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

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.

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