court: icc

doctype: appeal-interlocutory

identifier: ICC-01/09-01/11 (Decision on the Appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang 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

publisher: International Criminal Court

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 Pénale Internationale

type: stycke

text: International Criminal Court

text: Original: English No. ICC-01/09-01/11 OA3 OA4 Date: 24 May 2012

text: THE APPEALS CHAMBER

type: rubrik

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. WILLIAM SAMOEI RUTO, HENRY KIPRONO KOSGEY AND JOSHUA ARAP SANG

text: Public document Decision on the appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang 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: No: ICC-01/09-01/11 OA3 OA4 1/17

text: ^Ç

text: Decision to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Counsel for William Samoei Ruto Ms Fatou Bensouda, Deputy Prosecutor Mr Kioko Kilukumi Musau Mr Fabricio Guariglia Mr David Hooper Counsel for Joshua Arap Sang Mr Joseph Kipchumba Kigen-Katwa Mr Joel Kimutai Bosek Legal Representatives of Victims Ms Sureta Ghana

text: REGISTRY Registrar Ms Silvana Arbia

text: No: ICC-01/09-01/11 OA3 OA4 2/17

text: The Appeals Chamber of the Intemational Criminal Court,

text: In the appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang, 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 (

text: After deliberation.

text: Renders unanimously the following

text: DECISION

text: The appeals are rejected.

text: REASONS

text: I. PROCEEDINGS BEFORE THE PRE-TRIAL CHAMBER

text: On 30 August 2011, Mr Ruto and Mr Sang filed the "Defence Challenge to Jurisdiction"' (hereinafter: "Joint Defence Challenge to Jurisdiction"), submitting that ly the Court should decline to exercise jurisdiction over their case. Mr Ruto and Mr Sang 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 tilie 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 Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang"^ (hereinafter: "Summons to Appear Decision"). Moreover, they submitted that "irrespective of whether one accepts the [minority or majority's interpretation of 'organizational policy'], or an altemative test, the facts on which the Prosecution

text: ^ ICC-01/09-01/11-305. ^ Joint Defence Challenge to Jurisdiction, paras 9, 83. ^ Joint Defence Challenge to Jurisdiction, paras 10-61. ^ ICC-01/09-19-Corr, dated 31 March 2010 and registered on 1 April 2010. ^ 8 March 2011, ICC-01/09-01/11-01. No: ICC-01/09-01/11 OA3 OA4 3/17

text: A$ relie[d] [did] not amount to substantial grounds to believe that the defendants acted within an organization in the context of

text: Article 7

text: (2)(a) of

text: the Statute

text: ".^ 7 8 2. In response, the Prosecutor and the victims 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. 3. On 23 January 2012, the Pre-Trial Chamber decided to confirm charges against Mr Ruto and Mr Sang 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 the Joint Defence Challenge to Jurisdiction.^^ The Pre-Trial Chamber, by majority. Judge Kaul dissenting, endorsed its interpretation of 'organizational policy' as developed in its Article 15 Decision^ ^ and did "not find a persuasive reason to revisit its previous finding on the question or to reverse its original approach". ^^ On this basis, it dismissed the part of the Joint Defence Challenge to Jurisdiction relating to the interpretation of the term 'organizational policy'.^^ As to the part of the Joint Defence Challenge to Jurisdiction relating to the presentation of ihc facts by the Prosecutor in support of this definition, the Pre-Trial Chamber found that it "[could not] be qualified as a jurisdictional challenge under

text: article 19

text: (2)(a) of

text: the Statute

text: "^^ and considered that it was clear "that the essence of this part of [Mr Ruto and Mr Sang's] filings [was] to challenge the merits of the Prosecutor's case on the facts".^^ It found titiat "this part of the [...] submissions [was] in effect an evidentiary challenge under

text: article 61

text: (5) and (6) of

text: the Statute

text: which, in principle, should be resolved pursuant to the standard provided for in

text: article 61

text: (7) of

text: the Statute

text: in the relevant part of the decision, namely, under the

text: ^ Joint Defence Challenge to Jurisdiction, para. 62. ^ "Corrigendum to 'Prosecution's Response to the Defence Challenges to Jurisdiction' filed 16 September 2011", ICC-01/09-01/11-334-Corr, dated 19 September 2011 and registered on 20 September 2011, para. 13. ^ "Observations of the Victims' Representative on the Defence challenges to jurisdiction", 16 September 2011, ICC-01/09-01/11-332, para. 21. ^

text: . ^° Impugned Decision, paras 23-37. ^^ Impugned Decisioa para. 33. ^^ Impugned Decisioa para. 34. ^^ Impugned Decisioa para. 34and p. 138. ^^ Impugned Decision, para. 35. ^^ Impugned Decisioa para. 35. No: ICC-01/09-01/11 OA3 OA4 4/17 section conceming the contextual elements of the crimes against humanity". ^^ Accordingly, it dismissed this part of the Joint Defence Challenge to Jurisdiction in limine}^ In the operative part of the Impugned Decision, the Pre-Trial Chamber specifically decided that it had jurisdiction.^^ It decided to confirm the charges^^ and, 90 as is relevant to this appeal, it considered the issue of 'organizational policy', recalling its legal findings in the Article 15 Decision^^ and concluded that this element had been proved.'^^ 4. Judge Kaul, in his dissent, referred to his "fundamental disagreement with the 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 Summons to Appear Decision,^^ assessed the Prosecutor's facts in this light^^ and found that the Court lacked subject-matter jurisdiction.^^ He also addressed whether the interpretation of 'organizational policy' "as a matter of law [was] 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 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 and the victims' argument that the Court has jurisdiction because the Prosecutor has charged crimes against humanity under

text: article 7

text: of

text: the Statute

text: , he found this to be "legally and 90 procedurally untenable". Judge Kaul found that an assessment of facts must be

text: ^^ Impugned Decisioa para. 35. ^^ Impugned Decision, para. 36 and p. 138. ^^ Impugned Decision, p. 138. ^^ Impugned Decisioa p. 138. ^° Impugned Decision, paras ISl et seq. ^^ Impugned Decisioa paras 184-185. ^^ Impugned Decision, paras 208-221. ^^ "Decision on the Confirmation of Charges Pursuant to

text: Article 61

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

text: Rome Statute

text: ", Dissenting Opinion of Judge Hans-Peter Kaul, 23 January 2012,

text: (hereinafter: "Impugned Decision (Dissenting Opinion)"), para. 8. ^ Impugned Decision (Dissenting Opinion), paras 8-9. ^^ Impugned Decision (Dissenting Opinion), paras 10-13. ^^ Impugned Decision (Dissenting Opinion), paras 2,13. ^^ Impugned Decision (Dissenting Opinion), para. 22. ^^ Impugned Decision (Dissenting Opinion), para. 25. ^^ Impugned Decision (Dissenting Opinion), para. 32. 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

text: article 19

text: (1), first sentence, of

text: the Statute

text: and limiting any challenges or

text: No: ICC-01/09-01/11 OA3 OA4 5/17

text: ^ included in an assessment of jurisdiction ratione materiae?^ He concluded that the Joint Defence Challenge to Jurisdiction should be granted and jurisdiction denied."^^

text: IL PROCEEDINGS ON APPEAL

text: On 30 January 2012, Mr Ruto filed an appeal, entitled "Articles 19(6) and 82(1 )(a) Appeal by the Defence for Mr. Ruto on Jurisdiction"^^ (hereinafter: "Mr Ruto's Appeal"). On the same day, Mr Sang also filed an appeal, entitled "Articles 19(6) and 82(1 )(a) Appeal by the Defence for Mr. Sang on Jurisdiction"^^ (hereinafter: "Mr Sang's Appeal"). Apart from appealing against the Impugned Decision,^"* both Mr Ruto and Mr Sang also requested that the appeals have suspensive effect on the proceedings (hereinafter: "Requests for Suspensive Effect").

