US lawyers join Kenya ICC case

January 13, 2010 12:00 am

, The Hague, January 13 – Two American law experts are now questioning the validity of the Kenyan case before the International Criminal Court (ICC).

Professors Max Hilaire and William Cohn have filed a suit at The Hague in which they intend to raise seven legal issues that include questioning whether the case qualifies to be heard at the ICC.

They want the court to grant them the status “Amicus Curiae” (friends of the court) after which they propose to raise issues concerning “the threshold requirements for exercise of jurisdiction and authorisation to commence investigations under article 15 (of the Rome Statute).”

They want to know why the case should go to The Hague since Kenya is not a failed State and efforts have already been made by the President and the Prime Minister to set up a local tribunal.
“The cumulative effect of the efforts to set up a local tribunal and actions of the President and the Prime Minister on the complementarity principle and the interests of justice in allowing commencement of an investigation,” states the document. “The extent of and progress in investigations and prosecutions of crimes against humanity in Kenya and the effect thereof on the complementarity principle under the ICC stature.”

The American professors, who say they are not supporting any party, want the application by ICC prosecutor Luis Moreno-Ocampo to open the Kenya case suspended for at least 30 more days so that they can raise their arguments.

In the application filed on Tuesday before the court, the applicants want to know if the Kenyan case qualifies as a crime against humanity or is a matter of civil unrest.

The two are questioning the timing of Mr Ocampo’s application, the long-term political and social aspects relating to the prosecution, that have a bearing on the decision to commence investigations.

Prof Hilaire is the Associate Professor and Chair of the Department of Political Sciences at Morgan State University while Prof Cohn has practiced as an Attorney in San Francisco, California.

But this is not the first challenge to the investigation on Kenyan perpetrators: A Brussels-based international lawyers Non Governmental Organisation announced its intentions to block the International Criminal Court.

The organisation has accused the ICC of selective intervention of African countries.

According to its resolution: “The IADL opposes the current request of the ICC Prosecutor Moreno Ocampo for authorisation from the Pre-Trial Chamber to open the investigation into the crimes allegedly committed in Kenya during the post election violence.” 

“The violence in Kenya did not fall within the framework of the ICC Statute and did not meet the criteria for admissibility articulated in the Rome Statute and considering no UN body has been seized of the Kenya case, neither the General Assembly nor the Security Council.”

The group of lawyers also accused Mr Ocampo of being politically motivated to act on Kenyan perpetrators.


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