, NAIROBI, Kenya, Dec 5 – The International Criminal Court (ICC) has said it will carry out its own investigations against suspects of the post election violence in Kenya.
Speaking during a media training workshop in Nairobi, ICC Associate Situation Analyst Claus Molitor said ICC Prosecutor Moreno Ocampo was not bound by the Waki list or other reports.
“Once the Prosecutor opens a case, we will send investigators who will collect evidence – physical and forensic evidence; they will talk to witnesses and victims. We will not rely on any lists,” he said
He continued: “Then we build a case and see what crime was committed, what group was involved, who is the leader of this group, who gave the orders to commit these crimes, so we collect evidence from bottom–up trying to find out the person with the most responsibility.
The Waki list which has remained secret continues to draw much interest with most Kenyans assuming that Mr Ocampo will depend on the list for ICC trials.
However, Mr Molitor said suspects will be known once the ICC does its own investigations and issues a warrant of arrest which can be either under seal or through a public announcement.
He cautioned Kenyans against believing claims that ICC investigators were already in parts of Rift Valley carrying out investigations. “There is a misconception that we are already in Kenya investigating, and this is not true, because Mr Ocampo is still waiting for a go ahead from the pre-trial chamber.”
Mr Ocampo requested to open a case on November 26 and the victims have up to 30 days to give their views to the ICC.
The analyst said the ICC was convinced beyond any doubt that there were no national legal proceedings in Kenya to deal with chief perpetrators of the violence, giving the ICC the leeway to open a case against the suspects.
“In Kenya there are only very low level proceedings for ‘small fish’ there are no proceedings on ‘big fish’ it is clear there are no such proceedings, the ICC has a reason to step in,” he said.
The ICC is a last resort and comes in only when a country fails to develop a mechanism to hold people accountable with the highest responsibility for crimes against humanity, genocide, and war crimes.
Some countries like Uganda asked for a self referral. The UN is also allowed to refer cases like it has done with Sudan. In the Kenyan case the prosecutor decided to move in which are all legal ways of engaging the ICC.
However, only member countries can refer a case and currently they are 110 members with China, US and Russia being non-members.
It takes one year for a country to withdraw from the ICC but according to Mr Molitor, the court will continue investigating any ongoing cases in the country and will still expect cooperation until the case is closed whether the country has withdrawn or not.
This means, even if Kenya thinks of withdrawing from the ICC today, Mr Ocampo will still go on with the investigations once he gets approval.
Member countries are obliged to cooperate with the ICC fully to honor the Rome Statute that they signed.
Mr Molitor said in most cases, the ICC expects suspects to volunteer themselves to the court as part of cooperation.
“If suspects do not volunteer themselves, the State is requested to arrest them… we expect States to cooperate,” he said.
He said it was a big challenge to the ICC since many member states are unwilling to surrender those issued with warrants of arrest.
But he said if states refuse to cooperate, they are reported to the state members’ assembly where they are ‘named and shamed.’
He also clarified that the ICC will not be using Kenya’s protection programme as alleged. He said it has its own protection programme which is the highest priority of the prosecutor.
However it will be up to the Kenyan government to protect witnesses and victims who gave their views to the Waki commission.
ICC Field Outreach Coordinator for Uganda, Maria Mabinty Kamara said the ICC will hold a review conference in Uganda in June next year.
She said amendments will be introduced to the Rome Statute to analyse achievements, challenges and failures.
Out of the 110 state signatories, Africa has the highest membership of 30 countries.