doctype: appeal-interlocutory

identifier: ICC-01/09-02/11 (Decision on the appeal of Mr Francis Kirimi Muthaura and Mr Uhuru Muigai Kenyatta against the decision of Pre-Trial Chamber II of 23 January 2012 entitled "Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute")

chamber: Appeals Chamber

decisionType: appeal-interlocutory

text: the Statute

text: Rome Statute, article 15

text: the Statute, article 19

text: the Statute, article 5

text: Rome Statute, article 61

text: the Statute, article 7

text: the Statute, article 82

text: Cour

text: Pénale ^ 1

text: Internationale

text: International > 2 ^ .

text: 5 ^ ^ C r i m i n a l

text: Court

text: Original: English No. ICC-01/09-02/11 OA 4 Date: 24 May 2012

text: THE APPEALS CHAMBER

text: Before: Judge Akua Kuenyehia, Presiding Judge Judge Sang-Hyun Song Judge Sanji Mmasenono Monageng Judge Erkki Kourula Judge Anita Usacka

text: SITUATION IN THE REPUBLIC OF KENYA

text: IN THE CASE OF THE PROSECUTOR v. FRANCIS KIRIMIMUTHAURA, UHURU MÜIGAI KENYATTA and MOHAMMED HUSSEIN ALI

text: Public document Decision on the appeal of Mr Francis Kirimi Muthaura and Mr Uhuru Muigai Kenyatta against the decision of Pre-Trial Chamber II of 23 January 2012 entitled "Decision on the Confirmation of Charges Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: • s

text: Decision to be notified in accordance with regulation 31 of the Regulations of the Court to:

text: The Office of the Prosecutor Counsel for Francis Kirimi Muthaura Ms Fatou Bensouda, Deputy Prosecutor Mr Karim Khan Mr Fabricio Guariglia Mr Essa Faal

text: Legal Representatives of Victims Counsel for Uhuru Muigai Kenyatta Mr Morris Azuma Anyah Mr Steven Kay Ms Gillian Higgins

text: REGISTRY Registrar Ms Silvana Arbia

text: No: ICC-01/09-02/11 O A 4 2/18

text: The Appeals Chamber of the Intemational Criminal Court,

text: In the appeal of Mr Uhum Muigai Kenyatta and Mr Francis Kirimi Muthaura, pursuant to

text: article 82

text: (1) (a) of

text: the Statute

text: , against the decision of Pre-Trial Chamber II entitled "Decision on the Confirmation of Charges Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: " of 23 January 2012 (ICC-01/09-02/ll-382-Conf),

text: After deliberation.

text: Renders unanimously the following

text: DECISION

text: The appeal is rejected.

text: REASONS

text: I. PROCEEDINGS BEFORE THE PRE-TRIAL CHAlVffiER

text: On 19 September 2011, Mr Kenyatta filed his "Submissions on Jurisdiction on Behalf of Uhum Kenyatta"^ (hereinafter: "Mr Kenyatta's Challenge to Jurisdiction"), submitting that the Court should decline to exercise jurisdiction over his case. Mr Kenyatta challenged the interpretation of the term 'organizational policy' as a component of crimes against humanity under

text: article 7

text: (2) (a) of

text: the Statute

text: , which the Pre-Trial Chamber had adopted, by majority. Judge Kaul dissenting, in its "Decision Pursuant to

text: Article 15

text: of the

text: Rome Statute

text: on the Authorization of an Investigation into the Situation in the Republic of Kenya""^ (hereinafter: "Article 15 Decision") and which it had reiterated. Judge Kaul dissenting, in its "Decision on the Prosecutor's Application for Sununons to Appear for Francis Kirimi Muthaura, Uhum Muigai Kenyatta and Mohanmied Hussein Ali"^ (hereinafter: "Sununons to Appear Decision").^ Moreover, Mr Kenyatta submitted that "the ICC [did] not have jurisdiction to try [the] case as the evidence disclosed by the Prosecution [did] not

text: ^ICC-01/09-02/11-339. ^ Mr Kenyatta's Challenge to Jurisdiction, paras 12, 73 74. ^ Mr Kenyatta's Challenge to jurisdiction, paras 22-47. ^ ICC-01/09-19-Corr, dated 31 March 2010 and registered on 1 April 2010. ^ 8 March 2011, ICC-01/09-02/11-01. ^ Mr Kenyatta's Challenge to Jurisdiction, paras 12, 15-47,58.

text: ff establish an organizational policy to commit the alleged crimes, on either definition provided by the Chamber".^ Mr Kenyatta recalled that the Prosecutor, in the case of Ruto et al, had argued that "Defence submissions on organizational policy 'did not challenge any of the pre-conditions for the exercise of the Court's jurisdiction'".^ Mr Kenyatta disputed this and argued that "a challenge to jurisdiction concerning organizational policy relates directly to the principle of ratione materiae'\^ He requested the Pre-Trial Chamber to "(i) adopt the definition of organizational policy as set out by [Judge Kaul]; (ii) assess the entirety of the evidence at the conclusion of the confirmation hearing; and (iii) in due course, decline to exercise jurisdiction in respect of the case against [Mr Kenyatta]".^^ Alternatively, he requested that "even if the PTC decide[d] not to adopt the definition of organizational policy as set out by [Judge Kaul], [...] the PTC (i) [should] assess the entirety of the evidence at the conclusion of the confirmation hearing; and (iii) [sic] in due course, decline to exercise jurisdiction in respect of the case against [Mr Kenyatta]". ^^

text: In response, the Prosecutor essentially argued that these issues were not jurisdictional because they went to the merits of the case and that the Court had jurisdiction because crimes against humanity had been charged. The victims argued that aspects of the challenge were not jurisdictional and should be rejected. ^^

text: On 23 January 2012, the Pre-Trial Chamber decided to confirm charges against Mr Muthaura and Mr Kenyatta in the "Decision on the Confirmation of Charges Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: "^"^ (hereinafter: "Impugned Decision"). A separate section of that decision was entitled "Jurisdiction and Admissibility", in which the Pre-Trial Chamber addressed Mr Kenyatta's Challenge to Jurisdiction.^^ The Pre-Trial Chamber, by majority. Judge Kaul dissenting, recalled its findings in the Summons to Appear Decision, in which it referred to its previous

text: ^ Mr Kenyatta's Challenge to Jurisdiction, para. 59. ^ Mr Kenyatta's Challenge to Jurisdiction, para. 13. ^ Mr Kenyatta's Challenge to Jurisdiction, para. 13. ^^ Mr Kenyatta's Challenge to Jurisdiction, para. 73. ^^ Mr Kenyatta's Challenge to Jurisdiction, para. 74. ^^ "Prosecution's Response to the Defence Challenges to Jurisdiction", 14 October 2011, ICC-01/09- 02/11-356. ^^ "Victims' Consolidated Observations on the Kenyatta and Ali Submissions regarding Jurisdiction and/ or Admissibility", 14 October 2011, ICC-01/09-02/11-357, paras 35-37. ^"^

text: -Conf A public redacted version was registered on 26 January 2012 (ICC- 01/09-02/1 1-382-Red). All references herein are to the public redacted version. ^^ Impugned Decision, para. 22.

text: findings in the Article 15 Decision. ^^ The Pre-Trial Chamber agreed with the Prosecutor that the way in which Mr Kenyatta's challenge was framed "clearly indicate[d] that [it was] not jurisdictional in nature but, instead, [was a challenge] on the merits of the Prosecutor's case on the facts". The Pre-Trial Chamber understood Mr Kenyatta's challenge to be based on two points: "(i) the legal definition of 'organization'; and (ii) the lack of sufficient evidence to establish the existence of an 'organization'". The Chamber considered that the two points were not made as independent arguments, "either of which, if upheld, would autonomously establish lack of material jurisdiction in the present case".^^ It considered that Mr Kenyatta was requesting the Chamber to adopt a narrower definition of the term 'organization' and to apply it to the facts as established by the evidence. Only then would the Pre-Trial Chamber, in Mr Kenyatta's view, decline jurisdiction. It stated:

text: In these circumstances, the Chamber is of the view that, in the way the challenge is framed, the issue related to the definition of the term "organization" cannot be considered as an independent argument to establish Üie lack of material jurisdiction. In fact, even if the Chamber were to uphold this argument regarding the definition of "organization", it would still be requested to proceed to the second limb of the challenge, and to assess the evidence and determine that the Prosecutor did not provide sufficient evidence to establish that the alleged organization partakes of some characteristics of a State. In this case, however, the Chamber would not dismiss the case as falling outside the scope of the material jurisdiction of the Court, but it would, rather, decline to confirm the charges. Accordingly, since the Defence challenge cannot be answered without an assessment of the facts of the case against the asserted statutory interpretation of the term "organization", the Chamber is not persuaded that the challenge is indeed jurisdictional in nature.^^ 4. With regard to Mr Kenyatta's altemative argument - that even if the Chamber confirmed its previous interpretation of the term 'organization' the Court still would not have jurisdiction to try this case as the Prosecutor's evidence does not establish an organizational policy to commit the alleged crimes on either definition provided by the Chamber - the Pre-Trial Chamber held that this argument "also cannot be considered jurisdictional under

text: article 19

text: of

text: the Statute

text: , but, conversely, qualif[ies] as a challenge to the sufficiency of the evidence to satisfactorily establish one of the

text: ^^ Impugned Decision, para. 24. ^^ Impugned Decision, para. 30. ^^ Impugned Decision, para. 33. ^^ Impugned Decision, para. 33. ^^ Impugned Decision, para. 33. ^^ Impugned Decision, para. 33.

