Kenya vs. The ICC Prosecutor

On August 30, 2011, the Appeals Chamber of the International Criminal Court (ICC), by a majority, rejected Kenya’s admissibility challenges under Article 19(2)(b) of the ICC Statute[1] in cases involving several Kenyans who allegedly perpetrated crimes against humanity during the December 2007 post-election violence.[2] The ICC’s denial of Kenya’s admissibility challenge is significant because this is the first time since the Rome Statute entered into force on July 1, 2002 that a State Party has challenged the Court’s assertion of jurisdiction over its nationals on the basis that the State Party itself is investigating the incidents at issue. Accordingly, Kenya has argued it should therefore be given time and space to do its own investigation before interference from the Hague-based court. This important judgment therefore merits some attention, which this case note aims to help provide.



[1] See Rome Statute of the International Criminal Court art. 19(2)(b), July 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute].

[2] Prosecutor v. Ruto, Kosgey & Sang, Case No. ICC-01/09-01/11 OA, Judgment on the Appeal of the Republic of Kenya Against the Decision of Pre-Trial Chamber II of 30 May 2011 Entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute” (Aug. 30, 2011), http://www.icc-cpi.int/iccdocs/doc/doc1223134.pdf [hereinafter Appeals Chamber Judgment]; see also Prosecutor v. Ruto, Kosgey & Sang, Case No. ICC-01/09-01/11 OA, Judgment on the Appeal of the Republic of Kenya Against the Decision of Pre-Trial Chamber II of 30 May 2011 Entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute,” Dissenting Opinion of Judge Anita Ušacka (Sept. 20, 2011), http://www.icc-cpi.int/iccdocs/doc/doc1234872.pdf [hereinafter Dissenting Opinion].