ICC Admissibility Decision Ruto, Kosgey and Sang

8/6/2019 ICC Admissibility Decision Ruto, Kosgey and Sang

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Cou rPna l eI n t e r n a t i o n a l eI n t e r n a t i o n a lC r im i n a lC o u r t

Original: English No.: ICC-01/09-01/11Date: 30 M ay 2011

PRE-TRIAL CHAMBER II

Before: Judge Ekaterina Trendafilova, Presiding JudgeJudge Hans-Peter K aulJudge Cuno Tarfusser

SITUATION IN THE REPUBLIC OF KENYAIN THE CASE OF THE PROSECU TOR V. WILLIAM SA MO EIRUTO , HENRY

KIPRO NO KOSGEY AND JOSHUA AR AP SANG

PublicDecision on the Application by the Government of Kenya Challenging the

Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute

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Decision to be notified, in accordance with regulation 31 of the Regulations of the Court, to:The Office of the ProsecutorLuis Moreno-Ocampo, ProsecutorFatou Bensouda, Deputy Prosecutor

Counse l for William Samoei R utoJoseph Kipchumba Kigen-Katwa, DavidHooper and Kioko Kilukumi MusauCounsel for Henry Kiprono KosgeyGeorge Odinga OraroCounsel for Joshua Arap SangJoseph Kipchumba Kigen-Katwa

Legal Represen tatives of the Victims Legal Represen tatives of the Ap plicants

Unrepresented Victims Unrepresented Applicants forParticipation/Reparation

The Office of Pub lic Co unse l for The Office of Pub lic Co uns el for theVictims DefencePaolina MassiddaStates RepresentativesGeoffrey NiceRodney Dixon

Amicus Curiae

REGISTRYRegistrar & Deputy RegistrarSilvana Arbia, RegistrarDidier Preira, Depu ty RegistrarVictims and Witnesses Unit

Defence Support Section

Detention Section

Victims Participation and Repa rations OtherSection

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PRE-TRIAL CHAMBER II ( the "Chamber") of the Internat ional Cr iminal Cour t ( the"Court") renders this decision^ on the application filed by the Government of Kenyachallenging the admissibility of the case pursuant to article 19(2)(b) of the RomeStatute (the "Statute").

I . P roced ura l His tory1. On 31 March 2010, the Chamber, by majority, issued its decision authorising theProsecutor to commence an invest igat ion into the s i tua t ion in the Republic of Kenya(the "31 M arch 2010 Au thor isatio n D ecision").^

2. On 8 M arch 2011, the Cham ber , by majori ty , decided to sum m on Will iam Sam oeiRuto ("Mr. Ruto") , Henry Kiprono Kosgey ("Mr. Kosgey") and Joshua Arap Sang("Mr. Sang") to ap pea r before the Cou rt on Th ursd ay, 7 Ap ril 2011.^

3. On 31 M arch 2011, the Cha mb er received th e "App licatio n on Behalf of theG ov ern m ent of the Repub lic of Kenya Pu rsu an t to Article 19 of the ICC Statute " (the"Government 's Applica t ion" or the "Applica t ion") , in which the Government ofKenya requested that the Chamber (1) determines that the case , against the threepersons for whom summonses to appear have been issued, is inadmissible ( the "FirstRequest"); (2) convenes a status conference to be attended by the Government ofKenya as well as the par t ies " to address the Pre-Tr ia l Chamber on the procedure tobe adopted before any orders or direc t ions are made [ in this regard]" ( the "SecondRequest"); and (3) affords the Kenyan Government with "a separate time allocationto have an oppor tunity to address br ief ly the Pre-Tr ia l Chamber on one or both of

1 Wh ile concurring w ith the Cham ber, Judge Han s-Peter K aul rei terates, for the purp ose s of thisdecision, his declarat ion as annexed in a previous decision, see Pre-Trial Chamber II, "Decision on theConduct of the Proceedings Fol lowing the Appl ica t ion of the Government of Kenya Pursuant toArt icle 19 of the Rom e Statu te", ICC-01/09-01/11-31.2 Pre-Trial Chamber II, "Decision Pursuant to Art icle 15 of the Rome Statute on the Authorizat ion ofan Invest iga t ion into the Situat ion in the Republic of Kenya" , ICC-01/09-19-Corr.3 Pre-Trial Chamber II, "Decision on the Prosecutor 's Applicat ion for Summons to Appear for Will iamSamoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang", ICC-01/09-01/11-1.

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the hearings' days of 7/8 April 2011, as the Court m ay decide in c ircumstances w he rethe parties can be present" (the "Third Request").^

4. O n 4 Ap ril 2011, the Ch am ber iss ued its "Decision on the Co nd uct of theProceedings Following the Applica t ion of the Government of Kenya Pursuant toArticle 19 of the Rome Statute" (the "4 April 2011 Decision") in which it, inter alia,re jec ted the Second and Third Requests . The Chamber moreover requested theProsecutor and the Defence to submit wri t ten observat ions on the Firs t Requestprese nted in the Gov ernm ent 's A pplica t ion by no la ter than T hurs day 28 Apri l 2011.It also decid ed th at, for the pu rp os es of article 19 pro cee din gs , the Office of PublicCounsel for Vic t ims ( the "OPCV") shall represent vic t ims who have submittedapplica t ions to par t ic ipate in the Court 's proceedings, with regard to the presentcase, and invited them to submit wri t ten observat ions by no la ter than Thursday 28April 2011.5

5. On 11 Apri l 2011, the Go vern me nt of Kenya sou ght leave to reply to the wri t te nobservat ions, which we re du e to be submitted to the Cham ber on 28 Apri l 2011.^

6. On 21 Apri l 2011, the Go vern m ent of Kenya f iled 22 annexes am oun ting to m orethan 900 pages containing materials relevant to the First Request, as presented in theApplication.^ On the same date, the Government also filed into the record of thesi tuat ion a request for coopera t ion and assis tance ( the "Cooperat ion Request") ,under article 93(10) of the Statute and rule 194 of the Rules of Procedure andEvidence (the "Rules").^ The Cooperation Request was followed by several f ilings.^

4ICC-01/09-01/11-19, paras 80-82.5 Pre-Trial Chamber II, "Decision on the Conduct of the Proceedings Following the Applicat ion of theGo ver nm ent of Keny a Pu rsu ant to Art icle 19 of the Rom e Stahite", ICC-01/09-01/11-31, p. 7.6ICC-01/09-01/11-48.7ICC-01/09-01/11-64 and i ts annexes.8ICC-01/09-58.9ICC-01/09-01/11-83; ICC-01 /09-01/l l -83-Corr; ICC-01/09-01/11-90; ICC-01/09-61.

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7. On 28 April 2011, the Chamber received the written observations on the FirstRequest, as presented in the Government's Application, from the Prosecutor,i^ theDefence of Mr. Ruto and Mr. Sang, ^ the D efence of Mr. Kosgey,^^ as well as from theOPCV,^^ acting on behalf of the victims who have submitted applications toparticipate in the Court's proceedings (the "Observations").

