doctype: arrest-warrant

identifier: ICC-01/09-02/11 (Dissenting Opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II's "Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali")

caseName: The Prosecutor v. Uhuru Muigai Kenyatta and Mohammed Hussein Ali

chamber: Pre-Trial Chamber II

decisionType: arrest-warrant

text: the Statute

text: Rome Statute, article 15

text: the Statute, article 21

text: Rome Statute, article 58

text: the Statute, article 6

text: the Statute, article 7

text: the Statute, article 8

text: I n t e r n a t i o n a l C r i m i n a l C o u r t

text: Original: English No.: ICC-01/09-02/11 Date: 15 March 2011

text: PRE-TRIAL CHAMBER II

text: Before: Judge Ekaterina Trendafilova, Presiding Judge Judge Hans-Peter Kaul Judge Cuno Tarfusser

text: SITUATION IN THE REPUBLIC OF KENYA IN THE CASE OF THE PROSECUTOR V. FRANCIS KIRIMIMUTHAURA, UHURU MUIGAIKENYATTA AND MOHAMMED HUSSEIN ALI

text: Public Document

text: March 2011

text: Decision to be notified, in accordance with regulation 31 of the Regulations of the Court, to: The Office of the Prosecutor Defence Luis Moreno-Ocampo, Prosecutor Francis Kirimi Muthaura Fatou Bensouda, Deputy Prosecutor Uhuru Muigai Kenyatta Mohammed Hussein Ali Legal Representatives of the Victims Legal Representatives of the Applicants

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 Victims Participation and Reparations Other Section

text: March 2011

text: I. Introduction and Main Conclusions

text: The Majority of Pre-Trial Chamber II (the "Chamber"), having examined the "Prosecutor's Application Pursuant to Article 58 as to Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali" (the "Application")^ and the evidence and other information submitted, issued on 8 March 2011 three summonses for Francis Kirimi Muthaura ("Francis Muthaura"), Uhuru Muigai Kenyatta ("Uhuru Kenyatta") and Mohammed Hussein Ali ("Mohammed Ali") to appear before the Court pursuant to

text: article 58

text: (7) of the

text: Rome Statute

text: (the "Statute").^ The Majority is satisfied that there are reasonable grounds to believe that, from on or about 24 January 2008 until 31 January 2008, those three suspects are criminally responsible for crimes against humanity in the form of murder, forcible transfer of population, rape, persecution, and other inhumane acts pursuant to an organizational policy in Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of articles 7(l)(a), 7(l)(d), 7(l)(g), 7(l)(h) and 7(l)(k) of

text: the Statute

text: I am unable to accept the decision of the Majority and the analysis that underpins it. I continue to believe that the International Criminal Court (the "ICC" or the "Court") lacks jurisdiction ratione materiae in the situation in the Republic of Kenya, including in the present case. I am not satisfied that there are reasonable grounds to believe that the crimes alleged, which occurred during the violence that took place from on or about 24 January 2008 until 31 January 2008 in Nakuru and Naivasha towns, were committed pursuant to the policy of an organisation within the meaning of

text: article 7

text: (2)(a) of

text: the Statute

text: . Thus, I am not satisfied that the crimes alleged constitute crimes against humanity pursuant to

text: article 7

text: of

text: the Statute

text: I wish to confess that I have taken this position with a heavy heart. I am profoundly aware of the crimes and atrocities described in the Application for 1 ICC-01/09-31-Red; ICC-01/09-31-Conf-Exp and annexes. 2 Pre-Trial Chamber II, ''Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali", ICC-01/09-02/11-01. No. ICC-01/09-02/11 3/19 15 March 2011 summonses to appear for the three suspects Francis Muthaura, Uhuru Kenyatta and Mohammed Ali pursuant to

text: article 58

text: (7) of

text: the Statute

text: . I understand and sympathise with the hopes and expectations of the victims of the crimes committed in different locations, including Kisumu town (Kisumu District, Nyanza Province), Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province). I am aware of the victims' expectation that those responsible for these crimes should be brought to justice. I am also painfully aware that there are currently many citizens in the Republic of Kenya who hope for and support the intervention of the Court in this country because they do not have confidence in their criminal justice system.

text: In these circumstances, I would like to reiterate my request to all those in the Republic of Kenya who yearn for justice and support the. intervention of the ICC with regard to the crimes alleged in this Application to understand and accept the following: [T]here are, in law and in the existing systems of criminal justice in this world, essentially two different categories of crimes which are crucial in the present case. There are, on the one side, international crimes of concern to the international community as a whole, in particular genocide, crimes against humanity, and war crimes pursuant to

text: articles 6

text: and

text: of

text: the Statute

text: . There are, on the other side, common crimes, albeit of a serious nature, prosecuted by national criminal justice systems, such as that of the Republic of Kenya. (...) [A] demarcation line must be drawn between international crimes and human rights infractions; between international crimes and ordinary crimes; between those crimes subject to international jurisdiction and those punishable under domestic penal legislation.^

text: Consequently, I have no doubt that the crimes alleged in the Application concerning Francis Muthaura, Uhuru Kenyatta and Mohammed Ali fall within the competence of the criminal justice authorities of the Republic of Kenya as a matter to be investigated and prosecuted under Kenyan criminal law.

text: 3 Dissenting Opinion of Judge Hans-Peter Kaul to the "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", ICC- 01/09-19-Corr, paras 8 and 65. No. ICC-01/09-02/11 4/19 15 March 2011

text: It is essentially on this point alone that I must separate myself from the Majority of the Chamber. As I am of the considered view that the Court lacks jurisdiction ratione materiae in the present case because the crimes alleged do not amount to crimes against humanity pursuant to

text: article 7

text: of

text: the Statute

text: , I also feel barred, at least in principle, from pronouncing a view on whether there are reasonable grounds to believe, as required by

text: article 58

text: (7) of

text: the Statute

text: , that (1) the three suspects are criminally responsible for crimes against humanity in the form of murder, forcible transfer of population, rape, persecution, and other inhumane acts; and (2) that summonses are sufficient to ensure the suspects' appearance.

text: I wish, however, to clarify and draw the attention of all concerned in the Republic of Kenya to the following: I do not question in this dissenting opinion that abhorrent crimes, as described in the Application, have been committed. Rather, my dissent concerns the fundamental issue whether the crimes alleged in the present case constitute crimes against humanity within the meaning of

text: article 7

text: of

text: the Statute

text: , I reiterate that these offences are serious common crimes to be investigated and prosecuted by the competent authorities of the Republic of Kenya under Kenyan criminal law. Thus, it is the responsibility of the Republic of Kenya to initiate, without delay, genuine criminal proceedings to bring the main culprits, masterminds and perpetrators of the crimes committed during the 2007/2008 violence to justice.

text: In the following, I shall set out my understanding of the law and my analysis of the evidence as to the existence of the constitutive contextual requirement of "organizational policy" pursuant to

text: article 7

text: (2)(a) of

text: the Statute

text: No. ICC-01/09-02/11 5/19 15 March 2011

text: IL The Law and its Interpretation

text: The chapeau of

text: article 7

text: (1) of

text: the Statute

text: reads:

text: For the purpose of this Statute, 'crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with the knowledge of the attack: (...)

text: Article 7

text: (2)(a) of

text: the Statute

text: stipulates:

text: 'Attack directed against any civilian population' means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack[.]

text: In my dissenting opinion to the Majority's decision of 31 March 2010 authorizing

text: the commencement of the Prosecutor's proprio motu investigation into the situation in

text: the Republic of Kenya,^ I set out in appropriate detail my understanding of the law

text: governing in particular the constitutive contextual requirement of crimes against

text: humanity in accordance with

text: article 7

text: (2)(a) of

text: the Statute

text: For the purposes of the present dissenting opinion, I briefly recall that crimes

text: alleged as part of an attack against any civilian population must be carried out

text: pursuant to a policy of an 'organization' in accordance with article 7(2)(a) of the

text: Statute. In my previous dissenting opinion, I set out my understanding of this

text: statutory requirement as follows:

text: I read [

text: article 7

text: (2)(a) of

text: the Statute

text: ] such that the juxtaposition of the notions "State" and 'organization' in

text: article 7

text: (2)(a) of

text: the Statute

text: are an indication that even though the constitutive elements of statehood need not be established those 'organizations' should partake of some characteristics of a State. Those characteristics eventually turn the private 'organization' into an entity which may act like a State or has quasi-State abilities. These characteristics could involve the following: (a) a collectivity of persons; (b) which was established and acts for a common purpose; (c) over a prolonged period of time; (d) which is under responsible command or adopted a certain degree of hierarchical structure, including, as a minimum, some kind of policy level; (e) with the capacity to impose the policy on its members and to sanction them; and (f) which has the capacity and means available to attack any civilian population on a large scale. 52. In contrast, I believe that non-state actors which do not reach the level described above are not able to carry out a policy of this nature, such as groups of 4 Pre-Trial Chamber II, "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", ICC-01/09-19-Corr. No. ICC-01/09-02/11 6/19 15 March 2011 organized crime, a mob, groups of (armed) civilians or criminal gangs. They would generally fall outside the scope of

text: article 7

text: (2)(a) of

text: the Statute

text: . To give a concrete example, violence-prone groups of persons formed on an ad hoc basis, randomly, spontaneously, for a passing occasion, with fluctuating membership and without a structure and level to set u p a policy are not within the ambit of

text: the Statute

text: , even if they engage in numerous serious and organized crimes. Further elements are needed for a private entity to reach the level of an 'organization' within the meaning of

text: article 7

text: of

text: the Statute

text: . For it is not the cruelty or mass victimization that turns a crime into a delictum iuris gentium but the constitutive contextual elements in which the act is embedded.

