Emeka-Mayaka Gekara
17 May 2009
interview
An interview with Luis Moreno-Ocampo, the International Criminal Court prosecutor, on the ICC's attitude towards Kenya's post-election violence early in 2008:
Do you have any intention to investigate the Kenyan killings?
Kenya is a state party to the Rome Statute. In accordance with the principle of complementarity, it is the primary responsibility of the Kenyan authorities to investigate and prosecute all crimes committed on their territory that could fall under the jurisdiction of the ICC.
In accordance with the law, if Kenyan authorities do not conduct genuine investigations, I shall do so. To my understanding, the Kenyan Parliament is not adopting a Bill establishing a special tribunal; there are no national proceedings.
The issue is still in the hands of Kenyan leaders. I will meet with the minister of Justice and Constitutional Affairs in The Hague in July.
Have you launched any investigations into the killings?
My office is conducting a preliminary examination of the situation in Kenya. We are assessing whether the crimes committed in Kenya fall under the jurisdiction of the Court.
We want to see whether they constitute war crimes, crimes against humanity or genocide; and whether the perpetrators have been or may be prosecuted by the national judiciary.
If I reach the conclusion that crimes under my jurisdiction have been committed in Kenya and that there are no genuine national proceedings, it is my duty to open investigations.
Have you received any evidence from the Kenya Human Rights Commission or any Kenyan group in relation to the matter?
As I said, the preliminary analysis of the situation in Kenya is ongoing. So far, my office has reviewed a range of different reports and statements. These include public reports authored by Kenyans and international organisations, as well as communication sent to the Court.
We also wrote to various parties in Kenya seeking further information in relation to alleged crimes committed on that territory. I have to say that much information is available on the post-election violence and the remarkable work done, inter alia, by the Commission of Inquiry into Post-Election Violence is proving very helpful.
From where you sit, do the Kenyan killings constitute war crimes, genocide or crimes against humanity?
My office is currently analysing the appropriate legal qualification of the crimes committed in Kenya. A range of different reports, including the final report of the Waki Commission, have suggested that crimes against humanity have been committed.
To the extent that there are credible indications that the violence was planned and organised, this is a well-founded conclusion. For this reason, we may well have subject-matter jurisdiction.
When can Kenyans expect help from your office?
The primary responsibility of investigating and prosecuting crimes committed on Kenyan territory, including those for which the ICC is competent, lies with the Kenyan authorities.
The ICC is a court of last resort. If we open an investigation, the first warrants of arrest may then be issued within a year, as happened, for instance, in the Bemba case regarding the Central African Republic.
If Mr. Annan hands over the names to you, what would be your next step?
It will be crucial information. However, I have a duty of independence and impartiality, so I will carry out an independent analysis.
There have been suggestions that Kenya should propose the establishment of a tribunal under the UN auspices similar to the UN Special Court for Sierra Leone instead of setting up the Special Tribunal. What impact would this have on the ICC's approach to Kenya?
We will respect any genuine judicial proceedings.
The court has been accused of incompetence. It has not concluded any significant case since its inception. What is your comment?
When I started at the ICC there were two general fears related to my position - a frivolous prosecutor presenting frivolous cases, or an impotent prosecutor unable to carry out investigations or to get suspects arrested.
Within six years, I have opened investigations on the gravest cases under my jurisdiction. I investigated massive crimes during ongoing conflicts.
We focused on those most responsible, and we collected sufficient evidence to obtain the issuance of warrants of arrest against 13 individuals and one summons to appear. Four leaders of four different militias are in prison. A trial is ongoing and a second is coming. We put a permanent judicial system in motion that cannot be stopped.
Why is the prosecution process so tedious and seemingly inhibitive?
Do you know how long it takes to investigate a single theft in any country? We are investigating massive crimes against humanity faster than ever thought possible.
Similarly, the judicial proceedings are as expeditious as possible while everything is done to ensure equity of arms between the defence and the prosecution and to ensure adequate participation of victims. The Court, as a whole, is committed to applying the highest standards, including in terms of efficiency.
Is it true that ICC issued both confidential and public warrants of arrest? Any examples?
Yes. We evaluate the best method to ensure the appearance of the individuals in question. Sometimes, we request sealed arrest warrants and sometimes we do it publicly.
If that is true, and since the ICC relies on signatories to the Rome Statute to arrest, how do you communicate to these countries?
In legal terms, state parties to the Rome Statute are under an obligation to cooperate with the ICC. I can also request cooperation from international organisations and from non-state parties on the basis of ad hoc agreements or arrangements.
Besides investigating and prosecuting, I invest a great deal of my time seeking and ensuring the cooperation of all. When a warrant of arrest is issued under seal, it is transmitted confidentially to the state authorities that are in a position to ensure its execution.
Would you consider such a case for the Kenyan situation?
Kenya is a state party of the International Criminal Court. It ratified the Rome Statute on March 15, 2005. In the event I decide to open an investigation, Kenya has the duty to cooperate with the Court like any other state party within the framework of the Rome Statute.
Whether warrants of arrest will be sealed or not is a premature question at this stage. The important point is that no one is immune from prosecution before the ICC; politicians, businessmen or security officers may all potentially be brought to account in accordance with their criminal responsibility.
Our neighbours Sudan are up in arms over President Omar al-Bashir's arrest warrant. Are you optimistic about his arrest?
The Sudan has the primary responsibility to arrest President Al-Bashir. This is a process and it will take time. It could be in six months or six years, but President Al-Bashir's destiny is to face justice.
It happened with Slobodan Milosevic; it happened with Charles Taylor. It has also happened in national jurisdiction
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