8. On 2 May 2011, the Gov ernm ent of Kenya reiterated its request to be granted leaveto reply to the Observations,^^ and on the same day, the Chamber issued a decisionin which it decided to grant the Government the opportunity to reply to theObservations, by no later than 13 May 2011, and to the extent that it engages ''solelywith the relevant issues raised in the observations received".^^

9. On 13 May 2011, the Government of Kenya filed its reply to the Observationssubmitted on the First Request together with 7 annexes, all of which were notified tothe Cham ber on 16 May 2011 (the "Government's Reply" or the "Reply").!^

10. On 17 May 2011, the Go vern me nt of Kenya filed the "A pplication for an OralHearing Pursuant to Rule 58(2)", in which it requested the Chamber to convene ahearing regarding the admissibility challenge, before the Chamber decides on themerits (the "17 May 2011 Application").i7

10 ICC-Ol/09-01/11-69.11ICC-01/09-01/11-68.12ICC-01/09-01/11-67.13ICC-01/09-01/11-70 and its annexes.14ICC-01/09-01/11-73.15 Pre-Trial Cham ber II, "Decision u nd er regula t ion 24(5) of the Regu lat ions of the Cou rt on theMo tion Sub mit ted on Behalf of the Gov ernm ent of Keny a", ICC-01/09-01/11-76, p. 7.16ICC-01/09-01/11-89 and its annexes.17ICC-01/09-01/11-94.

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11. O n 20 M ay 2011, the Defence of M r. Ru to and M r. Sang filed a respo nse to the 17M ay 2011 App lica t ion, in wh ich i t requested the Cha mb er to grant i t (the "20 M ay2011 Response").!

12 . O n 25 M ay 2011, the Defence of Mr. Kosgey filed a respo nse to the 17 M ay 2011Applica t ion in which i t "suppor t[ed] the Government 's applica t ion for an OralHearing".19

IL Sub m iss io ns of the Pa r t ie s and Par t ic ipan tsThe Government's Application13 . In i ts Applica t ion, the Government of Kenya argued in pr inciple that theChamber must make i ts de termination "with a ful l understanding of thefundamental and far-reaching constitutional and judicial reforms"^^ both recentlyenacted and anticipated,^! as well as "the investigative processes that are currentlyun de rw ay " .22 In outlin ing these reform s, th e investig ative p rocesse s, and thepro pos ed t imeframe and p roced ure , the Govern me nt of Kenya pointed o ut , inter a lia,tha t a new const i tut ion was adopted in August 2010 which incorporates a Bil l ofRights tha t s trengthens "fa ir t r ia l r ights and procedural guarantees" in the cr iminaljust ice system. According to the Government, the new const i tut ion remedies pastdeficiencies and weaknesses in the dispensation of the administration of justice inKenya.2^ It also em po w ers K eny an nation al courts to deal wit h the cases curre ntlybefore the Court,^^ without needing to pass legislation establishing a specialtribunal.25 Furth er, the ado pti on of the new constitu tion an d related reform s suc h as,the appointment of a new Chief Just ice and High Court judges, a lso "meant tha t

18ICC-01/09-01/11-95.19ICC-01/09-01/11-98.20 ICC-01/09-01/11-19, para. 2.21 ICC-01/09-01/11-19, paras 2 an d 9.22 ICC-01/09-01/11-19, para. 12.23 ICC-01/09-01/11-19, paras 2 an d 5.24 ICC-01/09-01/11-19, paras 2 an d 5.25 ICC-01/09-01/11-19, paras 2 and 4 3.

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Kenya is able to conduct national criminal proceedings for all crimes arising fromthe post-election violence".^^

14 . The Government submitted that the process invest igat ing cr imes ar is ing out ofthe 2007-2008 post-election violence "will continue over the coming months", andthat s teps currently under taken and those envisaged, with respect to a l l cases a tdifferent levels, will be finalized "by Sep tem ber 2011".27 In the Go ver nm en t's view,the investig ation of the cases before the Co urt "w ill be mo st effectively pro gres sedonce the new [Director of Public Prosecutions] DPP is appointed [ . . .] by the end ofM ay 2011", and that currently they are "continuing under the Directora te ofCriminal In vest igat ions" . ^ Du ring the prop osed 6-month per iod, the Go vernm ent"wil l be under taking invest igat ions" and "wil l be in a posi t ion to provide progressreports" to the Chamber by end of July, August and September 2011.^9

15 . In particu lar, the Go ver nm en t pro po ses th at by the end of July 2011, it willpro vid e the Ch am ber with a prog ress repor t regarding invest igat ions carr ied outun de r the new DPP^ and "h ow th ey extend u p to the highes t levels".^! This re po rtwil l build "on the invest igat ion and prosecution of lower level perpetra tors to reachu p to those a t the highest levels w ho m ay hav e been responsible" . ^ Moreover , by theend of Au gu st 2011, the Go ve rnm ent w ill sub m it a further rep ort on, inter alia, the"pro gres s ma de w ith investig ations to the high est levels"^^ followed b y a third rep orton the "progress made with investigations and readiness for tr ials in light of [ the]jud icial refo rm s" . ^

26 ICC-01/09-01/11-19, paras 34, 47, 56 and generally paras 47-59.27 ICC-01/09-01/11-19, para. 13.28 ICC-01/09-01/11-19, para. 69.29 ICC-01/09-01/11-19, para s 1 4,17 an d 66.30 ICC-01/09-01/11-19, paras 72 and 79.31 ICC-01/09-01/11-19, para. 79.32 ICC-01/09-01/11-19, paras 34 and 7 1.33 ICC-01/09-01/11-19, para. 79.34 ICC-01/09-01/11-19, para. 79,

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16 . The Gove rnm ent a lso averred tha t in applying the law to the facts presented , theChamber should make its determination "on the basis of the facts as they exist at thetime of the proceedings concerning the admissibility challenge",^^ and as to whetherthere "is any record of investigations or prosecutions at ' the time of theproceedings '" .^^ Thus, in conducting such an examination, the Government asser tedthat the admissibility of the case should be assessed against the criteria establishedby th e Cham ber in the 31 M arch 2010 Au tho risatio n Decision, to the effect that"national investigations must [ . . .] cover the same conduct in respect of persons at thesam e level in the hierarc hy be ing in vestig ated b y the ICC".^^

The Prosecutor's Observations17 . The Prosecutor submitted that the interested par ty lodging an admissibi l i tychallenge bears the burden of proof and that the Government has failed so far toshow that i t "has conducted or is conducting invest igat ions or prosecutions inrelation to the cases" before the Court.^ According to the Prosecutor, if Kenya isconducting invest igat ions or prosecutions, in re la t ion to persons other than the threesuspects subject to the Court 's proceedings, then it is not addressing the same case.^^The same holds true in relation to a State carrying out investigations with respect todifferent conduct.

