ICC Admissibility Decision Muthaura, Uhuru and Ali

8/6/2019 ICC Admissibility Decision Muthaura, Uhuru and Ali

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Cou rPna l eI n t e r n a t i o n a l eI n t e r n a t i o n a lC r i m i n a lC o u r t

m)Original: English No.: ICC-01/09-02/11

Date: 30 M ay 2011

PRE-TRIAL CHAMBER II

Before: Judge Ekaterina Trendafilova, Presiding JudgeJudge Hans-Peter KaulJudge Cuno Tarfusser

SITUATION IN THE REPUBLIC OF KENYAIN THE CASE OF THE PROSECU TOR V. FRANCIS K IRIMI MUTHAURA,

UHURU MU IGAI KENYATTA AN D MO HAMM ED HUSSEIN ALI

PublicDecision on the Application by the Government of Kenya Challenging the

Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute

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Decision to be notified, in accordance with regulation 31 of the Regulations of the Court, to:

The Office of the ProsecutorLuis Mo reno-Ocampo, ProsecutorFatou Bensouda, Dep uty Prosecutor

Counsel for Francis Kirimi M uthau raKarim A. A. Khan an d K ennedy OgetoCounsel for Uhuru Muigai KenyattaSteven Kay and Gillian HigginsCounsel for Moham med H ussein AliGregory Kehoe and E vans Monari

Legal Rep resentatives of the Victims Legal Rep resentatives of the Ap plican ts

Unrepresented Victims Unrepresented Applicants forParticipation/Reparation

The Office of Public Counsel forVictimsPaolina Massidda

The Office of Pub lic Cou nsel for theDefence

States RepresentativesGeoffrey NiceRodney Dixon

Amicus Curiae

REGISTRYRegistrar & Depu ty RegistrarSilvana Arbia, RegistrarDidier P reira, Dep uty RegistrarVictims and W itnesses Unit

Defence Support SectionDetention Section

Victims Participation an d ReparationsSection Other

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PRE-TRIAL CHAMBER II (the "Chamber") of the International Criminal Court (the"Court") renders this decision! on the application filed by the Government of Kenyachallenging the admissibility of the case pursuant to article 19(2)(b) of the RomeStatute (the "Statute").

I. Procedural History1. On 31 March 2010, the Chamber, by majority, issued its decision authorising theProsecutor to commence an investigation into the situation in the Republic of Kenya(the "31 March 2010 Authorisation Decision").^2. On 8 March 2011, the Chamber by majority, decided to summon Francis KirimiMuthaura ("Mr Muthaura"), Uhuru Muigai Kenyatta ("Mr Kenyatta") andM ohamm ed Hussein Ali ("Mr A li") to appear before the Court on Thu rsday, 7 April2011.33. On 18 March 2011, the Chamber issued a decision setting a new date for the initialappearance hearing, as Friday, 8 April 2011.^

4. On 31 March 2011, the Chamber received the "Application on Behalf of theGovernment of the Republic of Kenya Pursuant to Article 19 of the ICC Statute" (the"Government's Application" or the "Application"), in which the Government ofKenya requested that the Chamber (1) determines that the case, against the threepersons for wh om summ onses to app ear have been issued, is inadmissible (the "FirstRequest"); (2) convenes a status conference to be attended by the Government ofKenya as well as the parties "to address the Pre-Trial Chamber on the procedure to^ Wh ile con curring w ith the Cham ber, Judg e Hans-P eter Kaul rei terates, for the purp ose s of thisdecision, his declarat ion as annexed in a previous decision, see Pre-Trial Chamber II, "Decision on theConduct of the Proceedings Fol lowing the Appl ica t ion of the Government of Kenya Pursuant toArticle 19 of the Rome Statute", ICC-01/09-02/11-40.2 Pre-Trial Chamber II, "Decision Pursuant to Art icle 15 of the Rome Statute on the Authorizat ion ofan Invest iga t ion into the Situat ion in the Republic of Kenya", ICC-01/09-19-Corr.3 Pre-Trial Ch am ber II, "Decision on the Prosecuto r 's Applicat ion for Sum mo nse s to Ap pe ar forFranc is Ki rimi Muthau ra , Uh uru Mu iga i Kenyat ta and M oha mm ed Hu sse in Al i" , ICC-Ol/09-02/11-1.4 Pre-Trial Cham ber II, "Decision Set t ing a New Date for the Ini t ial Ap pea ranc e", IC-01/09-02/11-8.

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be adopted before any orders or direc t ions are made [ in this regard]" ( the "SecondRequest") ; and (3) affords the Kenyan Government with "a separa te t ime a l locat ionto have an oppor tunity to address br ief ly the Pre-Tr ia l Chamber on one or both ofthe hear in gs ' day s of 7/8 Apri l 2011, as the Court may decide in c ircumstances wherethe parties can be present" (the "Third Request").5

5. O n 4 Apri l 2011, the Ch am ber issued i ts "Decision on the Con duc t of Proceeding sFollowing the Application of the Government of Kenya Pursuant to Article 19 of theRo m e Statu te" (the "4 April Decision") in wh ich it , inter alia, rejected th e Second an dThird Requests . The Chamber moreover requested the Prosecutor and the Defence tosubmit wri t ten observat ions on the Firs t Request presented in the Government 'sAp plicatio n by no later than T hu rsd ay 28 Ap ril 2011. I t also decide d th at, for thepurposes of article 19 proceedings, the Office of Public Counsel for Victims (the"OPCV") shall represent vic t ims who have submitted applica t ions to par t ic ipate inthe Court 's proceedings with regard to the present case and invited them to submitwrit ten observat ions by no la ter than Thursday 28 Apri l 2011.^

6. O n 11 Ap ril 2011, the Go ver nm ent of Ken ya so ug ht leave to reply to the w ritte nobservat ions, which w ere du e to be subm itted to the Ch am ber on 28 Apri l 2011.^

7. On 21 Apri l 2011, the Gov ernm ent of Kenya fi led 22 annexes am ou ntin g to mo rethan 900 pages containing materials relevant to the First Request, as presented in theApplication. On the same date, the Government also filed into the record of thesi tuat ion a request for coopera t ion and assis tance ( the "Cooperat ion Request") ,under article 93(10) of the Statute and rule 194 of the Rules of Procedure andEvid ence (the "Rules").^ The Co ope ration Req uest wa s followed b y sev eral f ilings.!^

5ICC-01/09-02/11-26, paras 80-82.6 Pre-Trial Chamber II, "Decision on the Conduct of the Proceedings Following the Applicat ion of theGo ver nm ent of Keny a Pu rsu an t to Art icle 19 of the Rom e Statute", ICC-01/09-02/11-40, p . 7.7ICC-01/09-02/11-53.8ICC-01/09-02/11-67 and i ts annexes.9 ICC-01/09-58.

