## Facts

- Following 2007–2008 post-election violence in Kenya, the Prosecutor pursued an ICC case involving alleged crimes against humanity.
- The suspects were Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali, all senior Kenyan officials at the time.
- The Prosecutor sought summonses to appear; the Pre-Trial Chamber issued summonses for all three suspects.
- Kenya filed an admissibility challenge under Rome Statute Article 19(2)(b), asserting the ICC should defer under complementarity because Kenya was investigating or prosecuting the matter domestically.
- The Pre-Trial Chamber rejected the challenge, concluding Kenya had not shown ongoing national proceedings against the same persons for substantially the same conduct.
- Kenya appealed the admissibility ruling to the ICC Appeals Chamber.

## Issues

1. Under Rome Statute Article 17(1)(a), when is a case inadmissible because a state is “investigating or prosecuting” it?
2. Must a complementarity challenge be assessed at the level of the same suspect and substantially the same conduct as alleged before the ICC?
3. What showing must a state make to prove it is investigating or prosecuting the same case, including whether concrete investigative steps are required?
4. Which party bears the burden to substantiate inadmissibility in an Article 19(2)(b) challenge?

## Decision

- The Appeals Chamber, by majority, dismissed Kenya’s appeal and affirmed that the case was admissible before the ICC.
- The Chamber held admissibility is case-specific and turns on whether national proceedings concern the same person and substantially the same conduct alleged at the ICC.
- The Chamber agreed that demonstrating “investigation” requires evidence of concrete investigative steps directed at the relevant suspects for substantially the same conduct.
- The Chamber held the state bringing an admissibility challenge bears the burden to substantiate ongoing national proceedings; Kenya did not meet that burden.
- As a later procedural development, charges were confirmed against Muthaura and Kenyatta, while charges were not confirmed against Ali.

## Legal Principles

- Complementarity under Article 17(1)(a) is triggered only by national proceedings addressing the same case, defined by the same person and substantially the same conduct before the ICC.
- A state cannot establish inadmissibility through general inquiries, institutional reforms, or stated intentions; it must show concrete, case-directed investigative or prosecutorial activity.
- In an Article 19(2)(b) admissibility challenge, the challenging state bears the burden to provide supporting information, including investigative steps taken and the persons and conduct covered.
- Admissibility determinations are made on the facts as they exist at the time of the challenge, not on prospective or contingent domestic plans.

## Conclusion

The Appeals Chamber confirmed ICC admissibility because Kenya failed to show ongoing domestic investigations or prosecutions involving the same suspects for substantially the same conduct, clarifying that complementarity requires concrete, case-specific national proceedings and placing the evidentiary burden on the challenging state.


Prosecutor v. Muthaura (Situation in the Republic of Kenya), Case No. ICC-01/09-02/11 OA (Int’l Crim. Ct. App. Ch. Aug. 30, 2011)