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ICC Prosecutor welcomes decision to move forward with Kenya probe

1 April 2010 – The Prosecutor of the International Criminal Court (ICC) today welcomed the body’s decision to grant his request to investigate alleged crimes against humanity committed in the wake of disputed Kenyan elections two years ago, and said he expects at least two cases to result from the probe.

Last November, prosecutor Luis Moreno-Ocampo sought authorization to open an investigation into the violence – claiming 1,000 lives and uprooting more than 300,000 others – that erupted after the disputed December 2007 polls in which President Mwai Kibaki was declared winner over opposition leader Raila Odinga, who is now Prime Minister.

Last month, following a request for additional information from the ICC, the Prosecutor named the 20 people he says are most responsible for the deadly post-election ethnic violence.

Both Mr. Kibaki and Mr. Odinga, he said, have promised to cooperate with any investigation.

Today, the Prosecutor, who will travel to the country next month, said that he hopes to wrap up most of the investigation by the end of this year and foresees at least two cases against one to three people each.

“I will engage in this process with the Kenyans, with all the communities,” he told reporters in The Hague, where the Court is based.

“This Court is their Court. Kenyan leaders – women, youth, tribal, judicial, political, religious [groups] – all have a role to play,” he added, emphasizing the importance of the ICC and Kenyans cooperating to ensure no outbreaks of violence in the future.

During his visit to Kenya, the Prosecutor said he plans to meet with those who suffered as a result of the violence and will visit the crime scenes.

“I will listen to the victims, respect their views and request justice for them in Court,” he underlined.

Mr. Moreno-Ocampo underscored the need to protect witnesses, which the ICC will do “independently.” But he also emphasized that it is the responsibility of Kenyan authorities to “ensure that all those who speak in favour of justice are duly protected.”

To limit the risk of witnesses to exposure, he said he will call as few witnesses to take the stand as possible.

Kenya will soon celebrate its 50th anniversary, “a historic opportunity to show an example of how one country overcomes violence,” the Prosecutor underlined.

Yesterday, the ICC’s Pre-Trial Chamber II found in a majority decision of two to one that “the information available provides a reasonable basis to believe that crimes against humanity have been committed on Kenyan territory.”

It noted that “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.”

Judge Hans-Peter Kaul, dissenting, held that the crimes in Kenya do not qualify as crimes against humanity under the jurisdictional ambit of the Rome Statute, under which the ICC operates.

He concluded that there was no reasonable basis to believe that the crimes in Kenya were committed in an attack against a civilian population pursuant to or in furtherance of a policy stemming from a State or an organization, which he said was required by Article 7 of the Statute.

The majority decision by Judges Ekaterina Trendafilova and Cuno Tarfusser cited the low threshold applicable at this stage of the proceedings.

The ICC is an independent, permanent court that investigates and prosecutes persons accused of genocide, crimes against humanity and war crimes.

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