By: Beverly Baker
Pace International Law Review, Junior Associate

In early November, Luis Moreno-Ocampo, the chief prosecutor for the International Criminal Court (ICC), announced that he will open a formal investigation into the deadly post-election violence that erupted in Kenya in December 2007 and January 2008.  Mr. Moreno-Ocampo stated that there is ample evidence to suggest that those responsible for the attacks against Kenyan civilians committed crimes against humanity.  President Mwai Kibaki and Prime Minister Raila Odinga, opponents in the fateful election, have promised to fully cooperate with the investigation.

A crime against humanity is defined as “a widespread or systematic attack directed against the civilian population” in Article 7 of the Rome statute, under which the ICC operates.  Mr. Moreno-Ocampo’s decision to intervene demonstrates the failure of Kenya’s coalition government to reach an agreement on how to pursue the perpetrators of the attacks.  Under the ICC’s complementarity principal, the tribunal will only intervene if there are no national proceedings against those who are responsible for the crimes.
The worst violence in Kenya’s history broke out following the presidential election which took place on December 27, 2007.  After Kibaki was declared the winner, Odinga’s supporters made allegations of electoral manipulation, sparking clashes between Kibaki’s tribe, the Kikuyu, Odinga’s tribe, the Luo, and other groups that were supportive of Odinga.  Within six weeks, over 1,300 Kenyans were killed and more than 300,000 were driven from their homes.  Some of the worst violence occurred in Nyanza Province, Odinga’s homeland, the Nairobi slums, and the Rift Valley Province.
Police officers responded to rioters with tear gas, water cannons, and live ammunition and have been accused of operating under a “shoot to kill” policy.  Television cameras captured policemen shooting unarmed civilians from behind and firing into crowds of protestors.  The Commission of Inquiry on Post Election Violence (CIPEV), established by the Kenyan government in February 2008 to investigate the crisis, alleges that then Kenyan police killed more than 400 people and committed other crimes, such as gang rape and looting.  This report was given to Kofi Annan, who acted as a mediator to help bring the violence to an end.  Mr. Annan turned the report over to Mr. Moreno-Ocampo in July 2009.
Moreno-Ocampo stated that he wants to move forward with trials quickly so that Kenya could hold its 2012 election without the fear of violence erupting again.