text: On 2 Febmary 2012, the Appeals Chamber issued an "Order on the filing of a response to requests for suspensive effect","^^ allowing the Prosecutor to respond to the Requests for Suspensive Effect. It 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 '^7 Rules of Procedure and Evidence", inviting victims to submit observations on the appeals. 7. On 3 Febmary 2012, the Office of Public Counsel for Victims (hereinafter: "OPCV") filed "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: questions raised respectively under

text: article 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), paras 38-39. ^^ Impugned Decision (Dissenting Opinion), para. 40. ^^ ICC-01/09-01/11-374 (OA 3). ^^ ICC-01/09-01/11-375 (0A4). ^"^ Mr Ruto's Appeal, para. 15; Mr Sang's Appeal, para. 15. ^^ Mr Ruto's Appeal, para. 16; Mr Sang's Appeal, para. 16. ^^ ICC-01/09-01/11-382 (OA 3 OA 4). ^^ 2 Febmary 2012, ICC-01/09-01/11-383 (OA 3 OA 4). ^^ ICC-01/09-01/11-384 (OA 3 OA 4). ^^ OPCV Request, p. 5. No: ICC-01/09-01/11 OA3 0A4 6/17

text: On 8 Febmary 2012, Mr Ruto and Mr Sang responded to the OPCV Request."^^

text: On 9 Febmary 2012, the Prosecutor filed the "Prosecution's Consolidated Response to Mr Ruto's and Mr Sang's Requests for Suspensive Effect of their Appeals on Jurisdiction (ICC-01/09-01/11-3740A3 - ICC-01/09-01/11-3750A4)".^^

text: On 14 Febmary 2012, Mr Ruto and Mr Sang, respectively, filed the "Document in Support of Articles 19(6) and 82(1 )(a) Appeal by the Defence for Mr. Ruto on Jurisdiction"^^ (hereinafter: "Mr Ruto's Document in Support of the Appeal") and the "Document in Support of Articles 19(6) and 82(1 )(a) Appeal by the Defence for Mr. Sang on Jurisdiction""^^ (hereinafter: "Mr Sang's 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 Requests for Suspensive Effect."^^

text: On 7 March 2012, the Prosecutor filed the "Prosecution's Consolidated Response to Mr Ruto's and Mr Kenyatta's Documents in Support of Articles 19(6) and 82(l)(a) Appeal (ICC-01/09-01/11-388 0A3 - ICC-01/09-01/11-389 0A4)"^ (hereinafter: "Response to the Documents in Support of the Appeals").

text: "^ "Response to OPCV 'Observations on the "Directions on the submission of observations pursuant to

text: Article 19

text: (3) of tiie

text: Rome Statute

text: and Rule 59(3) of tiie Rules of Procedure and Evidence'"", ICC- 01/09-01/11-386 (OA 3 OA 4). "^^ ICC-01/09-01/11-387 (OA 3 OA 4). ^^ ICC-01/09-01/11-388 (OA 3). ^^ ICC-01/09-01/11-389 (OA 4). ^ "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- 01/09-01/11-390 (OA 3 OA 4). "^^ "Decision on the requests of Mr Ruto and Mr Sang for suspensive effect", ICC-01/09-01/11-391 (OA3 0 A 4 ) . ^ ICC-01/09-01/11-397 (0A3 0A4). A corrigendum to tiiis filing was registered on 8 March 2011 as "Corrigendum to Prosecution's Consolidated Response to Mr Ruto's and Mr Sang's Documents in Support of Articles 19(6) and 82(l)(a) Appeal (ICC-01/09-01/11-388 0A3 - ICC-01/09-01/11-389 0A4)", ICC-01/09-01/11-397-Con- (OA 3 OA 4). No: ICC-01/09-01/11 OA3 OA4 7/17

text: (Ê-

text: On 13 March 2012, the victims filed the "Consolidated observations on the documents in support of the Articles 19(6) and 82(1 )(a) appeals and on the Prosecution responses thereto""^^ (hereinafter: "Victims' Observations").

text: On 19 March 2012, the Prosecutor filed the "Prosecution's Response to the Victims' 'Consolidated observations on the documents in support of the Articles 19(6) and 82(l)(a) appeals and the Prosecution responses thereto' (ICC-01/09-01/11- 401 0A3 0A4)"'^^ (hereinafter: "Prosecutor's Response to the Victims' Observations"). On the same day, Mr Ruto and Mr Sang filed a joint "Response to Consolidated Observations on the documents in support of the Articles 19(6) and 82(1 )(a) appeals and on the Prosecution responses thereto"^^ (hereinafter: "Mr Ruto and Mr Sang's Response to the Victims' Observations").

text: On 23 March 2012, the victims filed the "Application of the Victims' Representative pursuant to Article 83 of the Regulations"^^ (hereinafter: "Victims' Application") requesting the Appeals Chamber to review the Registrar's decision conceming the mandate and scope of legal assistance paid to the Legal Representative.^^ On 23 April 2012, the Appeals Chamber, after affording an opportunity^^ to the Registrar to submit her observations,^^ rejected the Victims' Application.^"^

text: III. SUBIVQSSIONS ON APPEAL

text: On appeal, Mr Ruto and Mr Sang raise the following grounds:

text: a) The Majority erred in procedure and/or in law in adopting its prior definition of 'organisation' while finding that the Defence had the burden of

text: ^^ ICC-01/09-01/11-401 (OA 3 OA 4). ^^ ICC-01/09-01/11-402 (OA 3 OA 4). ^^ ICC-01/09-01/11-403 (OA 3 OA 4). A corrigendum to this filing was registered on 20 March 2012 as ICC-01/09-01/11-403-Con- (OA 3 OA 4). ^° ICC-01/09-01/11-404 (OA 3 OA 4). ^^ Victims' Application, para. 3. ^^ "Order on the submission of observations by the Registrar on the 'Application of the Victims' Representative pursuant to Article 83 of tiie Regulations'", 27 March 2012, ICC-01/09-01/11-405 (OA 3 0A4). ^^ "Observations in accordance with the 'Order on the submission of Observations by the Registrar on tiie "Application of the Victims' Representative pursuant to Article 83 of the Regulations'" dated 27 March 2012", 3 April 2012, ICC-01/09-01/11-408 (OA 3 OA 4). ^"^ "Decision on the 'Application of the Victims' Representative pursuant to Article 83 of the Regulations'", ICC-01/09-01/11-409 (OA 3 OA 4). No: ICC-01/09-01/11 OA3 OA4 8/17

text: •5^ persuading the Pre-Trial Chamber to revisit its previous finding on the question or to reverse its original approach;

text: b) The Majority erred in procedure and/or in law in deciding that there was no basis for the Pre-Trial Chamber to conduct a factual analysis of the Prosecution's evidence as part of a comprehensive evaluation of whether the Chamber could satisfy itself to a degree of certainty that it possessed jurisdiction ratione materiae;

text: c) The Majority erred in law in deciding that the definition of 'organisation' does not require a link to a State or even State-like characteristics, but may encompass any group which has the capability to perform acts which infringe on basic human values, or private individuals with de facto power or organised in criminal gangs or groups, and that such may be assessed on a case-by-case basis with no predictable legal definition or criteria which need be exhaustively fulfilled;

text: d) The Majority erred in law and/or in fact in deciding that an organisation called the "Network" existed, and which had the capacity to affect basic human values based on the fact that it had: an established hierarchy, the means to carry out a widespread or systematic attack, and an articulated intention to attack the civilian population as its primary purpose.^^

text: Mr Ruto and Mr Sang submit under the second ground of appeal that to resolve what they refer to as an assessment of 'jurisdiction' in the present case, it is necessary

text: to consider both law and evidence.^^ They argue that the mere fact that they were charged with committing crimes against humanity did not automatically vest the Preen Trial Chamber with subject-matter jurisdiction over the case. They assert that "[i]f the Prosecution fails to provide sufficient evidence [...], then the Chamber should S8 decline to exercise jurisdiction over the case". The remaining three grounds of appeal essentially allege legal, factual or procedural errors in the manner in which the Pre-Trial Chamber determined their jurisdictional challenges and interpreted the term 'organization'. In particular, ground three deals extensively with the alleged errors in the Pre-Trial Chamber's definition of 'organizational policy',^^ with ground four stating that the Pre-Trial Chamber erred in determining that an 'organization' existed

text: ^^ Mr Ruto's Document in Support of the Appeal, para. 11; Mr Sang's Document in Support of the Appeal, para. 11 (footnotes omitted). ^^ Mr Ruto's Document in Support of the Appeal, para. 44; Mr Sang's Document in Support of the Appeal, para. 44. ^^ Mr Ruto's Document in Support of the Appeal, para. 35; Mr Sang's Document in Support of the Appeal, para. 35. ^^ Mr Ruto's Document in Support of the Appeal, para. 44; Mr Sang's Document in Support of the Appeal, para. 44. ^^ Mr Ruto's Document in Support of the Appeal, paras 45-103; Mr Sang's Document in Support of the Appeal, paras 45-103.