18 . The Prosecutor fur ther argued that a Sta te promising to conduct domesticpro ceed ing s is no t sufficient to satisfy th e adm issibility requ irem ent s. Also, allow ing"a lengthy timetable for submissions"^ for the sake of assessing the development of"the local judicial institutions has no basis in the Statute", and would lead tounnecessary delay of proceedings.^^ Thus, should Kenya later initiate "genuine

35 ICC-01/09-01/11-19, para. 31.36 ICC-01/09-01/11-19, para. 31.37 ICC-01/09-01/11-19, para. 32.38 ICC-Ol/09-01/11-69, para. 12.39 ICC-Ol/09-01/11-69, para. 18.40 ICC-Ol/09-01/11-69, para. 21.41 ICC-Ol/09-01/11-69, para. 21.

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proceedings against the same person[s] for the same conduct" , i t may seek leave toenter a second admissibility challenge, the Prosecutor added.^^

19 . With respect to the 22 annexes f i led by the Government, the Prosecutor c la imedthat the Chamber should disregard them as they were submitted " three weeks af terf i l ing [ the Government 's Applica t ion]" , and without having sought leave of theChamber.4^ The Prosecutor also submitted that these annexes, even if admitted,prove that domestic invest igat ions against the suspects remain "hypothet ica l" ,^^ andaccordingly, the Chamber should determine that the case is admissible.^^

The Joint Defence Observations of M r. R uto and M r. Sang20 . In their joint observations, the Defence of Mr. Ruto and Mr. Sang put forth threemain arguments . F irs t , tha t Kenya is currently invest igat ing the case against thesuspects;^^ second, that Kenya is neither unwilling nor unable genuinely to carry outthe investigations;^^ and third, that the present submissions are without prejudice tothe right of the Defence to lodge an admissibility challenge pursuant to article19(2)(a) of the Statute.^

21. In developing their arguments , the Defence of Mr. Ruto and Mr. Sang arguedthat the "definition of a case for the purposes of a challenge to admissibility underarticle 17(l)(a) is bro ad er th an the same perso n/s am e cond uct test, wh ich app lies tone bis in idem proceedings" . ^ According to the Defence , it wo uld be inconsistent w iththe Court 's s ta tutory provisions governing the pre- tr ia l s tage to require this s tr ic ttest, given that there is a possibility that charges are finally confirmed in a different

42 ICC-Ol/09-01/11-69, para. 22.43IGC-01/09-01/11-69, pa ra. 23 .44 ICC-Ol/09-01/11-69, paras 25 an d 26 .45 ICC-Ol/09-01/11-69, paras 28-29.46 ICC-01/09-01/11-68, paras 5-14.47 ICC-01/09-01/11-68, paras 15-30.48 ICC-01/09-01/11-68, paras 31-33.49 ICC-01/09-01/11-68, para. 7.

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manner from that initially presented by the Prosecutor at the summonses' stage.^^This interpretation could lead to blocking "successive [admissibility] challenges"made by the parties in favour of the Prosecutor.^^ However, apart from thesearguments , the Government of Kenya is invest igat ing the suspects " in connectionwith the same conduct and incidents" , which formed the basis for the decision onthe summonses to appear.^^

22. The Defence also submitted that based on the case-law of Trial Chamber II , theChamber cannot quest ion the motive of nat ional author i t ies to determine whetherthe State is unwilling to investigate, if the latter declared itself so. Thus, the Kenyanauthor i t ies have "c lear ly evidenced their wil l ingness to invest igate" the suspects ,and due to the explanations provided by the Government, the requirement of ar t ic le17(2) of the Stat ute ha s no t be en satisfied, th e Defence adds.^^ Th e Defence furth eravers that the requirements of article 17(3) of the Statute are also not applicable,since the country has a functioning judicial system and does not face legalimpediments, such as those prevailing in the "Kony et al case".^^

23. Finally, the Defence reserved its r ight to lodge an admissibility challenge asguaranteed by article 19(2)(a) of the Statute and on the basis of the facts as theypres ent them selve s at the time.^^

The Defence Observations of M r. Kosgey24 . In i ts observat ions, the Defence of Mr. Kosgey submitted that the Government 'sApplication merits careful and thorough consideration.^^ However, being aninterested party in the proceedings, the Defence is not in a position "to contribute

50 ICC-01/09-01/11-68, paras 9 and 10.51 ICC-01/09-01/11-68, par a. 11 .52 ICC-01/09-01/11-68, paras 13 and 14.53 ICC-01/09-01/11-68, paras 17-18, 22 and 25.54 ICC-01/09-01/11-68, paras 28-30.^ ICC-01/09-01/11-68, paras 31-33.56 ICC-01/09-01/11-67, para. 13.

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definitively on the information submitted or to be submitted by the Government",^^yet it reserves the right to challenge admissibility at a later stage.^

The OPCV's Observations25. The OPCV invited the Chamber to re jec t the Government 's Applica t ion and f indtha t the case against the su spects is admissible.^^ In its App lication, it argu ed that theGovernment 's Applica t ion "avoided indicat ing whether invest igat ions are currentlyun de rw ay ag ainst the suspects",^^ an d instead referred to sug geste d, futureinvest igat ive s teps. Thus, despite the Government 's under taking to submit to theChamber a progress repor t on sa id s teps, the OPCV remains unconvinced. In theirview , any such "r epo rt will explain how the highe st echelons of officialdom are beinginvestigated, and that those echelons include the suspects".^!

26. Responding to the "litany of actual or anticipated constitutional, judicial,prosecutorial and police reforms"^^ relied upon in the Government's Application, theOPCV stressed that " they do not const i tute an invest igat ion under ar t ic le 17".^^ Theonly indicat ion of an invest igat ion or prosecution proffered by the Government wasthe Atto rney G ener al 's 21 Ap ril 2011 letter . The OPCV alleged that "th e timing of theletter [ . . .] raises serious questions about the reliability of the Government'sasser t ions par t icular ly when they are not suppor ted by meaningful and concre teevidence".^^ According to the OPCV, "the letter is specifically designed to preventproceedings at the ICC, rather than reflecting a willingness to conduct a genuineinvestigation".^5 Ultimately, the Chamber is implored to draw from this letter , anadverse inference that invest igat ions against the suspects are not underway, and

57 ICC-01/09-01/11-67, para. 14.58 ICC-01/09-01/11-67, para. 14.59 ICC-01/09-01/11-70, p. 24.60 ICC-01/09-01/11-70, para. 10.61 ICC-01/09-01/11-70, para. 10.62 ICC-01/09-01/11-70, para. 13.63 ICC-01/09-01/11-70, para. 14.64 ICC-01/09-01/11-70, para. 16.65 ICC-01/09-01/11-70, para. 38.

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specifically that as at 30 M arch 2011 only " pers ons a t "the sam e level" as the susp ectswere be ing contempla ted" ^ and not the suspects themselves.