text: constitutive elements of the crimes charged pursuant to

text: article 61

text: (7) of

text: the Statute

text: , and shall be treated accordingly".^^ The Pre-Trial Chamber therefore dismissed Mr Kenyatta's Challenge to Jurisdiction "m limine in [its] entirety". However, it considered that the arguments presented in the challenge would be considered when addressing the merits under

text: article 61

text: (7) of

text: the Statute

text: .^"^ The Chamber concluded this section by stating: "Accordingly, and on the basis of the charges brought by the Prosecutor, the Chamber finds that the requirement of material jurisdiction is also met in the present case and determines that the case against the Suspects falls within the jurisdiction of the Court" and in the operative part of the Impugned Decision Specifically decided that it had jurisdiction. It confirmed charges, and in doing so, and as is relevant to this appeal, it considered the issue of 'organisational policy', recalling its legal findings in the Article 15 Decision^^ and finding that this element had been proved.'^^

text: Judge Kaul, in his dissent, referred to his "fundamental disagreement with the o n Majority" on the interpretation of 'organization'. He cited his legal findings on this issue in his dissenting opinions to the Article 15 Decision and the Sununons to o-I n'y Appear Decision, assessed the Prosecutor's facts in this light and found that the Court lacked subject-matter jurisdiction."^^ 6. Judge Kaul disagreed with how the majority characterised the two issues raised in the challenge as being integrally linked, considering those issues to be "sufficiently independent".^"^ Judge Kaul also addressed whether the interpretation of 'organisational policy' "as a matter of law is a part of the jurisdictional challenge".^^ He found that the contextual elements were both elements of the crimes relating to the merits and "jurisdictional in nature insofar as the Court cannot exercise jurisdiction

text: ^^ Impugned Decision, para. 34. ^^ Impugned Decision, para. 35. ^^ Impugned Decision, para. 36. ^^ Impugned Decision, para. 37. ^^ Impugned Decision, p. 154. ^^ Impugned Decision, para. 429. ^^ Impugned Decisioa paras 111-114 ^^ Impugned Decision, paras 227-229 ^° Impugned Decision (Dissenting Opinion), para. 7 ^^ Impugned Decision (Dissenting Opinion), paras 7-8 Impugned Decisioa (Dissenting Opinion), paras 9-20. ^^ Impugned Decision (Dissenting Opinion), para. 20. ^"^ Impugned Decision (Dissenting Opinion), para. 28. ^^ Impugned Decision (Dissenting Opinion), para. 28.

text: e.

text: over the underlying acts in the absence of such contextual elements. The presence of contextual elements differentiates the crimes within the jurisdiction of the Court from ordinary crimes". As for the Prosecutor's argument that the Court has jurisdiction because the Prosecutor has charged the crimes, he found this to be "legally and procedurally untenable". Judge Kaul found that "the issue of fact raised by [Mr OQ Kenyatta] [fell], in principle, under the ambit of this challenge". He concluded that Mr Kenyatta's Challenge to Jurisdiction should be granted and jurisdiction denied.

text: IL PROCEEDINGS ON APPEAL

text: On 30 January 2012, Mr Muthaura and Mr Kenyatta filed an appeal entitled "Appeal on behalf of Uhum Muigai Kenyatta and Francis Kirimi Muthaura pursuant to Article 82(1 )(a) against Jurisdiction in the 'Decision on the Confirmation of Charges Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: '""*^ (hereinafter: "Appeal").

text: At paragraph 13 of the Appeal, Mr Muthaura asserts that he submitted his challenge to jurisdiction before the Pre-Trial Chamber at paragraph 110 of his "Final Written Observations on the Confirmation of Charges Hearing",^^ by adopting in full the previous submissions of Mr Kenyatta on this issue. These observations were filed after the conclusion of the confirmation hearing but before the decision thereon had been rendered. The Impugned Decision refers only to the challenges of Mr Kenyatta and Mr Ali."^^ On appeal, Mr Muthaura submits that if a party challenges his standing to file the appeal, the principle of judicial economy is in favour of him being heard now rather than seeking recourse to the Appeals Chamber at a later date as his challenge is in all material respects identical to the jurisdictional challenge of Mr

text: ^^ Impugned Decision (Dissenting Opinion), para. 32. ^^ Impugned Decision (Dissenting Opinion), para. 39. He stated: "The charges, which imply jurisdiction, are merely presented by the Prosecutor. Again, it is ultimately for the Judges of this Court to decide on jurisdiction, not the Prosecutor. Were it otherwise, the Prosecutor could label any crime as a crime within the jurisdiction of the Court thus removing the subject-matter jurisdiction {ratione materiae) from the scope of article 19(1), first sentence, of tiie Statute and limiting any challenges or questions raised respectively under

text: articles 19

text: (2) and

text: (3) of

text: the Statute

text: to jurisdiction ratione temporis and ratione loci/ratione personae. In my opinion, such an interpretation would render articles 19(1), 19(2) and 19(3) of tiie Statute largely ineffective." ^^ Impugned Decision (Dissenting Opinion), para. 44. ^^ Impugned Decision (Dissenting Opinion), para. 45. ^ ICC-01/09-02/11-383 (0A4). ^* ICC-01/09-02/11-374-Conf, 21 November 2011. A public redacted version of tiiis document was filed on 2 December 2011 as 01/09-02/11-374-Red. "^^ Impugned Decision, paras 14,26-37.

text: Kenyatta.^^ On appeal, neither the Prosecutor nor the victims have raised any objection to the standing of Mr Muthaura to bring his appeal.

text: At paragraph 30 of the Appeal, Mr Muthaura and Mr Kenyatta requested that the appeals have suspensive effect on the proceedings (hereinafter: "Request for Suspensive Effect")."^

text: On 2 Febmary 2012, the Appeals Chamber issued the "Order on the filing of a response to request for suspensive effect","^^ allowing the Prosecutor to respond to the Request for Suspensive Effect. On the same day, the Appeals Chamber also issued "Directions on the submission of observations pursuant to

text: article 19

text: (3) of the

text: Rome Statute

text: and mle 59 (3) of the Rules of Procedure and Evidence",^^ inviting victims to submit observations on the appeal.

text: On 3 Febmary 2012, the Office of Public Counsel for victims (hereinafter: "OPCV") filed the "Observations on the 'Directions on the submission of observations pursuant to

text: article 19

text: (3) of the

text: Rome Statute

text: and mle 59 (3) of the Rules of Procedure and Evidence'""^^ (hereinafter: "OPCV Request") requesting leave to submit observations on jurisdiction on behalf of victim-applicants in the case and victims who had communicated with the Court in the case."^^

text: Mr Kenyatta responded to the OPCV Request on 8 Febmary 2012."^^

text: On 9 Febmary 2012, the Prosecutor filed the "Prosecution's Consolidated Response to Mr Muthaura's and Mr Kenyatta's Requests for Suspensive Effect of their Appeals on Jurisdiction (ICC-01/09-02/11-383 0A4)".^^

text: On 14 Febmary 2012, Mr Muthaura and Mr Kenyatta filed jointly the "Document in Support of Appeal on behalf of Uhum Muigai Kenyatta and Francis Kirimi Muthaura pursuant to Article 82(1 )(a) against Jurisdiction in the 'Decision on

text: ^^ Appeal, para. 19. "^ Appeal, para. 30. ^^ ICC-01/09-02/11-393 (0A4). "^ ICC-01/09-02/11-394 (0A4). ^^ ICC-01/09-02/11-395 (0A4). "^^ OPCV Request, p. 5. ^^ "Response on behalf of Uhum Kenyatta to the 'Observations on the "Directions on the submission of observations pursuant to

text: article 19

text: (3) of the

text: Rome Statute

text: and mle 59(3) of tiie Rules of Procedure and Evidence'"", ICC-01/09-02/11-397 (0A4). ^^ ICC-01/09-02/11-398 (0A4). ^ the Confirmation of Charges Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: '"^^ (hereinafter: "Document in Support of the Appeal").

text: On 20 Febmary 2012, the Appeals Chamber dismissed the OPCV Request.^^

text: On 29 Febmary 2012, the Appeals Chamber rejected the Request for Suspensive Effect.^^

text: On 7 March 2012, the Prosecutor filed the "Prosecution's Response to 'Document in Support of Appeal on behalf of Uhura Muigai Kenyatta and Francis Kirimi Muthaura pursuant to Article 82(1 )(a) against Jurisdiction in the "Decision on the Confirmation of Charges Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: '" ICC-01/09-02/11-399 0A4)"^^ (heremafter: "Response to the Document in Support of the Appeal").