text: In this respect, the general argument that any kind of non-state actors may be qualified as an 'organization' within the meaning of

text: article 7

text: (2)(a) of

text: the Statute

text: on the grounds that it "has the capability to perform acts which infringe on basic human values" without any further specification seems unconvincing to me. In fact this approach may expand the concept of crimes against humanity to any infringement of human rights. I am convinced that a distinction must be upheld between human rights violations on the one side and international crimes on the other side, the latter forming the nucleus of the most heinous violations of human rights representing the most serious crimes of concern to the international community as a whole.^

text: It is against this standard that I have carried out a full, genuine and substantive

text: analysis of the Prosecutor's Application and evidence submitted. In doing so, I was

text: instructed by

text: article 58

text: (7) in conjunction with

text: article 21

text: (3) of

text: the Statute

text: to assess the

text: facts provided in the Prosecutor's Application and the evidence and other material

text: against the rather low threshold of "reasonable grounds to believe".

text: The Prosecutor supported his Application, to a large extent, with the same public

text: reports of non-governmental organizations and commissions that he already

text: submitted on 26 November 2009 when seeking the Chamber's authorization for the

text: commencement of the investigation into the situation in the Republic of Kenya

text: pursuant to

text: article 15

text: of

text: the Statute

text: .^ Additionally, he submitted a table, following

text: 5 Dissenting Opinion of Judge Hans-Peter Kaul to the "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", ICC- 01/09-19-Corr (footnotes omitted). 6ICC-01/09-3 and annexes. The material submitted in the present case includes the reports of the Commission of Inquiry into Post Election Violence, "Final Report" ("CIPEV Report"), 16 October 2008, ICC-01/09-30-Conf-Exp-Anx3; Kenya National Commission on Human Rights, "On the Brink of the Precipice: A Human Rights Account of Kenya's Post-2007 Election Violence. Final Report" ("KNCHR Report"), 15 August 2008, ICC-01/0-9-30-Conf-Exp-Anx5; Human Rights Watch, "Ballots to Bullets. Organized Political Violence and Kenya's Crisis of Governance" ("HRW Report"), March 2008, ICC-

text: No. ICC-01/09-02/11 7/19 15 March 2011 the structure and language of the Application, which contained only excerpts or a series of sentences, selected by the Prosecutor, from witness statements, reports, press articles and other material. Pursuant to a decision of the Chamber,^ on 23 February 2011 the Prosecutor provided the Chamber with audio-recorded or written statements of those witnesses on whose statements he relies in the present Application. He also submitted additional related material.^

text: The Prosecutor's Application has been submitted in confidential ex parte and public redacted forms; in the latter form, the Prosecutor has redacted all submissions under Part C "Standard of Proof" and Part G "Summary of the Evidence and Other Information Establishing Reasonable Grounds to Believe that Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Committed Crimes Within the Jurisdiction of the Court Pursuant to

text: Article 58

text: (2)(D) of the

text: Rome Statute

text: ". Mindful of the need for proper reasoning and the principle of publicity of proceedings, I make reference to those parts. However, special care has been taken not to disclose any information identifying witnesses or any other person who might be put at risk on account of the activities of the Court.

text: III. Findings The Prosecutor's Application

text: The Prosecutor contends that there are reasonable grounds to believe that crimes against humanity were committed in Kisumu tow^n (Kisumu District, Nyanza Province), Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province) from 27 December 2007 or thereabouts to 29 February 2008 pursuant to or

text: 01/09-30-Conf-Exp-Anx7; and International Crisis Group, "Kenya in Crisis" ("ICG Report"), February 2008,ICC-01/09-30-Conf-Exp-Anx8. 7 Pre-Trial Chamber II, "Decision Requesting the Prosecutor to Submit the Statements of the Witnesses on which he Relies for the Purposes of his Applications under

text: Article 58

text: of the

text: Rome Statute

text: ", ICC- 01/09-45-Conf-Exp. The information revealed from the confidential ex parte decision of the Chamber does not affect its level of classification as "confidential". s ICC-01/09-48-Conf-Exp. The information revealed from the confidential ex parte filing of the Prosecutor does not affect its level of classification as "confidential". No. ICC-01/09-02/11 8/19 15 March 2011 in furtherance of an "organizational policy". In his Application the Prosecutor alleges that Francis Muthaura, Uhuru Kenyatta and Mohammed Ali, the "Principal Perpetrators", agreed to pursue an organisational policy to attack civilians perceived to support the Orange Democratic Movement ("ODM") in order to maintain the Party of National Unity ("PNU") in power.^

text: With reference to the entity capable of carrying out the attack against the civilian population, the Prosecutor contends that the three Principal Perpetrators activated and utilised "pre-existing structures to perpetrate the widespread and systematic attacks".^° The entity which purportedly implemented the policy consisted of the Principal Perpetrators, members of the Mungiki (a criminal organisation) and pro- PNU youth, members of the Kenyan Police Forces, PNU politicians, and wealthy PNU supporters.^^

text: With regard to the position and role of the Principal Perpetrators, the Prosecutor maintains that at the time relevant to the Application, Francis Muthaura was chairman of the National Security Advisory Committee and "exercised both de jure and de facto authority over the various Kenyan security agencies, including the Kenya Police, Administration Police and the National Security and Intelligence Service".^^ At the time relevant to the Application, Mohammed Ali was purportedly a member of the National Security Advisory Committee ^^ and the Police Commissioner exercising "de jure and de facto control over the Kenya Police".^^ He was under the direct authority of Francis Muthaura and routinely reported to him.^^ The Prosecutor also submits that at the time relevant to the Application, Uhuru Kenyatta was a member of parliament for Gatundu South Constituency in Thika District in Central

text: 9 ICC-01/09-31-Conf-Exp, paras 5,16 and 57. 10 ICC-01/09-31-Conf-Exp, para. 59. 11 ICC-01/09-31-Conf-Exp, para. 57, 12 ICC-01/09-31-Conf-Exp, paras 60 and 61. 13 ICC-01/09-31-Conf-Exp, para. 75. 14 ICC-01/09-31-Conf-Exp, paras 47, 66, 75 and 76. 15 ICC-01/09-31-Conf-Exp, paras 61 and 75. No. ICC-01/09-02/11 9/19 15 March 2011

text: Province^^ and joined the PNU in September 2007^^. The Prosecutor further contends

text: that the Mungiki have constituted an important component of Uhuru Kenyatta's

text: political support base since 2002.^^ By virtue of his close ties^^ with and support^^ for

text: the Mungiki, he purportedly had the capacity to mobilize the Mungiki to support the

text: The Prosecutor submits that the Mungiki is a "complex, multi-faceted,

text: heterogeneous and decentralized" criminal organisation,^^ which is organized into

text: local and regional branches.^^ Local leaders are purportedly bound by general rules

text: and instructions issued by the organization's patron.^^ The Prosecutor contends that

text: the Mungiki operates in an organised and coordinated manner,^^ and engages in

text: illegal activities, which have turned the Mungiki into a financially healthy

text: organization 2^. Moreover, the Prosecutor avers that during the violence, "the

text: Mungiki mobilized additional human resources among jobless pro-PNU youth and

text: through aggressive recruitment".^^

text: Finally, the Prosecutor maintains that local politicians and business people

text: "organized meetings for the purpose of raising money"^^ or provided "hundreds of

text: pangas" which were distributed to pro-PNU youth^^. The Prosecutor also contends

text: that Uhuru Kenyatta organized meetings "for the planning of the logistics for the

text: 16 ICC-01/09-31-Conf-Exp, para. 62. 17 ICC-01/09-31-Conf-Exp, para. 64. 18 ICC-01/09-31-Conf-Exp, para. 62. 19 It has been alleged that Uhuru Kenyatta was himself a Mungiki member, ICC-01/09-31-Conf-Exp, para. 62. -0 The Prosecutor contends that Uhuru Kenyatta facilitated the political agreement with the senior officials of the Government of Kenya to end the crackdown against Mungiki members and provided funding for their operations, ICC-01/09-31-Conf-Exp, paras 64 and 65. 21 ICC-01/09-31-Conf-Exp, paras 25, 63 and 65. 22 ICC-01/09-31-Conf-Exp, para. 68. 23 ICC-01/09-31-Conf-Exp, para. 70. 24 ICC-01/09-31-Conf-Exp, para. 70. 25 ICC-01/09-31-Conf-Exp, para. 72. 26 ICC-01/09-31-Conf-Exp, para. 73. 27 ICC-01/09-31-Conf-Exp, para. 74. 28 ICC-01/09-31-Conf-Exp, para. 84 29 ICC-01/09-31-Conf-Exp, para. 85 No. ICC-01/09-02/11 10/19 15 March 2011

text: Mungiki and pro-PNU youth operations (...) and the contribution of money to support the operations" .^°

text: With regard to the nature of the attacks, the Prosecutor submits that the attacks were launched (1) "in response" to the "planned attacks" orchestrated by William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang against supporters of the PNU; and (2) to "[suppress] and [crush] any protests by ODM supporters and [penalize] ODM's supportive communities".^^

text: Francis Muthaura and Mohammed Ali purportedly utilized the Kenyan Police Force to perpetrate attacks by (1) directing the Kenyaii Police Forces to target perceived ODM supporters in attacks in Kisumu and Kibera; and (2) directing them not to intervene in attacks by the Mungiki and pro-PNU youth against perceived ODM supporters in Nakuru and Naivasha.^^