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8. On 28 April 2011, the Chamber received the written observations on the FirstRequest, as presented in the Government's Application, from the Prosecutor,!! theDefence of Mr. Ali!^ the Joint Defence O bserva tions of M r. Mu thau ra, Mr Kenyatta,!^as well as from the OPCV,!^ acting on behalf of the victims who have submittedapplications to participate in the Co urt's proceedings (the "O bservations").

9. On 2 May 2011, the Gov ernme nt of Kenya reiterated its request to be granted leaveto reply to the O bservations, i and on the same day, the Cham ber issued a decisionin which it decided to grant the Government the opportunity to reply to theObservations, by no later than 13 May 2011, and to the extent that it engages "solelywith the relevant issues raised in the observations received".!^

10. On 13 May 2011, the Go vern me nt of Kenya filed its reply to the Ob serva tionssubm itted on the First Request together with 7 annexes, all of which we re notified tothe Cham ber on 16 May 2011 (the "Government's Reply" or the "Reply").!^

11. On 17 May 2011, the Go vern me nt of Kenya filed the "A pplication for an OralHearing Pursuant to Rule 58(2)", in which it requested the Chamber to convene ahearing regarding the admissibility challenge, before the Chamber decides on themerits (the "17 May 2011 Application").!

IL Submiss ions of the Parties and ParticipantsThe Government's Application10 ICC-Ol/09-02/11-86; ICC-01/09-02/ll-86-Corr; ICC-01/09-02/11-93.i i ICC-01/09-02/11-71.12ICC-01/09-02/11-70.13ICC-01/09-02/11-72.14ICC-01/09-02/11-74 and its annexes.15ICC-01/09-02/11-76.16 Pre-Trial Cham ber II, "Decision u nd er r egula t ion 24(5) of the Regu lat ions of the Co urt o n th eMo tion Su bm it ted on Behalf of the Go vern me nt of Kenya ", ICC-01/09-02/11-81, p. 7.17ICC-01/09-02/11-91 and its annexes.18ICC-01/09-02/11-92.

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12 . In i ts Applica t ion, the Government of Kenya argued in pr inciple that theChamber must make i ts de termination "with a ful l understanding of thefun dam enta l an d far-reaching constitutio nal an d judicial reform s" i bo th recentlyenacted and anticipated,^^ as well as "the investigative processes that are currentlyu n d e r w a y " .2! In outlining these reforms, the the investigative processes, and thepro pos ed t im eframe and p roced ure , the Gov ernm ent of Kenya poin ted out , inter a lia ,tha t a new const i tut ion was adopted in August 2010 which incorporates a Bil l ofRights tha t s trengthens "fa ir t r ia l r ights and procedural guarantees" in the cr iminaljust ice system. According to the Government, the new const i tut ion remedies pastdeficiencies and weaknesses in the dispensation of the administration of justice inKenya.22 It also empowers Kenyan national courts to deal with the cases currentlybefore the Court,^^ without needing to pass legislation establishing a specialtr ibunal.24 Further, the adoption of the new constitution and related reforms such asthe appointment of a new Chief Just ice and High Court judges, a lso "meant tha tKenya is able to conduct national criminal proceedings for all crimes arising fromthe post-election violence".^^

13 . The Government submitted that the process invest igat ing cr imes ar is ing out ofthe 2007-2008 post-election violence "will continue over the coming months", andthat s teps currently under taken and those envisaged with respect to a l l cases a tdifferent levels, will be finalized "by Sep tem ber 2011".26 In the G ov ern m en t's view,the investigatio n of the cases before the Co urt "w ill be mo st effectively pro gres sedonce the new [Director of Public Prosecutions] DPP is appointed [ . . .] by the end ofM ay 2011", and that currently they are "continuing under the Directora te of

19 ICC-01/09-02/11-26, para. 2.20 ICC-01/09-02/11-26, paras 2 and 9.21 ICC-01/09-02/11-26, para. 12.22 ICC-01/09-02/11-26, paras 2 and 5.23 ICC-01/09-02/11-26, paras 2 and 5.24 ICC-01/09-02/11-26, paras 2 a nd 4 3.25 ICC-01/09-02/11-26, paras 34, 47, 56 and generally paras 47-59.26 ICC-01/09-02/11-26, para. 13.

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Crim inal Invest iga t ions" . ^ Du ring the propo sed 6-month per iod, the Go vern m ent"wil l be under taking invest igat ions" and "wil l be in a posi t ion to provide progressreports" to the Chamber by end of July, August and September 2011.2

14. In particular, th e Gov ern m en t pro po ses tha t by th e end of July 2011, it willprovide the Chamber with a progress repor t regarding invest igat ions carr ied outun de r the new DPP29 and "ho w they extend u p to the highest levels" . ^ Th is re po rtwil l build "on the invest igat ion and prosecution of lower level perpetra tors to reachu p to those at the high est levels w ho m ay hav e bee n respo nsib le" . i M oreov er, by th eend of A ug us t 2011, the Go ver nm ent will subm it a further rep ort on, inter alia, the"progress made with investigations to the highest levels"32 followed by a third reporton the "progress made with investigations and readiness for tr ials in light of [ the]judic ial reforms".^^

15 . The Government a lso averred that in applying the law to the fac ts presented, theChamber should make its determination "on the basis of the facts as they exist at thetime of the proceedings concerning the admissibility challenge",^^ and as to whetherthere "is any record of investigations or prosecutions at ' the time of theproceedings '" .35 Thus, in conducting such an examination, the Government asser tedthat the admissibility of the case should be assessed against the criteria establishedby the Chamber in the 31 March 2010 Authorisation Decision, to the effect that"national investigations must [ . . .] cover the same conduct in respect of persons at thesam e level in the hierarc hy be ing inv estigate d b y the ICC".^^

27 ICC-01/09-02/11-26, para. 69.28 ICC-01/09-02/11-26, paras 14,17 and 66.29 ICC-01/09-02/11-26, paras 72 and 79.30 ICC-01/09-02/11-26, para. 79.31 ICC-01/09-02/11-26, paras 34 and 71 .32 ICC-01/09-02/11-26, para. 79.33 ICC-01/09-02/11-26, para. 79.34 ICC-01/09-02/11-26, pa ra. 31 .35 ICC-01/09-02/11-26, pa ra. 31 .36 ICC-01/09-02/11-26, para. 32.

