The trial court threw out Kenya's request in May on grounds that it was based only on a promise to launch investigations in the future and not on evidence that it was actually doing so.
Under the so-called "complementarity rule", the ICC can only take cases if the State concerned is either unwilling or unable to take genocide, crimes against humanity and war crimes cases before national courts. The ICC prosecutor must establish this before starting his own investigations and must have it confirmed by the judges. The office of the prosecutor says in one of its documents that: " An admissibility determination is not a judgment on the national justice system as a whole. If an otherwise functioning judiciary is not investigating or prosecuting the relevant case(s), the determining factor is the absence of relevant proceedings".
In the case of Darfur, for example, the prosecutor's office found that despite the existence of a special war crimes court in Sudan, "the assessment revealed an absence of any proceedings into the massive crimes committed in Darfur".
Other criteria are also taken into consideration, such as the impartiality and independence of judges. Trials at national level must comply with fair trial principles, including respect for the rights of the accused and protection of witnesses.
The "complementarity" rule has led several states to adapt their penal codes so as to deflect a potential threat from the ICC and allow national courts to take cases related to international crimes. After the ICC issued in 2007 its first Darfur-related arrest warrants against a Sudanese minister and militia leader, Khartoum set up its own special court. However, the ICC prosecutor and also the judges deemed that this was not enough to guarantee that those indicted by the ICC, including Sudanese president Omar Al-Bachir, be brought to justice.
Similarly Kenya waited to find out whom the ICC was going to accuse before saying it would conduct national trials. And with Muammar Gaddafi wanted by the ICC, some leaders in Libya's rebel National Transitional Council want him tried in Tripoli. In order to obtain that, they would have to demonstrate that Libya has both the capacity and the will to conduct such a trial. That is what Kenya is trying to do now. In other situations such as Guinea and Columbia, the prosecutor has not opened an investigation, leaving more time for national authorities to set up procedures at national level.
Confirmation of charges hearings are due to start on September 1 in the case of Kenya's former Higher Education Minister William Ruto, former Minister for Industrialisation Henry Kosgey and radio executive Joshua arap Sang. Similar hearings are due to start on September 21 in the case of Deputy Prime Minister and Finance Minister Uhuru Kenyatta, secretary to the cabinet Francis Kirimi Muthaura and former police chief Mohammed Hussein Ali. All six are accused of crimes against humanity. They are not currently in detention. All six answered summonses to appear before the court in April.
© Hirondelle News Agency