text: On 13 March 2012, the victims filed the "Observations pursuant to

text: Article 19

text: (3) of the

text: Rome Statute

text: and Rule 59 (3) of the Rules of Procedure and Evidence"^^ (hereinafter: "Victims' Observations"). On 19 March 2012, the Prosecutor filed the "Prosecution's Response to the Victims' 'Observations pursuant to

text: Article 19

text: (3) of the

text: Rome Statute

text: and Rule 59 (3) of the Rules of Procedure and Evidence' ICC- 01/09-02/11-408 0A4)"^^ (hereinafter: "Prosecutor's Response to the Victims' Observations"). Mr Muthaura and Mr Kenyatta did not file a response to the Victims' Observations.

text: On 19 March 2012, the victims filed the "Notification regarding the Legal Representation of Participatiug Victims in these Appeal Proceedings"^^ (hereinafter: "Victims' Application") requesting the Appeals Chamber to issue an order appointing legal counsel to represent the victim-participants "nunc pro tunc to 9 March 2012

text: ^^ ICC-01/09-02/11-399 (OA4). ^^ "Decision on the 'Observations on the "Directions on the submission of observations pursuant to

text: article 19

text: (3) of tiie

text: Rome Statute

text: and mle 59 (3) of tiie Rules of Procedure and Evidence'"", ICC- 01/09-02/11-400 (0A4). ^^ "Decision on the requests of Mr Kenyatta and Mr Muthaura for suspensive effect", ICC-01/09- 02/11-401 (0A4). ^^ ICC-01/09-02/11-404 (0A4). ^^ ICC-01/09-02/11-408 (0A4). This document was filed on 13 March 2012 and registered on 14 March 2012. ^^ ICC-01/09-02/11-410 (0A4). ^^ ICC-01/09-02/11-409 (0A4).

text: until the conclusion of the appeals proceedings" or alternatively to direct the Registrar to appoint counsel.^^

text: On 27 March 2012, and shortly before the Appeals Chamber issued an order

text: seeking submissions from the Registrar,^^ the Registrar filed "The Registrar's Observations on the 'Notification regarding the Legal Representation of Participating Victims in these Appeals Proceedings' dated 19 March 2012".^^ On 23 April 2012, the Appeals Chamber rejected the Victims' Application.^^

text: On 25 April 2012, Mr Muthaura and Mr Kenyatta filed the "Request to Make

text: Oral Submissions on Jurisdiction under Rule 156(3)", which was rejected by the Appeals Chamber on 1 May 2012.^^

text: III. SUBMISSIONS ON APPEAL

text: On appeal, Mr Muthaura and Mr Kenyatta raise the following grounds:

text: a. The Majority erred in law by dismissing in limine the jurisdictional challenge brought by the Kenyatta Defence and determining that it was not jurisdictional in nature, but instead, a challenge on the merits of the Prosecutor's case on the facts. The Majority erred by determining that based on the formulation chosen by the Kenyatta Defence, the issue of the definition of the term 'organization' is not an independent argimient, but rather a challenge that cannot be answered without an assessment of the facts of the case, and is not therefore a jurisdictional challenge; [First Ground]

text: b. The Majority erred in law by adopting an incorrect interpretation of the notion of 'organization' within the meaning of

text: Article 7

text: (2)(a) of

text: the Statute

text: . The definition of 'organization' provided by the Majority does not reflect the intention of the drafters of

text: the Statute

text: ; [Second Ground]

text: c. The Majority erred in fact by fundamentally changing the Prosecutor's presentation of the facts by finding that the Mungiki alone represented the 'organization'. During the confirmation hearing and within the Amended Document Containing Charges, the Prosecution argued that the Mungiki and the Kenyan Police were 'one' organization. By

text: ^^ Victims' Application, para. 40 (footnote omitted). ^^ "Order on the submission of observations by the Registrar on the 'Notification regarding the Legal Representation of Participating Victims in these Appeals Proceedings'", ICC-01/09-02/11-413 (0A4). ^ ICC-01/09-02/11-412 (0A4). ^^ "Decision on the 'Notification regarding the Legal Representation of Participating Victims in the Appeal Proceedmgs'", ICC-01/09-02/11-416 (0A4). ^^ ICC-01/09-02/11-418 (0A4). ^^ "Decision on the "Request to Make Oral Submissions on Jurisdiction under Rule 156(3)", ICC- 01/09-02/11-421 (0A4).

text: No: ICC-01/09-02/11 OA 4 10/18

text: iÇ> excluding the Kenyan Police from the 'organization', the Majority has removed an essential element of the alleged organizational stmcture; and rendered the Mungiki as a 'group' incapable of satisfying the criteria of 'organization' established by the Majority (i.e. capable of performing acts which infringe on basic human values). The Majority erred by not dismissing the case having determined that the Mungiki alone constituted the organization. The Majority erred in law by failing to inform the Suspects of the fundamental re-characterisation of the case and affording them adequate opportunity to respond to the new characterisation; [Third Ground] d. The Majority erred in fact by concluding that the Mungiki qualified as an organization within

text: Article 7

text: (2)(a) of

text: the Statute

text: . [Fourth Ground]^ 23. Mr Muthaura and Mr Kenyatta submit under the first ground of appeal that the substance of their submissions before the Pre-Trial Chamber urged the Chamber to "engage in an assessment of the Prosecutor's evidence in order to determine whether or not it has jurisdiction over the case, an assessment, however, which should only be made once the correct legal definition of the term in question has been identified. These two processes are separate and independent".^^ Mr Muthaura and Mr Kenyatta assert that contrary to the Pre-Trial Chamber's finding that the Defence were engaged in arguing the merits of the case to demonstrate that jurisdiction was not established, the "merits of the case are not in issue at the jurisdiction stage, rather it is the nature of the Prosecutor's evidence and whether or not it endows the Court with subject matter jurisdiction" that is at issue.^^ They argue that a jurisdictional challenge necessitates an assessment of the facts and evidence relied upon by the Prosecutor.^^

text: The remaining three grounds of appeal essentially allege legal, factual or procedural errors stemming from the Pre-Trial Chamber's interpretation of the term 'organizational policy' for the purposes of

text: article 7

text: (2) (a) of

text: the Statute

text: and subsequent application of the facts and evidence to such interpretation. In particular, under ground three, Mr Muthaura and Mr Kenyatta contend that the Pre-Trial Chamber erred in re-characterising the charges as pleaded by the Prosecutor by finding that the Mungiki alone represented the "organization stmcture". As a result of this finding, they allege a further error which in their view affects procedural

text: ^ Document in Support of Appeal, para. 18 (footnotes omitted). ^^ Document in Support of the Appeal, para. 26 (emphasis omitted). ^ Document in Support of the Appeal, para. 28. ^^ Document in Support of the Appeal, para. 29. ^^ Document in Support of the Appeal, paras 84-108.

text: »ffaimess, namely, that the Pre-Trial Chamber erred in not informing them of the "nature, cause and content of the re-characterised charges" and in not allowing them an opportunity to respond to same.^^ Under ground four, Mr Muthaura and Mr Kenyatta reiterate their arguments under ground two insofar as they contend that the Pre-Trial Chamber erroneously defined the term 'organizational policy'.^^ They proceed to make extensive factual and evidential submissions to argue that the Pre- Trial Chamber erred in fact in determining that there were substantial grounds to believe that the Mungiki constituted an organisation within the meaning of

text: article 7

text: (2) (a) of

text: the Statute

text: .^^ They argue that the Pre-Trial Chamber based its erroneous conclusion on its finding that there was "sufficient evidence" that the Mungiki possessed various characteristics that the Pre-Trial Chamber had found established.

text: The Prosecutor and the victims submit that these grounds of appeal are without merit and should be dismissed as they do not constitute a challenge to jurisdiction.

text: IV. ANALYSIS

text: The Appeals Chamber notes that Mr Muthaura and Mr Kenyatta bring this appeal pursuant to

text: articles 19

text: (6) and

text: (1) (a) of

text: the Statute

text: ,^"^ those provisions covering, inter alia, appeals from decisions with respect to jurisdiction.

text: Noting paragraph 8 above, the Appeals Chamber accepts that Mr Muthaura has standing to bring this appeal pursuant to

text: article 82

text: (1) (a) of

text: the Statute

text: given that the Pre-Trial Chamber mied that the case as a whole agaiast Muthaura et al. falls within the jurisdiction of the Court.^^

text: Under article 19 (1) of the Stattite, "[t]he Court shall satisfy itself that it has jurisdiction in any case brought before it". In addition, issues of jurisdiction may be raised under article 19 (2) and (3). Article 19 and mles 58 and 59 of the Rules of Procedure and Evidence include specific provisions regulating these proceedings. Decisions on jurisdiction can be appealed without requiring leave of the Pre-Trial or

text: ^^ Document in Support of the Appeal, paras 109-123. ^° Document in Support of Appeal, para. 131. ^^ Document in Support of the Appeal, paras 124 et seq. ^^ Document in Support of the Appeal, paras 125-127. ^^ Response to tiie Document in Support of the Appeal; Prosecutor's Response to Victims' Observations, para. 6; Victims' Observations. ^"^ Appeal, para. 16. ^^ Impugned Decision, para. 37 and p. 154.