text: No: ICC-01/09-01/11 OA3 OA4 9/17

text: iç

text: "[biased on the facts presented during the confirmation of charges hearing".^^ Referring to findings that the Pre-Trial Chamber made during the course of its substantive determination of whether to confirm the charges, Mr Ruto and Mr Sang submit that the Pre-Trial Chamber erred in finding that there were sufficient facts or evidence to establish the existence of an 'organizational policy' on the basis of the interpretation of that term by either the majority or the minority of the Pre-Trial Chamber.^^ They assert that the Pre-Trial Chamber took an "incorrect approach to the evidence" and, with respect to the "factual sufficiency of the evidence", they submit, inter alia, "that the Majority failed properly to corroborate anonymous witness testimony" in determining that an organisation existed.^

text: The Prosecutor and the victims submit that Mr Ruto and Mr Sang's grounds 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 Ruto and Mr Sang bring these appeals 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: Under

text: article 19

text: (1) of

text: the Statute

text: , "[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 Trial Chambers (

text: articles 19

text: (6) and

text: (1) (a) of

text: the Statute

text: ). This specific procedural framework highlights the importance that the Court's legal texts give to decisions

text: ^ Mr Ruto's Document in Support of the Appeal, p. 39 and para. 104; Mr Sang's Document in Support of the Appeal, p. 39 and para. 104. ^^ Mr Ruto's Document in Support of tiie Appeal, paras 104-106, 118-120; Mr Sang's Document in Support of tiie Appeal, paras 104-106,122-124. ^^ Mr Ruto's Document in Support of the Appeal, para. 110; Mr Sang's Document in Support of the Appeal, para. 110. ^^ Mr Ruto's Document in Support of the Appeal, para. 112; Mr Sang's Document in Support of the Appeal, para. 112. ^ Mr Ruto's Document in Support of tiie Appeal, paras 112-118; Mr Sang's Document in Support of the Appeal, para. 112; See also, the evidentiary arguments made in this respect in Mr Sang's Document in Support of the Appeal, paras 113-121. ^^ Response to the Documents in Support of the Appeal; Prosecutor's Response to Victims' Observations, para. 6; Victims' Observations. No: ICC-01/09-01/11 OA3 OA4 10/17

text: 16with 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 "[j]urisdiction 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 Ruto and Mr Sang fell within the jurisdiction

text: of tihie Court.^^ In the section entitled "Jurisdiction and Admissibility",^^ the Pre-Trial

text: Chamber endorsed its interpretation of 'organizational policy' as developed in its

text: Article 15 Decision and rejected this part of the Joint Defence Challenge to

text: 79 T^

text: Jurisdiction. It dismissed the second part of the challenge in limine, finding that it

text: was clear "that the essence of this part of [Mr Ruto and Mr Sang's] filings [was] to

text: challenge the merits of the Prosecutor's case on the facts".^"^ Elsewhere in the

text: Impugned Decision, the Pre-Trial Chamber assessed whether the Prosecutor's

text: evidence established substantial grounds to believe that there was an 'organizational

text: policy'.^^

text: On appeal, Mr Ruto and Mr Sang do not question the personal, territorial or

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

text: jurisdiction. This decision therefore relates only to that aspect of jurisdiction insofar

text: as it has been challenged by Mr Ruto and Mr Sang. In addition, neither Mr Ruto nor

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) (hereinafter: "Judgment in Lubanga O A4"). ^^ 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 persorme, territorial jurisdiction - jurisdiction ratione loci - and lastly 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 defmed in articles 6, 7, and 8. Jurisdiction over persons is dealt 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 U". ^^ Judgment in Lubanga 0A4, para. 24. ^^ Impugned Decision, para. 37 and p. 138. ^° Impugned Decision, para. 23. ^^ Impugned Decision, para. 33. ^^ Impugned Decisioa para. 34 and p. 138. ^^ Impugned Decisioa para. 36 and p. 138. '^^ Impugned Decisioa para. 35. ^^ Impugned Decision, paras \%\ et seq.

text: No: ICC-01/09-01/11 OA3 OA4 11/17

text: Mr Sang 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 Ruto or Mr Sang contest that an 'organizational policy', which the Prosecutor expressly alleged, and the underlying acts with which they are 77 charged (murder, deportation or forcible transfer of population, and persecution), are components of crimes against humanity under

text: article 7

text: of

text: the Statute

text: . 24. The four grounds of appeal raised by Mr Ruto and Mr Sang, 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 Ruto and Mr Sang is consistently phrased in terms of reversing the Pre-Trial Chamber's "definition of 'organisational policy' as well as its evidentiary finding that the Prosecution has submitted sufficient evidence to establish substantial grounds to believe that the crimes were committed in furtherance of an 'organisational policy'".^^ They ultimately request the Appeals Chamber "to decline to exercise [...] jurisdiction over the situation in Kenya and for the case against [them] to be dismissed".^^

text: 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: As a preliminary point, the Appeals Chamber recalls that, in Mr Ruto and Mr Sang's Response to the Victims' Observations, they argue that the issue as to whether the interpretation of 'organizational policy' is a matter of jurisdiction or one relating

text: ^^ "Document Containing tiie Charges", 15 August 2011, ICC-01/09-01/11-261-AnxA (hereinafter: "DCC") paras 41-64; 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)", 15 August 2011, ICC-01/09-01/11- 261. ^^ DCC, pp 36-39. See also. Impugned Decision, para. 22. ^^ Joint Defence Challenge to Jurisdiction, para. 15; Mr Ruto's Document in Support of the Appeal, para. 121; Mr Sang's Document in Support of the Appeal, para. 125; Mr Ruto and Mr Sang's Response to the Victims' Observations, para. 24. ^^ Mr Ruto's Appeal, para. 15; Mr Sang's Appeal, para. 15; Mr Ruto's Document in Support of the Appeal, para. 121; Mr Sang's Document in Support of the Appeal, para. 125; Mr Ruto and Mr Sang's Response to the Victims' Observations, para. 24. No: ICC-01/09-01/11 OA3 OA4 12/17

text: \g^ to the merits of the case is "not a live issue on appeal".^^ The Appeals Chamber notes that this issue was argued by both tihe Prosecutor^^ and the victims^^ before the Pre- Trial Chamber and in tiiiese appeals;^^ and that Mr Ruto and Mr Sang did, in fact, respond directly to the arguments raised by the victims on this issue in these appellate proceedings.^"^

text: In determining whetiher, in the context of this case, the interpretation and existence of an 'organizational policy' are matters relating to subject-matter jurisdiction, 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 'organisational 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 enquhy that Mr Ruto and Mr Sang allege should have been carried out on a challenge to jurisdiction was therefore 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 Ruto and Mr Sang made in the Joint Defence Challenge to Jurisdiction could be made as part of their case during tilie 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".