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The Prosecuto r's Observations16. The Prosecutor submitted that the interested par ty lodging an admissibi l i tychallenge bears the burden of proof and that the Government has failed so far toshow that i t "has conducted or is conducting invest igat ions or prosecutions inrelation to the cases" before the Court.^^ According to the Prosecutor, if Kenya isconducting invest igat ions or prosecutions, in re la t ion to persons other than the threesuspects subject to the Court 's proceedings, then i t is not addressing the samecase" .3 The sa m e hold s tru e in relation to a State carrying o ut inv estigatio ns wi threspect to different conduct.

17 . The Prosecutor fur ther argued that a Sta te promising to conduct domesticproceedings is not sufficient to satisfy the admissibility requirements. Also, allowing"a lengthy timetable for submissions"^^ for the sake of assessing the development of"the local judicial institutions has no basis in the Statute", and would lead tounnecessary delay of proceedings.^^ Thus, should Kenya later initiate "genuineproceedings against the same person[s] for the same conduct" , i t may seek leave toenter a second admissibility challenge, the Prosecutor added.^i

18 . With respect to the 22 annexes filed by the Government, the Prosecutor claimedthat the Chamber should disregard them as they were submitted " three weeks af terf i l ing [ the Government 's Applica t ion]" , and without having sought leave of theChamber.42 xhe Prosecutor also submitted that these annexes, even if admitted,prove that domestic invest igat ions against the suspects remain "merelyhypotheticar ' ,43 ^^id accordingly, the Chamber should determine that the case isadmissible.4437ICC-01/09-02/11-71, para. 12.38 ICC-01/09-02/11-71, para. 18.39 ICC-01/09-02/11-71, para. 21 .40 ICC-01/09-02/11-71, para. 21 .41 ICC-01/09-02/11-71, para. 22.42 ICC-01/09-02/11-71, para. 2 3.43 ICC-01/09-02/11-71, paras 25-26.44 ICC-01/09-02/11-71, paras 28-29.

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The Observations of M r. Ali19 . The Defence of Mr Ali refrained from making observations on the First Requestpresented in the Government 's Applica t ion, though i t reserved i ts r ight to "ra iselegal challenges envisaged under the Sta tute , inc luding applica t ions pursuant toAr ticle 19 of t he St at ut e" . ^

The Joint Defence Observations of M r. M uth aur a and M r. Kenyatta20 . The Joint Defence of Mr. Muthaura and Mr. Kenyatta a lso advanced noobservat ions with regard to the Government 's Applica t ion. The Defence teamsrei tera te their "commitment to ful ly respect and comply with any and a l l orders tha tthe Cha m ber m ay m ak e and to continue to coope rate with th e court" . ^

The OPCV's Observations21. The OPCV invited the Chamber to re jec t the Government 's Applica t ion and f indthat th e case again st the su spects is admissible.^^ In its Applicatio n, it argu ed that theGovernment 's Applica t ion "avoided indicat ing whether invest igat ions are currentlyunderway against the suspects",^ and instead referred to suggested, futureinvest igat ive s teps. Thus, despite the Government 's under taking to submit to theChamber a progress repor t on sa id s teps, the OPCV remains unconvinced. In theirview, any su ch "re po rt will explain how the highe st echelons of officialdom are bein ginvestig ated, a nd tha t those echelons in clud e the sus pects " . ^

22. Responding to the "litany of actual or anticipated constitutional, judicial,prosecutorial and police reforms"^^ relied upon in the Government's Application, the

^ ICC-01/09-02/11-70 para. 6.^ ICC-01/09-02/11-72, para. 7.47 ICC-01/09-02/11-74, p . 24.48 ICC-01/09-02/11-74, para. 10.49 ICC-01/09-02/11-74, para. 10.50 ICC-01/09-02/11-74, para. 13.

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OPCV stressed that " they do not const i tute an invest igat ion under ar t ic le 17" .5! Theonly indicat ion of an invest igat ion or prosecution proffered by the Government wasthe Atto rney Ge nera l 's 21 Ap ril 2011 letter . The OPCV alleged t hat "th e timing of th eletter [ . . .] raises serious questions about the reliability of the Government'sasser t ions par t icular ly when they are not suppor ted by meaningful and concre teevidence".52 According to the OPCV, "the letter is specifically designed to preventproceedings a t the ICC, ra ther than ref lec t ing a wil l ingness to conduct a genuineinve stigatio n" .53 Ultim ately, th e Ch am ber is imp lore d to dr aw from this letter, a nadverse inference that invest igat ions against the suspects are not underway, andspecifically that as at 30 M arch 2011 only " pers on s at "the sa me leve l" as the susp ectswe re being contemplated"54 and not the suspects th emselv es.

23 . The OPCV reiterated that "a genuine investigation and prosecution [ . . .] requirespar t icular ly robust guarantees of independence, neutra l i ty , and transparency.Legislative reform alone is insufficient [...]".55 It recalled the ethos central toproposals for the establishment of a Specia l Tr ibunal , namely to overcomedefic iencies in the Kenyan nat ional system, such as " the deep-seated mistrust tha tthe system would be unbiased by ethnic considerations".5^ As such, "the rejection ofthe Special Tribunal, in the absence of other concrete and specific steps, is stronglyindicat ive of an unwill ingness to genuinely invest igate and prosecute" .5Furthermore, the absence of the suspects from the list of pending investigations,provided by the Government, is "compell ing evidence" of the la t ter 's unwill ingnessto genuinely investigate and prosecute the suspects, the OPCV added.5

The Government's Reply51 ICC-01/09-02/11-74, para. 14.52 ICC-01/09-02/11-74, para. 16.53 ICC-01/09-02/11-74, para. 38.54 ICC-01/09-02/11-74, para. 18.55 ICC-01/09-02/11-74, para. 33.56 ICC-01/09-02/11-74, para. 29.57 ICC-01/09-02/11-74, para. 31.58 ICC-01/09-02/11-74, para. 35.

