As Libya Takes Center-Stage at the Security Council, Kenya’s Scheduled Discussion Falters and Notes on Judge Kaul’s Dissent & Non-State Actors

March 18, 2011

Prior to passing a resolution authorizing the use of force against Libya with unprecedented speed on March 17, 2011, the Security Council had on the previous day removed from its schedule and postponed indefinitely a consultation on Kenya’s deferral bid with no explanation. See story here.

Libya which was one of Kenya’s biggest backers in its deferral bid now faces the Security Council’s harshest measures – the collective use of force to protect Libyan citizens from their government pursuant to the Council’s authority under Chapter VII of the UN Charter. See story here.

In the meantime, the Chinese Ambassador to Kenya has continued to reiterate China’s support for Kenya’s deferral bid. See story here.

The split within the Kenyan government about whether to seek deferral or not continues. Prime Minister Raila Odinga and members of the Orange Democratic Movement allied to him continue to support the ICC proceeding with the two cases while President Kibaki’s wing of the government continues to seek deferral. President Kibaki has promised to challenge the admissibility and jurisdiction of the ICC. Conflicting letters have been sent to both the ICC and the Security Council by both sides of the government, a scenario that makes it hard to demonstrate Kenya’s seriousness in its deferral bid. See here.

Three more updates on O’Campo before looking briefly as Judge Kaul’s dissent: First, he has appealed against Trial Chamber II’s dismissal of some of the charges he had included in his application for summonses. See appeal here.

Second, he is seeking one of the suspects, Francis Muthaura to stop chairing a top national security committee, (National Advisory Security Committee) so that he cannot interfere with witnesses or evidence collection. See story here.

Third, the dates for the appearance of the two sets of suspects are now April 7th for Case 1 and April 8th for Case 2. See story here.

Finally, Judge Kaul’s dissenting opinion in O’Campo’s application for summonses has finally been released. You can see it here.

The crux of Judge Kaul’s case is that crimes against humanity require an ‘organizational policy’ that approximates that of a State. In his view, non-state actors cannot be considered approximations of a state for purposes of crimes against humanity unless they have certain characteristics:

Those characteristics eventually turn the private ‘organization’ into an entity which may act like a State or has quasi-State abilities. These characteristics could involve the following: (a) a collectivity of persons; (b) which was established and acts for a common purpose; (c) over a prolonged period of time; (d) which is under responsible command or adopted a certain degree of hierarchical structure, including, as a minimum, some kind of policy level; (e) with the capacity to impose the policy on its members and to sanction them; and (f) which has the capacity and means available to attack any civilian population on a large scale.


non-state actors which…are not able to carry out a policy of this nature, such as groups of organized crime, a mob, groups of (armed) civilians or criminal gangs..would generally fall outside the scope of article 7(2)(a) of the Statute. To give a concrete example, violence-prone groups of persons formed on an ad hoc basis, randomly, spontaneously, for a passing occasion, with fluctuating membership and without a structure and level to set up a policy are not within the ambit of the Statute, even if they engage in numerous serious and organized crimes. Further elements are needed for a private entity to reach the level of an ‘organization’ within the meaning of article 7 of the Statute. For it is not the cruelty or mass victimization that turns a crime into a delictum iuris gentium but the constitutive contextual elements in which the act is embedded.


Judge Kaul’s dissent raises important definitional issues that will have to be dealt with as these Kenyan cases commence shortly.

Kenya Announces It Will Challenge Admissibility: Chances of Success Extremely Poor

March 9, 2011

The Kenyan government in a statement signed by the Attorney General, the Minister of Justice and Constitutional Affairs, and the Minister in Charge of Internal Security has announced plans to challenge the admissibility of the case against six Kenyans when they appear in the Hague on April 7th, 2011. See government statement here.

Notably, Pre-Trial Chamber II in issuing the summons on March 8, 2011 declined to rule on the admissibility of the two Kenyan cases as noted in a previous post.  

Under article 17 (1) (a) and (b) of the Rome Statute, the question of unwillingness or inability has to be considered only (1) when there are, at the time of the proceedings in respect of an admissibility challenge, domestic investigations or prosecutions that could render the case inadmissible before the Court, or (2) when there have been such investigations and the State having jurisdiction has decided not to prosecute the person concerned.

Thus Kenya will have to show that it has not engaged in inaction but is instead investigating or prosecuting the six Kenyans. If Kenya cannot demonstrate it is investigating or prosecuting the six Kenyans, then the case is admissible before the ICC.

At the moment, there are no domestic proceedings in Kenya against the six with reference with regard to the various counts of crimes against humanity now pending at the ICC. Perhaps Kenya can argue that there are ongoing investigations but no public information exists at this time about this very unlikely possibility. Thus Kenya cannot at this point demonstrate that these important preconditions for a possible finding of inadmissibility under current ICC jurisprudence.