text: 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

text: ^^ Mr Ruto and Mr Sang's Response to the Victims' Observations, para. 5. ^^ "Corrigendum to 'Prosecution's Response to the Defence Challenges to Jurisdiction' filed 16 September 2011", ICC-01/09-01/11-334-Corr, dated 19 September 2011 and registered on 20 September 2011, paras 1-3, 9-15, 33-35. ^^ "Observations of the Victims' Representative on the Defence challenges to jurisdiction", 16 September 2011, ICC-01/09-01/11-332, paras 22-26, 33-45,57. ^^ Response to the Documents in Support of the Appeals, paras 3, 23-25, 33-51; Prosecutor's Response to the Victims' Observations, para. 6; Victmis' Observations, paras 13-14,55-56 and 58-59. ^^ Mr Ruto and Mr Sang's Response to the Victims' Observations, paras 6-11. ^^ Impugned Decision, paras 181 ^/ seq. The Pre-Trial Chamber had previously addressed Mr Ruto and Mr Sang's arguments about tiie legal interpretation of 'organizational policy' in the Joint Defence Challenge to Jurisdiction at paras 28-34 of the Impugned Decision, albeit under the heading of "Jurisdiction and Admissibility". ^^ Article 61 (7) of tiie Statute. No: ICC-01/09-01/11 OA3 OA4 13/17 confirmation proceeding, in which case the jurisdictional challenge shall be decided 87 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 88 resolve precisely the same issues. 29. 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 designed to consider the matters raised on these appeals and filter unmeritorious cases from progressing to trial. To find that the grounds that Mr Ruto and Mr Sang raise in these appeals relate to jurisdiction would duplicate what was covered by the confirmation process. If the Appeals Chamber were to address the merits of Mr Ruto and Mr Sang'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 Ruto nor Mr Sang 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 80 sought to raise, pursuant to

text: article 82

text: (1) (d) of

text: the Statute

text: . 30. The Appeals Chamber notes the statement of the dissenting judge in the Pre- Trial Chamber,^^ relied upon by Mr Ruto and Mr Sang,^^ 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

text: ^^ Rule 58 (2) of the Rules of Procedure and Evidence provides, in relevant part, that a Chamber may "join the challenge or question [conceming 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 first". ^^ See, article 61 (7) of tiie Statute. ^^ "Decision on the Defence's Applications for Leave to Appeal the Decision on the Confirmation of Charges Pursunat [sic] to

text: Article 61

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

text: Rome Statute

text: ", 9 March 2012, ICC-01/09- 01/11-399; See also, "Defence Application for Leave to Appeal the Decision on the Confirmation of Charges", 30 January 2012, ICC-01/09-01/11-377; "Defence Application for Leave to Appeal tiie Decision on tiie Confirmation of Charges", 30 January 2012, ICC-01/09-01/11-376. ^ Impugned Decision (Dissenting Opinion), para. 25. ^^ Mr Ruto's Document in Support of the Appeal, para. 34, See also, in particular, paras 42-44; Mr Sang's Document in Support of the Appeal, para. 34, See also, in particular, paras 42-44. No: ICC-01/09-01/11 OA3 OA4 14/17 insofar as the Court cannot exercise jurisdiction over the underlying acts in the absence of such contextual elements".^^ 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 Ruto and Mr Sang 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 whether the Prosecutor could substantiate a component of the crimes with which Mr Ruto and Mr Sang 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

text: ^^ Impugned Decision (Dissenting Opinion), para. 25 ^^ 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 Conceming tiie Jurisdiction of the Tribunal'", 25 Febmary 2009, IT-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 No: ICC-01/09-01/11 OA3 OA4 15/17 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 or elements of crimes or modes of liability, which are matters for trial.^^ In the 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. [Footnote omitted.]^^

text: This distinction between the existence as opposed to the contours of a crime or mode of liability has also been followed in the ECCC jurispmdence.^^ In the present case, the existence of the requirement of an 'organizational policy' as a component of crimes against humanity is clear from the wording of

text: article 7

text: (2) (a) of

text: the Statute

text: In Mr Ruto and Mr Sang's Response to the Victims' Observations, they cite the Hadzihasanovic jurisdictional appeal in support of their argument that "questions of statutory constmction and the legal basis for finding that someone is subject to the jurisdiction ratione materiae are squarely within the ambit of a usual jurisdiction challenge".^^ However, this appeal was specifically assessing whether a particular

text: the Defence's Motion to Dismiss the Indictment in toto for Lack of Subject Matter Jurisdiction and for Lack of Fundamental Fairness for tiie Accused", 10 May 2000, ICTR-97-27-I, p. 2. 95 iQ^Y, Appeals Chamber, Prosecutor v. Milan Milutinovic and others, "Decision on Ojdanié'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 Conceming the Jurisdiction of the Tribunal'", 25 Febmary 2009, IT-05-88/2-AR72.1, para. 10; Prosecutor v. Radovan Karadzic, "Decision on Radovan Karadzié's Motions Challenging Jurisdiction (Omission Liability, JCE-IH - Special Intent Crimes, Superior Responsibility)", 25 June 2009, IT-95-5/18-AR72.1, paras 35-36. Prosecutor v. Milan Milutinovic and others, "Decision on Dragoljub Ojdanié's Motion Challenging Jurisdiction - Joint Crimmal Enterprise", 21 May 2003, IT-99-37-AR72, para. 9. ^^ Pre-Trial Chamber, Case 002, "Decision on the Appeals against the 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 the Closing Order", 11 April 2011, paras 44-47. ^^ Mr Ruto and Mr Sang's Response to the Victims' Observations, para. 10, citing ICTY, Appeals Chamber, Prosecutor v. Enver Hadzihasanovic and others, "Decision on Interlocutory Appeal

text: No: ICC-01/09-01/11 0 A 3 OA4 16/17 mode of liability, namely command responsibility for acts committed prior to assuming the role of commander, existed under customary intemational law in order to satisfy the principle of legality.^^ This can be distinguished from determining the legal interpretation of 'organizational policy' as it appears in

text: the Statute

text: and Elements of Crimes, and the sufficiency of supporting evidence in relation to it.

text: For all of the above reasons, the Appeals Chamber concludes that the issues that Mr Ruto and Mr Sang 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 Ruto and Mr Sang.

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

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

text: Judge Akua Kuenyehia Presiding Judge

text: Dated this 24* day of May 2012 At The Hague, The Netherlands

text: Challenging Jurisdiction in Relation to Command Responsibility", 16 July 2003, IT-01-47-AR72 (hereinafter: "Hadzihasanovié Jurisdictional Appeal"). ^^ Hadzihasanovic Jurisdictional Appeal, paras 44,51. No: ICC-01/09.01/11 OA3 OA4 17/17


doctype: arrest-warrant

identifier: ICC-01/09-01/15 (Decision assigning judges to divisions and recomposing Chambers)

caseName: The Prosecutor v. Philip Kipkoech Bett

chamber: Pre-Trial Chamber II

decisionType: arrest-warrant

title: Decision assigning judges to divisions and recomposing Chambers

text: Rome Statute, article 36

text: the Statute, article 38

text: Rome Statute of the International Criminal Court, article 39

text: Original: English No.: ICC-Pres-01/18 Date: 16 March 2018

text: THE PRESIDENCY

text: Before: Judge Chile Eboe-Osuji, President Judge Robert Fremr, First Vice-President Judge Marc Perrin de Brichambaut, Second Vice-President

text: Public

text: Decision assigning judges to divisions and recomposing Chambers

text: No. ICC-Pres-01/18 1/10 16 March 2018

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

text: The Office of the Prosecutor

text: Fatou Bensouda James Stewart

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

text: Paolina Massidda Xavier-Jean Keïta

text: States’ Representatives Amicus Curiae

text: REGISTRY

text: Registrar Counsel Support Section

text: Herman von Hebel Esteban Peralta Losilla

text: Victims and Witnesses Unit Detention Section

text: Nigel Verrill Paddy Craig

text: Victims Participation and Reparations Other

text: Section All Judges Philipp Ambach All Pre-Trial Chambers All Trial Chambers Appeals Chamber

text: No. ICC-Pres-01/18 2/10 16 March 2018

text: Pursuant to PTC A's Decision ICC-01/09-01/15-62, dated 11-12-2020, this document is retained in the Case File ICC-01/09-01/15: The Prosecutor v. Philip Kipkoech Bett. THE PRESIDENCY of the International Criminal Court (“Court”);

text: NOTING the assignments to the three divisions of the Judiciary as of 10 March 2018;