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24. In i ts Reply, the Government of Kenya endorsed a number of paragraphsoutlined in the observations filed by the Defence of Mr. Ruto and Mr. Sang.59 7^^Government a lso re i tera ted i ts arguments tha t i t has the capacity to address the casecurrently before the Court , and that there are ongoing invest igat ions with respect tothe three suspects subject to the Court 's proceedings.^^ Thus, in presenting itsarguments , the Government opposed a number of issues ra ised in the observat ionssubmitted by the Prosecutor and the OPCV. In par t icular , the Government disagreedwith the same conduct and same person test "as the Sta te may simply not haveevidence available to the Prosecutor of the ICC or may even be deprived of suchevidence".^! Moreover, even if the State possessed the same evidence as that held bythe Prosecutor , " there can be no requirement tha t in order to exclude ICCadmissibility the State must conduct an investigation that leads to charging of thosevery ind ivi du als " . 2

25. The Government a lso disputed the issue of the proper t iming for assessing theadmissibi l i ty challenge. While i t understood that the Prosecutor and the OPCV'sobservat ions suggest tha t the t iming to make an admissibi l i ty assessment is the dateon which the challenge is lodged by the Sta te , i t a rgued that the r ight moment isw he n i t has sub mitte d i ts "staged re por ts " to the Chamber.^^

26 . According to the Govern me nt, i t has include d the la test public information on theinvest igat ion, and should the Chamber doubt i ts genuineness, the Governmentpro pos ed that the Cham ber hear the Com missioner of Police . ^ The Gov ernm ent a lso

59 ICC-01/09-02/11-91, para. 19. The Government referred to paragraphs 2-12, 14, 19 and 20 of theDefence 's observat ions, ICC-01/09-01/11-68.60 ICC-01/09-02/11-91, para s 2, 29-32 and 57-58. The Gov ern me nt spe aks abo ut on goin g invest igat ionsin relat ion to the six suspects in the two cases. For the purposes of this decision, the Chamber wil lonly refer to the three suspects involved in the present case.61 ICC-01/09-02/11-91, para. 2 7.62 ICC-01/09-02/11-91, para. 2 8.63 ICC-01/09-02/11-91, par as 24-25 and also para. 64.64 ICC-01/09-02/11-91, para s. 58 and 70.

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pointed out the reform undertaken concerning the police and witness protection.65 ^argues that the assessment of admissibility is an ongoing process and therefore theannexes appended to the Reply should be taken into considera t ion by the Chamberbefore making its final determination.^^

III . The Appl icab le Law27. The Chamber notes articles 17,19(2)(b), 21(l)(a), (2) and (3) of the Statute, rules 58(2),(3) and 59(l)(b), (2) and (3) of the Rules.

IV. P re l im ina ry De te rm ina t io n on the Coo pera t ion R eque s t28. In the Cooperat ion Request , the Government sought the Court 's assis tance in theform of receiving "all statements, documents, or other types of evidence" obtained inthe course of the Prosecutor 's investigations.^^ According to the Government, thiswil l assis t the nat ional author i t ies in conducting and advancing their invest igat ionsand prosecutions into the Post-Election Violence.^ Therefore, the Government ofKenya requested the Chamber to address the matter pr ior to rul ing on the meri ts ofthe admissibility challenge.^^

29. At the outse t , the Chamber notes that the Cooperat ion Request was lodged by theGovernment of Kenya three weeks after the Application was filed. At the time theGo vern me nt of Kenya lodge d the challenge, i t never p urp or te d that the First Requestpresented in the Application was dependent on any future request under article 93(10)of the Statute. Thus, if the Government of Kenya believes that these requests areinter-re la ted, perhaps they should have presented them together and not af ter thisper iod of t ime has e lap sed.

65 ICC-01/09-02/11-91, para s 68-69 an d 71 .66 ICC-01/09-02/11-91, para. 77.67 ICC-01/09-58, p. 3.68 ICC-01/09-58, p. 3.69 ICC-01/09-58, p. 4.

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30 . Be i t as i t may , the Cha mb er w ishes to point out tha t the Coo perat ion R equest asreferred to in its title , is actually a request for assistance which falls within the pureambit of par t IX of the Sta tute regula t ing the coopera t ion between the Court andStates or other intergovernmental organisations. As such, the request for assistancehas no linkage with the issue of admissibility, which is regulated under part II of theStatute. Ergo, a determination on the inadmissibility of a case pursuant to article 17of the Sta tute does not dep en d o n granting or deny ing a request for assis tance un de rarticle 93(10) of the Statute. This conclusion finds su pp or t in the fact that a State m ayexercise its national jurisdiction by way of investigating or prosecuting, irrespectiveof and independent from any investigative activities of the Prosecutor. Thesedom estic proceeding s sho uld be in pr inciple carr ied ou t witho ut the assis tance of theCour t .

31. The independence of the article 19 regime from a request for assistance underarticle 93(10) of the Statute is further reflected in the discretionary wording of article93(10) of the Sta tute . The language used in this provision does not impose anyobligation ("may") on the Court to grant a request for assistance presented by aSta te . In addit ion, coopera t ion under ar t ic le 93(10) of the Sta tute may re la te tocrimes other than those falling under the jurisdiction of the Court ("serious crimesun de r nat ional law of the request ing S ta te"). F inally , the Cham ber un der l in es thatarticle 19 of the Statute does not contain any explicit reference to article 93(10) of theSta tute . In par t icular , there is no indicat ion whatsoever in the Sta tute that theapplic ation of articles 17 an d 19 are subject to grantin g a requ est for assistanceunder article 93(10) of the Statute. For these reasons, the Chamber shall rule on themeri ts of the Cooperat ion Request in a separa te decision to be issued subsequently.

V. De te rm ina t io n on the 17 M ay 2011 Appl ica t ion32. In the 17 M ay 2011 Ap plication , the Go ver nm en t argu es that "it specificallyrequested that the Pre-Tr ia l Chamber schedule an ora l hear ing" , but the Chamber"did not specifically address [it]". Ins tead , the Chamber ru led on the Government ' s

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other requests regarding a status conference, its participation during the 8 April 2011initial appearance h earings, and the parties' submission of written observations.

33. The Chamber reminds the parties and participants that, although they areentitled to have access to the Court and to put forward any request that they maydeem essential for strengthening their case, they are equally obliged to frame theirarguments exercising good faith.

34. In this regard, the Chamber quotes paragraph 20 of the Application which theGov ernment of Kenya relies up on to argue its 17 May 2011 Application:

Furthermore, before any final determinat ion of the present Applicat ion is made by the Pre-Trial Chamber, the Government of Kenya requests that an oral hearing is scheduled, inconsul ta t ion wi th the par t ies , to permi t the Government the opportuni ty to address the Pre-Trial Chamber in respect of i ts Applicat ion. The Applicat ion is plainly of vi tal importance tothe nat ion al interest an d future of Kenya and i ts peo ple. It is part icula rly cri t ical to the futurecourse of judicial proceedings in Kenya, and is thus clearly a matter to be deal t with at apublic hearing before the Pre-Trial Chamber so that al l relevant arguments can be submit tedand considered, (As noted above, this is the fi rst t ime that an applicat ion made by a StateParty u nd er A rt icle 19 is being co nsidered before the ICC.)7o (emp hasis ad ded )

35. Reading the quoted paragraph 20 together with paragraph 21 of the sameApplication makes clear that the Government's request for holding a statusconference is in itself the reques t for an oral hearing. This conclusion is evident wh enreading the opening sentence of said paragraph 21: "[a]ccordingly, the Governmentproposes that a Status Conference he convened to discuss [...]" (emphasis added),which draws the linkage and elucidates that the status conference request is in factthe oral hearin g referred to in parag rap h 20 of the App lication.

