The ICC has today announced its ruling that two cases against the “Ocampo Six” post election violence defendants should proceed. The Kenyan government failed to persuade the judges that the defendants face similar legal jeopardy in the Kenyan justice system.

The government has essentially reversed its previous commitment to cooperate with the ICC since Ocampo announced the names of the six that he would pursue as the “most responsible” for crimes against humanity following the 2007 election. Strenuous diplomatic efforts to defer the prosecutions and now a legal gambit have failed.

To me the most immediate question now will be witness protection. This is a huge problem in cases against the politically powerful in Kenya under the best of circumstances. Given the approach taken openly and formally by the government in recent months, I think it would be naïve not to expect grave difficulties. The ICC and the diplomatic community need to make a high priority of making clear that action against witnesses will not be tolerated this time.