text: NOTING the election of Judge Chile Eboe-Osuji as President of the Court, Judge Robert

text: Fremr as First Vice-President of the Court and Judge Marc Perrin de Brichambaut as Second 2 Vice-President of the Court on 11 March 2018;

text: NOTING

text: article 39

text: (1) of the

text: Rome Statute of the International Criminal Court

text: (“Statute”) and rule 4bis of the Rules of Procedure and Evidence (“Rules”);

text: NOTING that the Presidency has consulted with the judges in assigning them to the various

text: divisions of the Judiciary, in accordance with rule 4bis of the Rules;

text: NOTING the assignment of Judge Chile Eboe-Osuji to the Appeals Division in accordance

text: with

text: article 39

text: (1) of

text: the Statute

text: , following his election as President of the Court;

text: NOTING that when assigning judges to divisions, the Presidency must balance a number of

text: factors to the extent necessary and possible, as set out below, and that the guiding principles informing these factors are the applicable statutory framework and the need to ensure the efficient management of the Court’s workload, including in view of the Court’s long-term needs;

text: NOTING the relative judicial workload of each judge, the previous involvement of each 5 6 judge in cases, as well as the experience and expertise of each judge;

text: SEEKING to ensure, to the extent possible, gender and geographical balance and

text: 7 representation of the world’s principal legal systems within each division;

text: 1 Presidency, “Decision assigning judges to divisions”, 13 March 2015, see e.g. ICC-01/04-01/06-3130 (“Presidency Decision of 13 March 2015”); Presidency, “Decision assigning Judge Raul Pangalangan to the Pre- Trial Division”, 16 July 2015, see e.g. ICC-01/13-32. 2 Press release, “New ICC Presidency elected for 2018-2021”, 11 March 2018, ICC-CPI-20180311-PR1367. Presidency Decision of 13 March 2015, p. 3. 4 Ibid. 5 Ibid. 6

text: Article 39

text: (1) of

text: the Statute

text: . 7 Ibid.

text: No. ICC-Pres-01/18 3/10 16 March 2018

text: HEREBY DECIDES that the judges shall be assigned to the various divisions as follows,

text: with effect as of 20 March 2018:

text: Appeals Division:

text: Judge Chile Eboe-Osuji Judge Howard Morrison Judge Piotr Hofmański Judge Luz del Carmen Ibáñez Carranza Judge Solomy Balungi Bossa

text: Trial Division:

text: Judge Robert Fremr Judge Olga Herrera-Carbuccia Judge Geoffrey Henderson Judge Bertram Schmitt Judge Chang-ho Chung Judge Raul C. Pangalangan Judge Kimberly Prost

text: Pre-Trial Division:

text: Judge Marc Perrin de Brichambaut Judge Antoine Kesia-Mbe Mindua Judge Péter Kovács Judge Tomoko Akane Judge Reine Alapini-Gansou Judge Rosario Salvatore Aitala

text: No. ICC-Pres-01/18 4/10 16 March 2018

text: NOTING FURTHER the composition of the various Pre-Trial and Trial Chambers, as well

text: as the situations assigned to the Pre-Trial Chambers and cases assigned to the Trial

text: Chambers, as of 10 March 2018;

text: Pre-Trial Chamber I: Presidency, “Decision on the constitution of Pre-Trial Chambers and on the assignment of the Mali situation”, 16 March 2015, see e.g. ICC-01/09-01/15-2; Pre-Trial Chamber II: Presidency, “Decision on the constitution of Pre-Trial Chambers and on the assignment of the Mali situation”, 16 March 2015, see e.g. ICC-01/09-01/15-2; Pre-Trial Chamber III: Presidency, “Decision on the constitution of Pre- Trial Chamber III and on the assignment of the situation in the Republic of Burundi”, 23 August 2017, ICC- 01/17-1; Trial Chamber I: Presidency, “Decision replacing a judge in Trial Chamber I”, 21 December 2015, ICC-02/11-01/15-372; Trial Chamber II: Presidency, “Decision replacing two judges in Trial Chamber II”, 18 March 2015, ICC-01/04-01/07-3530; Trial Chamber III: Presidency, “Decision replacing two judges in Trial Chamber III”, 6 July 2016, ICC-01/05-01/08-3403; Trial Chamber IV: Presidency, “Decision replacing a judge in Trial Chamber IV”, 18 March 2015, ICC-02/05-03/09-634; Trial Chamber V(a): Presidency, “Decision constituting Trial Chamber V(a) and Trial Chamber V(b) and referring to them the cases of The Prosecutor v. William Samoei Ruto and Joshua Arap Sang and The Prosecutor v. Uhuru Muigai Kenyatta”, 21 May 2013, see e.g. ICC-01/09-02/11-739; Trial Chamber V(b): Presidency, “Decision replacing a judge in Trial Chamber V(b)”, 30 January 2014, ICC-01/09-02/11-890; Trial Chamber VI: Presidency, Corrigendum to the “Decision replacing a judge in Trial Chamber VI”, 19 March 2015, ICC-01/04-02/06-521-Corr; Trial Chamber VII: Presidency, “Decision replacing two judges in Trial Chamber VII”, 24 August 2015, ICC-01/05- 01/13-1173; Trial Chamber VIII: Presidency, “Decision constituting Trial Chambers VIII and IX and referring to them the cases of The Prosecutor v. Ahmad Al Faqi Al Mahdi and The Prosecutor v. Dominic Ongwen”, 2 May 2016, see e.g. ICC-02/04-01/15-430; Trial Chamber IX: Presidency, “Decision constituting Trial Chambers VIII and IX and referring to them the cases of The Prosecutor v. Ahmad Al Faqi Al Mahdi and The Prosecutor v. Dominic Ongwen”, 2 May 2016, see e.g. ICC-02/04-01/15-430. Pre-Trial Chamber I: Presidency, “Decision assigning judges to divisions”, 13 March 2015, see e.g. ICC- 01/04-01/06-3130; Presidency, “Decision Re-assigning the Situation in the Democratic Republic of the Congo”, 21 August 2015, see e.g. ICC-01/04-01/12-15; Presidency, “Decision assigning the Situation in Georgia to Pre- Trial Chamber I”, 8 October 2015, ICC-01/15-1; Pre-Trial Chamber II: Presidency, “Decision assigning judges to divisions”, 13 March 2015, see e.g. ICC-01/04-01/06-3130; Presidency, “Decision assigning the Situation in the Gabonese Republic to Pre-Trial Chamber II”, 4 October 2016, ICC-01/16-1; Pre-Trial Chamber III: Presidency, “Decision on the constitution of Pre-Trial Chamber III and on the assignment of the situation in the Republic of Burundi”, 23 August 2017, ICC-01/17-1; Presidency, “Decision assigning the situation in the Islamic Republic of Afghanistan”, 3 November 2017, ICC-01/17-1. Trial Chamber I: see Trial Chamber I, “Decision on Prosecution requests to join the cases of The Prosecutor v. Laurent Gbagbo and The Prosecutor v. Charles Blé Goudé and related matters”, 11 March 2015, ICC-02/11- 01/15-1; Trial Chamber II: see Presidency, “Decision referring the case of The Prosecutor v. Thomas Lubanga Dyilo to Trial Chamber II”, 17 March 2015, ICC-01/04-01/06-3131; Trial Chamber II, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, “Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons”, 21 November 2012, ICC-01/04- 01/07-3319-tENG/FRA; Trial Chamber III: Presidency, “Decision constituting Trial Chamber III and referring to it the case of The Prosecutor v. Jean-Pierre Bemba Gombo”, 18 September 2009, ICC-01/05-01/08- 534; Trial Chamber IV: Presidency, “Decision constituting Trial Chamber IV and referring to it the case of The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus”, 16 March 2011, ICC-02/05-03/09-124; see also Trial Chamber IV, Public redacted “Decision terminating the proceedings against Mr Jerbo”, 4 October 2013, ICC-02/05-03/09-512-Red; Trial Chamber V(a): Presidency, “Decision constituting Trial Chamber V(a) and Trial Chamber V(b) and referring to them the cases of The Prosecutor v. William Samoei Ruto and Joshua Arap Sang and The Prosecutor v. Uhuru Muigai Kenyatta”, 21 May 2013, see e.g. ICC-01/09-02/11-739; Trial Chamber V(b): Presidency, “Decision constituting Trial Chamber V(a) and Trial Chamber V(b) and referring to them the cases of The Prosecutor v. William Samoei Ruto and Joshua Arap Sang and The Prosecutor v. Uhuru Muigai Kenyatta”, 21 May 2013, see e.g. ICC-01/09-02/11-739; Trial Chamber VI: Presidency, “Decision constituting Trial Chamber VI and referring to it the case of The Prosecutor v. Bosco Ntaganda”, 18 July 2014, ICC-01/04-02/06-337; Trial Chamber VII: Presidency, “Decision constituting Trial Chamber VII and referring to it the case of The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido”, 30 January 2015, ICC-01/05-01/13-805; Trial Chamber VIII: Presidency, “Decision constituting Trial Chambers VIII and IX and referring to them the cases of The Prosecutor v. Ahmad Al Faqi Al Mahdi and The Prosecutor v. Dominic Ongwen”, 2 May 2016, see e.g. ICC-02/04-01/15-430; Trial Chamber IX: Presidency, “Decision constituting Trial Chambers VIII and IX and referring to them the cases of The Prosecutor v. Ahmad Al Faqi Al Mahdi and The Prosecutor v. Dominic Ongwen”, 2 May 2016, see e.g. ICC-02/04-01/15-430.