27. The OPCV reiterated that "a genuine investigation and prosecution [ . . .] requirespar t icular ly robust guarantees of independence, neutra l i ty , and transparency.Legislative reform alone is insufficient [...]".^^ It recalled the ethos central toproposals for the establishment of a Specia l Tr ibunal , namely to overcomedeficiencies in the Kenyan national system, such as "the deep-seated mistrust thatthe system would be unbiased by ethnic considerations".^ As such, "the rejection ofthe Special Tribunal, in the absence of other concrete and specific steps, is stronglyindicativ e of an u nw illin gn ess to ge nuin ely inves tigate an d pro sec ute " . ^Furthermore, the absence of the suspects from the list of pending investigations,provided by the Government, is "compell ing evidence" of the la t ter 's unwill ingnessto genuinely investigate and prosecute the suspects, the OPCV added.^^

The Government's R eply28. In i ts Reply, the Government of Kenya endorsed a number of paragraphsoutlined in the observations submitted by the Defence of Mr. Ruto and Mr. Sang.^^The Government a lso re i tera ted i ts arguments tha t i t has the capacity to address thecase currently before the Court, and that there are ongoing investigations withrespect to the three suspects subject to the Court 's proceedings.^^ Thus, in presentingits arguments , the Government opposed a number of issues ra ised in theobservat ions submitted by the Prosecutor and the OPCV. In par t icular , theGovernment disagreed with the same conduct and same person test "as the Sta te66 ICC-01/09-01/11-70, para. 18.67 ICC-01/09-01/11-70, para. 33.68 ICC-01/09-01/11-70, para. 29.69 ICC-01/09-01/11-70, para. 31.70 ICC-01/09-01/11-70, para. 35.71 ICC-01/09-01/11-89, para. 19. The G ove rnm ent referred to par agr aph s 2-12, 14, 19 and 20 of theDefence observat ions.72 ICC-01/09-01/11-89, para s 2, 29-32 and 57-58. The Gov ernm ent sp eaks ab out o ngo ing invest igat ionsin relat ion to the six suspects in the two cases. For the purposes of this decision, the Chamber wil lonly refer to the three suspe cts involved in the presen t case.

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m ay sim ply not hav e evidence available to the Prosecutor of the ICC or may even b edep riv ed of such evi den ce" . ^ M oreov er, ev en if the State po ssesse d the sam eevidence as tha t held by the Prosecutor , " there can be no requirement tha t in orderto exclude ICC admissibility the State must conduct an investigation that leads tocharging of those very individuals".^^

29. The Government a lso disputed the issue of the proper t iming for assessing theadmissibi l i ty challenge. While i t understood that the Prosecutor and the OPCV'sobservat ions suggest tha t the t iming to make an admissibi l i ty assessment is the dateon which the challenge is lodged by the Sta te , i t a rgued that the r ight moment iswhen it has submitted its "staged reports" to the Chamber.^^

30. According to the Govern men t, i t has included the la test public information on th einvest igat ion, and should the Chamber doubt i ts genuineness, the Governmentprop osed that the Cham ber he ar the Comm issioner of Police . ^ The Go vern me nt a lsopointed out the reform undertaken concerning the police and witness protection.^^ Itargues that the assessment of admissibility is an ongoing process and therefore theannexes appended to the Reply should be taken into considera t ion by the Chamberbefore making its final determination.^

III . The Appl icab le Law31. The Chamber notes articles 17,19(2)(b), 21(l)(a), (2) and (3) of the Statute, rules 58(2),(3) and 59(l)(b), (2) and (3) of the Rules.

73 ICC-01/09-01/11-89, para. 27.74 ICC-01/09-01/11-89, para. 28.75 ICC-01/09-01/11-89, paras 24-25 and also para. 64.76 ICC-01/09-01/11-89, paras. 58 an d 70.7' ICC-01/09-01/11-89, paras 68-69 and 71.78 ICC-01/09-01/11-89, para. 77.

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I V . P r e l imina r y D e te r m ina t ion on the C oope r a t ion R e que s t32. In the Cooperat ion Request , the Government sought the Court 's assis tance in theform of receiving "all statements, documents, or other types of evidence" obtained inthe course of the Prosecutor 's investigations.^^ According to the Government, thiswil l assis t the nat ional author i t ies in conducting and advancing their invest igat ionsand prosecutions into the Post-Election Violence.^ Therefore, the Government ofKenya requested the Chamber to address the matter pr ior to rul ing on the meri ts ofthe admissibility challenge.^

33 . At the outse t , the Cham ber notes that the Coo perat ion R equest was lodg ed by theGovernment of Kenya three weeks after the Application was filed. At the time theGo vern me nt of Kenya lodged the challenge, i t never pu rpo r ted that the Firs t Requestpresented in the Application was dependent on any future request under article 93(10)of the Statute. Thus, if the Government of Kenya believes that these requests areinter-re la ted, perhaps they should have presented them together and not af ter thisper iod of t ime has e lapsed.

34 . Be i t as i t may, the Chamber wishes to point out tha t the Cooperat ion Request asreferred to in its title , is actually a request for assistance which falls within the pureambit of par t IX of the Sta tute regula t ing the coopera t ion between the Court andStates or other intergovernmental organisations. As such, the request for assistancehas no linkage with the issue of admissibility, which is regulated under part II of theStatute. Ergo, a determination on the inadmissibility of a case pursuant to article 17of the Sta tute does not dep end on granting or den ying a request for assis tance u nd erarticle 93(10) of the Statute. This conclusion finds su pp or t in the fact th at a State ma yexercise its national jurisdiction by way of investigating or prosecuting, irrespectiveof and independent from any investigative activities of the Prosecutor. These

79 ICC-01/09-58, p . 3.80 ICC-01/09-58, p . 3.81 ICC-01/09-58, p. 4.

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dom estic proce eding s sho uld be in pr inciple carr ied out wi thou t the assis tance of theC our t .

35. The independence of the article 19 regime from a request for assistance underarticle 93(10) of the Statute is further reflected in the discretionary wording of article93(10) of the Sta tute . The language used in this provision does not impose anyobligation ("may") on the Court to grant a request for assistance presented by aSta te . In addit ion, coopera t ion under ar t ic le 93(10) of the Sta tute may re la te tocrimes other than those falling under the jurisdiction of the Court ("serious crimesun de r nat ional law of the request ing Sta te") . F inally , the Cham ber un der l in es thatarticle 19 of the Statute does not contain any explicit reference to article 93(10) of theSta tute . In par t icular , there is no indicat ion whatsoever in the Sta tute that theapplic ation of articles 17 an d 19 are subject to gran ting a requ est for as sistanceunder article 93(10) of the Statute. For these reasons, the Chamber shall rule on themeri ts of the Cooperat ion Request in a separa te decision to be issued subsequently.

V. De te rm ina t io n o n the 17 M ay 2011 App l ica t ion36 . In the 17 M ay 2011 Ap plication , the Go ve rnm en t argu es that "it specificallyrequested that the Pre-Tr ia l Chamber schedule an ora l hear ing" , but the Chamber"did not specifically address [it]". Instead, the Chamber ruled on the Government 'sothe r requests reg ard ing a status conference, its partic ipatio n du rin g the 7 Ap ril 2011init ia l appearance hear ings, and the par t ies ' submission of wri t ten observat ions.

