What you need to know:
What the Rome Statute says
(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
Investigations by International Criminal Court detectives have sent shock waves through political and security circles as the process moves steadily towards a conclusion.
Those who have received letters asking them to record statements or provide information to the ICC detectives have retained local and international lawyers to help them navigate the process.
On Tuesday, the ICC detectives in the country will meet with Attorney-General Amos Wako and lawyers representing security chiefs who served in the regions that were worst hit by the violence in January and February of 2008.
The security chiefs had been directed by the government to record statements, but they declined and instead sought legal counsel.
The law requires that involuntary statements be taken before a judge. And Lady Justice Kalpana Rawal has been appointed to preside over the statement-taking.
But there is a new hurdle. The International Crimes Act requires that Internal Security minister George Saitoti publish rules under which Lady Justice Rawal will take statements.
Sources told the Sunday Nation that in the upcoming meeting the lawyers and detectives will be expected to thrash out the details of who exactly – the judge or ICC team members– will take statements from the witnesses.
The new development is another wrinkle in the investigations into the violence that rocked the country following the disputed 2007 presidential election.
The investigations have sent shock waves through high offices, prompting two statements this week. A group of Central Kenya MPs complained about what they consider the ICC’s attempt to target their constituents.
It was not immediately clear on whose behalf they were speaking, given that Mr Moreno-Ocampo has indicated he will prosecute from two to six of those who bear the greatest responsibility for the most serious crimes.
In the same week, Chepalungu MP Isaac Ruto stirred up the hornet’s nest when he suggested that ICC investigators should train their sights on the ODM Pentagon over their calls for mass action and whether it triggered the violence.
Sources familiar with ICC investigations in the country say Mr Moreno-Ocampo is expected to address the statements that have been flying across political decks.
“As the ICC closes in on suspects there are misconceptions, and some have tried to erect hurdles on the way. They (ICC officials) are wondering why anyone would think that they are targeting the Kikuyu community, yet they are following the evidence as they have repeatedly said. When he comes, he will shed light on these matters and the state of investigations,” said an official familiar with investigations but who is not authorised to speak on the record to the media.
Part of what is causing jitters in political and security circles is what the ICC law calls the command responsibility. According to Article 28 of the Rome Statute, commanders or superiors in authority, whether civilian or in the armed forces, can be held liable for the action of their juniors if they ordered, knew or should have known about crimes that were committed by their subordinates.
The commanders and superiors become culpable, especially if the prosecutors can prove that they did nothing to stop the commission of crimes or to remedy the situation afterwards. Article 25 also refers to crimes committed by groups of people.
“If the evidence shows that there was some kind of organised approach, the doctrine of responsibility comes into play. It is therefore important that commanders say what they know and give full cooperation. Bashir (Sudanese President) was not in Darfur, but he has been indicted,” said Kenya National Commission on Human Rights commissioner Hassan Omar.
“A commander should ensure that there is tight responsibility and must demonstrate that violations were remedied,” he said. Law Society of Kenya secretary Apollo Mboya agrees. “It’s very clear. It has to be demonstrated that the person (suspect) had the means and the power to make something to be done, that he directed something to be done or could have directed something not to be done.
The question that will arise is whether the Pentagon have command over their supporters. Could they have issued commands to them to stop violence or to commence violence? It must be demonstrated. In the case of a mob, does this law apply?” he asked.