text: The Prosecutor further maintains that, with the support of Mohammed Ali, Francis Muthaura and Uhuru Kenyatta used the Mungiki and pro-PNU youth to perpetrate attacks against ODM supporters in Nakuru and Naivasha during late January 2008.^^ Francis Muthaura allegedly organised a meeting, together with Uhuru Kenyatta, "to plan the retaliatory attacks against ODM supporters using Mungiki members and other mobilized pro-PNU youth".^^ It is alleged that the Mungiki had previously negotiated an end to the police crackdown against their members in exchange for providing political support to the PNU.^^ The Prosecutor submits that the cooperation between the Kenyan Police Forces and the Mungiki and

text: 30 ICC-01/09-31-Conf-Exp, para. 83. 31 ICC-01/09-31-Conf-Exp, paras 5,16 and 57. 32 ICC-01/09-31-Conf-Exp, para. 24. 33 ICC-01/09-31-Conf-Exp, para. 17. 34 ICC-01/09-31-Conf-Exp, para. 67. 35 ICC-01/09-31-Conf-Exp, para. 26. No. ICC-01/09-02/11 11/19 15 March 2011 the pro-PNU youth is confirmed by the lack of police intervention before, during and

text: after the attacks.^^

text: Analysis of the Prosecutor's Application and the Evidence

text: I recognize that there is evidence which tends to show that crimes were

text: committed by the Mungiki gang together with pro-PNU youth in Nakuru ^^ and

text: Naivasha^^. I am satisfied that the Kenyan Police Forces in Kisumu^^ and Kibera^^

text: committed crimes by using excessive force. At the same time, I am instructed by law

text: to assess these facts against the statutory legal requirement of article 7(2) (a) of the

text: Statute establishing that those crimes occurred pursuant to the policy of a State or an

text: 'organisation'. Taking into consideration the Prosecutor's Application, I shall analyse

text: hereunder whether the entity as presented by the Prosecutor can be qualified as an

text: 'organisation' within the meaning of

text: article 7

text: (2)(a) of

text: the Statute

text: The Majority has found that "the attack was carried out pursuant to an

text: organizational policy of the Mungiki".^^ It has characterised the Mungiki as an

text: 'organisation' within the meaning and for the purpose of article 7(2)(a) of the

text: 36 ICC-01/09-31-Conf-Exp, para. 27. 37 KNCHR Report, ICC-01/09-31-Conf-Exp-Anx5, paras 315 and 335 (KEN-OTP-0001-0002 at 0093 and 0098); KNCHR Report, ICC-01/09-31-Conf-Exp-Anx5, p. 94 (KEN-OTP-0001-0002 at 0094); CIPEV Report, ICC-01/09-31-Conf-Exp-Anx3, pp.103-104 (KEN-OTP-0001-0364 at 0477-0478); "NSIS Situation Report" submitted to the CIPEV, ICC-01/09-31-Conf-Exp-Anx23, pp. 568-569; UNOHCHR, Fact- Finding Mission Report, ICC-01/09-31-Conf-Exp-Anx23, p. 545; ICG Report, ICC-01/09-31-Conf-Exp- Anx8, p. 14 (KEN-OTP-0001-1076 at 1093). 38 KNCHR Report, ICC-01/09-31-Conf-Exp-An5, para. 317 (KEN-OTP-0001-0002 at 0094); CIPEV Report, ICC-01/09-31-Conf-Exp-Anx3, pp. 123-124, KEN-OTP-0001-0364 at 0497-0498); UNOHCHR, Fact-Finding Mission Report, ICC-01/09-Conf-Exp-Anx23, p. 545; ICG Report, ICC-01/09-31-Conf-Exp- Anx8, p. 14 (KEN-OTP-0001-1076 at 1093); Statement of Witness 11, ICC-01/09-48-Conf-Exp-Anx217, pp. 7-8 (KEN-OTP-0042-0044 at 0051-0052); Statement of Witness 11, ICC-01/09-48-Conf-Exp-Anx218, pp. 27-28 (KEN-OTP-0042-0078 at 0105-0106). 39 UNOCHR, Fact-Finding Mission Report, ICC-01/09-31-Conf-Exp-Anx23, pp. 256-257; HRW Report, ICC-01/09-31-Conf-Exp-Anx7 pp. 25 and 27-31 (KEN-OTP-001-0248 at 0275 and 0277-0281); KNCHR Report, ICC-01/09-Conf-Exp-Anx5, para. 402 (KEN-OTP-0001-0Û02 at Olli). 40 UNOCHR Fact-Finding Mission Report, ICC-01/09-31-Conf-Exp-Anx23, pp. 256-257; HRW Report, ICC-01/09-31-Conf-Exp-Anx7, pp. 32-33 (KEN-OTP-001-0248 at 0282-0283); Statement of [REDACTED] to the CIPEV, ICC-01/09-31-Con-Exp-Anx23, p. 511. 41 Pre-Trial Chamber II, "Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali", ICC-01/09-02/11-01, para. 20.

text: No. ICC-01/09-02/11 12/19 15 March 2011

text: Statute,^^ on the ground that "the group has the capability to perform acts which infringe on basic human values" .^^ The Majority, therefore, did not regard any of the other actors mentioned in the Prosecutor's Application, such as the Kenyan Police Forces, to be part of the 'organisation'.

text: I disagree with this interpretation of the Prosecutor's Application. Throughout the Application, the Prosecutor submits that the Principal Perpetrators used a variety of actors, most prominently the Mungiki and the Kenyan Police Forces, to attack civilians perceived as ODM supporters. Under the heading "Existence of an entity capable of carrying out a widespread or systematic attack against a civilian population", the Prosecutor cites, besides the Principal Perpetrators themselves, the Mungiki and pro-PNU youth, the Kenyan Police Forces and other PNU politicians and wealthy PNU supporters. The attacks themselves were purportedly carried out by the Mungiki in Nakuru and Naivasha, and by the Kenyan Police Forces in Kisumu and Kibera. The Prosecutor maintains that both attacks were committed pursuant to the policy of one 'organisation'. Hence, the activities of the two stakeholder groups, which allegedly committed the crimes in Nakuru/Naivasha and Kisumu/Kibera, are presented as being attributable to one 'organisation'. I shall therefore interpret the notion of 'organisation' as encompassing, in principle, all stakeholders the Prosecutor has mentioned in the Application.

text: In my previous dissenting opinion to the Majority's decision of 31 March 2010, I have set out my understanding of the essential characteristics of an 'organisation' in terms of membership, duration, structure, the capacity to impose the policy on its members and the capacity and means to attack any civilian population. Mindful of these characteristics, I fail to see an 'organisation', as portrayed by the Prosecutor, in the present case. My reading of the evidence submitted by the Prosecutor leads me to draw another conclusion, which I shall set out below.

text: 42 Ibid., para. 22. 43/h'd.,para.21. No. ICC-01/09-02/11 13/19 15 March 2011

text: The Prosecutor presents different stakeholders purportedly as forming a homogeneous entity under the authority of the three Principal Perpetrators, unified in their goal of attacking civilians perceived as supporting the ODM. I note, however, that the pro-PNU youth is portrayed as cooperating closely with the Mungiki. Thus, they appear not to represent an independent component within the alleged 'organisation'. Equally, the PNU politicians and wealthy PNU supporters are presented in the Application as financiers and resource providers to the Mungiki and pro-PNU youth. Neither, therefore, do they appear to represent an independent component within the proposed 'organisation'. In light of the foregoing, I will focus my assessment of the evidence on the two leading stakeholders, the Mungiki and the Kenyan Police Forces, which together, according to the Prosecutor, form an 'organisation' within the meaning of

text: article 7

text: (2)(a) of

text: the Statute

text: It appears from the evidence that the Mungiki, an illegal gang of organized crime, has established parallel structures in the poorer parts of the country, notably the slums of Nairobi,^^ where there is no effective State authority, and engages in criminal activities.^^ The evidence further suggests that the Mungiki gang has in the past shown a certain degree of flexibility in supporting various political parties as a means to advance its own interests. ^^ Prior to the attacks mentioned in the Prosecutor's Application, the Mungiki was actually subject to a police crackdown

text: 44 KNCHR Report, ICC-01/09-31-Conf-Exp-Anx5, paras 159 et seq. (KEN-OTP-0001-0002 at 0052-0053); CIPEV Report, ICC-01/09-31-Anx3, p. 194 (KEN-OTP-0001-0364 at 0568). 45 Statement of Witness 2, ICC-01/09-48-Conf-Exp-Anx213, para. 41 (KEN-OTP-0033-0079 at 0087- 0088); article by PeaceNet Kenya dated July 2009, ICC-01/09-31-Conf-Exp-Anx23, p. 129; report by Landlnfo dated 29 January 2010, ICC-01/09-31-Conf-Exp-Anx23, pp. 123-124. 46 Article in the "African Affairs", ICC-01/09-31-Conf-Exp-Anx23, p. 127, which states that in 2003 the Mungiki supported the Kenyan African National Union, and thus opposed the ruling National Rainbow Coalition of President Kibaki; Statement of Witness 14, ICC-01/09-48-Conf-Exp-Anx257, para. 137 (KEN-OTP-0043-0002 at 0029); Statement of Witness 14, ICC-01/09-48-Conf-Exp-Anx257, para. 130 (KEN-OTP-0043-0002 at 0028), that before the 2007 elections, he had been told that the Mungiki leadership had met with Raila Odinga and agreed that they would support the latter at the upcoming presidential election. No. ICC-01/09-02/11 14/19 15 March 2011 operation.47 Cooperation within the 'organisation', as depicted by the Prosecutor,

text: appears to have commenced following a meeting between leading PNU politicians

text: and Mungiki members during which the PNU politicians solicited support in the

text: upcoming elections in exchange for meeting specific demands made by the

text: Mungiki.^^ Thereafter, the Mungiki gang appears to have benefited from financial

text: and other support from PNU politicians.^^ I am also satisfied that at times the police

text: did not intervene to stop crimes committed by Mungiki members in certain

text: localities.^^ Overall, the evidence provided by the Prosecutor thus tends to show that

text: the Mungiki, as a criminal gang, actually has an antagonistic relationship with the

text: Kenyan Police Force ^^ but appeared to have benefited from certain ad hoc

text: arrangements during the relevant period, despite a long record of violent clashes

text: with the Kenyan police.

