include Colombia, Georgia, Cote d'Ivoire, Afghanistan, and Guinea. The Palestinian National Authority has also petitioned the ICC prosecutor to accept jurisdiction over crimes committed in Gaza.

The ICC is a court of last resort. It only steps in where national jurisdictions are unable or unwilling to prosecute Rome Statute crimes.