text: Trial Chambers (

text: articles 19

text: (6) and

text: (1) (a) of

text: the Statute

text: ). This specific procedural

text: framework highlights the importance that the Court's legal texts give to decisions

text: with respect to jurisdiction. The Appeals Chamber also recalls its previous judgment^^

text: in which it set out the different facets of the jurisdiction of the Court^^ and further

text: found that "jurisdiction under

text: article 19

text: of

text: the Statute

text: denotes competence to deal

text: with a criminal cause or matter under

text: the Statute

text: As set out above, in the Impugned Decision, the Pre-Trial Chamber made a

text: specific mling that the case against Mr Muthaura and Mr Kenyatta fell within the

text: jurisdiction of the Court. In the section entitled "Jurisdiction and Admissibility", the

text: Pre-Trial Chamber recalled its findings in the Sunmions to Appear Decision in which

text: it referred to its previous findings in the Article 15 Decision. ^^ It dismissed Mr

text: Kenyatta's Challenge to Jurisdiction "m limine in [its] entirety".^^ However, it

text: considered that the arguments presented in the challenge would be considered when

text: addressing the merits under

text: article 61

text: (7) of

text: the Statute

text: .^^ Elsewhere in the Impugned

text: Decision, the Pre-Trial Chamber considered the issue of 'organizational policy',

text: recalling its legal findings in the Article 15 Decision and finding that this element

text: had been proved. ^"^

text: On appeal, Mr Muthaura and Mr Kenyatta do not question the personal,

text: territorial or temporal jurisdiction of the Court in this case but rather the subject-

text: ^^ Prosecutor v. Thomas Lubanga Dyilo, "Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of tiie Statute of 3 October 2006", 14 December 2006,

text: (OA 4) (heremafter: "Judgment in Lubanga 0A4"). ^^ Paragraphs 21 and 22 of the Judgment in Lubanga O A4 provided: "21. The jurisdiction of the Court is defined by

text: the Statute

text: . The notion of jurisdiction has four different facets: subject-matter jurisdiction also identified by the Latin maxim jurisdiction ratione materiae, jurisdiction over persons, symbolized by the Latin maxim jurisdiction ratione personae, territorial jurisdiction - jurisdiction ratione loci - and lastiy jurisdiction ratione temporis. These facets find expression in

text: the Statute

text: . 22. The jurisdiction of the Court is laid down in

text: the Statute

text: Article 5

text: specifies the subject-matter of the jurisdiction of the Court, namely the crimes over which the Court has jurisdiction, sequentially defined in articles 6, 7, and 8. Jurisdiction over persons is deaU with in articles 12 and 26, while territorial jurisdiction is specified by articles 12 and 13 (b), depending on the origin of the proceedings. Lastiy, jurisdiction ratione temporis is defined by article 11". ^^ Judgment in Lubanga 0A4, para. 24. ^^ Impugned Decision, para. 37 and p. 154. ^° Impugned Decision, para. 24. ^^ Impugned Decision, para. 35. ^^ Impugned Decision, para. 36. ^^ Impugned Decision, paras 111-114. ^ Impugned Decision, paras 227-229.

text: No: ICC-01/09-02/11 OA 4 13/18 matter jurisdiction. This decision therefore relates only to that aspect of jurisdiction insofar as it has been challenged by Mr Muthaura and Mr Kenyatta. In addition, neither Mr Muthaura nor Mr Kenyatta contest that the Court has jurisdiction, in principle, over the crimes with which they have been charged - namely, crimes against humanity under

text: article 5

text: of

text: the Statute

text: . Nor do Mr Muthaura or Mr Kenyatta contest that an 'organizational policy', which the Prosecutor expressly alleged, and the underlying acts with which they were charged (murder, deportation or forcible transfer of population, rape and other forms of sexual violence, other inhumane acts and persecution),^^ are components of crimes against humanity under

text: article 7

text: of

text: the Statute

text: The four grounds of appeal raised by Mr Muthaura and Mr Kenyatta, as set out above, relate to, or are premised on, the Pre-Trial Chamber's interpretation of the term 'organizational policy' pursuant to

text: article 7

text: (2) (a) of

text: the Statute

text: , as well as its decision that an organisation existed in the present case. The relief sought by Mr Muthaura and Mr Kenyatta is phrased in terms of reversing the Pre-Trial Chamber's "definition of 'organizational policy' and its evidentiary finding that the Prosecution has submitted sufficient evidence of substantial grounds to believe that the crimes 87 were committed by [them] in furtherance of an 'organizational policy'". They request the Appeals Chamber "to declare that the Court does not have jurisdiction in this instance and reverse the Majority's confirmation of charges against [them]".^^ 32. In light of the above, the issue that the Appeals Chamber needs to address is whether, in the context of this case, the interpretation and existence of an 'organizational policy' are matters relating to subject-matter jurisdiction and are therefore appropriately before the Appeals Chamber pursuant to

text: articles 19

text: (6) and

text: (1) (a) of

text: the Statute

text: ^^ "Document Containing tiie Charges", 2 September 2011, ICC-01/09-02/11-280-AnxA, (heremafter: "DCC"), paras 35-49; note that this is an amended version of the Document Containing the Charges as amended by "Prosecution's Amended Document Containing the Charges and List of Evidence submitted pursuant to Article 61(3) and Rules 121(3), (4) and (5)", 2 September 2011, ICC-01/09- 02/11-280. ^^ DCC, pp. 38-42. See also Impugned Decision, para. 21. ^^ Appeal, para. 29; Document in Support of the Appeal, para. 180. ^^ Appeal, para. 29; Document in Support of tiie Appeal, para. 181.

text: The Appeals Chamber notes that the question as to whether the Prosecutor has been able to establish, both in law and by producing sufficient evidence, that an 'organizational policy' existed was a question pertaining to the merits of the case. It was one of the questions before the Pre-Trial Chamber at the confirmation hearing for the purposes of assessing whether or not to confirm the charges in the present case pursuant to

text: article 61

text: of

text: the Statute

text: . The enquiry that Mr Muthaura and Mr Kenyatta allege should have been carried out on a challenge to jurisdiction was therefore 8Q carried out as part of the confirmation process as, indeed, it had to be. Pursuant to

text: article 61

text: (6) of

text: the Statute

text: , at the confirmation hearing a suspect may contest both matters of statutory interpretation and evidential aspects of the Prosecutor's case. The arguments that Mr Kenyatta made, and Mr Muthaura purported to join, in his challenge to jurisdiction before the Pre-Trial Chamber could be made as part of the case during the confirmation proceedings. The Pre-Trial Chamber was thereafter required, pursuant to

text: article 61

text: (7) of

text: the Statute

text: , to "determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged".^^ 34. In this context, the Appeals Chamber notes the provisions of mle 58 (2) of the Rules of Procedure and Evidence. Challenges to jurisdiction may be joined to a confirmation proceeding, in which case the jurisdictional challenge shall be decided first^^ - the scenario which occurred in the present case. It would make little sense to consider and determine, for the purposes of 'jurisdiction', the interpretation of 'organizational policy' and whether the Prosecutor had submitted sufficient evidence to establish substantial grounds to believe that the crimes were committed in furtherance of such a policy prior to holding a confirmation hearing designed to Q9 resolve precisely the same issues. 35. In light of the above, and in the context of this case, treating the interpretation and existence of 'organizational policy' as jurisdictional matters conflates the separate concepts of jurisdiction and the confirmation process; yet it is the latter that is

text: ^^ Impugned Decision, paras 101 et seq. ^ Article 61 (7) of tiie Statute. ^^ Rule 58 (2) of the Rules of Procedure and Evidence provides, in relevant part, for a Chamber to be able to: "join the challenge or question [concerning its jurisdiction] to a confirmation or a trial proceeding as long as this does not cause undue delay, and in this circumstance shall hear and decide on the challenge or question firsf'. ^^ See article 61 (7) of tiie Statute.