36. Thus, the Government's claim that the Chamber did not rule on the request foran oral hearing in its 4 April 2011 Decision is misleading and must be corrected. Inthis regard, the Chamber recalls the 4 April 2011 Decision, in which it explicitlyrejected the Government's request to convene a status conference. Alternatively, and70ICC-01/09-01/11-26, para. 20 (foot notes omitted).

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on the basis of the discretion provided for in rule 58 of the Rules, the Chamberrevealed the pr incipal approach to be fol lowed throughout the ar t ic le 19proceedings, namely "to confine the engagement of the parties [ . . .] to providingwritten observations as dictated by rules 58(3) and 59(3) of the Rules".

37. Acco rdingly , the 4 Ap ril 2011 Decision placed the parties an d partic ipan ts o nsufficient notice as to the way article 19 proceedings would be conducted. Had thepar t ies any object ion regarding the manner in which the Chamber organised theproceedin gs, i t shou ld h ave req uested leave to appeal the 4 Apri l 2011 Decision. Thiswas not the case and the Chamber believes that it has given all parties andpar t ic ipants ample oppor tunit ies to put forward a l l a rguments regarding theadmissibi l i ty challenge. Hence, the Cham ber is not pers uad ed that a second ro un d ofsubmissions is needed pr ior to making a determination on the meri ts of theApplica t ion.

38. In any event , given that the Chamber has a lready rules on the Government ofKenya's request concerning the convening of a status conference, which is in itselfthe "ora l heari ng " as dem on stra ted , it consid ers, therefore, that th e 17 M ay 2011Request is in effect a request for reconsideration. As the Chamber consistently rulesthat the Court 's s ta tutory provisions do not accommodate a request of this nature ,^!the Gov ernm ent 's 17 M ay 2011 Request sho uld be re jec ted, with ou t the need toengage fur ther with any of the Government 's or the Defence submissions re la ted

71 See Pre-Trial Chamber II, "Decision on the 'Prosecution's Applicat ion for Extension of Time Limitfor Disclosure '", ICC-01/09-01/11-82; Pre-Trial Chamber II, "Decision on the Prosecutor 's Posi t ion onthe Decision of Pre-Trial Chamber II To Redact Factual Descript ion of Crimes from the Warrant ofArrests, Motion for Reconsiderat ion, and Motion for Clarificat ion", ICC-02/04-01/05-60; Pre-TrialChamber I, "Decision on the Prosecution Motion for Redact ion", ICC-01/04-01/06-123; Pre-TrialChamber I, "Decision on the Prosecution Motion for Reconsiderat ion and, in the al ternat ive. Leave toAppeal", ICC-01/04-01/06-166; Pre-Trial Chamber I, "Decision on the 'Demande des reprsentantslgaux de VPRSl, VPRS2, VPRS3, VPRS4, VPRS5, VPRS6 et a/0071/06 aux fins d'accder au do cum entconfidentiel dpos par le Consei l de direct ion du Fonds d'affectat ion spciale au profi t des vict imesle 7 fvrier 2008'", ICC-01/04-457; Pre-Trial Chamber I, "Decision on the Defence for MathieuNgudjolo Chui 's Request concerning translat ion of documents", ICC-01/04-01/07-477.

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thereto. The Chamber shall now turn to the First Request, the main subject-matter ofthe prese nt decision.

V I. Dete rmina t ion on the Admiss ib i l i ty Cha l lenge (F i r s t Reques t )39. The Chamber has thoroughly examined the Government ' s Appl ica t ion toge the rwith the 22 annexes submitted. I t has a lso carefully considered the Observat ionsreceived f rom th e par t ies and pa r t ic ipants , as well as the Gov ernm ent 's R eply and i tsrespect ive 7 annexes. The Gover nm ent 's A pplica t ion an d i ts Reply to theObservat ions, together with the annexes, reveal mainly the effor ts under taken thusfar and tho se int end ed to be perform ed in the future, w ith respect to judicial reformin the cou ntry.

40 . The Chamber is well aware that the concept of complementar i ty and the mannerin which it operates goes to the heart of States' sovereign rights. I t is also consciousof the fact that States not only have the right to exercise their criminal jurisdictionover those allegedly responsible for the commission of crimes that fall within thejurisdiction of the Court, they are also under an existing duty to do so as explicitlysta ted in the Sta tute 's pream bul ar pa rag rap h 6. Ho wev er , i t shou ld be bor ne in min dthat a core rationale underlying the concept of complementarity aims at "str ik[ing] abalanc e bet we en safeg uard ing the prim acy of dom estic procee din gs vis--vis the [ .. .]Cour t on the one hand, and the goal of the Rome Sta tute to 'put ar t end to impunity 'on the oth er ha nd . If States do not [ .. .] inves tigate [ . ..] , the [ . ..] C ou rt m us t be able tostep in " . 2 Therefore, in the co ntext of the Statu te, the C ou rt 's legal framew ork, theexercise of national criminal jurisdiction by States is not without limitations. Theselimits are encapsulated in the provisions regulating the inadmissibility of a case,namely articles 17-20 of the Statute.

72 Appeals Chamber , "Judgment on the Appea l of Mr. Germain Katanga aga ins t the Ora l Dec is ion ofTrial Chamber 11 of 12 June 2009 on the Admissibility of the Case", ICC-01/04-01/07-1497, para. 85.

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41. Thus, while the Cham ber w elcomes the express will of the Go vernment of Kenyato investigate the case sub judice, as well as its prior and proposed undertakings, theChamber's determination on the subject-matter of the present challenge is ultimatelydictated by the facts presented and the legal parameters embodied in the Court'sstatutory provisions.

42. In this context, the C ham ber recalls article 17 of the S tatute, which reads:

1. Having regard to paragraph 10 of the Preamble and art icle 1, the Court shal l determine thata case is inadmissible where:

(a) The case is bein g invest igated or prosec uted b y a State wh ich ha s jurisdict ion o ver i t ,unless the State is unwil l ing or unable genuinely to carry out the invest igat ion orprosecut ion;(b) The case has bee n invest igated by a State wh ich has jurisdict ion o ver i t and the Statehas decided not to prosecute the person concerned, unless the decision resul ted from theunwil l ingness or inabil i ty of the State genuinely to prosecute;(c) The perso n concern ed has alread y been tried for condu ct which is the subject of thecomplaint , and a t rial by the Court is not permit ted under art icle 20, paragraph 3;(d) The case is no t of sufficient grav ity to justify further action by the C ou rt.

