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ICC grants prosecutor's request to launch probe into Kenyan violence

Judges at the International Criminal Court at The Hague on Wednesday authorized Prosecutor Luis-Moreno Ocampo's request to investigate crimes against humanity allegedly committed in Kenya.

In the decision, two of the three judges found that upon the examination of the available information, bearing in mind the nature of the proceedings under article 15 of the Statute, the low threshold applicable at this stage, as well as the object and purpose of this decision, the information available provided a reasonable basis to believe.

"The majority moreover found that all criteria for the exercise of the Court's jurisdiction were satisfied, to the standard of proof applicable at this stage," the ICC said in the statement posted on its website.

It said the majority therefore granted the prosecutor's request, and allowed him to commence an investigation covering alleged crimes against humanity committed during the events that took place between June 1, 2005 (that is, the date of the Statute' s entry into force for Kenya) and November 26, 2009 (the date of the filing of the prosecutor's request).

Ocampo asked in November for clearance to investigate clashes, saying there was a "reasonable basis to believe that crimes against humanity" were committed.

In his dissenting opinion, Judge Hans-Peter Kaul held that the crimes committed in Kenya do not qualify as crimes against humanity under the jurisdictional ambit of the Statute.

In particular, Judge Kaul disagreed with the majority on the requirements of a "State or organizational policy" as set out in Article 7(2) (a) of the Statute.

Given the fact that the fundamental rationale of crimes against humanity as codified in Article 7 of the Statute was to protect the international community against the extremely grave threat emanating from such policies, Judge Kaul concluded that it had to be adopted either by a state or at the policy-making level of a state-like organization. "Upon analysis of the supporting material, Judge Kaul concluded that there was no reasonable basis to believe that the crimes committed on the territory of Kenya in relation to the post- election violence of 2007-2008 were committed in an attack against a civilian population pursuant to or in furtherance of a policy stemming from a State or an organization," the statement said.

"Hence, Judge Kaul felt unable to authorize the commencement of an investigation in the Republic of Kenya," it said.

The country's 2007 post-election violence left 1,200 people dead, caused 600,000 to flee their homes, and brought Kenya to the brink of a civil war.

The Kenyan authorities agreed in December 2008 to bring those responsible to account in national trials. In July 2009, they again agreed to do so or to refer investigation of the violence to the ICC prosecutor.

But no action has been taken. During a visit to Nairobi on November 5 last year, the ICC prosecutor said that he would seek a permission to proceed with an investigation.

In determining whether to authorize the prosecutor to investigate, the three judges of the pre-trial chamber - relied on the materials submitted in November by the ICC prosecutor - considered whether there was a "reasonable basis" to proceed.

The ICC prosecutor has resolved to address the post-election violence of early 2008 with the Kenyan leaders and to prevent recurring violence like that witnessed after the presidential elections in 2007.

The three-pronged approach which he was expected to pursue will see the ICC prosecuting those most responsible; national accountability proceedings as defined by the Kenyan Parliament, such as a Special Tribunal, for other perpetrators; and other reforms and mechanisms such as the Justice, Truth and Reconciliation Commission to shed light on the full history of past events and to suggest mechanisms to prevent such crimes in the future.

[Source: By Daniel Ooko and Wang Yanan, Xinhua, Nairobi, 31Mar10]

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