text: designed to consider the matters raised on these appeals and filter unmeritorious cases from progressing to trial. To find that the grounds that Mr Muthaura and Mr Kenyatta raise in this appeal relate to jurisdiction would duplicate what was covered by the confirmation process. If the Appeals Chamber were to address the merits of Mr Muthaura and Mr Kenyatta's grounds of appeal any further, it would, in fact, be assessing the correctness of the decision to confirm the charges against them, insofar as it related to the existence of an 'organizational policy'. Yet neither Mr Kenyatta nor Mr Muthaura sought leave from the Pre-Trial Chamber to appeal the interpretation of 'organizational policy', nor was leave granted in relation to certain evidential challenges that they sought to raise, pursuant to

text: article 82

text: (1) (d) of

text: the Statute

text: The Appeals Chamber notes the statement of the dissenting judge in the Pre- Trial Chamber that the requirement for an organisation to be present is a contextual element of

text: article 7

text: (1) of

text: the Statute

text: which is both an element of the crime relating to the merits and "jurisdictional in nature insofar as the Court cannot exercise jurisdiction over the underlying acts in the absence of such contextual elements";^^ and the argument of Mr Muthaura and Mr Kenyatta that the existence of an 'organizational policy' is a jurisdictional element, triggering the competence of the Court to adjudicate the individual acts set out in

text: article 7

text: (1) of

text: the Statute

text: .^^ These arguments do not affect the conclusion of the Appeals Chamber that the interpretation and existence of an 'organizational policy' relate to the substantive merits of this case as opposed to the issue of whether the Court has subject-matter jurisdiction to consider such questions. As the Prosecutor has expressly alleged crimes against humanity, including the existence of an organizational policy, the Appeals Chamber finds that the Court has subject-matter jurisdiction over the crimes with which Mr Muthaura and Mr Kenyatta have been charged. Whether the Prosecutor can establish the existence of such a policy, in law and on the evidence, is a question to be determined on the merits. At this stage of the proceedings, it was a question of

text: ^^ "Decision on the Defence Applications for Leave to Appeal the Decision on the Confirmation of Charges", 9 March 2012, ICC-01/09-02/11-406; See also "Defence Application for Leave to Appeal the 'Decision on the Confirmation of Charges Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: '", 30 January 2012, ICC-01/09-02/11-385; "Defence Application for Leave to Appeal tiie 'Decision on tiie Confirmation of Charges'", 30 January 2012,01/09-02/11-384. ^^ Impugned Decision (Dissenting Opinion), para. 32. ^^ Document in Support of the Appeal, para. 29. ^ whether the Prosecutor could substantiate a component of the crimes with which Mr Muthaura and Mr Kenyatta had been charged to the standard required during the confirmation process. Even if the Trial Chamber were not to find, in law or on the evidence, that there was an 'organizational policy', this would not mean that the Court did not have jurisdiction over the case but rather that crimes against humanity were not committed.

text: Furthermore, in considering the issues at hand, the Appeals Chamber has had regard to the scope of jurisdictional challenges as interpreted by the Intemational Criminal Tribunal for the former Yugoslavia (hereinafter: "ICTY"), the Intemational Criminal Tribunal for Rwanda (hereinafter: "ICTR") and the Extraordinary Chambers in the Courts of Cambodia (hereinafter: "ECCC"). While bearing in mind the different statutory provisions that apply to those tribunals, the non-binding nature of their jurispmdence upon this Court^^ and the fact that

text: the Statute

text: sets out in detail the crimes over which this Court has jurisdiction, the Appeals Chamber nevertheless notes that the general approach taken in the ICTY and ICTR jurispmdence has been that factual and evidentiary issues are to be considered at trial, not as part of pre-trial jurisdictional challenges.^^ With respect to legal definitions, the ICTY jurispmdence has distinguished - in particular in its more recent case-law - between whether a crime or mode of liability existed under customary intemational law, which falls within the scope of a jurisdictional challenge, from challenges relating to the contours 08 or elements of crimes or modes of liability, which are matters for trial. In the

text: ^ See article 21 of tiie Statute. ^^ See, ICTY, Appeals Chamber, Prosecutor v. Ante Gotovina and others, "Decision on Ante Gotovina's Interlocutory Appeal Against Decision on Several Motions Challenging Jurisdiction", 6 June 2007, IT-06-90-AR72.1, para. 21; Prosecutor v. Zdravko Tolimir, "Decision on Tolimir's 'Interlocutory Appeal Against the Decision of the Trial Chamber on the Part of the Second Preliminary Motion Concemmg tiie Jurisdiction of tiie Tribunal'", 25 February 2009, rr-05-88/2-AR72.1, para. 10; Prosecutor v. Rasim Delia, "Decision on Interlocutory Appeal Challenging the Jurisdiction of the Tribunal", 8 December 2005, IT-04-83-AR72, paras 10-11; ICTR, Trial Chamber, Prosecutor v. Hassan Ngeze, "Decision on the Defence's Motion to Dismiss the Indictment in toto for Lack of Subject Matter Jurisdiction and for Lack of Fundamental Faimess to the Accused", 10 May 2000, ICTR-97-27-I, p. 2. 98 j(^jY, Appeals Chamber, Prosecutor v. Milutinovic and others, "Decision on Dragoljub Ojdanic's Motion Challenging Jurisdiction - Indkect Co-Perpetration", 22 March 2006, IT-05-87-PT, para. 23; Prosecutor v. Ante Gotovina and others, "Decision on Ante Gotovina's Interlocutory Appeal Against Decision on Several Motions Challenging Jurisdiction", 6 June 2007, IT-06-90-AR72.1, paras 15, 18 24; Prosecutor v. Zdravko Tolimir, "Decision on Tolimir's 'Interlocutory Appeal Against the Decision of the Trial Chamber on the Part of the Second Preliminary Motion Concerning the Jurisdiction of the Tribunal'", 25 Febmary 2009, IT-05-88/2-AR72.1, para. 10; Prosecutor v. Radovan Karadzic, "Decision on Radovan Karadzic's Motions Challenging Jurisdiction (Omission Liability, JCE-in - Special Intent Crimes, Superior Responsibility)", 25 June 2009, IT-95-5118-AR72.1, para. 36.

text: Ojdanic jurisdictional appeal, the ICTY Appeals Chamber explained why the existence of a crime falls within the scope of a challenge to subject-matter jurisdiction:

text: The scope of the Tribunal's jurisdiction ratione materiae may [...] be said to be determined both by

text: the Statute

text: , insofar as it sets out the jurisdictional framework of the Intemational Tribunal, and by customary intemational law, insofar as the Tribunal's power to convict an accused of any crime listed in

text: the Statute

text: depends on its existence qua custom at the time this crime was allegedly committed. This distinction between the existence and the contours of a crime or mode of liability has also been followed in the ECCC jurispradence.^^ In the present case, the existence of the requirement of an 'organizational policy' as an element of crimes against humanity is clear from the wording of

text: article 7

text: (2) (a) of

text: the Statute

text: For all of the above reasons, the Appeals Chamber concludes that the issues that Mr Muthaura and Mr Kenyatta raise on appeal, namely that the Pre-Trial Chamber erred in its interpretation of 'organizational policy' within the meaning of

text: article 7

text: (2) (a) of

text: the Statute

text: and its conclusion that such a policy existed, are not issues of subject-matter jurisdiction for the purposes of

text: articles 19

text: (6) and

text: (1) (a) of

text: the Statute

text: and these issues are not properly before the Appeals Chamber under

text: article 82

text: (1) (a) of

text: the Statute

text: . These issues instead relate to whether the Pre-Trial Chamber erred when it confirmed the charges in respect of Mr Muthaura and Mr Kenyatta.

text: Accordingly, the appeals as a whole must be rejected.

text: Done in both English and French, the English version being authoritative.

text: i^g-

text: Judge Akua Kuenyehia Presiding Judge Dated this 24* day of May 2012 At The Hague, The Netheriands

text: ^^ Prosecutor v. Milan Milutinovic and others, "Decision on Dragoljub Ojdanié's Motion Challenging Jurisdiction - Jomt Crimmal Enterprise", 21 May 2003, IT-99-37-AR72, para. 9. ^^ Pre-Trial Chamber, Case 002, "Decision on the Appeals against tiie Co-Investigating Judges Order on Joint Criminal Enterprise (JCE)", 20 May 2010, paras 23-25; "Decision on Appeals by Nuon Chea and leng Thirith against the Closing Order", 15 Febmary 2011, paras 60-68; "Decision on leng Sary's Appeal against tiie Closing Order", 11 April 2011, paras 44-47.


court: icc

doctype: confirmation

identifier: ICC-01/09-02/11 (Decision on the "Prosecution's Request to Amend the Final Updated Document Containing the Charges Pursuant to Article 61(9) of the Statute")

caseName: The Prosecutor v. Uhuru Muigai Kenyatta

chamber: Pre-Trial Chamber II

decisionType: confirmation

publisher: International Criminal Court

title: Decision on the "Prosecution's Request to Amend the Final Updated Document Containing the Charges Pursuant to Article 61(9) of the Statute"

text: Rome Statute

text: the Statute, article 61

text: the Statute, article 67

text: the Statute, article 82

text: Cour Pénale / ^ ^ _ ^ > j I n t e r n a t i o n a l e

type: stycke

text: im}

text: I n t e r n a t i o n a l ^ % Criminal Court

text: Original: English No.: ICC-01/09-02/11 Date: 21 March 2013 PRE-TRIAL CHAMBER II Before: Judge Ekaterina Trendafilova, Single Judge

text: SITUATION IN THE REPUBLIC OF KENYA IN THE CASE OF THE PROSECUTOR V. UHURU MUIGAI KENYATTA Public Decision on the "Prosecution's Request to Amend the Final Updated Document Containing the Charges Pursuant to

text: Article 61

text: (9) of

text: the Statute

text: No. ICC-01/09-02/11 1^19 21 March 2013

text: Decision to be notified, in accordance with regulation 31 of the Regulations of the Court, to: The Office of the Prosecutor Counsel for Uhuru Muigai Kenyatta Fatou Bensouda, Prosecutor Steven Kay and Gillian Higgins Adesola Adeboyejo, Trial Lawyer Legal Representatives of the Victims Legal Representatives of the Applicants Fergal Gaynor

text: Unrepresented Victims Unrepresented Applicants for Participation/Reparation

text: The Office of Public Counsel for The Office of Public Counsel for the Victims Defence

text: States Representatives Amicus Curiae

text: REGISTRY Registrar & Deputy Registrar Defence Support Section Silvana Arbia, Registrar Didier Preira, Deputy Registrar Victims and Witnesses Unit Detention Section Maria Luisa Martinod-Jacome Victims Participation and Reparations Other Section

text: No. ICC-01/09-02/11 2/19 21 March 2013

text: Judge Ekaterina Trendafilova, acting as Single Judge on behalf of Pre-Trial Chamber II (the "Chamber")^ of the Intemational Criminal Court (the "Court"), issues this decision on the "Prosecution's Request to Amend the Final Updated Document Containing the Charges Pursuant to

text: Article 61

text: (9) of

text: the Statute

text: (the "Request" or the "Prosecutor's Request").^ The present decision is classified as public although it refers to the existence of documents and, as the case may be, to a limited extent to their content, which have been submitted and are currently treated as confidential and confidential, ex parte. The Single Judge considers that the references to the said documents in the present decision are required by the principle of judicial reasoning. Moreover, those references are not inconsistent with the nature of the documents referred to as they have been kept to a minimum.