2. In order to determine unwil l ingness in a part icular case, the Court shal l consider, havingregard to the pr inc iples of du e process recognized by inte rna t iona l l aw, whether one or m oreof the following exist, as applicable:

(a) The proceedings we re or a re be ing under ta ken or the na t iona l dec is ion was m ade forthe purpose of shielding the person concerned from criminal responsibi l i ty for crimeswith in the jurisdict ion of the Co urt referred to in art icle 5;(b) There has been an unjust ified delay in the pro ceed ings wh ich in the circumstan ces isinconsistent with an intent to bring the person concerned to just ice;(c ) The proceedings were not or a re not be ing condu cted ind epen dent ly or impart ia l ly ,and they were or are being conducted in a manner which, in the circumstances, isinconsistent with an intent to bring the person concerned to just ice.

3. In order to determine inabil i ty in a part icular case, the Court shal l consider whether, due toa total or substant ial col lapse or unavailabi l i ty of i ts nat ional judicial system, the State isunable to obtain the accused or the necessary evidence and test imony or otherwise unable tocarry out i ts proceed ings .

43. The Chamber has previously stated that the admissibility test envisaged in article17 of the Statute has two main limbs: (i) complementarity (article 17(l)(a)-(c) of theStatu te); and (ii) gravity (articlel7(l)(d) of the Statute).^^

73 Pre-Trial Chamber II, "Decision Pursuant to Art icle 15 of the Rome Statute on the Authorizat ion ofan Invest igat ion into the Situat ion in the Repu blic of Kenya" , ICC-01/09-19-Corr, para. 52.

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44. With respect to the first limb (com plementarity), the Cham ber un derscore s tha t itconcerns the existence or absence of national proceedings. Article 17(l)(a) of theStatute make s clear that the Co urt "shall determine that a case is inadmissible w here:(a) The case is being investigated or prosecuted by a State which has jurisdictionover it, unless the State is unwilling or unable genuinely to carry out theinvestigation or prosecution". In its judgment of 25 September 2009, the AppealsChamber construed article 17(l)(a) of the Statute as involving a twofold test:

[I]n considering whether a case is inadmissible under art icle 17 (1) (a) and (b) of the Statute,the ini t ial quest ions to ask are (1) whether there are ongoing invest igat ions or prosecutions, or(2) whether there have been invest igat ions in the past , and the State having jurisdict ion hasdec ided n ot to prosecute the person concerned. I t i s only wh en the an swers to these qu es t ionsare in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b)and to examine the quest ion of unwil l ingness and inabil i ty. To do otherwise would be to putthe cart before the horse. It fol lows that in case of inact ion, the quest ion of unwil l ingness orinability does not arise; inaction on the part of a State having jurisdiction (that is, the fact thata State is not invest igat ing or prosecuting, or has not done so) renders a case admissiblebefore the Court, subject to article 17 (1) (d) of the Statute.74

45. As to the second limb (gravity), since the G overnm ent of Kenya d oes not contestthis element, the Chamber shall confine its examination to the subject-matter definedin the Application, namely whether there are actually ongoing domestic proceedings(complementarity).

46. The Chamber notes that throughout the entire Application and the Reply, theGovernment of Kenya argues that it is currently investigating crimes arising out ofthe 2007-2008 Post-Election Violence. Thus, the Chamber considers that theapplicable test, which adheres to the facts presented in the Application and theReply is the one referred to in the first half of article 17(l)(a) of the Statute, namelywhether "the case is being investigated or prosecuted by a State which hasjurisdiction over it".

74 Appeals Chamber , "Judgment on the Appea l of Mr. Germain Katanga aga ins t the Ora l Dec is ion ofTrial Chamber II of 12 June 2009 on the Admissibility of the Case", ICC-01/04-01/07-1497, para. 78.

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47. The Chamber is satisfied that the Republic of Kenya is a State which hasjur isdic t ion over the presen t case . Ho wev er , the remaining q uest ion is wh ethe r thiscase "is being investigated or prosecuted" by the State within the meaning of article17(l)(a) of the Statute.

48. In this respect , the Government seems to have understood, only in par t , the testconsistently applied by the Chambers of the Court in interpreting the scope of a"case" for the purp os es of article 17 of the Statute . In the Applica tion, theGovernment of Kenya asserted that the admissibility of the case should be assessedagainst the criteria established by the Chamber in the 31 March 2010 AuthorisationDecision, to the effect that "national investigations must [ . . .] cover the same conductin respect of persons at the same level in the hierarchy being investigated by theI C C " . 7 5

49. Although in the Applica t ion, the Government does not contest the fac t tha t forthe purposes of def ining a "case" , na t ional invest igat ions "must cover the samecondu ct" , it seems that it e i ther m isun dersto od or disagreed with the remainin g l imbof the test, which requires that those investigations must also cover the same personssubject to the Court 's proceedings. The Government of Kenya purpor tedly re l ies onthe test established by the Chamber in the 31 March 2010 Authorisation Decision,which referred to "the groups of persons that are likely to be the object of aninves tigation b y the ICC",^^ and thu s, conclud ed tha t it wa s not necessary toinvestigate the same persons. Rather, it is sufficient to investigate "persons at thesam e level in the h ier arc hy " . ^

50 . The Chamber considers tha t this interpre ta t ion is misleading. The cr i ter iaestablished by the Chamber in i ts 31 March 2010 Author isa t ion Decision were not

75 ICC-01/09-02/11-26, para. 32.76 Pre-Trial Chamber II, "Decision Pursuant to Art icle 15 of the Rome Statute on the Authorizat ion ofan Inves t igat ion into the Situat ion in the Repub lic of Kenya", ICC-01/09-19-Corr, para. 50.-- TCC-01/09-02/11-26, para. 32.

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conclusive but simply indicative of the sort of elements that the Court shouldconsid er in mak ing an adm issibility d eterm inat ion wi thin the context of a situation,namely when the examination is in re la t ion to one or more "potentia l" case(s) . Atthat stage, the reference to the groups of persons is mainly to broaden the test,because at the preliminary stage of an investigation into the situation it is unlikely tohave an identified suspect. The test is more specific when it comes to anadmissibi l i ty determination a t the "case" s tage , which star ts with an applica t ion bythe Prosecutor under article 58 of the Statute for the issuance of a warrant of arrest orsummons to appear , where one or more suspects has or have been identif ied. At thisstage, the case(s) before the Court are already shaped. Thus, during the "case" stage,the admissibi l i ty determination must be assessed against na t ional proceedingsre la ted to those par t icular perso ns that are subject to the Co urt 's proceed ings.