text: For their part, the Kenyan Police Forces are an integral part of the State apparatus

text: with a hierarchy and a chain of command. The evidence tends to show that Francis

text: Muthaura^^ and Mohammed Ali^^ are de jure and de facto responsible for the policies,

text: operations and actions of the Kenyan Police.

text: 47 Statement of Witness 14, ICC-01/09-48-Conf-Exp-Anx257 paras 112 and 130 (KEN-OTP-0043-0002 at 0024 and 0028); "NSIS Situation Report" dated 29 June 2007 submitted to the CIPEV, ICC-01/09-31- Conf-Exp-Anx23, p. 142-143. 48 Statement of Witness 14, ICC-01/09-48-Conf-Exp-Anx257 paras 149-163 (KEN-OTP-0043-0002 at 0031-0034). 49 Statement of Witness 14, ICC-01/09-48-Conf-Exp-Anx257, paras 201 and 202 (KEN-OTP-0043-0002 at 0040-0041); CIPEV Report, ICC-01/09-31-Conf-Exp-Anx3, p. 123 (KEN-OPT-0001-0364 at 0497); "NSIS Situation Report" from January 2008 submitted to the CIPEV, ICC-01/09-31-Conf-Exp-Anx23, pp. 93- 94; KNCHR Report, ICC-01/09-31-Conf-Exp-Anx5, paras 317-318 (KEN-OTP-0001-0002 at 0094). 50 Statement of Witness 14, ICC-01/09-48-Conf-Exp-Anx257, paras 198-200 and 280 (KEN-OTP-0043- 0002, at 0040 and 0055). 51 "NSIS Situation Reports" dated 18 December 2007 submitted to the CIPEV, ICC-01/09-31-Conf-Exp- Anx23, pp. 551-553, which states that while one part of the Mungiki planned to disrupt voting in polling stations perceived to be Raila Odinga's strongholds, another part planned to cause violence immediately after the election to show their displeasure with the crackdown by the police/policesecurity forces/ministry of interior); "NSIS Situation Report"from January 2008 submitted to the CIPEV, ICC-01/09-31-Conf-Exp-Anx23, pp. 181-182, stating that the Mungiki collects protection money to finance their attacks: the report suggests a sustained crackdown); Statement of Witness 14, ICC- 01/09-48-Conf-Exp-Anx257, para. 40 (KEN-OTP-0043-0002 at 0010), who alleges that four senior Mungiki leaders were killed extra-judicially by the police in March/April 2008. 52 Statement of Witness 27, ICC-01/09-48-Conf-Exp-Anx322, para. 97 (KEN-OTP-0040-0055 at 0077).

text: No. ICC-01/09-02/11 15/19 15 March 2011

text: On the basis of the Prosecutor's presentation of the case and the evidence submitted, I fail to see how an 'organisation' could have existed in which the primary actors were the Mungiki gang and the Kenyan Police Forces. I am satisfied by the evidence provided that Uhuru Kenyatta was the principal contact between the Mungiki gang and the Principal Perpetrators.^^ However, a series of meetings with facilitators and the Principal Perpetrators does not transform a limited partnership of convenience into an 'organisation' within the meaning of

text: article 7

text: (2)(a) of

text: the Statute

text: . Forging an opportunistic partnership of convenience for a specific purpose, namely the upcoming 2007 presidential elections, tends to demonstrate that the coalition between the Mungiki and the Kenyan Police Forces was created ad hoc in nature. The fact that the 'cooperation' between the Mungiki gang and the Kenyan Police Forces was established shortly before the 2007 presidential elections tends to demonstrate the temporary character of this partnership of convenience. This is further confirmed by the fact that a series of police operations were directed against the Mungiki gang before and after the 2007/2008 violence.^^ Additionally, the evidence leads me to conclude that the Mungiki gang and the Kenyan Police Forces do not share a common hierarchy but rather maintain separate structures. I therefore conclude that the 'organisation' as presented by the Prosecutor, consisting mainly of the Mungiki gang and the Kenyan Police Forces, did not exist.

text: Even if, for the sake of argument, and taking into consideration the Majority's finding to that effect, the Mungiki gang alone were to be considered as the entity which had established a policy of attacking the civilian population, I hold that the

text: 53 CIPEV, "Kenya Police", ICC-01/09-31-Conf-Exp-Anx23, pp. 183-185; Statement of Witness 67, ICC- 01/09-48-Conf-Exp-Anx381, paras. 63-65 (KEN-OTP-0041-0209 at 0220). 54Statement of Witness 14, ICC-01/09-48-Conf-Exp-Anx257, paras 142 and 205 (KEN-OTP-0043-0002 at 0030 and 0041); KNCHR Report, ICC-01/09/31-Conf-Exp-Anx5, p. 187 (KEN-OTP-0001-0002 at 0187). 55 Statement of Witness 14, ICC-01/09-48-Conf-Exp-Anx257, paras 112 and 130 (KEN-OTP-0043-0002 at 0024 and 0028); "NSIS Situation Report" dated 29 June 2007 submitted to the CIPEV, ICC-01/09-31- Conf-Exp-Anx23, pp. 142-143; Statement of Witness 14, ICC-01/09-48-Conf-Exp-Anx257, para. 40 (KEN-OTP-0043-0002 at 0010), who alleges that four senior Mungiki leaders were killed extrajudicially by the police in March/April 2008. No. ICC-01/09-02/11 16/19 15 March 2011

text: Mungiki gang as such does not qualify as an 'organisation' within the meaning of

text: article 7

text: (2)(a) of

text: the Statute

text: . Admittedly, the Mungiki gang appears to control core community activities and to provide services, such as electricity, water and sanitation, and transport. However, the activities of the Mungiki gang remain limited in nature and are territorially restricted, in particular, to the slums of Nairobi.^^ Moreover, as noted above, the evidence reveals that a series of police operations were directed against the Mungiki gang before and after the 2007/2008 violence and that it could only have committed the crimes alleged with the support of certain individuals within the Kenyan political elite and the police apparatus. That said, I doubt whether the Mungiki gang had the capacity and the means at its disposal to attack any civilian population on a large scale. In light of the foregoing, I therefore do not find that the Mungiki gang, a criminal organisation, could have qualified as a 'organisation' within the meaning of

text: article 7

text: (2)(a) of

text: the Statute

text: With the evidence at hand, it is also striking that the Prosecutor has chosen in his Application to advance the argument of crimes against humanity pursuant to an "organizational policy" whilst neglecting the role and function of the State. I note the Prosecutor's allegation that Francis Muthaura and Mohammed Ali (1) directed the Kenyan police to attack ODM supporters in Kisumu and Kibera and (2) directed the Kenyan police not to intervene in attacks ^^ by the Mungiki gang against ODM supporters in Nakuru and Naivasha. Throughout his Application, the Prosecutor argues that Francis Muthaura and Mohammed Ali occupied high-level positions within the police and security apparatus of the State. By virtue of these positions they appear to have exercised authority over the Kenyan Police Forces, which is characterised by a vertical structure and obedience to orders of superiors. Furthermore, the Prosecutor presents the conduct of Francis Muthaura and Mohammed Ali as having occurred within the context of their respective official

text: 56 See also Dissenting Opinion of Judge Hans-Peter Kaul to the "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", ICC-01/09-19-Corr, p. 28, footnote 56. 57 See footnote 6 of the Elements of Crimes, article 7. No. ICC-01/09-02/11 17/19 15 March 2011 roles as Chairman of the National Security Advisory Committee and the Commissioner of the Kenyan Police. In conclusion, any assessment of criminal conduct by the Kenyan Police Forces should have taken into consideration the official positions of the two Principal Perpetrators and, as the case may be, the responsibility of others with respect to the Kenyan Police Forces.

text: I therefore concur, in principle, with the Majority's finding that the Prosecutor "failed to provide an accurate factual and legal submission" ^^ for acts of violence committed by the Kenyan Police Forces in Kisumu town and Kibera, which would have allowed me to assess whether the acts were committed pursuant to a State policy. By the same token, I concur with the Majority's finding that the Prosecutor did not allege the existence of a State policy by abstention with respect to the events in Nakuru and Naivasha towns.^^ I will therefore not entertain this issue.

text: In sum, whilst I am satisfied that crimes were committed in Nakuru, Naivasha, Kisumu and Kibera, and that certain organisational measures were taken to this end, I fail to see that theses crimes were embedded in an "organizational policy". Hence, I consider that the Prosecutor has failed to prove that the crimes were committed pursuant to a policy of a state-like 'organisation' which is an indispensable element and inherent characteristic of crimes against humanity under

text: article 7

text: of

text: the Statute

text: . I therefore continue to hold that the Court has no jurisdiction ratione materiae in the situation in the Republic of Kenya, including in the present case.

