Two Kenyan opponents, President Mwai Kibaki and opposition leader Raila Odinga of the Orange Democratic Movement (ODM), threatened separately Tuesday to appeal to ICC, but apparently being unaware of the rules of referral.
Asked over the issue, a member of the office of the prosecutor told the Hirondelle News Agency, that "Kenya is a state party of ICC and the Office of the Prosecutor follows all allegations of crimes within its jurisdiction. ".
The statute of the ICC enables it to exercise its jurisdiction if a situation is submitted to the Prosecutor by a State Party or by the Security Council of the UN but it also allows it (Art 15) to exercise its jurisdiction under the terms of an investigation opened by the Prosecutor by his own initiative.
Kenya has been for the past three weeks in a political turmoil that has degenerated into inter-ethnic violence resulting into hundreds of deaths.
Diplomatic initiatives have been launched to resolve the conflict, but until now no tangible solution was in sight.
International humanitarian law is above all else intended to protect civil populations. The International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for former Yugoslavia (ICTY), ICC, the Special Tribunal for Cambodia (STC) and the Special Court for Sierra Leone(SCSL) reinforced the concepts of imputability and justice for the victims.
But that did not prevent violence against civilian populations from being repeated throughout Africa.
Instability in the Great Lakes region continues to spread, not to mention of the humanitarian crisis in Darfur.
Violence erupted in Kenya immediately after the December 27 election results were announced, which officially gave victory to the incumbent President Mwai Kibaki.
The results were rejected by the leader of the opposition Odinga, who claimed electoral fraud.
The violence involves Kenya's two largest ethnic groups --Kikuyus, tribe of President Kibaki, and Luos, belonging to Mr Odinga.
The violence has resulted in more than 400 deaths, according to the Kenyan government although observers estimate that this figure was closer to a thousand.
The UN has also reported that the violence has displaced about 250 000 people.
The catholic bishop of Eldoret, western Kenya, Rev Cornelius Korir, claimed that the attacks targeted specific ethnic groups and were thoroughly prepared and organized.
This is what a judicial enquiry could determine although to date nothing seems to have been initiated.
However, if there is any ICC intervention than it was subject to four conditions.
The first is that the permanent Court only has a subsidiary jurisdiction, complementary to national criminal jurisdictions.
It cannot intervene if the case which is referred to it is already the subject of an investigation by national jurisdictions or if the State decided not to prosecute (Article 17), unless the State does not have the will or that is in the incapacity to do so.
Only the most serious crimes (genocide, crimes against humanity, war crimes and the crime of aggression) are ascribable and they must have been committed after 2002 (date of entry into force of its Statute).
Kenya signed the Statute in August 1999 and filed its instrument of ratification in March 2005, the attacks, if they were prepared and perpetrated against precise ethnic groups, could constitute a beginning of qualification of crimes against humanity.
© Hirondelle News Agency