摘要：This article examines the violence that broke out in Kenya after the 2007 presidential
elections. After weeks of fighting and the establishment of a coalition government made up
of the incumbent president and the leader of the opposition, relative calm returned to the
country. However, the government has been slow to implement the recommendations of the
Commission of Inquiry into Post Election Violence (Waki Commission). One key suggestion
the Waki Commission made was to call upon the Kenyan government to establish an
independent Special Tribunal made up of domestic and international jurists to prosecute
those responsible for the crimes committed during the violence. At the time of writing, the
ICC Pre-Trial Chamber II had been assigned the matter to determine whether the Office of
the Prosecutor could initiate investigations. This article argues that the crimes committed
in Kenya during the post election violence do not meet the ICC threshold on jurisdiction and
gravity, and do not have the essential legal attributes of genocide and crimes against
humanity. However, the manner in which the ICC handles this situation has the potential to
influence the way future crimes are tried; thus the ICC must ensure that impunity does not
prevail over accountability.
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