Although International Criminal Court prosecutor Luis Moreno-Ocampo has planned his game skilfully and intelligently, it will not all be smooth sailing for him. And as the old Scottish poem goes, “the best laid plans of mice and men often go awry”, Mr. Moreno-Ocampo has some challenging hurdles ahead that could conspire to see the suspects acquitted or the Kenyan case thrown out summarily.

One of these is Justice Hans-Peter Kaul, a German judge, international law scholar and a former diplomat. He has served as Justice at the International Criminal Court in The Hague since March 11, 2003. In March 2009, he was appointed vice-president of the court. He has been a long-time supporter of the idea of a permanent international criminal tribunal as a venue to try individuals for crimes against humanity that states are unwilling or unable to try themselves.

Justice Kaul is assigned to Pre-trial Chamber 2 where the Kenya case is being heard. He does not believe Mr. Moreno-Ocampo has a case and even voted to deny him authority to commence an investigation. His views on the Kenya case are strongly against ICC involvement and he is unlikely to change his mind. If he remains opposed, Mr. Moreno-Ocampo’s chances are 50:50 since there are three judges of the Chamber. The other two could follow Justice Kaul’s views this time.

Mr Moreno-Ocampo has to present his case anew to the three judges. It is possible that one or both of the other judges might see the case in a different way when looked at after the investigation.

According to Justice Kaul the Kenyan case, though serious and yearning for justice, does not warrant the intervention of the ICC at The Hague. He believes accepting the Kenyan case would result in a gradual down-scaling of crimes against humanity to ordinary serious crimes. This would infringe on state sovereignty and stretch the scope of ICC’s intervention beyond limit. “This might turn the ICC, which is fully dependent on state cooperation, into a hopelessly overstretched, inefficient international court, with related risks for its standing and credibility,” he says.

Another hurdle is the higher standard of proof required. When he went to court to seek authority to start investigations, Mr. Moreno-Ocampo had to satisfy a very low standard of proof. He was only required to show “a reasonable basis to proceed with an investigation”.

As the judges said, it is the lowest standard provided for by the Rome Statutes. The stage he is now at, where he wants the suspects to be summoned, requires a higher standard of proof. He is now required to show the Pre-trial Chamber that “there are reasonable grounds to believe the suspect has committed a crime within the jurisdiction of the court”. And this standard will go on rising until the trial where it is “beyond reasonable doubt”.

The Government of Kenya or the suspects can challenge the admissibility of the case. The issue of admissibility of the Kenyan case has always been a contentious one and has seen the ICC judges fail to agree. It will now arise for the second time.

Article 19 of the Rome Statutes gives a person to whom a summons to appear has been issued the right to challenge admissibility of the case. The government could also seek to have the issue of admissibility fully heard and determined. Since all of Mr. Moreno-Ocampo’s appearances till now have been ex-parte, new submissions by the government or the suspects, or both, could tilt the balance against him.

The government can also appeal to the United Nations Security Council for deferral of the prosecution. Under Article 16 of the Rome Statutes, the United Nations Security Council can defer a prosecution before the court for a period of 12 months, which is continuously renewable. If Kenya gets UN support to set up a local tribunal, then The Hague trials can be put off indefinitely.

Unfortunately, this will require the assent of the United States, which is very critical of Kenya’s commitment to reform. The US has a veto power at the UN and might shoot down any resolution meant to give Kenya room to wiggle out. The US is, however, known for putting its strategic interests first and a beneficial diplomatic trade-off would succeed in getting its concurrence. It would, however, cost Kenya an arm and a leg.

Another hurdle is that Mr. Moreno-Ocampo’s term is coming to an end. Sworn in on June 16, 2003, his term expires on June 16, 2012, as the Rome Statutes provide that he serves for nine years and is not eligible for re-election.

He therefore has only one-and-a-half years to deal with the Kenyan case. Though this may not necessarily be favourable to the suspects, it is very unlikely that Mr. Moreno-Ocampo will lead the prosecution of the Kenyan cases beyond the stage he is now dealing with.

What may assist the suspects is the possibility that come the election of the next prosecutor, African countries will try to influence the choice for a person who is more sensitive to African realities and the sovereignty of African states. If the Kenyan case will not have gone very far, such a prosecutor may consent to the case being referred to a local tribunal.

Mr Mwangi is an advocate of the High Court of Kenya