37. The Chamber reminds the par t ies and par t ic ipants tha t , a l though they areenti t led to have access to cour t and to put forward any request tha t they may deemessential for strengthening their case, they are equally obliged to frame theirarguments exerc is ing good fa i th .

38. In this regard, the Chamber quotes paragraph 20 of the Applica t ion, which theGo vern me nt of Kenya re lies up on to argue i ts 17 M ay 2011 Applica t ion:

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Furthermore, before any final determinat ion of the present Applicat ion is made by the Pre-Trial Chamber, the Government of Kenya requests that an oral hearing is scheduled, inconsul ta t ion wi th the par t ies , to permi t the Government the opportuni ty to address the Pre-Trial Chamber in respect of i ts Applicat ion. The Applicat ion is plainly of vi tal importance tothe nat ion al interest and future of Kenya a nd i ts peo ple. It is part icular ly cri tical to the futurecourse of judicial proceedings in Kenya, and is thus clearly a matter to be deal t with at apublic hearing before the Pre-Trial Chamber so that al l relevant arguments can be submit tedand considered. (As noted above, this is the fi rst t ime that an applicat ion made by a StateParty u nd er A rt icle 19 is being co nsidere d before the ICC.)82 (emp hasis add ed)

39. Reading the quoted paragraph 20 together with paragraph 21 of the sameApplication makes clear that the Government's request for holding a statusconference is in itself e request for an o ral hearing. This conclusion is evide nt wh enreading the opening sentence of said paragraph 21: "[a]ccordingly, the Governmentproposes that a Status Conference be convened to discuss [...]" (emphasis added),which draws the linkage and elucidates that the status conference request is in factthe oral hearin g referred to in para gra ph 20 of the App lication.

40. Thus, the Government's claim that the Chamber did not rule on the request foran oral hearing in its 4 April 2011 Decision is misleading and must be corrected. Inthis regard, the Chamber recalls the 4 April 2011 Decision, in which it explicitlyrejected the Government's request to convene a status conference. Alternatively, andon the basis of the discretion provided for in rule 58 of the Rules, the Chamberrevealed the principal approach to be followed throughout the article 19proceedings, namely "to confine the engagement of the parties [...] to providingwritten observations as dictated by rules 58(3) and 59(3) of the Ru les".

41. Accordingly, the 4 April 2011 Decision placed the parties and participants onsufficient notice as to the way article 19 proceedings would be conducted. Had theparties any objection regarding the manner in which the Chamber organised theproceedings, it should h ave requ ested leave to appeal the 4 April 2011 Decision. Thiswas not the case and the Chamber believes that it has given all parties and82 ICC-01/09-01/11-19, para. 20 (footnotes om it ted).

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par t ic ipants ample oppor tunit ies to put forward a l l a rguments regarding theadmissibi l i ty challenge. Hence, the Cham ber is not per su ade d that a second rou nd ofsubmissions is needed pr ior to making a determination on the meri ts of theApplica t ion.

42. In any event , given that the Chamber has a lready ruled on the Government ofKenya's request concerning the convening of a status conference, which is in it selfthe "oral heari ng " as dem on stra ted , it consid ers, therefore, that the 17 M ay 2011Request is in effect a request for reconsideration. As the Chamber consistently ruledthat the Court 's statutory provisions do not accommodate a request of this nature,^the Gov ernm ent 's 17 M ay 2011 Request sho uld be rejected, wi tho ut the need toengage fur ther with any of the Government 's or the Defence submissions re la tedthereto. The Chamber shall now turn to the First Request, the main subject-matter ofthe prese nt decision.

V I. Dete rmina t ion on the Admiss ib i l i ty Cha l lenge (F i r s t Reques t )43. The Chamber has thoroughly examined the Government ' s Appl ica t ion toge the rwith the 22 annexes submitted. I t has also carefully considered the Observationsreceived f rom the par t ies and par t ic ipants , as well as the Gov ernm ent 's Reply and i tsrespect ive 7 ar tnexes. The Government 's Applica t ion and i ts Reply to theObservat ions, together with the annexes, reveal mainly the effor ts under taken thusfar and tho se intend ed to be perform ed in the future, w ith respect to judicial reformin the country.

83 See. , Pre-Trial Chamber II, "Decision on the "Prosecution's Applicat ion for Extension of Time Limitfor Disclosure", ICC-01/09-01/11-82; Pre-Trial Chamber II, "Decision on the Prosecutor 's Posi t ion onthe Decision of Pre-Trial Chamber II To Redact Factual Descript ion of Crimes from the Warrant ofArrests, Motion for Reconsiderat ion, and Motion for Clarificat ion", ICC-02/04-01/05-60; Pre-TrialChamber I, "Decision on the Prosecution Motion for Redact ion", ICC-01/04-01/06-123; Pre-TrialChamber I, "Decision on the Prosecution Motion for Reconsiderat ion and, in the al ternat ive. Leave toAppeal", ICC-01/04-01/06-166; Pre-Trial Chamber I, "Decision on the 'Demande des reprsentantslgaux de VPRSl, VPRS2, VPRS3, VPRS4, VPRS5, VPRS6 et a/0071/06 aux fins d'accder au do cum entconfidentiel dpos par le Consei l de direct ion du Fonds d'affectat ion spciale au profi t des vict imesle 7 fvrier 2008'", ICC-01/04-457; Pre-Trial Chamber I, "Decision on the Defence for MathieuNgudjolo Chui 's Request concerning translat ion of documents", ICC-01/04-01/07-477.

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44. The Chamber is well aware that the concept of complem entarity and the man nerin which it operates goes to the heart of States' sovereign rights. It is also consciousof the fact that States not only have the right to exercise their criminal jurisdictionover those allegedly responsible for the commission of crimes that fall within thejurisdiction of the Court, they are also under an existing duty to do so, as explicitlystated in the Statute's preamb ular p aragra ph 6. How ever, it should be borne in mindthat a core rationale underlying the concept of complementarity aims at "strik[ing] abalance betwe en safeguarding the primacy of domestic proceed ings vis--vis the [...]Cou rt on the one hand , and the goal of the Rome Statute to 'pu t an end to imp unity 'on the other han d. If States do no t [...] investigate [...], the [...] Co urt m ust be able tostep in".4 Therefore, in the context of the Statute, the Court's legal framework, theexercise of national criminal jurisdiction by States is not without limitations. Theselimits are encapsulated in the provisions regulating the inadmissibility of a case,namely articles 17-20 of the Statute.

45. Thus, while the Chamber welcomes the express will of the Government of Kenyato investigate the case sub judice, as well as its prior and proposed undertakings, theChamber's determination on the subject-matter of the present challenge is ultimatelydictated by the facts presented and the legal parameters embodied in the Court'sstatutory provisions.