The Appeals Chamber in The Prosecutor v Germain Katanga and Mathieu Chui in a Judgment on Appeal Against the Oral Decision of Trial Chamber II of 12 June 2008 on Admissibility of the Case held that under “Article 17(1)(a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability.” Para. 78

It seems to me that Kenya not having set up a domestic tribunal to investigate and prosecute the six Kenyans is only currently making a theoretical argument about its willingness and ability to investigate and prosecute. Such theoretical willingness and ability is likely to result in inaction and that is precisely why the two cases against the six Kenyans is admissible. The case that the government is in the process of reforming the judiciary and criminal justice system as required by the terms of the new Constitution is only tangentially connected to the investigation and prosecution of post-election violence offenders in general and to the six Kenyans against whom summonses have been issued against in particular.  The facts as they exist now do not render the two cases inadmissible to the extent Kenya cannot show ongoing investigations or prosecutions against any of the six Kenyans that the Prosecutor has prevailed in procuring summonses.

The admissibility challenge is a new front in the government’s bid not to have the ICC proceed with the prosecutions of five current or former senior government officials: William Ruto currently suspended from the cabinet; Uhuru Kenyatta a Deputy Prime Minister; Francis Muthaura, who heads the Civil Service; Henry Kosgey currently suspended from the cabinet; Hussein Ali, the Post Master General and a former Commissioner of Police and radio broadcaster Joshua Arap Sang. See story here.  

Five of the six suspects have announced their willingness to appear at the Hague on April 7th. Only Francis Muthaura has not yet publicly announced his intention to appear since the issuance of the summonses.

In the meantime, Vice President Kalonzo Musyoka has embarked on the second phase of the lobbying campaign to seek deferral of the ICC cases. This week he is meeting members of the United Nations Security Council in New York. Other members of the lobbying campaign announced last week by President Kibaki are headed to various capitals around the world to lobby the other members of the Security Council. See stories here and here .

ICC Issues Summons For All Six Kenyan Suspects: Dissent Expected From Judge Kaul

March 9, 2011

In two rulings dated March 8, 2011, the Pre-Trial Chamber II has issued its ruling allowing issuance of Summonses to Appear for six Kenyans in two cases  sought by ICC Chief Prosecutor Moreno O’Campo.

Pursuant to these two rulings, these six Kenyans will now receive summonses from the Court pursuant to Article 58(7) of the Rome Statute.

See rulings here and here

Both decisions were decided by a majority of two of the three judges. Judge Kaul who dissented in the initial ruling granting the Prosecutor permission to commence an investigation is scheduled to ‘issue a dissenting opinion in due course.” Judges Ekaterina Trendafilova and Cuno Tarfusser wrote the two rulings. In both cases, the Chamber declined to rule on admissibility reserving that to a different phase of the proceedings.

The only issue that the Chamber confined itself to deciding is whether there were reasonable grounds to believe that one or more of the crimes

On admissibility, the Chamber noted with reference to the first case that the Prosecutor had presented information suggesting that were reasonable grounds to believe that Counts 1,2 and 4 of the Application had been committed in the first case against William Ruto, Henry Kosgei and Joshua Arap Sang.

In this case, the Prosecutor had alleged that the three person had committed the following offences:

  • Count 1: murder constituting a crime against humanity (Article 7(1)(a) and Article 25(3)(a) or (d) of the Statute);
  • Count 2: Deportation or forcible transfer of population constituting a crime against humanity (Article 7(1)(d) and Article 25(3)(a) or (d) of the Statute);
  • Count 3: Torture constituting a crime against humanity (Article 7(1)(f) and Article 25(3)(a) or (d) of the Statute; and
  • Count 4: Persecution as a crime against humanity (Article 7(1)(h) and Article 25(3)(a) or (d) of the Statute).

Quite notably, in this case the Chamber observed that it was “satisfied that there are reasonable grounds to believe that the attack against the civilian population was committed pursuant to an organizational policy” in various parts of the Rift Valley (Para 20) and that a network of perpetrators including the suspects ‘possessed the means to carry out a widespread or systematic attack against the civilian population” (Para 24). Ultimately the Chamber found that the “contextual elements for crimes against humanity alleged by the Prosecutor’s Application have been satisfied,” (Para. 29)

However, the Chamber was skeptical that the Prosecutor had presented sufficient material to establish reasonable grounds to believe that acts of torture as a crime against humanity were committed (Para. 33)

In addition, the Chamber found it had “no reasonable grounds to believe that Sang (the radio-broadcaster) is criminally responsible as a principle… with Ruto and Kosgey for…crimes against humanity.” (Para. 38). For Sang, the Chamber noted that it is satisfied on the material before it that “there are reasonable grounds to believe that his role is best characterized under Article 25(3)(d) of the Statute.” (indirect co-perpetrator) (Para 38 and Para. 53).