text: I. PROCEDURAL HISTORY

type: rubrik

text: On 23 January 2012, the Chamber issued its "Decision on the Confirmation of Charges Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: ", in which, inter alia, it confirmed the charges presented against Francis Kirimi Muthaura ("Mr. Muthaura") and Uhuru Muigai Kenyatta ("Mr. Kenyatta") to the extent specified in the decision,^ and committed the two accused persons to trial on the charges as confirmed (the "Confirmation of Charges Decision").^ 2. On 28 December 2012, Trial Chamber V which was seized of the case against Mr. Muthaura and Mr. Kenyatta at the trial stage issued the "Decision on the

text: ^ Pre-Trial Chamber II, "Decision Designating a Single Judge", ICC-01/09-02/11-9. 2 ICC-01/09-02/ll-607-Conf and its annexes. 3 Pre-Trial Chamber II,

text: -Conf. 4 Pre-Trial Chamber II,

text: -Conf, para. 429. No. ICC-01/09-02/11 '^'^^ 21 March 2013 content of the updated document containing the charges".^ In this decision Trial Chamber V, inter alia, rejected a factual allegation put forward by the Prosecutor in her updated document containing the charges on the ground that the Pre-Trial Chamber's conclusion "should [...] be viewed as a rejection of that particular allegation [...] and thus, the Prosecution should not include the allegation that gunshots were the cause of some of the alleged killings in Naivasha".^ 3. On 22 January 2013, the Prosecutor filed the Request seeking permission to "re-insert [said] factual allegation [...] previously denied [by the Chamber] as lacldng adequate support".^ 4. On 29 January 2013, the Single Judge issued the "Decision Requesting Observations on the 'Prosecution's Request to Amend the Final Updated Document Containing the Charges Pursuant to

text: Article 61

text: (9) of

text: the Statute

text: '", in which she requested, inter alia, that the Prosecutor, the Defence teams of Mr. Muthaura and Mr. Kenyatta and the Victims' Legal Representative "submit written observations [...], no later than, Thursday 7 February 2013, at 16 hOO" (the "29 January 2013 Decision").^ The Single Judge also requested the Defence teams of Mr. Muthaura and Mr. Kenyatta "to file observations, if any, in response to the Prosecutor's written observations and the Victims' Legal Representative's observations, no later than Tuesday 12 February 2013, at 16 h00".9

text: 5 Trial Chamber V, ICC-01/09-02/11-584. 6 Trial Chamber V, ICC-01/09-02/11-584, paras 74-75. 7 ICC-01/09-02/ll-607-Conf, paras 1, 4. 8 Pre-Trial Chamber II, ICC-01/09-02/11-614, p. 7. 9 Pre-Trial Chamber II, ICC-01/09-02/11-614, p. 7. No. ICC-01/09-02/11 4/19 21 March 2013

text: On 7 February 2013, the Victims' Legal Representative filed written observations on the Prosecutor's Request.^^ In his observations, the Victims' Legal Representative argued in favour of granting the Request, mainly on the basis that, inter alia, the legal characterization of the facts will remain unchanged, and the Defence will not be prejudiced by the amendment.^^

text: On 7 February 2013, the Chamber received the "Prosecution observations on the conduct of its investigations" (the "Prosecutor's Observations" or "Observations"), together with Annex A appended to it.^^ Said annex was marked "confidential, ex parte. Prosecution and VWU only".

text: On 7 February 2013, the Defence teams of Mr. Muthaura and Mr. Kenyatta submitted its joint observations on the Request,^^ and on 12 February 2013, they also jointly responded to the Prosecutor's Observations.^"^

text: On 13 February 2013, the Single Judge requested the Prosecutor to file a confidential redacted version of Annex A of the Prosecutor's Observations, to be notified to the Defence teams of Mr. Muthaura and Mr. Kenyatta, no later than Friday 15 February 2013.^^ In the same decision, the Single Judge also requested the Defence teams of Mr. Muthaura and Mr. Kenyatta to file its final observations after having received said annex, no later than Wednesday 20 February 2013.^^

text: 10 "Victims' Observations pursuant to 'Decision Requesting Observations on the Prosecution's Request to amend the Filial Updated Document Containing the Charges Pursuant to

text: Article 61

text: (9) of

text: the Statute

text: '", lCC-0V09-02/n-630. ^1ICC-01/09-02/11-630, para. 5. 12ICC-01/09-02/11-633; ICC-01/09-02/11-633-Conf-Exp-Anx A. 13ICC-01/09-02/11-634. 14ICC-01/09-02/11-642. 15 Pre-Trial Chamber II, "Request to file a Confidential Redacted Version of Annex A to the Prosecutor's Observations (ICC-01/09-02/ll-633-Conf-Exp-AnxA)", ICC-01/09-02/11-644, p. 6. 16 Pre-Trial Chamber II, "Request to file a Confidential Redacted Version of Annex A to the Prosecutor's Observations (ICC-01/09-02/ll-633-Conf-Exp-AnxA)", ICC-01/09-02/11-644, p. 6. N o . ICC-01/09-02/11 ^/^9 21 March 2013

text: On 20 February 2013, Mr. Muthaura's Defence filed its final observations, in which it reiterated its request that the Chamber summarily dismiss the Prosecutor's Request. ^^

text: On 20 February 2013, the Chamber was notified of a request filed by Mr. Kenyatta's Defence on 19 February 2013. In its request, Mr. Kenyatta's Defence sought an extension of the time limit to "submit [the] final observations no later than 16 hOO on Friday 22 February".i» On the same date, the Chamber granted the requested extension.^^

text: On 22 February 2013, Mr. Kenyatta's Defence filed its final observations, in which it reiterated its request that the Chamber summarily dismiss the Prosecutor's Request.^^

text: On 11 March 2013, the Prosecutor filed before Trial Chamber V the "Prosecution notification of withdrawal of the charges against Francis Kirimi Muthaura" .2^

text: On 18 March 2013, Trial Chamber V issued the "Decision on the withdrawal of charges against Mr. Muthaura" (the "Withdrawal of Charges Decision"), in which it, inter alia, granted, by majority, permission to the Prosecutor to withdraw the charges against him.^^ Trial Chamber V has also decided by

text: 17 ICC-01/09-02/ll-653-Conf, para. 17. 18ICC-01/09-02/11-650, paras 1,12,16. 19 Pre-Trial Chamber II, "Decision on the Defence's Request for an Extension of Time Limit", ICC- 01/09-02/11-652. 20 ICC-01/09-02/ll-661-Conf and its annexes. 21 Trial Chamber V, ICC-01/09-02/11-687. 22 Trial Chamber V, ICC-01/09-02/11-696, p. 8. No. ICC-01/09-02/11 ^'^^ 21 March 2013 majority to terminate the proceedings against Mr. Muthaura and ordered his removal "from the case name for all subsequent filings".^^

text: IL APPLICABLE LAW

text: The Single Judge notes articles 21(l)(a), (2), (3), 57(2), 61(9), 67, 68(1) and 82(l)(d) of the

text: Rome Statute

text: (the "Statute"), mles 128 and 155 of the Rules of Procedure and Evidence (the "Rules") and regulation 23 bis of the Regulations of the Court.

text: IILDETERIVIINATION BY THE SINGLE JUDGE

text: Preliminary Remarks First Preliminary Remark 15. At the outset, the Single Judge wishes to point out that in light of the Withdrawal of Charges Decision, which inter alia terminates the proceedings against Mr. Muthaura, the Prosecutor's Request shall be addressed only in relation to Mr. Kenyatta.

text: Second Preliminary Remark 16. In paragraphs 7-13 of her Observations, the Prosecutor disputes the Single Judge's reasoning and legal interpretation of the Appeals Chamber's jurisprudence as provided in the 29 January 2013 Decision. In this respect, the Single Judge considers that any concern or disagreement regarding a decision issued by the Chamber should have been raised in accordance with the procedural mechanism set out in the Court's statutory documents.