46. In this context, the C ham ber recalls article 17 of the S tatute, which reads:

1. Having regard to paragraph 10 of the Preamble and art icle 1, the Court shal l determine thata case is inadmissible where:

(a) The case is being inv est igated or prosecu ted by a State which ha s jurisdict ion ov er i t,unless the State is unwil l ing or unable genuinely to carry out the invest igat ion orprosecut ion;

84 Appeals Chamber , "Judgment on the Appea l of Mr. Germain Katanga aga ins t the Ora l Dec is ion ofTrial Chamber II of 12 June 2009 on the Admissibility of the Case", ICC-01/04-01/07-1497, para. 85.

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(b) The case has bee n invest igated by a State wh ich has jurisdict ion over i t and the Statehas decided not to prosecute the person concerned, unless the decision resul ted from theunwil l ingness or inabil i ty of the State genuinely to prosecute;(c) The perso n concern ed has already been tried for conduct wh ich is the subject of thecomplaint , and a t rial by the Court is not permit ted under art icle 20, paragraph 3;(d) The case is not of sufficient gravity to justify further action by the Court.

2. In order to determine unwil l ingness in a part icular case, the Court shal l consider, havingregard to the principles of due process recognized by internat ional law, whether one or moreof the following exist, as applicable:

(a) The proceedings were or are being undertaken or the nat ional decision was made forthe purpose of shielding the person concerned from criminal responsibi l i ty for crimeswith in the jurisdict ion of the Cou rt referred to in art icle 5;(b) There has been an unjust ified delay in the proceedings which in the circumstances isinconsistent with an intent to bring the person concerned to just ice;(c ) The proceedings were not or a re not be ing conducted independent ly or impart ia l ly ,and they were or are being conducted in a manner which, in the circumstances, isinconsistent with an intent to bring the person concerned to just ice.

3. In order, to determine inabil i ty in a part icular case, the Court shal l consider whether, due toa total or substant ial col lapse or unavailabi l i ty of i ts nat ional judicial system, the State isunable to obtain the accused or the necessary evidence and test imony or otherwise unable tocarry out i ts proceedings.

47. The Cham ber has previo usly s ta ted that the admissibi l i ty test envisaged in ar tic le17 of the Statute has two main limbs: (i) complementarity (article 17(l)(a)-(c) of theStatute); and (ii) gravity (article 17(l)(d) of the Statute).^

48. With respect to the f irs t l imb (complementar i ty) , the Chamber underscores that i tconcerns the existence or absence of national proceedings. Article 17(l)(a) of theSta tute makes c lear tha t the Cou rt "shall de termin e that a case is inadm issible w here:(a) The case is being investigated or prosecuted by a State which has jurisdictionover it , unless the State is unwilling or unable genuinely to carry out theinvest igat ion or prosecution" . In i ts judgment of 25 September 2009, the AppealsCh am ber con strue d article 17(l)(a) of the Statute as invo lving a twofold test:

[I]n considering whether a case is inadmissible under art icle 17 (1) (a) and (b) of the Statute,the ini t ial quest ions to ask are (1) whether there are ongoing invest igat ions or prosecutions, or(2) whether there have been invest igat ions in the past , and the State having jurisdict ion hasdec ided n ot to prosecute the person concerned. I t i s only wh en the answ ers to these ques t ions

^ Pre-Trial Chamber II, "Decision Pursuant to Art icle 15 of the Rome Statute on the Authorizat ion ofan Inves t igat ion into the Situat ion in the Repub lic of Kenya", ICC-01/09-19-Corr, para. 52.

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are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b)and to examine the ques t ion of unwi l l ingness an d inabi li ty . To do otherwise wo uld be to p utthe cart before the horse. It fol lows that in case of inact ion, the quest ion of unwil l ingness orinabil i ty doe s not arise; inact ion on the pa rt of a State having jurisd ict ion (that is , the fact thata State is not invest igat ing or prosecuting, or has not done so) renders a case admissiblebefore the Court, subject to article 17 (1) (d) of the Statute.86

49. As to the second limb (gravity), since the Government of Kenya does not contestthis elem ent, the C ha m be r shall confine its exam inatio n to the subject-matter definedin the Applica t ion, namely whether there are ac tually ongoing domestic proceedings(complementar i ty) .

50 . The Chamber notes that throughout the ent ire Applica t ion and the Reply, theGovernment of Kenya argues that i t is currently invest igat ing cr imes ar is ing out ofthe 2007-2008 Post-Election Violence. Thus, the Chamber considers that theapplicable test, which adheres to the facts presented in the Application and theRep ly, is the o ne refe rred to in the first half of article 17(1) (a) of the St atu te, n am elywhether " the case is being invest igated or prosecuted by a Sta te which hasjurisdiction over it" .

51. The Chamber is satisfied that the Republic of Kenya is a State which hasjur isdic t ion over the present case . However , the remaining quest ion is whether thiscase "is being investigated or prosecuted" by the State within the meaning of article17(l)(a) of the Statute.

52. In this respect , the Government seems to have understood, only in par t , the testconsistently applied by the Chambers of the Court in interpreting the scope of a"case" for the purposes of article 17 of the Statute. In the Application, theGovernment of Kenya asserted that the admissibility of the case should be assessedagainst the criteria established by the Chamber in the 31 March 2010 AuthorisationDecision, to the effect that "national investigations must [ . . .] cover the same conduct

86 Appeals Chamber , "Judgment on the Appea l of Mr. Germain Katanga aga ins t the Ora l Dec is ion ofTrial Chamber II of 12 June 2009 on the Admissibility of the Case", TCC-01/04- 01/07-1497, para. 78.

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in respect of persons at the same level in the hierarchy being investigated by theIC C " .7

53. Although in the Applica t ion, the Government does not contest the fac t tha t forthe purposes of def ining a "case" , na t ional invest igat ions "must cover the samecondu ct" , i t seems that it e i ther mi sund erstoo d or disagreed with the remain ing l imbof the test , whic h requires tha t those invest igat ions m us t a lso cover the same person ssubject to the Court 's proceedings. The Government of Kenya purpor tedly re l ies onthe test established by the Chamber in the 31 March 2010 Author isa t ion Decision,which referred to "the groups of persons that are likely to be the object of aninves tigatio n by th e ICC", and thu s, conclu ded tha t it w as no t necessa ry, toinvestigate the same persons. Rather, it is sufficient to investigate "persons at thesame level in the hierarchy" .

54. The Chamber considers tha t this interpre ta t ion is misleading. The cr i ter iaestablished by the Chamber in i ts 31 March 2010 Author isa t ion Decision were notconclusive but s imply indicat ive of the sor t of e lements tha t the Court shouldconsid er in mak ing an adm issibility d eterm inat ion wi thin the context of a situation,namely when the examination is in re la t ion to one or more "potentia l" case(s) . Atthat stage, the reference to the groups of persons is mainly to broaden the test,because at the preliminary stage of an investigation into the situation it is unlikely tohave an identified suspect. The test is more specific when it comes to anadmissibi l i ty determination a t the "case" s tage , which star ts with an applica t ion bythe Pros ecuto r un de r article 58 of the Statute for the issuanc e of a w ar ra nt of arrest orsummons to appear , where one or more suspects has or have been identif ied. At thisstage, the case(s) before the Court are already shaped. Thus, during the "case" stage.