51. In the case of The Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I statedin express terms that a determination of inadmissibility of a "case" requires that"nat ional proceedings [ . . . ] encompass both the person and the conduct which is thesubject of the case before the Court".7 So far, the Court 's jurisprudence has beenconsisten t on this issue.^^ Ho we ve r, the Gov ern m ent of Ken ya claim ed tha t the "ICCcase law has not authoritatively determined the meaning of the word 'case '". Citingthe 25 Septem ber 2009 Judg me nt, the Gov ernm ent asser ted that the A ppealsChamber "decline[d] to make any ruling on the subject [as] it did not endorse thefindings of Pre-Trial Chambers in the context of issuing warrants of arrest thatnat ional proceedings must encompass both the conduct and the person that is thesubject of the case before the ICC".!

78 Pre-Trial Chamber I, "Decision on the Prosecutor 's Applicat ion for a warrant of arrest . Art icle 58",ICC-01/04-01/06-8-Corr, paras 31 and 37-39.79 See e.g. Pre-Trial Chamber I, "Decision on the Prosecution's Applicat ion under Art icle 58(7) of thestatute", ICC-02/05-01/07-l-Corr, para. 24.80 ICC-01/09-02/11-26, para. 32.81 ICC-01/09-02/11-26, pa ra. 32, fn. 20.

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52. The Chamber considers tha t the re levant par t of the Appeals Chamber 'sJudgment must be read and understood in i ts context . I t is t rue that in paragraph 81of the Judgment the Appeals Chamber s ta ted that " i t does not have to address in thepresent appeal the correctness of the 'same-conduct ' test used by the Pre-Tr ia lChambers" . Nonetheless , in paragraph 80 i t made c lear tha t the reason for makingthis s ta tement was that there was no indicat ion that there were "ongoinginvestigations or prosecutions of any crime allegedly committed by the Appellant, atBogoro or anywhere e lse in the [Democrat ic Republic of Congo]" (emphasis added) .A similar s ta tement was made by the Appeals Chamber in the last three l ines ofpa ra gr ap h 81, w he n it stated th at "at the time of the adm issibility challengeproceedings before the Tr ia l Chamber , there were no proceedings in the DRC inrespect of the Appellant, Hence, the question of whether the 'same-conduct test ' iscorrect is not determinative for the present appeal" (emphasis added).2 Accordingly,the Chamber can clearly infer that the Appeals Chamber ruled on part of the testnamely, that a determination of the admissibility of a "case" must at least encompassthe "sam e person" , which in the context of the appe al was the App ellant himself.

53 . The Chamber a lso does not consider i t necessary to examine the "same-conduct"test, since the Government of Kenya, the interested party, conceded to this part ofthe test in its initial Application.^

54 . Having settled the dispute about the correct test in interpreting a "case" for thepu rp os es of article 17 of the Statute, the Cham ber shall n ow ap ply the facts, asprese nted b y the Go vern me nt of Kenya, to the law as def ined.

82 Appeals Chamber , Judgment on the Appea l of Mr. Germain Katanga aga ins t the Ora l Dec is ion ofTrial Cha mb er II of 12 June 2009 on th e Adm issibi l i ty of the Case, ICC-01/04-01/07-1497, para. 81.83 ICC-01/09-02/11-26, para. 32. Note that in i ts Reply to the Observat ions of 28 Apri l 2011, theGo vernm ent chan ged i ts ini ti a l view and presented new argu men ts in suppo rt of the incorrec tness ofthe same conduct-test . However, as the part ies are not al lowed to go beyond what was ini t ial lycontested in the Applicat ion by adding new arguments, the Chamber shal l not rule on the val idi ty ofthe s ame condu ct-test . See ICC-01/09-02/11-91, para. 27.

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55. The f irs t observat ion that the Chamber wishes to make stems from the argumentsput forward by the Government of Kenya in order to rebut the "same person" test .The Government of Kenya persis tent ly asser ts tha t there are ongoing invest igat ions"cover ing the present cases before the ICC". The la t ter s ta tement was a concludingremark made by the Government of Kenya r ight af ter having expla ined i tsunderstanding of the test to be applied to the present admissibi l i ty challenge,namely that "nat ional invest igat ions must encompass the same conduct in respect ofpersons at the same level of hierarchy" {em pha sis ad d ed ).

56. In this respect, the Chamber expresses its concern about this statement and theinferences that could be drawn from it. If the Government of Kenya persistentlyargued that the applicable legal test was that domestic invest igat ions mustencompass any person as far as he/she was at the same level of hierarchy, it is unclearhow the Chamber could be convinced that there are ac tually ongoing invest igat ions,with respect to the three suspects in the present case. Further doubts arise if onereads the re levant par ts f rom the Gov ernm ent 's Reply. In parag rap h 27 of the Reply,the Government of Kenya sta ted that "any argument that there must be identi ty ofindividuals [...] being investigated by a State and by the Prosecutor of the ICC isnecessarily false [...]. [...] [T]here is simply no guarantee that an identical cohort ofindividuals will fall for investigation by the State seeking to exclude ICCadmissibility[. . .]".4 The Chamber believes that these arguments cast doubt on thewill of the State to actually investigate the three suspects, assuming that there areongoing investigations as asserted. However, the factual information available to theChamber and the arguments se t for th demonstra te tha t there are no concre te s tepsshowing ongoing invest igat ions against the three suspects subject in the presentcase. This conclusion becomes more evident as the Chamber engages with some ofthe Go vernm ent ' s a rgum ents a s d iscussed be low.

84 ICC-01/09-02/11-91, para. 27.

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57. In the Applica t ion, the Government of Kenya argued that i t wil l provide theChamber with a progress repor t regarding prospective invest igat ions to be carr iedou t und er the new DPP5 and "h ow they ex tend u p to the highe st levels".^ Thisrepo r t wil l build "on the invest igat ion and pro secution of lower level perpe tra tors toreach up to those at the highest levels who may have been responsible".^

58. The Chamber is surpr ised by such a s ta tement which is ac tually anacknowledgment by the Government of Kenya that so far the a l leged ongoinginvestigations have not yet extended to those at the highest level of hierarchy, be itthe three suspects subject to the Court 's proceedings, or any other at the same level.This c lear ly contradic ts the arguments presented by the Government of Kenya in i tsRep ly tha t there are actually ongoing inves tigation s in relation to the thr ee sus pects ofthe case under the Chamber 's consideration.

