Americans out to stop Ocampo

• Two professors are questioning mandate of ICC in taking over Kenyan poll case

Two American dons have gone to the International Criminal Court seeking to stop Prosecutor Luis Moreno-Ocampo from taking over the post-election violence case.

However, the government immediately disowned their intervention and asked them to stop the uncalled for application, which could delay the ruling by the pre-trial chamber.

Professors Max Hilaire and William Cohn filed an application on Monday at The Hague asking the pre-trial chamber to suspend making a ruling for at least 30 days to allow them to raise their objections to the intentions of Mr Moreno-Ocampo to start investigating the masterminds of the post election chaos.

“May it please this honourable pre-trial chamber to stay the decision on the prosecutor’s motion pending the decision on this motion, and allow the applicants to appear as Amicus Curiae (friends of the court) and to file their brief within 30 days or within such period as the Chamber may direct,” they say in their plea to the three-judge bench tasked to hear Kenya’s case.

Professors Hilaire and Cohn, in their application, say they will question ICC’s mandate to investigate the crimes that were committed during the post-election chaos; whether the crimes committed qualify as crimes against humanity; and the clause which Mr Moreno-Ocampo used as the basis to place his case before the pre-trial chamber.

Prof Hilaire teaches at Morgan State University and Prof Cohn has practised as an attorney in California.

“This is the very first time in the history of the ICC that the prosecutor seeks authorisation under article 15. It is important that the court clearly establishes the parameters for the exercise of jurisdiction in circumstances where a state with a functional judicial system has not referred a situation to the court,” they argue.

Into any hotspot

They refer to Article 15, which details the ways the ICC Prosecutor can use to obtain permission from the pre-trial chamber to start investigations into any hotspot.

It allows the prosecutor to receive information from governments, UN agencies, NGOs and other reliable sources.

“If the prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorisation of an investigation, together with any supporting material collected,” the article states in part.

Justice and Constitutional Affairs minister Mutula Kilonzo described the two law professors as “busy bodies” who were interfering with the process of delivering justice to the victims of the violence.

“ They should cease and desist from interfering with Kenya’s choice to submit itself to the ICC,” he said.

He said Mr Moreno-Ocampo was allowed by the President and the PM to seek the permission of the chamber to investigate the violence that rocked the country after the December 2007 elections.

“It is surprising that lawyers from countries which are not even members of the ICC are interfering with the process,” he said.