The International Criminal Court in Kenya: Three Defining Features of a Contested Accountability Process and Their Implications for the Future of International Justice

Abstract

This Article sets out to explore three defining features of Kenya’s contested accountability process, which may have ramifications for our understanding – and possibly the future direction – of international criminal justice. First, the Kenyan case presents the first example of the Prosecutor initiating an investigation using the proprio motu powers. This Article investigates the background to the use of proprio motu powers in the Kenyan situation and discusses whether the Prosecutor’s decision to initiate an investigation of the Kenyan situation should be seen to reflect a new orientation for the Office. Second, the Kenyan situation presents the first example of the ICC intervening in a situation where the number of casualties was relatively limited. Taking the starting point in an assessment of the Prosecutor’s justifications for opening an investigation into Kenya’s post-election violence, this Article discusses the importance of selecting the Kenyan situation for investigation and what consequences the case might have for the future selection of situations. Third, the Kenyan situation presents the first example of the ICC Prosecutor targeting both sides to a conflict, including government officials of a State Party. This raises important questions concerning the value of ‘even-handed justice’, including the potential of international justice to prevent future crimes.