59. Moreover , in the Applica t ion and in the Reply, the Government of Kenyaproposed to submit three main reports on the status of the investigations, the first ofwh ich to be subm itted in July 2011. The remaining t wo repo r ts are to be subm itted tothe Chamber by the end of August and the end of September 2011. In the view of theChamber i t remains unclear why the Government of Kenya has not so far submitteda deta i led repor t on the a l leged ongoing invest igat ions. I f na t ional proceedingsagainst the three suspects subject to the Cou rt 's proceeding s are currently u nd erw ay,then there is no convincing reason to wait until July 2011 to submit the said firstr epor t .

60 . It is apparent that the Government of Kenya in its challenge relied mainly onjudicial reform actions and promises for future investigative activities. At the samet ime, when arguing that there are current ini t ia t ives, i t presented no concre te

85 ICC-01/09-02/11-26, paras 72 and 79.86 ICC-01/09-02/11-26, para. 79.87 ICC-01/09-02/11-26, paras 34 and 7 1.88 ICC-01/09-02 /11-91, paras 2, 29-32, 57.

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evidence of such steps. This conclusion becomes more evident when reviewing thecontents of the annexes submitted by the Government of Kenya. Out of the 29annexes presented to the Chamber , only 3 annexes appear to be of some direc tre levance to the invest igat ive process a l leged by the Go vern me nt of Kenya (annexes1 and 3 appended to the Applica t ion and annex 2 appended to the Reply) .

61. After careful examination of these annexes, the Chamber finds that they fall shortof any concrete investigative steps regarding the three suspects in question. Inpar t icular , annex 3 appended to the Applica t ion is a 78-page progress repor tincluding data on Post Election Violence cases in six provinces, submitted by theChief Public Prosecutor and other State counsels to the Attorney General of theRepublic of Kenya. Nowhere in this report is there the slightest mention of thenames of one or more of the three suspects subject to the Court 's proceedings in thepresent case.^

62. As to annex 1, it includes a letter signed by the Attorney General of the Republicof Kenya and addressed to the Kenyan Commissioner of Police directing the latter to" invest igate a l l other persons against whom there may be a l legat ion of par t ic ipat ionin the Post-Elections Violence, including the six persons who are the subject of theproc eed ings c urren tly before the Internation al Crim inal Co urt (ICC)" . ^ The letteralso instructs the Kenyan Commissioner of Police to "prepare and submit [ . . .] bi-mo nthly repor ts on pro gress m ad e w ith these inves t igat ions" . i This le t ter is da ted14 April 2011 that is, two weeks after the Government of Kenya lodged itsadmissibility challenge. Thus, it is clear from this letter that by the time theGovernment of Kenya f i led the Applica t ion asser t ing that i t was invest igat ing thecase before th e Cou rt, there w ere in fact no ongoing inves tigation s.

89 ICC-01/09-02/ l l -67-Anx3.90 ICC-01/09-02/ l l -67-Anxl .91 ICC-01/09-02/ l l -67-Anxl .

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63. W hen the parties subm itted their observations, the Governm ent of Kenya replied,inter alia, by subm itting a four pag e report (annex 2 appen ded to the Reply), dated 5May 2011 and signed by the Director of Criminal Investigation. The report m entions,inter alia, that there is a pending case involving Mr. Ruto (file No 10/2008) and thatthe investigation has not been completed "for various reasons that include,unreliable and uncooperative witnesses".^2 However, the "matter is still underinvestigation because there are some areas requiring further corroboration in orderto reach a fair c onclusio n" . ^ The report finally states that:

When the ICC Prosecutor final ly disclosed the names of what came to be known as theocampo six, the Police invest igators were taken by surprise. This was because other than HonWil l iam Ruto, non of the mem bers of the ocampo s ix have been m ent ioned previously dur ingthe invest igat ions. Nevertheless, the Commissioner of Police again tasked the team ofinvest igators to carry out exhaust ive invest igat ions relat ing to the Ocampo six and other highranking citizens.94

64. Although the information provided in these two annexes reveals that instructionswere given to investigate the three suspects subject to the Court's proceedings, theGovernment of Kenya does not provide the Chamber with any details about theasserted, current investigative steps undertaken. In the Reply, the Government ofKenya alleged that "a file was opened against one of the six suspects [probably Mr.Ruto] on account of witness statements taken by the [investigative] team".95 yet, itdoes not provide the Chamber with any information about the time or content ofthese statements. The Government of Kenya also states that it has instructed the"team of investigators to carry out exhaustive investigations", but it does not explainor show the Chamber any concrete step that has been or is being currentlyundertaken in this respect.

65. In particular, the Chamber lacks information about dates when investigations, ifany, have commenced against the three suspects, and whether the suspects were92 ICC-01/09-02/ l l -91-Anx2.93 ICC-01/09-02/ l l -91-Anx2.94 ICC-01/09-02/ l l -91-Anx2.95 ICC-01/09-02/11-91, para. 50.

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actually questioned or not and if so, the contents of the police or public prosecutions'repor ts regarding the quest ioning. The Government of Kenya a lso fa i ls to providethe Chamber with any information as to the conduct , c r imes or the incidents forwhich the three suspects are being investigated or questioned for. There is equallyno record that shows that the re levant witnesses are being or have been quest ioned.The remaining 26 annexes submitted by the Government of Kenya in suppor t of i tsclaim have no direct relevance to the legal test required under article 17(l)(a) of theSta tute .

66. The Appeals Chamber pointed out tha t the admissibi l i ty of the case must bedetermined "on the basis of the facts as they exist at the time of the proceedingsconcerning the admissibility challenge". Thus, in the absence of information, whichsubstantia tes Government of Kenya 's challenge that there are ongoing invest igat ionsagainst the three suspects, up until the party filed its Reply, the Chamber considersthat there remains a s i tua t ion of inact ivi ty . Consequently, the Chamber cannot butdetermine that the case is admissible following a plain reading of the first half ofarticle 17(l)(a) of the Statute. It follows that there is no need to delve into anexamination of unwillingness or inability of the State, in accordance with article17(2) and (3) of the Statute. The Government's First Request must, therefore, berejected.

FOR THESE REASONS, THE CHAMBER HEREBY

a) rejects th e 17 M ay 2011 Requ est;

b) re jec ts the Government 's Firs t Request ;

c) det erm ine s th at the case is admissible ;

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d) orders the Registrar to notify this decision to the Government of the Republicof Kenya.

Don e in both English and French, the English version being au thoritative.

/ ^Judge Eka te r in i r endaruovaPresiding Judj

Judge Hans-Peter KaulJudge

Judge Cuno TarfusserJudge

Dated this M onday , 30 May 2011At The Hagu e, The N etherlands

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Documents

ICC Admissibility Decision Muthaura, Uhuru and Ali