text: Accordingly, I decline to issue summonses to appear for Francis Muthaura, Uhuru Kenyatta and Mohammed Ali pursuant to

text: article 58

text: (7) of

text: the Statute

text: . Proceedings in this case shall not unfold before this Court.

text: 58 Pre-Trial Chamber II, "Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali", ICC-01/09-02/11-01, para. 31. 59 Ibid., para. 24. No. ICC-01/09-02/11 18/19 15 March 2011

text: A^JM

text: ^ d

text: Judge Hans-Peter Kaul Judge Dated this Tuesday, 15 March 2011 At The Hague, The Netherlands

text: No. ICC-01/09-02/11 19/19 15 March 2011

title: The Prosecutor v. Uhuru Muigai Kenyatta and Mohammed Hussein Ali


court: icc

doctype: appeal-interlocutory

identifier: ICC-01/09-02/11 (Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled "Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of [...])

caseName: The Prosecutor v. Uhuru Muigai Kenyatta

chamber: Appeals Chamber

decisionType: appeal-interlocutory

publisher: International Criminal Court

text: Rome Statute

text: the Statute, article 1

text: the Statute, article 15

text: the Statute, article 17

text: the Statute, article 18

text: the Statute, article 19

text: the Statute, article 67

text: Cour Pénale I n t e r n a t i o n a l e

type: stycke

text: I n t e r n a t i o n a l C r i m i n a l C o u r t

text: Original: English No. ICC-01/09-02/11 OA Date: 20 September 2011

text: THE APPEALS CHAMBER

type: rubrik

text: Before: Judge Daniel David Ntanda Nsereko, Presiding Judge Judge Sang-Hyun Song Judge Akua Kuenyehia Judge Erkki Kourula Judge Anita USacka

text: SITUATION IN THE REPUBLIC OF KENYA

text: THE PROSECUTOR v. FRANCIS KIRIMI MUTHAURA, UHURU MUIGAI KENYATTA and MOHAMMED HUSSEIN ALI

text: Public document Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber H of 30 May 2011 entitled ^^Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to

text: Article 19

text: (2)(b) of

text: the Statute

text: Dissenting Opinion of Judge Anita USacka

text: No: ICC-01/09-02/11 OA 1/18

text: ^ ^ ^ J ^

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

text: The Office of the Prosecutor Counsel for William Samoei Ruto Ms Fatou Bensouda, Deputy Prosecutor Mr Joseph Kipchumba Kigen-Katwa Mr Fabricio Guariglia Mr David Hooper Mr Kioko Kilukumi Musau

text: The Office of Public Counsel for Victims Counsel for Henry Kiprono Kosgey Ms Paolina Massidda Mr George Odinga Oraro

text: States Representatives Counsel for Joshua Arap Sang Mr Geoffrey Nice Mr Joseph Kipchumba Kigen-Katwa Mr Rodney Dixon

text: REGISTRY Registrar Ms Silvana Arbia

text: No: ICC-01/09-02/11 OA 2/18

text: ^ ^ 2 ^

text: This constitutes the Dissenting Opinion of Judge Anita Usacka to the "Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber 11 of 30 May 2011 entitled 'Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to

text: Article 19

text: (2)(b) of

text: the Statute

text: '", issued on 30 August 2011 ^ (hereinafter: "Judgment of the Majority").

text: 1 disagree with the Majority that the Impugned Decision should be confirmed and therefore dissent from the Judgment of the Appeals Chamber. I consider that Pre- Trial Chamber II (hereinafter: "the Pre-Trial Chamber") erred in the way it conducted the proceedings that led to the "Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to

text: Article 19

text: (2)(b) of

text: the Statute

text: "^ of 30 May 2011 (hereinafter: "Impugned Decision"), and 1 believe the Impugned Decision should therefore be reversed.

text: L PROCEDURAL CONTEXT

text: The procedural history of this appeal is addressed in the Judgment of the Majority; the present focuses on those aspects of the procedural history that are particularly relevant to this Opinion.

text: Kenya ratified the

text: Rome Statute

text: in 2005 and the 2007 post-election violence in Kenya is the first subject of a propria motu investigation of the Prosecutor under

text: article 15

text: of

text: the Statute

text: . In the decision under

text: article 15

text: (4) of

text: the Statute

text: , authorising the Prosecutor's investigation"^ (hereinafter: "Decision Authorising the Investigation"), the Pre-Trial Chamber held with respect to the admissibility of potential cases that may arise from the Prosecutor's investigation:

text: The Chamber emphasizes that defining the scope of potential case(s) at this stage may well serve an effective application of

text: article 18

text: of

text: the Statute

text: , which is immediately applicable when a Pre-Trial Chamber authorizes the commencement of an investigation. This would generally enable States which "would normally exercise jurisdiction over the crimes" in question to receive

text: . ^ Information available at: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII- 10&chapter= 18&lang=en. ^ Situation in the Republic of Kenya "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", 31 March 2010, ICC- 01/09-19-Con-.

text: C'^tÛ^^ useful information (subject to the limitation provided in

text: article 18

text: (1) of

text: the Statute

text: ), as to the parameters of possible case(s) before the Court. In tum, this would facilitate a mutual understanding between the Court and the relevant State(s) as to the scope of the complementarity assessment dictated by

text: article 18

text: (2)-(5) of

text: the Statute

text: Having said the above, the Chamber considers that, at this stage, the admissibility assessment requires an examination as to whether the relevant State(s) is/are conducting or has/have conducted national proceedings in relation to the groups of persons and the crimes allegedly committed during those incidents, which together would likely form the object of the Court's investigations. [...]"

text: Thus, in the present scenario, it is not necessary to proceed to the second step, which requires an examination of the remaining parts of the provision, since the available information indicates that there is a situation of inactivity with respect to the elements that are likely to shape the potential cases [...].

text: The Pre-Trial Chamber found in this decision, based upon the assessment of the facts before it, that potential cases would be admissible because there is a situation of inactivity in Kenya with respect to the investigation and prosecution of the conduct of senior business and political leaders during the 2007 post-election violence.^

text: On 15 December 2010, the Prosecutor disclosed to the public the names of the six Kenyans against whom he had sought summonses to appear on the same day.^ On 8 March 2011, the Pre-Trial Chamber issued summonses against the three suspects in the present case,^ as well as against the three suspects in the case Prosecutor v. Ruto et al.^ In those decisions, the Pre-Trial Chamber refrained from deciding on the admissibility of the cases.^

text: On 31 March 2011, Kenya filed the "APPLICATION ON BEHALF OF THE GOVERNMENT OF THE REPUBLIC OF KENYA PURSUANT TO ARTICLE 19 OF THE

text: ICC STATUTE

text: "^^ (hereinafter: "Admissibility Challenge"), challenging the admissibility of the present case. In further support of the Admissibility Challenge,

text: ^ Decision Authorising the Investigation, paras 185-187. ^ OTP Press Release of 15 December 2010, ICC-OTP-20101215-PR615, available at: http://www.icccpi.int/NR/exeres/BA2041D8-3F30-4531-8850-431B5B2F4416.htm. ^ "Decision on the Prosecutor's Application for Summons to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali",

text: . ^ "Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang", ICC-01/09-01/11-1. ^ "Decision on the Prosecutor's Application for Summons to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali",

text: , para. 12. ^^ ICC-01/09-02/11-26.

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

text: Kenya filed, on 21 April 2011, the "FILING OF ANNEXES OF MATRIALS [sic] TO THE APPLICATION OF THE GOVERNMENT OF KENYA PURSUANT TO ARTICLE 19 OF THE

text: ROME STATUTE

text: "^^ (hereinafter: "Filing of Annexes of 21 April 2011"), appending 22 aimexes, and, on 13 May 2011, the "Reply on behalf of the Government of Kenya to the Responses of the Prosecutor, Defence, and OPCV to the Government's Application pursuant to

text: Article 19

text: of the

text: Rome Statute

text: ",^^ which was notified on 16 May 2011 (hereinafter: "Reply of 16 May 2011") and which contained seven annexes.

text: Kenya clarified in its filings before the Pre-Trial Chamber that it was currently reforming its criminal justice system with a view to enabling it flilly to investigate and 1 'X prosecute the post-election violence. Kenya emphasised that it required a few more weeks to present a complete picture, and it put forward a schedule for the additional filings which would have allowed Kenya to show the Court ftilly its progress in investigating the case within a matter of a few months. ^"^ 8. To support the Admissibility Challenge, Kenya submitted documentation about the reform of the criminal justice system in the annexes appended to the Filing of Armexes of 21 April 2011 and to the Reply of 16 May 2011.^^ These annexes also provided information about the facts that "national investigations are underway" and that more documentation v^U be made available over the coming months. ^^ Notably, annex 1 to the Filing of Annexes of 21 April 2011 is an order dated 14 April 2011 by the Attomey General of Kenya to the Commissioner of Police to investigate "all other persons against whom there may be allegation of participation in the Post-Elections violence, including the six persons who are the subject of the proceedings currently before the Intemational Criminal Court".^^ Annex 2 to the Reply of 16 May 2011^^ is a Report on the 2007 post-election violence dated 5 May 2011, which contained specific information as to the investigations that were carried out by Kenya. It provided information as to the scope of the investigations and the allegations against

text: ^^ ICC-01/09-01/11-67. ^^ ICC-01/09-02/11-91 with 7 annexes. ^^ Admissibility Challenge, paras 47-66, 75-78. ^^ Admissibility Challenge, paras 14, 67-74,79; see also Reply of 16 May 2011, para. 58. *^ Filing of Annexes of 21 April 2011. *^ Filing of Annexes of 21 April 2001, para. 4. *^ ICC-01/09-02/11-67-Anxl, p. 2. *^ ICC-01/09-02/11-91-Anx2.

