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What next after naming of Six Suspects by ICC Prosecutor

International Center for Policy and Conflict (ICPC) Talking points

Issuance of summons/ warrants of arrest: what next?

· At this critical moment when the country is waiting with baited breath for the first step towards realization of justice for victims of massive atrocities committed between the period of 2005 and 2008, there has been lots of speculation and misinformation about the whole ICC process. Before answering the question as posed above, it is prudent to first of all understand the process of issuance of summons or warrants of arrest.

· The prosecutor conducts investigations in a situation country out of a self referral by the country, a referral by the UN Security Council or as in our Kenyan case, acting on his proprio motu powers and through authorization by the Pre Trial Chamber. Having been satisfied from the investigations carried, the prosecutor presents the evidence to the Pre-Trial Chamber and seeks summons or warrants of arrests for the suspects considering the circumstances. At this stage the procedure is ex parte the prosecutor only.

· Moving on systematically, it is important to understand what informs the prosecutor’s choice for seeking either a warrant of arrest or a summons. A warrant of arrest is sought when the prosecutor believes that the suspect will not appear before the court voluntarily while a summons is sought for those who are likely to appear voluntarily.

· Before issuance of summons or warrants of arrest, the Pre-Trial Chamber needs to be satisfied that there are “reasonable grounds to believe” that the suspect liable for the charges as put forth by the prosecutor. The Pre-Trial Chamber will carefully analyze the evidence presented afresh and give its reasoned decision on whether to issue warrants of arrest or summons. If the prosecutor is aggrieved with the PTC’s decision at this stage he can appeal to the Appeals Chamber which can make determinations and or return the same to the PTC for a reconsiderations.

· To illustrate, in the Al-Bashir case, the PTC initially by a majority of 2:1 declined to issue a warrant of arrest in regard to genocide charges as presented by the prosecutor but only issued in regard to charges of crimes against humanity. The prosecutor appealed that decision and the same was referred back to the PTC for reconsideration the Appeals Chamber noting that the PTC had applied a wrong test in reaching its decision. Eventually the PTC reconsidered the evidence and applied the test as set out by the Appeals Chamber and issued another warrant of arrest in regard to genocide.

· The next step after the issuance of summons or warrants of arrest is the process of confirmation of charges. At this stage the accused person will take part with his counsel or by himself. The prosecutor presents the document containing charges as framed by his office and calls evidence seeking to confirm the charges for trial as against the accused persons. The accused person is given an opportunity to challenge any evidence produced by the prosecutor and to also call his own witnesses and or produce his own evidence.

· The Judges at this stage can confirm or decline to confirm charges against any accused person and the prosecutor can appeal incase the PTC declines to confirm charges. This is a process that takes between 4 to 6 months depending on the number of witnesses and evidence to be produced. The judges give there decision 60 days after the close of the confirmation hearing and final submissions from the defence and the prosecutor.

· Among the things the Judges will take into consideration are whether the alleged crimes committed meet the necessary threshold and whether the case is admissible. The PTC has also powers to determine victims participation at this stage of judicial proceedings and also if the accused, if in custody, should be released pending determination of the case against him.

· What happens after confirmation of charges? Upon confirmation of charges, the Judges transfer the whole record to a Trial Chamber (TC) consisting of 3 Judges who had not sat in the PTC. The TC is responsible for conducting the trial proper. It will also determine issues of admissibility as raised by the parties and on victim participation at this stage. The trial is normally the longest process and it may take between 2 and 3 years or more.

· After trial and conviction or acquittal, the aggrieved party can appeal to the Appeals Chamber which will decide on the merits of the appeal. The Appeals Chamber will consist of 5 Judges who have not previously handled the case whether at the Pre-Trial phase or Trial phase.

· On admissibility of the cases before the ICC, it should be noted that the PTC found the case admissible on grounds of “absence of national investigations”. It has been held by the Appeals Chamber in the Katanga case that where there is “inaction” on the part of national authorities, the issue of inability or unwillingness does not arise. However, the accused and or the state can at the Pre-Trial stage and also Trial stage raise the issue of admissibility of a case against him.

· The Court has previously held that the initial questions to ask are: (a) whether there are ongoing investigations or prosecutions, or (b) whether there have been investigations in the past. Only when the two questions have been answered in the affirmative will the court examine the question of unwillingness or inability.

· As a parting short, any national judicial process has to meet international standards and should not be conducted to shield any person from justice. If such proceedings do not live to those standards, then any challenge on admissibility will flop.

Special Tribunal for Kenya

While it is true that the ICC is a court of last resort and is complementary to national jurisdictions, a case can only be rendered inadmissible under Article 17 of the Rome Statute if there are national investigations or prosecutions in place that are not meant to  shield some people from facing justice. The Pre Trial Chamber will take into consideration existence of local judicial proceedings that meet international standards and are above board.

It should be noted that establishment or a resolution to establish one does not vacate the ICC jurisdiction till there have been genuine judicial proceedings to the same effect. In case the Kenyan authorities will commence proceedings against the same suspects then the ICC will interfere when it will be clear that those proceedings were meant to shield some people from facing justice.

The question of internationally accepted witness protection programme is key.

Kenya Withdraw from Rome Statute

Article 127 - ICC Statute, Withdrawal:1. A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt o...f the notification, unless the notification specifies a later date.

2. A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

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