text: 23 Trial Chamber V, ICC-01/09-02/11-696, p. 8. No. ICC-01/09-02/11 ^'^^ 21 March 2013

text: Since

text: article 82

text: (l)(d) of

text: the Statute

text: is the appropriate procedural remedy for the Prosecutor to raise her concern or disagreement within the time limit specified in rule 155 of the Rules, she should have availed herself of such remedy.^^ Yet, this was not the case, and the Prosecutor has not lodged an application for leave to appeal the 29 January 2013 Decision. Instead, the Prosecutor has chosen to raise her concern or disagreement in the Observations without regard for the applicable law before this Court. By so doing, the Prosecutor has waived her right to raise any concerns or disagreements as to the said Decision. Accordingly, the Single Judge shall not engage with the Prosecutor's position any further. Instead, she shall resort to an analysis of the relevant legal provision(s) governing the subject-matter of the Prosecutor's Request in view of the documentation and evidence presented.

text: Merits 18. Turning to the subject-matter of the Prosecutor's Request, the Single Judge recalls

text: article 61

text: (4) and (9) of

text: the Statute

text: which reads:

text: Before the hearing, the Prosecutor may continue the investigation and may amend or withdraw any charges. The person shall be given reasonable notice before the hearing of any amendment to or withdrawal of charges. In case of a withdrawal of charges, the Prosecutor shall notify the Pre-Trial Chamber of the reasons for the withdrawal. 9. After the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges. If the Prosecutor seeks to add additional charges or to substitute more serious charges, a hearing under this article to confirm those charges must be held.

text: 24 See in this regard, Pre-Trial Chamber I, Situation in the Democratic Republic of the Congo, "Decision on the Prosecutor's Position on Pre-Trial Chamber I's 17 February 2005 Decision to Convene a Status Conference", ICC-01/04-11 ; also Pre-Trial Chamber II, Situation in Uganda, "Decision on the Prosecutor's Position on the Decision of Pre-Trial Chamber II to Redact Factual Descriptions of Crimes from the Warrants of Arrest, Motion for Reconsideration, and Motion for Clarification", ICC-02/04-01/05-60, paras 12-13. No. ICC-01/09-02/11 ^^^9 21 March 2013

text: Upon a plain reading of the text of paragraphs 4 and 9, it is clear that the drafters of

text: the Statute

text: distinguished between the powers of the Prosecutor to amend the charges before and after the confirmation of charges. Before the confirmation hearing the Prosecutor is at liberty to amend the charges without leave of the Pre-Trial Chamber. This is not, however, the case after the charges are confirmed and before the trial begins, where the Prosecutor's flexibility is restricted and subject to the Pre-Trial Chamber's scrutiny. The insertion of the phrase "with permission of the Pre-Trial Chamber" in paragraph 9 makes clear that the Prosecutor is not allowed to proceed with an amendment of one or more of the charges confirmed, without a prior approval from the Chamber. Thus, the Chamber's permission is conditio sine qua non for any amendment to the charges at this stage.

text: This distinction between paragraphs 4 and 9 of

text: article 61

text: of

text: the Statute

text: has been acknowledged by the Appeals Chamber in one of its early judgments when it stated:

text: Before the confirmation hearing, the Prosecutor may [...], amend [...] charges without the permission of the Pre-Trial Chamber. This flexibility of the Prosecutor is more limited after the confirmation of the charges with respect to the amendment, addition or withdrawal of charges; pursuant to

text: article 61

text: (9) of

text: the Statute

text: the Prosecutor may amend the charges after their confirmation only with the permission of the Pre-Trial Chamber [...].25 Nevertheless, in this same judgment the Appeals Chamber has not defined the word "permission" and the scope of its application.

text: 25 Appeals Chamber, "Judgment on the Prosecutor's appeal against the decision of Pre-Trial Chamber I entitled 'Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to mle 81 (2) and (4) of the Rules of Procedure and Evidence'", ICC-01/04- 01/06-568, para. 53. No. ICC-01/09-02/11 9/19 21 March 2013

text: In this respect, the Single Judge notes that the word "permission" is defined as "authorization".2^ The usage of this word in the text of

text: article 61

text: (9) of

text: the Statute

text: indicates that an amendment of the charges after the confirmation hearing is not automatic. Rather, its existence in said provision carries with it a certain connotation, namely, that a request for an amendment of charges post confirmation hearing and prior to the commencement of the trial needs to be supported and justified. It follows that a decision of whether to grant permission to amend the charges confirmed should be taken upon an assessment of all relevant circumstances surrounding the case at this stage of the proceedings. This entails consideration of the Prosecutor's Request and an evaluation of other relevant information which the Pre-Trial Chamber could seek if necessary for the purposes of its final decision. To say otherwise, would mean that the word "permission" in the text of article 61(9) has no added value.

text: This reading finds further support in rule 128(2) of the Rules, which makes clear that "[b]efore deciding whether to authorize the amendment [pursuant to

text: article 61

text: (9) of

text: the Statute

text: ], the Pre-Trial Chamber may request the accused and the Prosecutor to submit written observations on certain issues of f act or law" (emphasis added). Said construction ensures that the Chamber is aware of the full picture of the state of proceedings and the justification provided by the Prosecutor in support of her request for an amendment. Thus, the Pre-Trial Chamber is assisted in arriving at a proper and balanced decision, taking into consideration diverse factors affecting the case sub judice including its fairness, expeditiousness, the rights of the accused as well as those of the victims.

text: 26 B. A. Gamer (ed.). Black's Law Dictionary, 7»^ edn., (West Group, 1999), p. 1160; C. Soanes, A. Stevenson (eds). Concise Oxford English Dictionary, 11*^ edn., (Oxford: Oxford University Press), p. 1068. N o . ICC-01/09-02/11 1Ö/19 2 1 M a r c h 2013

text: This was, in fact, the approach followed in the 29 January 2013 Decision. The Single Judge requested written observations from the parties and participants with a particular enquiry about the Prosecutor's state of investigation. Such enquiry is directly related to the subject-matter of her Request (i.e. the amendment of the charge). Said approach is followed with a view towards reaching a fair, sound and balanced decision.

text: Finally, the second part of

text: article 61

text: (9) of

text: the Statute

text: covers the nature of the requested amendment of the charge(s). In this regard,

text: article 61

text: (9) of

text: the Statute

text: envisages two main scenarios for an amendment of the charges: first, if the Prosecutor seeks to add additional charge(s) or to substitute certain charges already confirmed with more serious ones, a hearing must be held; second, where the Prosecutor requests any other amendment to a charge apart from those specified above, a hearing is not required.

text: Having set out the legal framework of

text: article 61

text: (9) of

text: the Statute

text: and the scope of its application on the basis of which a decision shall be made on the Prosecutor's Request, the Single Judge shall proceed in the following paragraphs with an overall assessment of the submissions received from the parties and participants in Ught of the established legal framework.

text: In her Request, the Prosecutor seeks to add to the document containing the charges a limited factual allegation that "victims were also killed by gunshot in Naivasha".27 In support of the Request, the Prosecutor submitted confidential annexes (A-D) including excerpts of interview transcripts of four witnesses. In

text: 27 ICC-01/09-02/1 l-607-Conf, paras 1, 6. No. ICC-01/09-02/11 11/19 21 March 2013 compliance with the 29 January 2013 Decision, the Prosecutor has filed confidential, ex-parte. Prosecution and VWU only, the full un-redacted copies of the interview transcripts of the four witnesses as well as the requested Observations together with a confidential, ex-parte, Annex A. Said Annex includes the clarifications requested by the Chamber regarding the Prosecutor's investigation for the purpose of the decision on the required amendment.

text: Therefore, in order to decide on whether or not to permit or authorize the Prosecutor to re-insert said factual allegation in the document containing the charges, the nature of the requested amendment should first be considered.

text: The Single Judge points out that this factual allegation was addressed by the Chamber in the course of its assessment of the nature of the attack in or around Nakuru and Naivasha. In paragraph 174 of the Confirmation of Charges Decision, the Chamber explicitly rejected the Prosecutor's allegation that weapons were used in Naivasha due to lack of evidence, and stated:

text: [T]he Chamber clarifies that the use of weapons and uniforms is established by the evidence only in relation to the events in Nakuru. Conversely, the Chamber does not at this stage of the proceedings find sufficient evidence to substantiate the Prosecutor's allegation that weapons and uniforms were used in Naivasha.28

text: Thus, it is apparent that the nature of the requested amendment does not aim at adding an additional charge or substituting an existing charge with a more serious one. Rather, it is a re-insertion, on the basis of the new evidence presented, of an already known specific factual aUegation for an existing charge of murder in Naivasha - a location that has already been referred to in the

text: 28 ICC-01/09-02/ll-382-Red, para. 174. No. ICC-01/09-02/11 12/19 21 March 2013

text: Confirmation of Charges Decision. It follows that the Single Judge does not need to hold a hearing for the purpose of deciding on the Prosecutor's Request.