text: Mr Ruto, relevant to the parallel case Prosecutor v. Ruto et al}^ and indicated that orders had been given, apparently by the authorities in charge, to start investigations against the other five persons under investigation by the Court.'^^

text: In its filings before the Pre-Trial Chamber, Kenya also made legal submissions, notably on the complementarity principle and on the definition of the word "case" in 91

text: article 17

text: (1) (a) of

text: the Statute

text: . Kenya submitted that it has the right to submit "staged report[s]" during the admissibility proceedings and that the test that had been developed and applied by other Chambers - the so called "same person/same conduct test" - was too narrow and that a broader test based on the Decision Authorising the Investigation should be applied.

text: In the course of the admissibility proceedings, the Pre-Trial Chamber issued the following main procedural decisions. On 4 April 2011, the Pre-Trial Chamber issued the "Decision on the Conduct of the Proceedings Following the Application of the Government of Kenya Pursuant to

text: Article 19

text: of the

text: Rome Statute

text: " (hereinafter: "Decision of 4 April 2011").^^ On 2 May 2011, Pre-Trial Chamber granted Kenya's request for leave to reply by "Decision under Regulation 24(5) of the Regulations of the Court on the Motion Submitted on Behalf of the Government of Kenya" (hereinafter: "Decision of 2 May 2011"). In these procedural decisions, the Pre-Trial Chamber put emphasis on the need to expedite the proceedings.^"*

text: Kenya also filed the "Request for Assistance on behalf of the Government of the Republic of Kenya pursuant to Article 93(1) and Rule 194" (hereinafter: "Request

text: ^^ It reads: "The investigations have not been completed for various reasons that include unreliable and uncooperative witnesses. Some of the prominent cases include: Nakuru CID Inquiry file No 10/2008, the suspect in this inquiry is Hon William Samoei Ruto - immediate former Minister for Agriculture. The allegations were that, the Minister together with others from the Kalenjin community incited Kalenjin youths to commit violence against non-Kalenjins living in some parts of Rift Valley Province. The matter is still under investigation because there are some areas requiring fiirther corroboration inorder [sic] to reach to a fair conclusion.", ICC-01/09-01/1 l-89-Anx2, p. 2, 3. ^^ It reads under the heading "Way forward": [...] the Commissioner of Police has further directed the team to exhaustively investigate all the allegations. The team is currently on the ground conducting the investigations as directed. It is also reviewing all the previous inquiries and reports to assist in the investigation.", ICC-01/09-01/1 l-89-Anx2, p. 4. ^^ Admissibility Challenge, paras 23-34; Reply of 16 May 2011, paras 24-27. ^^ ICC-01/09-02/11-40. ^^ ICC-01/09-02/11-81, paras 13-14. ^^ Decision of 4 April 2011, para. 10: "the Chamber, being keen to expedite the proceedings and avoid any unnecessary delays"; see also Decision of 2 May 2011, para. 15. ^^ICC-01/09-58.

text: for Assistance") on 21 April 2011, and the "Application for an Oral Hearing Pursuant to Rule 58 (2)"^^ (hereinafter: "Request of 18 May 2011") registered on 18 May 2011.

text: In the Impugned Decision, the Pre-Trial Chamber denied Kenya's Request of 18 May 2011 to hold an oral hearing at which Kenya requested it hear fi-om an official in 97 charge of investigations in Kenya. The Pre-Trial Chamber fluther decided on the 98 definition of a "case" - adopting the "same person/same conduct test". The Pre-Trial Chamber adverted to the lack of information and detail in the documentation provided 90 by Kenya and found that only three out of the 29 annexes presented to the Chamber appeared to be of "some direct relevance". It found that Kenya had not presented evidence of "any concrete step" taken that would show that it is currently investigating the three suspects in the present case. In this context, the Pre-Trial Chamber mentioned Kenya's suggestion to produce additional reports on the development of investigations but did not further reflect upon this request.^^ The Pre- Trial Chamber then decided: 70. The Appeals Chamber pointed out that the admissibility of the case must be determined "on the basis of the facts as they exist at the time of the proceedings concerning the admissibility challenge". Thus, in the absence of information, which substantiates the Government of Kenya's challenge that there are ongoing investigations against the three suspects, up until the party filed its Reply, the Chamber considers that there remains a situation of inactivity. [...] 13. On 6 June 2011, Kenya filed the "Appeal of the Government of Kenya against the 'Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to

text: Article 19

text: (2)(b) of

text: the Statute

text: '" and submitted its "Document in Support of the 'Appeal of the Government of Kenya against the 'Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to

text: Article 19

text: (2)(b) of

text: the Statute

text: ""^"* on 20 June.

text: ^^ ICC-01/09-02/11-92. ^^ The Pre-Trial Chamber also denied to deal with Kenya's Request for Assistance before the issuance of the Impugned Decision. ^^ Impugned Decision, paras 51-57. ^^ Impugned Decision, para. 69. ^^ Impugned Decision, para. 64. ^^ Impugned Decision, para. 68. ^^ Impugned Decision, para. 63. " ICC-01/09-02/11-104. ^"^ ICC-01/09-02/11-130; see the conigendum thereto ICC-01/09-02/11-130-Corr.

text: No: ICC-01/09-02/11 OA 7/18

text: L^^Ay

text: IL ERROR IN THE EXERCISE OF THE DISCRETION BY THE PRE-TRIAL CHAMBER

text: On appeal, the Appellant avers inter alia that the Pre-Trial Chamber committed errors in the procedure leading up to the Impugned Decision, notably by rejecting the Request of 18 May 2011 for an oral hearing, by not allowing the Appellant to produce additional documentation as to the ongoing investigation in Kenya within a certain period of time, and by not deciding the Request for Assistance before the issuance of the Impugned Decision. One may note that

text: article 19

text: (3) of

text: the Statute

text: read vdth rule 59 of the Rules of Procedure and Evidence, and rule 58 (1) and (3) of the Rules of Procedure and Evidence stipulate some minimum requirements relevant to the procedure to be followed. Notably, according to

text: article 19

text: (3) of

text: the Statute

text: and rules 59 (3) and 58 (3) of the Rules of Procedure and Evidence, those who have referred the situation to the Court, victims, the Prosecutor and the person "who has been surrendered to the Court or who has appeared voluntarily or pursuant to a summons" have a right to submit "observations" within a period of time determined by the Chamber. Apart from these minimum requirements, rule 58 (2) of the Rules of Procedure and Evidence vests broad discretion in the Chamber to regulate the procedure to be followed. It reads as follows:

text: When a Chamber receives a request or application raising a challenge or question conceming its jurisdiction or the admissibility of a case in accordance with article 19, paragraph 2 or 3, or is acting on its own motion as provided for in article 19, paragraph 1, it shall decide on the procedure to be followed and may take appropriate measures for the proper conduct of the proceedings. It may hold a hearing. It may join the challenge or question to a confirmation or a trial proceedings as long as this does not cause undue delay, and in this circumstance shall hear and decide on the challenge or question first. 15. The Appeals Chamber reviews discretionary decisions of the Pre-Trial and Trial Chambers with some deference. It is the Appeals Chamber's jurisprudence that it is not conducting a de novo review and therefore cannot substitute its discretion with the discretion of the Pre-Trial or Trial Chamber. Rather, the Appeals Chamber wdll intervene only if the exercise of discretion amounted to an abuse of discretion.

text: ^^ The Appeals Chamber held in this respect, with reference to the approach taken in other intemational criminal tribunals: "[T]he Appeals Chamber's functions extend to reviewing the exercise of discretion by the Pre-Trial Chamber to ensure that the Chamber properly exercised its discretion. However, the Appeals Chamber will not interfere with the Pre-Trial Chamber's exercise of discretion under

text: article 19

text: (1) of

text: the Statute

text: to determine admissibility, save where it is shown that that determination was vitiated by an error of law, an error of fact, or a procedural error, and then, only if the error materially affected

text: < N ^ ^ M

text: Accordingly, the question to be answered is whether the Pre-Trial Chamber erred in the exercise of its discretion. Below, I shall explain why I believe that this is the case.

text: At the outset, one may recall that

text: article 19

text: of

text: the Statute

text: provides for several procedures relating to the admissibility of a case. Under

text: article 19

text: (1) of

text: the Statute

text: , a Chamber may determine the admissibility of a case on its own motion. Under

text: article 19

text: (3) of

text: the Statute

text: , the Prosecutor may seek a ruling of the Chamber regarding admissibility. Under

text: article 19

text: (2) of

text: the Statute

text: , an admissibility challenge may be brought inter alia, as in the proceedings at hand, by a "State which has jurisdiction over the case". In addition,

text: article 19

text: of

text: the Statute

text: applies also to determinations of the Court's jurisdiction. Proceedings under

text: article 19

text: of

text: the Statute

text: are therefore not criminal proceedings, but proceedings of their own kind, primarily serving the purpose of resolving conflicts of jurisdiction.

text: Considering that the participants as well as the subject-matter of proceedings under

text: article 19

text: of

text: the Statute

text: can vary considerably, it appears that the reason why the Chamber has such broad discretion under rule 58 (2) of the Rules of Procedure and Evidence is to enable the Chamber to adapt the procedure to the specific case at hand.

text: A challenge to the admissibility of the case by a State under

text: article 19

text: (2) (b) of

text: the Statute

text: can only be based "on the ground that it is investigating or prosecuting the case or has investigated or prosecuted." In other words, in proceedings under article 19 (2) (b), the State's right to investigate and prosecute a case itself, which forms the basis of the principle of complementarity, is immediately at issue.