87 ICC-01/09-01/11-19, para. 32.88 Pre-Trial Chamber II, "Decision Pursuant to Art icle 15 of the Rome Statute on the Authorizat ion ofan Inve st igat ion into the Situat ion in the Republic of Kenya", ICC-01/09-19-Corr, para . 50.89 ICC-01/09-01/11-19, para. 32.

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the admissibi l i ty determination must be assessed against na t ional proceedingsre la ted to those par t icular pers ons that are subject to the Co urt 's p roceeding s.

55. In the case of The Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I statedin express terms that a determination of inadmissibility of a "case" requires that"nat ional proceedings [ . . . ] encompass both the person and the conduct which is thesubject of the case before the Court".^^ So far, the Court 's jurisprudence has beenconsistent on this issue.^^ However, the Government of Kenya claimed that the "ICCcase law has not authoritatively determined the meaning of the word 'case '".^^ Citingthe 25 Septemb er 2009 Judg men t, the Gove rnm ent asser ted that the App ealsChamber "decline[d] to make any ruling on the subject [as] it did not endorse thefindings of Pre-Trial Chambers in the context of issuing warrants of arrest thatnat ional proceedings must encompass both the conduct and the person that is thesubject of the case before the ICC".^^

56. The Chamber considers tha t the re levant par t of the Appeals Chamber 'sJudgment must be read and understood in i ts context . I t is t rue that in paragraph 81of the Judgment the Appeals Chamber s ta ted that " i t does not have to address in thepresent appeal the correctness of the 'same-conduct ' test used by the Pre-TrialChambers" . Nonetheless , in paragraph 80 i t made c lear tha t the reason for makingthis s ta tement was that there was no indicat ion that there were "ongoinginvestigations or prosecutions of any crime allegedly committed by the Appellant, atBogoro or anywhere e lse in the [Democrat ic Republic of Congo] DRC" (emphasisad d ed ) . A similar s ta tement was made by the Appeals Chamber in the last threelines of pa rag ra ph 8 1, w he n it stated th at "at the time of the adm issibility challengeproceedings before the Tr ia l Chamber , there were no proceedings in the DRC in

90 Pre-Trial Chamber I, "Decision on the Prosecutor 's Applicat ion for a warrant of arrest . Art icle 58",ICC-01/04-01/06-8-Corr, pa ras 31 an d 37-39.91 See e.g. Pre-Trial Chamber I, "Decision on the Prosecution Applicat ion under Art icle 58(7) of thestatute", ICC-02/05-01/07-l-Corr, paras 24-25.92 ICC-01/09-01/11-19, para. 32.93 ICC-01/09-01/11-19, par a. 32, fn. 20.

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respect of the Appellant, Hence, the question of whether the 'same-conduct test ' iscorrect is not determinative for the present appeal" (emphasis added).^^ Accordingly,the Chamber can clearly infer that the Appeals Chamber ruled on part of the test,namely that a determination of the admissibility of a "case" must at least encompassthe "sam e person ", whic h in the context of tha t appeal , wa s the App ellant himself.

57. The Chamber also does not consider it necessary to examine the validity of the"same-conduct" test, as raised by the Defence of Mr. Ruto and Mr. Sang,^^ since theGovernment of Kenya, the interested party, conceded to this part of the test in itsinitial Application.^^

58. Having settled the dispute about the correct test in interpreting a "case" for thepu rpo ses of article 17 of the Statute, the Ch am ber sh all no w a pp ly th e facts aspresen ted by the Gov ernm ent of Kenya to the law as def ined.

59. The firs t observat ion that the Ch amb er wishes to m ake stems from the argu me ntsput forward by the Government of Kenya in order to rebut the "same person" test .The Government of Kenya persis tent ly asser ts tha t there are ongoing invest igat ions"covering the present cases before the ICC". The latter statement was a concludingremark made by the Government of Kenya r ight af ter having expla ined i tsunderstanding of the test to be applied to the present admissibi l i ty challenge,namely that "nat ional invest igat ions must encompass the same conduct in respect ofpersons at the same level of hierarchy" {em ph asis ad d ed ).

94 Appeals Chamber , "Judgment on the Appea l of Mr. Germain Katanga aga ins t the Ora l Dec is ion ofTrial Cham ber II of 12 June 2009 on the A dmissibi l i ty of the Case", ICC-01/04- 01/07-1497, para. 81.95 ICC-01/09-01/11-68, pp. 4-6.96 ICC-01/09-01/11-19, para. 32. Note that in i ts Reply to the Observat ions of 28 Apri l 2011, theGov ernm ent chan ged i ts ini ti a l view and presented n ew argum ents in suppo rt of the incorrec tness ofthe same conduct-test . However, as the part ies are not al lowed to go beyond what was ini t ial lycontes ted in the Appl ica t ion by ad ding new argum ents , the Cham ber sha l l not rule on the va l idi ty ofthe same conduct-test. See, TCC-01/09-01/11-89, para. 27.

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60 . In this respect, the Chamber expresses its concern about this statement and theinferences that could be drawn from it. If the Government of Kenya persistentlyargued that the applicable legal test was that domestic invest igat ions musten co m pa ss an y pe rso n, as far a s he/sh e w as at the same level of hierarchy, it is u ncl earhow the Chamber could be convinced that there are ac tually ongoing invest igat ions,with respect to the three suspects in the present case. Further doubts arise if oneread s the re levant par ts f rom th e Gove rnm ent 's Reply. In parag rap h 27 of the Reply,the Government of Kenya sta ted that "any argument that there must be identi ty ofindividuals [...] being investigated by a State and by the Prosecutor of the ICC isnece ssarily false [...]. [...] [T]here is sim ply n o gu ara nt ee th at an identi cal coh ort ofindividuals will fall for investigation by the State seeking to exclude ICCadmissibi l i ty [...]".9^ The Chamber bel ieves that these arguments cast doubt on thewill of the State to actually investigate the three suspects, assuming that there areongoing investigations, as asserted. However, the factual information available tothe Chamber and the arguments se t for th, demonstra te tha t there are no concre testeps showing ongoing invest igat ions against the three suspects in the present case .This conclusion becomes more evident as the Chamber engages with some of theGovernment ' s a rguments a s d iscussed be low.

61. In the Applica t ion, the Government of Kenya argued that i t wil l provide theChamber with a progress repor t regarding prospective invest igat ions to be carr iedout under the new DPP^ and "how they extend up to the highest levels" .^^ Thisrepo r t will build "on the invest igat ion and prose cution of lower level perp etra tors toreach up to those at the highest levels who may have been responsible".^^^

62. The Chamber is surpr ised by such a s ta tement, which is ac tually anacknowledgment by the Government of Kenya that so far, the alleged ongoing

97 ICC-01/09-01/11-89, para. 27.98 ICC-01/09-01/11-19, paras 72 and 79.99 ICC-01/09-01/11-19, para. 79.100 ICC-01/09-01/11-19, paras 34 and 71.