text: No. ICC-Pres-01/18 5/10 16 March 2018

text: NOTING the need to recompose a number of Trial Chambers and Pre-Trial Chambers in

text: view of the above assignments and the end of judicial mandates of one or more of their 11 members;

text: NOTING that, pursuant to

text: article 39

text: (2)(b)(i) of the

text: Rome Statute

text: , the Appeals Chamber shall

text: 12 be composed of all the judges of the Appeals Division;

text: NOTING that, in view of the current level of activity in the cases before Trial Chamber IV,

text: Trial Chamber V(a) and Trial Chamber V(b), it is in the interests of judicial economy to reassign all the cases currently before them to a single Trial Chamber;

text: NOTING that the composition of Trial Chamber I, Trial Chamber II, Trial Chamber VI,

text: Trial Chamber VII, Trial Chamber VIII and Trial Chamber IX as of 10 March 2018 shall remain unchanged;

text: NOTING the need, in light of the above assignments to the Pre-Trial Division as well as the

text: Presidency’s responsibility to ensure the efficient management of the pre-trial workload in accordance with

text: article 38

text: (3) of

text: the Statute

text: , to recompose Pre-Trial Chamber I and Pre-Trial Chamber II, dissolve Pre-Trial Chamber III and re-assign situations among the remaining Pre-Trial Chambers;

text: HEREBY FURTHER DECIDES to reassign the situation in the Republic of Côte d’Ivoire from Pre-Trial Chamber I to Pre-Trial Chamber II, to re-assign the situation in the Gabonese Republic from Pre-Trial Chamber II to Pre-Trial Chamber I and to re-assign the situations in the Islamic Republic of Afghanistan and the Republic of Burundi from Pre-Trial Chamber III to Pre-Trial Chamber II;

text: DECIDES to refer the cases of The Prosecutor v. William Samoei Ruto and Joshua Arap

text: Sang, and The Prosecutor v. Uhuru Muigai Kenyatta to Trial Chamber IV and hereby transmits the full record of the proceedings in those cases to that Chamber;

text: 11 Judges Judge Cuno Tarfusser and Kuniko Ozaki continue in office in accordance with

text: article 36

text: (10) of the

text: Rome Statute

text: . 12 Except in respect of the currently ongoing appeals against conviction and sentence in the case of The Prosecutor v. Jean-Pierre Bemba Gombo in which Judges Sanji Monageng and Christine Van den Wyngaert currently continue to sit in accordance with the applicable Presidency decision, see Presidency, “Notification concerning extension of mandate of judges in the Appeals Chamber”, 6 March 2018, ICC-01/05-01/08-3613. No. ICC-Pres-01/18 6/10 16 March 2018

text: DISSOLVES Trial Chamber V(a), Trial Chamber V(b) and Pre-Trial Chamber III;

text: DECIDES to temporarily attach Judge Reine Alapini-Gansou to the Trial Division;

text: DECIDES that the composition of Chambers within the Trial and Pre-Trial Divisions shall

text: be as follows, with effect as of 20 March 2018:

text: Trial Chamber I –The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé

text: Judge Cuno Tarfusser, Presiding Judge Olga Herrera-Carbuccia Judge Geoffrey Henderson

text: Trial Chamber II – The Prosecutor v. Thomas Lubanga Dyilo and The Prosecutor

text: v. Germain Katanga

text: Judge Marc Perrin de Brichambaut, Presiding Judge Olga Herrera-Carbuccia Judge Péter Kovács

text: Trial Chamber III – The Prosecutor v. Jean-Pierre Bemba Gombo

text: Judge Geoffrey Henderson Judge Chang-ho Chung Judge Kimberly Prost

text: 13 The temporary attachments of Judge Marc Perrin de Brichambaut, Judge Antoine Kesia-Mbe Mindua and Judge Péter Kovács to the Trial Division remain in place: see Presidency, “Decision replacing two judges in Trial Chamber II”, 18 March 2015, ICC-01/04-01/07-3530; Presidency, “Decision constituting Trial Chambers VIII and IX and referring to them the cases of The Prosecutor v. Ahmad Al Faqi Al Mahdi and The Prosecutor v. Dominic Ongwen”, 2 May 2016, see e.g. ICC-02/04-01/15-430. No. ICC-Pres-01/18 7/10 16 March 2018

text: Trial Chamber IV – The Prosecutor v. Abdallah Banda Abakaer Nourain, The

text: Prosecutor v. William Samoei Ruto and Joshua Arap Sang, and The Prosecutor v.

text: Uhuru Muigai Kenyatta

text: Judge Robert Fremr Judge Reine Alapini-Gansou Judge Kimberly Prost

text: Trial Chamber VI – The Prosecutor v. Bosco Ntaganda

text: Judge Robert Fremr, Presiding Judge Chang-ho Chung Judge Kuniko Ozaki

text: Trial Chamber VII – The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo

text: Arido

text: Judge Bertram Schmitt, Presiding Judge Marc Perrin de Brichambaut Judge Raul C. Pangalangan

text: Trial Chamber VIII – The Prosecutor v. Ahmad Al-Faqi Al Mahdi

text: Judge Raul C. Pangalangan, Presiding Judge Antoine Kesia-Mbe Mindua Judge Bertram Schmitt

text: Trial Chamber IX – The Prosecutor v. Dominic Ongwen

text: Judge Bertram Schmitt, Presiding Judge Péter Kovács Judge Raul C. Pangalangan

text: No. ICC-Pres-01/18 8/10 16 March 2018

text: Pre-Trial Chamber I – situations in the Democratic Republic of the Congo;

text: Libya; Republic of Mali; Georgia; Gabonese Republic; and Registered Vessels of

text: Comoros, Greece and Cambodia

text: Judge Marc Perrin de Brichambaut Judge Peter Kovács Judge Reine Alapini-Gansou

text: Pre-Trial Chamber II – situations in the Central African Republic I; Central

text: African Republic II; Republic of Uganda; Darfur, Republic of the Sudan;

text: Republic of Kenya; Republic of Côte d’Ivoire; Islamic Republic of Afghanistan;

text: and Republic of Burundi

text: Judge Antoine Kesia-Mbe Mindua Judge Tomoko Akane Judge Rosario Salvatore Aitala

text: ORDERS the Registrar to file and notify the present decision to the relevant parties and

text: participants in all situations and cases therein.

