Jurisdiction in the general situation
Kenya ratified the Rome Statute on 15 March 2005. The ICC therefore may exercise its jurisdiction over crimes listed in the Rome Statute committed on the territory of Kenya or by its nationals from 1 June 2005 onwards. On 31 March 2010, Pre-Trial Chamber II granted the Prosecutor's request to open an investigation
proprio motu in the situation in Kenya, in relation to crimes against humanity within the jurisdiction of the Court committed between 1 June 2005 and 26 November 2009.
Context and alleged crimes
ICC investigations have focused on alleged crimes against humanity committed in the context of post-election violence in Kenya in 2007/2008, in six of the eight Kenyan Provinces: Nairobi, North Rift Valley, Central Rift Valley, South Rift Valley, Nyanza Province and Western Province.
In granting the Prosecutor's request to open an investigation, the ICC Pre-Trial Chamber noted the gravity and scale of the violence. The Prosecutor contended that over 1,000 people were killed, there were over 900 acts of documented rape and sexual violence, approximately 350,000 people were displaced, and over 3,500 were seriously injured. The Chamber noted from the Prosecutor's submission "…elements of brutality, for example burning victims alive, attacking places sheltering IDPs, beheadings, and using pangas and machetes to hack people to death", and that perpetrators, among other acts, allegedly "terrorized communities by installing checkpoints where they would select their victims based on ethnicity, and hack them to death, commonly committed gang rape, genital mutilation and forced circumcision, and often forced family members to watch."
The Pre-Trial Chamber also observed victims' representations concerning the individual impact of the violence on the victims: "Complaints of harm suffered concern the inability of victims' children to continue their education, poor living conditions and health concerns in IDP camps, psychological damage such as trauma, stress, and depression, loss of income due to loss of jobs or an inability to re-establish their business, the contraction of sexually transmitted diseases after rape, abandonment after rape, and the separation of families."
The investigation has produced two main cases, originally with six suspects, involving charges which include the following crimes:
crimes against humanity: murder, deportation or forcible transfer of population, persecution, rape, and other inhumane acts
However charges were not confirmed or were withdrawn concerning these six suspects.
Proceedings in two cases involving charges against three suspects for offences against the administration of justice consisting in corruptly or attempting to corruptly influencing ICC witnesses.
This was the first situation in which the Prosecutor opened an investigation
proprio motu, rather than by receiving a referral.