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investigations have not yet extended to those at the highest level of hierarchy, be itthe three suspects subject to the Court 's proceedings, or any other at the same level.This c lear ly contradic ts the arguments presented by the Government of Kenya in i tsReply, that there are actually ongoing investigations in relation to the three suspectsof the case un de r the C ha m be r 's consideration.!^^

63. Moreover , in the Applica t ion and in the Reply, the Government of Kenyaproposed to submit three main reports on the status of the investigations, the first ofwh ich to be subm itted in July 2011. The remainin g tw o repor ts are to be subm itted tothe Chamber by the end of August and the end of September 2011. In the view of theCham ber , i t rem ains unclear wh y the Governm ent of Kenya has not so far subm itteda detailed report on the alleged ongoing investigations. If national proceedingsagainst the three suspects subject to the Co urt 's proceedin gs are currently u nd erw ay,then there is no convincing reason to wait until July 2011 to submit the said firstrepor t .

64 . It is apparent that the Government of Kenya in its challenge relied mainly onjudicial reform actions and promises for future investigative activities. At the sametime, when arguing that there are current initiatives, it presented no concreteevidence of such steps. This conclusion becomes more evident when reviewing thecontents of the annexes submitted by the Government of Kenya. Out of the 29annexes presented to the Chamber , only 3 annexes appear to be of some direc trelevance to the investigative process, alleged by the Government of Kenya (annexes1 and 3 appended to the Applica t ion and annex 2 appended to the Reply) .

65 . After careful examination of these annexes, the Chamber finds that they fall shortof any concrete investigative steps regarding the three suspects in question. Inpar t icular , annex 3 appended to the Applica t ion, is a 78-pages progress repor t ,including data on Post Election Violence cases in six provinces, submitted by the101 ICC-01/09-01/11-89, paras 2, 29-32 and 57.

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Chief Public Prosecutor and other State counsels to the Attorney General of theRepublic of Kenya. Nowhere in this report is there the slightest mention of thenames of one or more of three suspects subject to the Court 's proceedings in thepresent case.^^^

66. As to annex 1, it includes a letter signed by the Attorney General of the Republicof Kenya and addressed to the Kenyan Commissioner of Police directing the latter to" invest igate a l l other persons against whom there may be a l legat ion of par t ic ipat ionin the Post-Elections Violence, including the six persons who are the subject of thepro ceed ing s curren tly before the Internatio nal C rim inal C ou rt (ICC)".!^ The letteralso instructs the Kenyan Commissioner of Police to "prepare and submit [ . . .] bi-monthly reports on progress made with these investigations".!^^ This letter is dated14 April 2011 that is, two weeks after the Government of Kenya lodged itsadmissibility challenge. Thus, it is clear from this letter that by the time theGovernment of Kenya filed the Application, asserting that it was investigating thecase before th e Cou rt, there w ere in fact no ongoing investig ations.

67. W hen the par t ies subm itted their observat ions, the Govern me nt of Kenya replied,inter alia, by submitting a four page report (annex 2 appended to the Reply), dated 5M ay 2011 and signed by the Director of Cr iminal Invest igat ion. The repor t men tions,inter alia, that there is a pending case involving Mr. Ruto (file No 10/2008) and thatthe invest igat ion has not been completed "for var ious reasons that inc lude,unreliable and uncooperative witnesses".i^^ However, the "matter is still underinvest igat ion because there are some areas requir ing fur ther corroborat ion in orderto reach a fair conclusion".!^^ The report finally states that:

When the ICC Prosecutor final ly disclosed the names of what came to be known asthe Ocampo six, the Police invest igators were taken by surprise. This was becauseother than Hon Will iam Ruto, none of the members of the Ocampo six have been

102 ICC-01/09-01/11-64-Anx3.103 ICC-01/09-01/11-64-Anxl.104 ICC-01/09-01/11-64-Anxl.105 ICC-01/09-01/ l l -89-Anx2.106 ICC-01/09-01/ l l -89-Anx2.

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ment ioned previously dur ing the inves t iga t ions . Never the less , the Commiss ioner ofPolice again tasked the team of invest igators to carry out exhaust ive invest igat ionsrelat ing to the Oc am po six and other hig h rank ing cit izens. io7

68. Although the information provided in these two annexes reveals tha t instruct ionswere given to invest igate the three suspects subject to the Court 's proceedings, theGovernment of Kenya does not provide the Chamber with any deta i ls about theasser ted, current invest igat ive s teps under taken. In the Reply, the Government ofKenya alleged that "a file was opened against one of the six suspects on account ofwitness statements taken by the [investigative] team".!^ yet, it does not provide theChamber with any information about the t ime or content of these s ta tements . TheGovernment of Kenya also states that it has instructed the "team of investigators tocarry out exhaust ive invest igat ions" , but i t does not expla in or show the Chamberany concre te s tep that has been or is being cu rrently und er ta ken in this respect .

69. In par t icular , the Chamber lacks information about dates when invest igat ions, i fany, have commenced against the three suspects , and whether the suspects wereactually questioned or not, and if so, the contents of the police or publicprosecutions ' repor ts regarding the quest ioning. The Government of Kenya a lso fa i lsto provide the Chamber with any information as to the conduct , c r imes or theincidents for which the three suspects are being investigated or questioned for. Thereis equally no record that shows that the re levant witnesses are being or have beenquest ioned. The remaining 26 annexes submitted by the Government of Kenya insupport of its claim have no direct relevance to the legal test required under article17(l)(a) of the Statute.

70. The Appeals Chamber pointed out tha t the admissibi l i ty of the case must bedetermined "on the basis of the facts as they exist at the time of the proceedingsconcerning the admissibility challenge". Thus, in the absence of information, whichsubstantiates the Government of Kenya's challenge that there are ongoing107 ICC-01/09-01/ l l -89-Anx2.108 ICC-01/09-01/11-89, para. 50.

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investigations against the three suspects, up until the party filed its Reply, theChamber considers that there remains a situation of inactivity. Consequently, theChamber cannot but determine that the case is admissible following a plain readingof the first half of article 17(l)(a) of the Statute. It follows that there is no need todelve into an examination of unwillingness or inability of the State, in accordancewith article 17(2) and (3) of the Statute. The Government's First Request must,therefore, be rejected.

FOR THESE REASONS, THE CHAMBER, HEREBY

a) rejects th e 17 May 2011 Request;

b) rejects the G overn me nt's First Request;

c) determ ines that the case is admissible;

d) orders the Registrar to notify this decision to the Government of the Republicof Kenya.

Done in both English and French, the English version being au thoritative.

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Judge EkaterinaPresiding fudgeV

CW.S ! ^Judge Hans-Peter KaulJudge

Judge Cuno TarfusserJudge

Dated this M onday , 30 May 2011At The Hague , The N etherlands

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Documents

ICC Admissibility Decision Ruto, Kosgey and Sang