text: No. ICC-Pres-01/18 9/10 16 March 2018

text: Dated this 16 March 2018

text: At The Hague, The Netherlands

text: N o. ICC-Pres-01/18 10/10 16 March 2018

title: The Prosecutor v. Philip Kipkoech Bett


identifier: ICC-01/09-01/20 (Decision assigning judges to divisions and recomposing Chambers)

caseName: The Prosecutor v. Paul Gicheru

text: Rome Statute, article 36

text: the Statute, article 38

text: Rome Statute of the International Criminal Court, article 39

text: Original: English No.: ICC-Pres-01/18 Date: 16 March 2018

text: THE PRESIDENCY

text: Before: Judge Chile Eboe-Osuji, President Judge Robert Fremr, First Vice-President Judge Marc Perrin de Brichambaut, Second Vice-President

text: Public

text: No. ICC-Pres-01/18 1/10 16 March 2018

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

text: The Office of the Prosecutor

text: Fatou Bensouda James Stewart

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

text: Paolina Massidda Xavier-Jean Keïta

text: States’ Representatives Amicus Curiae

text: REGISTRY

text: Registrar Counsel Support Section

text: Herman von Hebel Esteban Peralta Losilla

text: Victims and Witnesses Unit Detention Section

text: Nigel Verrill Paddy Craig

text: Victims Participation and Reparations Other

text: Section All Judges Philipp Ambach All Pre-Trial Chambers All Trial Chambers Appeals Chamber

text: No. ICC-Pres-01/18 2/10 16 March 2018

text: THE PRESIDENCY of the International Criminal Court (“Court”);

text: NOTING the assignments to the three divisions of the Judiciary as of 10 March 2018;

text: NOTING the election of Judge Chile Eboe-Osuji as President of the Court, Judge Robert

text: Fremr as First Vice-President of the Court and Judge Marc Perrin de Brichambaut as Second 2 Vice-President of the Court on 11 March 2018;

text: NOTING

text: article 39

text: (1) of the

text: (“Statute”) and rule 4bis of the Rules of Procedure and Evidence (“Rules”);

text: NOTING that the Presidency has consulted with the judges in assigning them to the various

text: divisions of the Judiciary, in accordance with rule 4bis of the Rules;

text: NOTING the assignment of Judge Chile Eboe-Osuji to the Appeals Division in accordance

text: with

text: article 39

text: (1) of

text: the Statute

text: , following his election as President of the Court;

text: NOTING that when assigning judges to divisions, the Presidency must balance a number of

text: factors to the extent necessary and possible, as set out below, and that the guiding principles informing these factors are the applicable statutory framework and the need to ensure the efficient management of the Court’s workload, including in view of the Court’s long-term needs;

text: NOTING the relative judicial workload of each judge, the previous involvement of each 5 6 judge in cases, as well as the experience and expertise of each judge;

text: SEEKING to ensure, to the extent possible, gender and geographical balance and

text: 7 representation of the world’s principal legal systems within each division;

text: 1 Presidency, “Decision assigning judges to divisions”, 13 March 2015, see e.g. ICC-01/04-01/06-3130 (“Presidency Decision of 13 March 2015”); Presidency, “Decision assigning Judge Raul Pangalangan to the Pre- Trial Division”, 16 July 2015, see e.g. ICC-01/13-32. 2 Press release, “New ICC Presidency elected for 2018-2021”, 11 March 2018, ICC-CPI-20180311-PR1367. Presidency Decision of 13 March 2015, p. 3. 4 Ibid. 5 Ibid. 6

text: Article 39

text: (1) of

text: the Statute

text: . 7 Ibid.

text: No. ICC-Pres-01/18 3/10 16 March 2018

text: HEREBY DECIDES that the judges shall be assigned to the various divisions as follows,

text: with effect as of 20 March 2018:

text: Appeals Division:

text: Judge Chile Eboe-Osuji Judge Howard Morrison Judge Piotr Hofmański Judge Luz del Carmen Ibáñez Carranza Judge Solomy Balungi Bossa

text: Trial Division:

text: Judge Robert Fremr Judge Olga Herrera-Carbuccia Judge Geoffrey Henderson Judge Bertram Schmitt Judge Chang-ho Chung Judge Raul C. Pangalangan Judge Kimberly Prost

text: Pre-Trial Division:

text: Judge Marc Perrin de Brichambaut Judge Antoine Kesia-Mbe Mindua Judge Péter Kovács Judge Tomoko Akane Judge Reine Alapini-Gansou Judge Rosario Salvatore Aitala

text: No. ICC-Pres-01/18 4/10 16 March 2018

text: NOTING FURTHER the composition of the various Pre-Trial and Trial Chambers, as well

text: as the situations assigned to the Pre-Trial Chambers and cases assigned to the Trial

text: Chambers, as of 10 March 2018;

text: Pre-Trial Chamber I: Presidency, “Decision on the constitution of Pre-Trial Chambers and on the assignment of the Mali situation”, 16 March 2015, see e.g. ICC-01/09-01/15-2; Pre-Trial Chamber II: Presidency, “Decision on the constitution of Pre-Trial Chambers and on the assignment of the Mali situation”, 16 March 2015, see e.g. ICC-01/09-01/15-2; Pre-Trial Chamber III: Presidency, “Decision on the constitution of Pre- Trial Chamber III and on the assignment of the situation in the Republic of Burundi”, 23 August 2017, ICC- 01/17-1; Trial Chamber I: Presidency, “Decision replacing a judge in Trial Chamber I”, 21 December 2015, ICC-02/11-01/15-372; Trial Chamber II: Presidency, “Decision replacing two judges in Trial Chamber II”, 18 March 2015, ICC-01/04-01/07-3530; Trial Chamber III: Presidency, “Decision replacing two judges in Trial Chamber III”, 6 July 2016, ICC-01/05-01/08-3403; Trial Chamber IV: Presidency, “Decision replacing a judge in Trial Chamber IV”, 18 March 2015, ICC-02/05-03/09-634; Trial Chamber V(a): Presidency, “Decision constituting Trial Chamber V(a) and Trial Chamber V(b) and referring to them the cases of The Prosecutor v. William Samoei Ruto and Joshua Arap Sang and The Prosecutor v. Uhuru Muigai Kenyatta”, 21 May 2013, see e.g. ICC-01/09-02/11-739; Trial Chamber V(b): Presidency, “Decision replacing a judge in Trial Chamber V(b)”, 30 January 2014, ICC-01/09-02/11-890; Trial Chamber VI: Presidency, Corrigendum to the “Decision replacing a judge in Trial Chamber VI”, 19 March 2015, ICC-01/04-02/06-521-Corr; Trial Chamber VII: Presidency, “Decision replacing two judges in Trial Chamber VII”, 24 August 2015, ICC-01/05- 01/13-1173; Trial Chamber VIII: Presidency, “Decision constituting Trial Chambers VIII and IX and referring to them the cases of The Prosecutor v. Ahmad Al Faqi Al Mahdi and The Prosecutor v. Dominic Ongwen”, 2 May 2016, see e.g. ICC-02/04-01/15-430; Trial Chamber IX: Presidency, “Decision constituting Trial Chambers VIII and IX and referring to them the cases of The Prosecutor v. Ahmad Al Faqi Al Mahdi and The Prosecutor v. Dominic Ongwen”, 2 May 2016, see e.g. ICC-02/04-01/15-430. Pre-Trial Chamber I: Presidency, “Decision assigning judges to divisions”, 13 March 2015, see e.g. ICC- 01/04-01/06-3130; Presidency, “Decision Re-assigning the Situation in the Democratic Republic of the Congo”, 21 August 2015, see e.g. ICC-01/04-01/12-15; Presidency, “Decision assigning the Situation in Georgia to Pre- Trial Chamber I”, 8 October 2015, ICC-01/15-1; Pre-Trial Chamber II: Presidency, “Decision assigning judges to divisions”, 13 March 2015, see e.g. ICC-01/04-01/06-3130; Presidency, “Decision assigning the Situation in the Gabonese Republic to Pre-Trial Chamber II”, 4 October 2016, ICC-01/16-1; Pre-Trial Chamber III: Presidency, “Decision on the constitution of Pre-Trial Chamber III and on the assignment of the situation in the Republic of Burundi”, 23 August 2017, ICC-01/17-1; Presidency, “Decision assigning the situation in the Islamic Republic of Afghanistan”, 3 November 2017, ICC-01/17-1. Trial Chamber I: see Trial Chamber I, “Decision on Prosecution requests to join the cases of The Prosecutor v. Laurent Gbagbo and The Prosecutor v. Charles Blé Goudé and related matters”, 11 March 2015, ICC-02/11- 01/15-1; Trial Chamber II: see Presidency, “Decision referring the case of The Prosecutor v. Thomas Lubanga Dyilo to Trial Chamber II”, 17 March 2015, ICC-01/04-01/06-3131; Trial Chamber II, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, “Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons”, 21 November 2012, ICC-01/04- 01/07-3319-tENG/FRA; Trial Chamber III: Presidency, “Decision constituting Trial Chamber III and referring to it the case of The Prosecutor v. Jean-Pierre Bemba Gombo”, 18 September 2009, ICC-01/05-01/08- 534; Trial Chamber IV: Presidency, “Decision constituting Trial Chamber IV and referring to it the case of The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus”, 16 March 2011, ICC-02/05-03/09-124; see also Trial Chamber IV, Public redacted “Decision terminating the proceedings against Mr Jerbo”, 4 October 2013, ICC-02/05-03/09-512-Red; Trial Chamber V(a): Presidency, “Decision constituting Trial Chamber V(a) and Trial Chamber V(b) and referring to them the cases of The Prosecutor v. William Samoei Ruto and Joshua Arap Sang and The Prosecutor v. Uhuru Muigai Kenyatta”, 21 May 2013, see e.g. ICC-01/09-02/11-739; Trial Chamber V(b): Presidency, “Decision constituting Trial Chamber V(a) and Trial Chamber V(b) and referring to them the cases of The Prosecutor v. William Samoei Ruto and Joshua Arap Sang and The Prosecutor v. Uhuru Muigai Kenyatta”, 21 May 2013, see e.g. ICC-01/09-02/11-739; Trial Chamber VI: Presidency, “Decision constituting Trial Chamber VI and referring to it the case of The Prosecutor v. Bosco Ntaganda”, 18 July 2014, ICC-01/04-02/06-337; Trial Chamber VII: Presidency, “Decision constituting Trial Chamber VII and referring to it the case of The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido”, 30 January 2015, ICC-01/05-01/13-805; Trial Chamber VIII: Presidency, “Decision constituting Trial Chambers VIII and IX and referring to them the cases of The Prosecutor v. Ahmad Al Faqi Al Mahdi and The Prosecutor v. Dominic Ongwen”, 2 May 2016, see e.g. ICC-02/04-01/15-430; Trial Chamber IX: Presidency, “Decision constituting Trial Chambers VIII and IX and referring to them the cases of The Prosecutor v. Ahmad Al Faqi Al Mahdi and The Prosecutor v. Dominic Ongwen”, 2 May 2016, see e.g. ICC-02/04-01/15-430.