The Chamber noted that on the basis of the material presented, there were reasonable grounds to believe that William Ruto as ‘the most representative Kalenjin leader and head of the organization established –together with Kosgey was responsible for the overall plan and its implementation in the Rift Valley; and that the plan constituted creating perpetrators; purchasing guns and crude weapons; giving instructions to perpetrators to support implementation of the plan – including killing, displacement of people and destruction of property. (Para 42). The Chamber noted that on the information it had Kosgey was equally culpable and that he “was in charge of managing the financial resources of the organization for the purpose of implementing the common plan.” (Para 43).

In the second case involving Francis Muthaura, Uhuru Kenyatta and Mohammed Hussein Ali, the Chamber allowed summonses to issue against all three for all five counts for crimes against humanity as alleged by the Prosecutor (albeit with limitations as the localities where the crimes were allegedly committed).

The five counts in this case are:

  • Count 1: murder constituting a crime against humanity (Article 7(1)(a) and Article 25(3)(a) or (d) of the Statute);
  • Count 2: Deportation or forcible transfer of population constituting a crime against humanity (Article 7(1)(d) and Article 25(3)(a) or (d) of the Statute);
  • Count 3: Rape and other forms of sexual violence constituting a crime against humanity (Articles 7(1)(g) and 25(3)(a) or (d) of the Statute
  • Count 4: Other inhumane acts constituting a crime against humanity (Article 7(1)(k) and Article 25(3)(a) or (d) of the Statute; and
  • Count 5: Persecution as a crime against humanity (Article 7(1)(h) and Article 25(3)(a) or (d) of the Statute.

Notably, the Chamber found that on the basis of the material presented to it, the Mungiki criminal organization operated as ‘a large and complex hierarchical structure featuring various levels of command and a clear division of duties in the command structure…[with] a trained military wing” and that it qualified as an organization under Article 7(2)(a) of the Statute. (Para. 22). Kenyatta and Muthaura, were according to the Chamber on the basis of the material presented to it, in a common plan with Mungiki to commit the alleged crimes for the ‘purpose of keeping PNU [President Kibaki’s party] in power and in return Mungiki would be free from government repression and Mungiki interests would receive government protection. (Para 37). Further, the Chamber noted that the material presented to it showed both Kenyatta and Muthaura had control over Mungiki, that they financed Mungiki and that Mungiki members almost automatically complied with Kenyatta’s orders. (Paras 40-41). With regard to Ali, the Chamber noted that the material before it indicated he had acted on the instructions of Muthaura to order the Kenya Police not to respond to the crimes being committed by Mungiki. (Para 49).

Since the Prosecutor had not alleged that the absence of police intervention in the violence showed the existence of a State policy by abstention, the Chamber did not entertain the issue without prejudice to revisiting it in future based on further submissions. (Para. 24).

The Chamber did not agree with the Prosecutor that ‘other forms of sexual violence’ in Article 7(1)(g) of the Statute contemplates acts of forcible circumcision. (Para. 27).

With respect to both cases, the Court found that the issuance of arrest warrants is unnecessary since none of the persons against whom summonses were ordered to be issued were flight risks and there was nothing that currently indicated they would evade personal service of the summons or refrain from cooperating if summoned to appear.


This is an unprecedented victory for O’Campo for a number of reasons. First, with the exception of one count in case no. 1, the Chamber sustained all the other counts against all the six Kenyans. The only downside is that O’Campo has yet to convince Judge Kaul who dissented in the application to investigate and who is now expected to issue a dissent on the issuance of summonses. This is an important case as it represents the first time the Prosecutor has successfully made an application to investigate a situation and then successfully made an application for summonses.

Second, Kenya presents an unprecedented opportunity for the Court and the Prosecutor to demonstrate the scope of the ICC’s authority over a situation in a country not in turmoil unlike other situations like the Democratic Republic of Congo, Sudan or even northern Uganda. As O’Campo has argued, a major reason for taking this case up is to prevent recurrence of post-election violence in 2012 in Kenya and any time thereafter. As a result of the successful application to investigate the Kenyan situation, there is already an effort to have the Prosecutor investigate 90 killings of anti-government (red shirts) protestors in Thailand following the Kenyan precedent even though Thailand is a party to the Rome Statute.  On that see here and here

Third, the issuance of the summonses against the six Kenyans continues to fortify the case that Kenya has not shown the slightest indication of seriousness to try these six Kenyans, or any others for that matter, for the offences committed in early 2008. By ordering summonses be issued, the Chamber may have effectively shut the door to Kenya’s deferral bid – if there was ever any doubt that the deferral bid was meritless.