text: Complementarity is, as a commentator said.

text: the determination. This means in effect that the Appeals Chamber will interfere with a discretionary decision only under limited conditions. The jurisprudence of other intemational tribunals as well as that of domestic courts endorses this position. They identify the conditions justifying appellate interference to be: (i) where the exercise of discretion is based on an erroneous interpretation of the law; (ii) where it is exercised on patently incorrect conclusion of fact; or (iii) where the decision is so unfair and unreasonable as to constitute an abuse of discretion." See Prosecutor v. Joseph Kony et a l , "Judgment on the appeal of the Defence against the 'Decision on the admissibility of the case under

text: article 19

text: (1) of

text: the Statute

text: ' of 10 March 2009", 16 September 2009,

text: , para. 80. ^ / ^

text: [...] one of if not the comerstone of the

text: Rome Statute

text: . It strikes a balance between state sovereignty and an effective and credible ICC. Without it there would have been no agreement.^^

text: That complementarity is a core guiding principle for the relationship between States

text: and the Court is confirmed by its prominent place in

text: the Statute

text: article 1

text: and

text: Preamble) as well as by the drafting history of the

text: Rome Statute

text: :^^ The "criminal

text: jurisdiction" of the Court and that of States are "complementary" to each other. This

text: means that both the Court and States strive to achieve the goals of

text: the Statute

text: , as

text: reflected in its Preamble, especially that of putting an "end to impunity for the

text: perpetrators" of "the most serious crimes of concem to the intemational community as

text: T O

text: a whole". This also means that there must be, to the extent possible, close

text: cooperation and communication between the Court, especially the Office of the

text: TQ

text: Prosecutor, and the State in question. Complementarity reinforces the principle of

text: intemational law that it is the sovereign right of every State to exercise its criminal

text: jurisdiction; but it also ensures that the Court can step in to give effect to the goals of

text: intemational criminal justice. While dialogue between the State and the Court is

text: therefore required and desired, it is the Court, and not a third authority, that is the

text: arbiter in case of confiict.^^ According to a commentator, complementarity attempts to

text: reconcile "the imperatives of sovereignty and global justice"."*^ When those

text: "imperatives" clash, the judiciary of the Court will have to determine whether a case

text: ^^ S. A. Williams, "Issues of Admissibility, Article 17", in O. Triffterer (ed.) Commentary on the

text: Rome Statute of the International Criminal Court

text: , Observer's Notes, Article by Article, (NOMOS, Baden- Baden, 1'* ed., 1999),p. 392, para. 20 (footnote omitted). ^^ See Ad Hoc Committee on the Establishment of an International Criminal Court, Draft Report of the Ad Hoc Committee, 22 August 1995, A/AC.244/CRP.5, at p.l: "The concept of complementarity was described as an essential element in the establishment of an intemational criminal court."; see also United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Summary Records of the 1998 Diplomatic Conference, 11* meeting, 22 June 1998, A/CONF.183/C.1/SR11, para 19; see also 12* meeting, 23 June 1998, A/CONF.183/C.1/SR.12, para. 49. ^* Paras 4 and 5 of the Preamble. ^^ See X. Agirre, A. Cassese, R. E. Fife, H. Friman, C. K. Hall, J. T. Hohnes, J. Kleffher, H. Olasolo, N. H. Rashid, D. Robinson, E. Wilmshurst, A. Zimmermann, "Informal expert paper: The principle of complementarity in practice", ICC-OTP 2003, p. 5; see also J. Klefftier, "Complementarity as a catalyst for compliance", in: J. Kleffher, G. Kor (eds) Complementary Views on Complementarity (Asser Press, 2006), p. 82; see also the reverse side of this (encouraging States to exercise their jurisdiction) M. Benzing, The Complementarity Regime of the ICC, Max Planck Yearbook of United Nations Law, volume 7, 2003, p. 592, at p. 596. ^^ See J. T. Hohnes, Complementarity: National Courts versus the ICC, in: A. Cassese, P. Gaeta, J. R.W.D. Jones (ed.) The

text: : A Commentary, Volume 1 (Oxford 2002), p. 672. ^^ G. Simpson, "Politics, Sovereignty, Remembrance" in: D. McGoldrick, P. Rowe, E. Donnelly (eds). The Permanent Intemational Criminal Court. Legal and Policy Issues (Oxford, 2004), p. 61

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

text: J M / is admissible on the basis of

text: article 17

text: (1) (a) and (b) of

text: the Statute

text: . Under this

text: provision, the Court may exercise its jurisdiction in relation to a specific case only

text: when the case a) is either not taken up by national jurisdictions (situation of

text: inactivity) or b) is or was taken up but the national jurisdiction is or was unable or

text: unwilling genuinely to carry out the investigation or prosecution. The Appeals

text: Chamber in the case Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui

text: confirmed recently these two limbs of a decision on admissibility under article 17 (1)

text: (a) and (b) of

text: the Statute

text: At the root of understanding matters relevant to complementarity is that "the

text: assessment of complementarity is the outcome of an ongoing process"."*^ Considering

text: the provisions of

text: article 19

text: , and specifically

text: article 19

text: (10) of

text: the Statute

text: , it appears

text: that an inadmissible case can become admissible and vice versa, as also confirmed by

text: the jurisprudence of the Appeals Chamber."*"* Under

text: article 19

text: (4) of

text: the Statute

text: , a

text: State may no longer challenge the admissibility of a case based on article 17 (1) (a)

text: and (b) of

text: the Statute

text: once the trial has started. Nevertheless, until that point in time, it

text: is the sovereign right of a State to start the investigation or prosecution of a case and

text: challenge the admissibility ofthat case before the Court."*^ By so doing and subject to

text: the exceptions stipulated in

text: article 17

text: of

text: the Statute

text: , the case becomes inadmissible

text: before the Court and the State's jurisdiction prevails over that of the Court.

text: ^^ "Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case", 25 September 2009,

text: , 0A8, para 78. ^^ F. Gioia, "Comments on chapter 3 of Jann Kleffiier", J. Kleffrier, G. Kor (eds) Complementary Views on Complementarity (Asser Press, 2006), p. 109; the author also found the characterization of a "procedural dialogue"; see also J. T. Hohnes, "Complementarity: National Courts versus the ICC", in: A. Cassese, P. Gaeta, J. R.W.D. Jones (ed.) The

text: : A Commentary, Volume 1 (Oxford, 2002), p. 683. ^^ Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, "Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case", 25 September 2009,

text: , 0A8, para. 56 reads: "[...] Thus, a case that was originally admissible may be rendered inadmissible by a change of circumstances in the concerned States and vice versa.

text: Article 19

text: (10) of

text: the Statute

text: gives the Prosecutor the right to submit a request for a review of a previous decision that a case is inadmissible if he or she is satisfied "that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17 [...] Thus, the provision is clear evidence that

text: the Statute

text: assumes that the factual situation on the basis of which the admissibility of a case is established is not necessarily static, but ambulatory." ^^ Important in this context is also the scheme of State cooperation relevant to the arrest and surrender of persons.

text: No: ICC-01/09.02/11 OA 11/18

text: ^ ^ 2 /

text: In the judgment mentioned above,"*^ the Appeals Chamber held that, "[gjenerally speaking, the admissibility of a case must be determined on the basis of the facts as they exist at the time of the proceedings conceming the admissibility challenge. This is because the admissibility of a case under

text: article 17

text: (1) (a), (b) and (c) of

text: the Statute

text: depends primarily on the investigative and prosecutorial activities of States having jurisdiction. These activities may change over time.""*^ This statement of the Appeals Chamber concerned an appeal where the case was admissible during the entire admissibility proceedings. Nevertheless, if a State has the right to start an investigation and prosecution and to bring an admissibility challenge at any time before the start of the trial before the Court, then it stands to reason that the State may also start its investigation and prosecution when the admissibility challenge has already been made. In this context, one may note that

text: article 19

text: (5) of

text: the Statute

text: provides: "A State [...] shall make a challenge at the earliest opportunity." This is in the interest of the Court and the proper administration of justice because it will avoid potentially lengthy and expensive proceedings before the Court that may have to be stopped at a later stage because the case has become inadmissible. This also supports that a State, acting in good faith,"*^ may use the mechanism of a State challenge as early as possible, even though the State has not yet reached the stage of fully investigating or prosecuting a given case and intends to start to do so in the course of the proceedings on the admissibility challenge.

text: The broad discretion given to the Chamber under mle 58 (2) of the Rules of Procedure and Evidence provides the Chamber with the power to adapt the procedure to the needs of the proceedings at hand by balancing all interests at stake, including the sovereign rights of the State. In so doing, the Chamber must also consider that a State may raise a second challenge to the admissibility of a case only with the leave of the Chamber and in "exceptional circumstances", as provided for in

text: article 19

text: (4) of

text: the Statute

text: . Accordingly, a State making use of its right to challenge the admissibility of a case may expect the Court fiiUy to respect the State's rights when framing the

text: ^^ See supra pardi. 19. "^^ Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, "Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case", 25 September 2009,

text: , 0A8, para. 56. ^^ The concept of "good faith" is important in public intemational law and related proceedings; see R. Kolb, General Principles of Procedural Law, in: A. Zimmermann, C. Tomuschat, K. Oellers-Frahm (eds).

text: The Statute

text: of the International Court of Justice, A Commentary, (Oxford, 2006), p. 830, para. 64.