text: No. ICC-Pres-01/18 5/10 16 March 2018

text: NOTING the need to recompose a number of Trial Chambers and Pre-Trial Chambers in

text: view of the above assignments and the end of judicial mandates of one or more of their 11 members;

text: NOTING that, pursuant to

text: article 39

text: (2)(b)(i) of the

text: Rome Statute

text: , the Appeals Chamber shall

text: 12 be composed of all the judges of the Appeals Division;

text: NOTING that, in view of the current level of activity in the cases before Trial Chamber IV,

text: Trial Chamber V(a) and Trial Chamber V(b), it is in the interests of judicial economy to reassign all the cases currently before them to a single Trial Chamber;

text: NOTING that the composition of Trial Chamber I, Trial Chamber II, Trial Chamber VI,

text: Trial Chamber VII, Trial Chamber VIII and Trial Chamber IX as of 10 March 2018 shall remain unchanged;

text: NOTING the need, in light of the above assignments to the Pre-Trial Division as well as the

text: Presidency’s responsibility to ensure the efficient management of the pre-trial workload in accordance with

text: article 38

text: (3) of

text: the Statute

text: , to recompose Pre-Trial Chamber I and Pre-Trial Chamber II, dissolve Pre-Trial Chamber III and re-assign situations among the remaining Pre-Trial Chambers;

text: HEREBY FURTHER DECIDES to reassign the situation in the Republic of Côte d’Ivoire from Pre-Trial Chamber I to Pre-Trial Chamber II, to re-assign the situation in the Gabonese Republic from Pre-Trial Chamber II to Pre-Trial Chamber I and to re-assign the situations in the Islamic Republic of Afghanistan and the Republic of Burundi from Pre-Trial Chamber III to Pre-Trial Chamber II;

text: DECIDES to refer the cases of The Prosecutor v. William Samoei Ruto and Joshua Arap

text: Sang, and The Prosecutor v. Uhuru Muigai Kenyatta to Trial Chamber IV and hereby transmits the full record of the proceedings in those cases to that Chamber;

text: 11 Judges Judge Cuno Tarfusser and Kuniko Ozaki continue in office in accordance with

text: article 36

text: (10) of the

text: Rome Statute

text: . 12 Except in respect of the currently ongoing appeals against conviction and sentence in the case of The Prosecutor v. Jean-Pierre Bemba Gombo in which Judges Sanji Monageng and Christine Van den Wyngaert currently continue to sit in accordance with the applicable Presidency decision, see Presidency, “Notification concerning extension of mandate of judges in the Appeals Chamber”, 6 March 2018, ICC-01/05-01/08-3613. No. ICC-Pres-01/18 6/10 16 March 2018

text: DISSOLVES Trial Chamber V(a), Trial Chamber V(b) and Pre-Trial Chamber III;

text: DECIDES to temporarily attach Judge Reine Alapini-Gansou to the Trial Division;

text: DECIDES that the composition of Chambers within the Trial and Pre-Trial Divisions shall

text: be as follows, with effect as of 20 March 2018:

text: Trial Chamber I –The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé

text: Judge Cuno Tarfusser, Presiding Judge Olga Herrera-Carbuccia Judge Geoffrey Henderson

text: Trial Chamber II – The Prosecutor v. Thomas Lubanga Dyilo and The Prosecutor

text: v. Germain Katanga

text: Judge Marc Perrin de Brichambaut, Presiding Judge Olga Herrera-Carbuccia Judge Péter Kovács

text: Trial Chamber III – The Prosecutor v. Jean-Pierre Bemba Gombo

text: Judge Geoffrey Henderson Judge Chang-ho Chung Judge Kimberly Prost

text: 13 The temporary attachments of Judge Marc Perrin de Brichambaut, Judge Antoine Kesia-Mbe Mindua and Judge Péter Kovács to the Trial Division remain in place: see Presidency, “Decision replacing two judges in Trial Chamber II”, 18 March 2015, ICC-01/04-01/07-3530; Presidency, “Decision constituting Trial Chambers VIII and IX and referring to them the cases of The Prosecutor v. Ahmad Al Faqi Al Mahdi and The Prosecutor v. Dominic Ongwen”, 2 May 2016, see e.g. ICC-02/04-01/15-430. No. ICC-Pres-01/18 7/10 16 March 2018

text: Trial Chamber IV – The Prosecutor v. Abdallah Banda Abakaer Nourain, The

text: Prosecutor v. William Samoei Ruto and Joshua Arap Sang, and The Prosecutor v.

text: Uhuru Muigai Kenyatta

text: Judge Robert Fremr Judge Reine Alapini-Gansou Judge Kimberly Prost

text: Trial Chamber VI – The Prosecutor v. Bosco Ntaganda

text: Arido

text: No. ICC-Pres-01/18 8/10 16 March 2018

text: Comoros, Greece and Cambodia

text: and Republic of Burundi

text: No. ICC-Pres-01/18 9/10 16 March 2018

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

text: Dated this 16 March 2018

text: At The Hague, The Netherlands

text: N o. ICC-Pres-01/18 10/10 16 March 2018

title: The Prosecutor v. Paul Gicheru