text: Turning to the evidence presented and the observations received from the parties and participants, the Single Judge wishes to make clear that to the extent possible she shall not reveal their content in order to retain their level of classification, which is warranted in the circumstances of the present case.

text: In this regard, the Single Judge points out that she has carefully studied all submissions presented by the parties as well as by the Victims' Legal Representative. On the basis of her assessment, the Single Judge considers that the Prosecutor's Request is warranted for the reasons stated below.

text: Suffice to mention that the four witness statements presented by the Prosecutor reveal that guns such as G3 rifles and more commonly AK47s were used in the killings of Luos in Naivasha. As the Appeals Chamber has stated in one of its early judgments:

text: [I]t is an essential tenet of the rule of law that judicial decisions must be based on facts established by evidence. Providing evidence to substantiate an allegation is a hallmark of judicial proceedings; courts do not base their decisions on impulse, intuition and conjecture or on mere sympathy or emotion. Such a course would lead to arbitrariness and would be antithetical to the rule of law.^^

text: 29 Situation in Uganda, "Judgment on the appeals of the Defence against the decisions entitled 'Decision on vichms' applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06, a/0082/06, a/0084/06 to a/0089/06, a/0091/06 to a/0097/06, a/0099/06, a/0100/06, a/0102/06 to a/0104/06, a/0111/06, a/0113/06 to a/0117/06, a/0120/06, a/0121/06 and a/0123/06 to a/0127/06'", 23 Febmary 2009, ICC-02/04-179 (OA) and

text: (OA 2), para. 36. No. ICC-01/09-02/11 1^/19 21 March 2013

text: Thus, from an evidentiary perspective, the Prosecutor has fulfilled her statutory duty by presenting evidence which supports her allegation that "victims were also killed by gunshot in Naivasha". With respect to the remaining information submitted to the Chamber in support of acquiring permission to re-insert said factual allegation, the Single Judge has stated earlier that her decision is guided by many factors which aim at drawing a balance between the different competing interests at stake including the specific circumstances of the case, the fairness of the proceedings, their expeditiousness, and the interest of the accused person as well as that of the victims.

text: A major concern of the Single Judge is related to the Prosecutor's view towards her wide flexibility to conduct an investigation. It appears that, as a matter of principle and without any limitations what so ever, an investigation may continue or even the bulk of it may be conducted subsequent to the confirmation of the charges and close to the commencement of the trial.^^ This is a common concern raised by the Defence of Mr. Kenyatta, on the basis of which it constructed its observations in favour of denying the Prosecutor's Request.^^

text: In this regard, the Single Judge wishes to highlight that, subject to the limitations provided by the Court's statutory provisions, during the initial stages of the proceedings before the filing of an application for a warrant of arrest or summons to appear, the Prosecutor bears the entire responsibility with respect to any matter related to her investigations. Once, however, the judiciary is seized of a particular case, the relevant chamber is duty bound to ensure the proper conduct of the proceedings, including all aspects of fairness.

text: ^° ICC-01/09-02/11-633, paras 2,12,17. 31ICC-01/09-02/11-642, para. 3,19; ICC-01/09-02/ll-661-Conf, para. 2. No. ICC-01/09-02/11 14/19 21 March 2013

text: The Single Judge reiterates that the Prosecutor is not barred from continuing her investigations post confirmation of charges hearing when there is a genuine need to pursue certain investigative activities crucial for her case and for the principal goal of determining the truth. However, continuing investigations after the charges have been confirmed cannot be the rule, but rather the exception, and should be justified on a case-by-case basis. The justification should not be construed to mean that the Prosecutor must obtain prior permission from the relevant Pre-Trial Chamber to continue her investigation post confirmation of charges. Rather, when applying for an amendment of one or more of the charges under

text: article 61

text: (9) of

text: the Statute

text: , the relevant Pre-Trial Chamber might require some explanations for the purposes of its final determination. As the Appeals Chamber has stated "[t]he duty to establish the truth is not limited to the time before the confirmation hearing. Therefore, the Prosecutor must be allowed to continue his investigation beyond the confirmation hearing, if this is necessary in order to establish the truth" (emphasis added).^^^

text: In the same vein, the Appeals Chamber proceeded by stating that "in certain circumstances to rule out further investigation after the confirmation hearing may deprive the Court of significant and relevant evidence [...]" (emphasis added).^^^ In this regard, the Single Judge considers that the phrases "if this is necessary in order to establish the truth" and "in certain circumstances" serve as a limitation on 32 Appeals Chamber, "Judgment on the Prosecutor's appeal against the decision of Pre-Trial Chamber I entitled 'Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to rule 81 (2) and (4) of the Rules of Procedure and Evidence'", ICC-01/04- 01/06-568, para. 52. 33 Appeals Chamber, "Judgment on the Prosecutor's appeal against the decision of Pre-Trial Chamber I entitled 'Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to rule 81 (2) and (4) of the Rules of Procedure and Evidence'", ICC-01/04- 01/06-568, para. 54. No. ICC-01/09-02/11 1^/19 21 March 2013 the continuation of the investigation post confirmation hearing. This language makes it evident that, in principle, the Prosecutor's investigation "should largely be completed at the stage of the confirmation hearing".^ Hence, the Prosecutor is not granted carte blanche to conduct her investigation after the confirmation hearing with a view towards bringing further evidence in order to amend the charges, unless she shows that it "is necessary in order to establish the truth" or "certain circumstances" exist that justify doing so.

text: The underlying rationale is that the continued investigation should be related only to such essential pieces of evidence which were not known or available to the Office of the Prosecutor prior to the confirmation hearing or could not have been collected for any other reason, except at a later stage. In these circumstances, the Prosecutor is expected to provide a proper justification to that effect in order for the Chamber to arrive at a fair and sound judgment regarding any request for amendment put before it.

text: In the context of the present case, the Prosecutor managed to furnish the Chamber not only with evidence supporting the existence of the factual allegation, but also with a reasonable justification for the continuation of her investigation subsequent to the confirmation hearing. The Prosecutor's justification can be summarized in the following points: 1) lack of cooperation; 2) security concerns; 3) incidents pointed out in the Prosecutor's observations regarding intimidation of witnesses, some of which were reported to the Chamber during the pre-trial phase; and 4) the difficulty in approaching insider

text: 34 Appeals Chamber, '"Judgment on the appeal of the Prosecutor against the decision of Pre-trial Chamber I of 16 December 2011 entitled 'Decision on the confirmation of charges'", ICC-01/04- 01/10-514, para. 44. No. ICC-01/09-02/11 ^^/19 21 March 2013 witnesses to provide information to the Court.^^ This is the core reason weighing in favour of granting the Request.

text: In this context, the Single Judge does not share the Defence's line of reasoning that the Appeals Chamber allowed the Prosecutor to investigate post confirmation hearing only in a situation where an ongoing conflict prevented her investigation from being completed prior to the confirmation hearing."^^ Although the Appeals Chamber qualified its statement by using the word "particularly", a contextual reading of the judgment supports a broader conclusion, namely, that the statement serves only as an example and does not exclude other possible circumstances.

text: The Defence of the accused person further argues that by allowing "unbridled investigations", and introducing "wholly new allegations or additional evidence that was available [...], but simply not collected or presented by the Prosecution, would be to emasculate the confirmation of charges process and denude confirmation decisions of the required legal certainty"."^^

text: The Single Judge sees merit in the argument put forward by the Defence, but only if it turned out to be sufficiently proven. Nowhere in the Defence's observations is there a clear proof that the Prosecutor deliberately refrained from presenting evidence which was available prior to the confirmation hearing. Furthermore, the Single Judge disagrees with the Defence of Mr. Kenyatta that the Prosecutor is introducing "wholly new allegations". To the contrary, as

text: 35 ICC-01/09-02/ll-633-Conf-Exp-Anx A. 36 ICC-01/09-02/11-634, para. 18. 37 ICC-01/09-02/11-642, para. 29. No. ICC-01/09-02/11 17/19 21 March 2013 stated in paragraph 26 of this decision, the Prosecutor is seeking to re-insert a specific factual allegation that was already loiown to the Defence and addressed in the Confirmation of Charges Decision. Moreover, its re-insertion has no effect on the legal characterization of the facts. Thus, to deprive the Prosecutor of the possibility to re-insert said allegation after providing reasonable justification as well as sufficient evidence in support, merely on the ground that it allegedly constitutes a violation to the rights of the Defence under

text: article 67

text: of

text: the Statute

text: , is untenable. This argument would render the very existence of

text: article 61

text: (9) of

text: the Statute

text: inoperative.

text: In view of the foregoing and mindful of the interests of victims in the present case, the Single Judge finds that the Prosecutor's Request is warranted and without undue prejudice as to the rights of the Defence, and accordingly, should be granted.

text: FOR THESE REASONS, THE SINGLE JUDGE HEREBY

text: grants the Prosecutor's Request to the extent specified in paragraph 15 of the present decision.

text: No. ICC-01/09-02/11 18/19 21 March 2013

text: No. ICC-01/09-02/11 21 March 2013

title: The Prosecutor v. Uhuru Muigai Kenyatta

type: avgorande