text: procedure for determining the admissibility challenge. This procedure must take into account the specific circumstances put forward by the State, including the State's clearly evinced intentions. The understanding that the rights of the State are at the core of decision-making is confirmed by the drafting history of mle 58 of the Rules of Procedure and Evidence and related mles about which a commentator concluded: "The Rules ensure a form of 'due process' for States"."*^ Such mles of "due process" for States will develop over time. The Chamber may seek guidance from procedural mles applicable at the Court as well as from other courts where States are applicants in proceedings and sovereignty of States is at issue.^^

text: The sovereign rights of the State, while important, are however not the only consideration in determining the procedure under mle 58 (2) of the Rules of Procedure and Evidence. Those rights must be balanced with the need to pursue the goals of intemational criminal justice by assuring the efficacy of the investigation and the prosecution of a case.^* In addition, the overall interests of justice as well as the interests of victims have to be respected. Finally, the Chamber has to adapt the procedure to the specific issues arising in the case at hand, such as uncertainties as to the legal and factual situation at hand or the fact that proceedings are conducted for the first time. By taking into account those criteria, a procedure needs to be implemented that "best meet[s] the needs of transparency, efficiency, respect for national primacy and urgent action where doubts about national proceedings are raised".^^

text: Turning to the case at hand, it appears that the Pre-Trial Chamber set the procedure merely according to procedural minimum requirements, as stipulated by mles 58 (3) and 59 (3) of the Rules of Procedure and Evidence. The Pre-Trial Chamber also rejected nearly all requests to add to this procedure, for example by not allowing for an oral hearing or the filing of additional documentation within specified

text: ^^ J. T. Holmes "Jurisdiction and Admissibility" in: R. S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, (Transnational Publishers, 2001) p. 348. ^° See e.g. C. F. Amerasinghe, Evidence in International Litigation, (Brill, 2005) compiling and comparing mles of evidence of several tribunals. ^* See also J. T. Holmes in: R. S. Lee (ed.). The International Criminal Court: The Making of the

text: Rome Statute

text: , (Kluwer Law Intemational, 1999), pp. 74 -75. ^^ See J. T. Holmes, Complementarity: National Courts versus the ICC, in: A. Cassese, P. Gaeta, J. R.W.D. Jones (ed.) The

text: : A Commentary, Volume 1 (Oxford 2002), p. 684.

text: periods of time after the filing of the Reply of 16 May 2011.^^ Further, the Pre-Trial Chamber treated the Appellant's prayer for an oral hearing in the same way as the Appellant's request for a status conference to discuss the procedure to be put in place according to mle 58 (2) of the Rules of Procedure and Evidence. The Pre-Trial Chamber's suggestion that the Appellant should have appealed the Decision of 4 April 2011 if it wished to object to the marmer in which the Pre-Trial Chamber organised the proceedings indicates that the Pre-Trial Chamber did not consider that it was able to add to or adapt the procedure adopted in that decision.^^ Instead, the Pre- Trial Chamber mied on the Admissibility Challenge within eight weeks of its filing. It appears therefore that the Pre-Trial Chamber did not fully appreciate the scope of its discretionary powers and, in consequence, did not consider that it could take the steps necessary to adapt the admissibility proceedings to the needs of the specific proceedings, not only at the beginning but throughout the admissibility proceedings.

text: The Pre-Trial Chamber did not sufficiently take into account that the proceedings at hand were triggered by the first admissibility challenge of a State and that there were many legal and factual uncertainties.^^ The Pre-Trial Chamber, as well as the Appellant and the Prosecutor, were aware that the definition of the "case" was to be discussed and decided. However, the Chamber did not seek specific submissions on such pivotal matters as the definition of "investigation" and "prosecution", the standard of proof, and the type of evidence that was required to meet the burden, even though the Appellant had requested a hearing on those matters, making the Chamber aware of the need for guidance.^^ In the Impugned Decision, however, the Chamber applied what appear to be a high burden of proof and a demanding definition of "investigation".

text: The Pre-Trial Chamber did not consider whether it should have taken any additional procedural steps in order to shed light on the evidentiary situation. The Appellant indicated that investigations were recently ordered or were ongoing, in the

text: ^^ See supra paras 7, 8. ^^ See Request of 18 May 2011. ^^ See Impugned Decision, para. 41. ^^ The fact that there are many legal uncertainties with respect to article 17, was also acknowledged by the drafters of the

text: Rome Statute

text: , see J. T. Holmes, Complementarity: National Courts versus the ICC, in: A. Cassese, P. Gaeta, J. R.W.D. Jones (ed.) The

text: : A Commentary, Volume I (Oxford, 2002), p. 672. ^^ See supra, paras 11, 12.

text: three aimexes that were considered relevant. ^^ Rule 58 (2) of the Rules of Procedure and Evidence gives the Chamber power to take all measures necessary, including requesting more information or extending time to allow the State to present additional material. In the specific context of the case at hand, the Pre-Trial Chamber should have properly considered to make use of such powers. In addition, while the other 26 Annexes might not be relevant to the first limb of the admissibility decision, they perhaps were not without relevance to the second limb of the finding on admissibility.

text: While there is no need to provide a definition of "investigation" and "prosecution" in this Dissenting Opinion, a note of caution is necessary in relation to the understanding of the terms "investigation" and "prosecution". The terms used in the various official language versions of

text: the Statute

text: appear to differ in their meaning too, especially with respect to the distinction between investigation and prosecution. This is not surprising, given that the terminology is based on the criminal law traditions of the countries in which the official languages are spoken. There are important differences not only between, for instance. Common Law and Civil Law systems, but also between the various national jurisdictions belonging to the same tradition.^^ In determining whether a State is indeed investigating or prosecuting a case, the Chamber will need to be made aware of and be provided wdth documentation on the national criminal justice system of the State in question.^^ Any standard and evaluation of evidence in this respect will need to be based upon the principle that States should be treated according to equal or similar standards. In this context, it is also important to mention the difference between "inactivity" as the first limb of admissibility determinations and "unwillingness" or "inability" as its second limb.^^ The drafters of

text: the Statute

text: agreed to establish a high threshold when they drafted the legal and factual requirements for unwillingness and inability in paragraphs 2 and 3 of article 17. The Court should not circumvent this threshold created by unwillingness or

text: ^* See supra paras 8, 12. ^^ See D. Tums, "National Implementation of the

text: Rome Statute

text: ", in: D. McGoldrick, P. Rowe, E. Donnelly (eds). The Permanent International Criminal Court Legal and Policy Issues (Oxford, 2004), p. 337, at p. 387, discussing the differences in the national implementation of the

text: Rome Statute

text: based on different legal systems; see also M. Benzing, The Complementarity Regime of the ICC, Max Planck Yearbook of United Nations Law, volume 7, 2003, p. 591, at p. 602. ^^ See also J. T. Holmes in: R. S. Lee (ed.). The International Criminal Court: The Making of the

text: Rome Statute

text: , (Kluwer Law Intemational, 1999), p. 65, indicating that criminal enforcement agencies in different countries are organized in different ways and that their responsibilities vary. ^^ See supra para. 19.

text: inability by requiring a State to prove e.g. the existence of a ftiU-fledged investigation or prosecution of a case in order to establish that there is no situation of inactivity. It is important to adhere to the spirit of

text: the Statute

text: when giving such interpretations.

text: Returning to the case at hand, it can fiirther be concluded that the Pre-Trial Chamber did not give sufficient weight to the sovereign rights of Kenya in balancing the interests at stake. Specifically, the Pre-Trial Chamber did not take into account that complementarity implies that during the admissibility proceedings Kenya could start with taking investigative steps or prosecuting a case and that the Pre-Trial Chamber has the power to adapt the admissibility proceedings to such changing circumstances. There is nothing in the Appellant's submissions that would indicate that the Appellant did not act in good faith when stating that it intends to conduct the investigations in Kenya. And nothing in the Impugned Decision indicates whether the Pre-Trial Chamber considered that it could facilitate the Appellant by asking for more information or awaiting additional evidence on the start of investigations. Instead, the Pre-Trial Chamber focused merely on the non-existence of an investigation into a "case" in the period between the filing of the Admissibility Challenge and the Reply of 16 May 2011. The Admissibility Challenge was rejected within eight weeks of the date of filing. The period between the issuance of the decision summoning the persons in question and the Impugned Decision did not even amount to three months. The Appellant presented a plan on how it would continue with the investigations. It indicated that it required a maximum of a few months to show additional proof of ongoing investigations. The relevant submissions by the Appellant were merely touched upon by the Pre-Trial Chamber in the Impugned Decision. More importantly though, the Pre-Trial Chamber did not fiiUy consider this matter in light of the fact that, wdthin a short period of time, Kenya would reach the level of an investigation that would satisfy the standards of the Pre-Trial Chamber. Therefore, the Pre-Trial Chamber misapprehended the breadth and impact of the rights of the Appellant during the admissibility proceedings as well as its own powers and obligations, i.e. to consider such factors, under mle 58 (2) of the Rules of Procedure and Evidence.

text: The Pre-Trial Chamber's prevailing consideration was that the proceedings had to be conducted expeditiously. However, the Pre-Trial Chamber did not explain why

text: ^^ See supra paras 20,21.

text: this was the case or why the efficacy of proceedings before the Court was at stake. Neither

text: article 19

text: of

text: the Statute

text: nor mle 58 of the Rules of Procedure and Evidence specifically use the term "expeditious". The criminal proceedings before the Pre-Trial Chamber were, at the time of the admissibility proceedings, at a very early stage. The suspects were not in detention as the Pre-Trial Chamber had issued summonses to appear. Nor can it be said that the suspects' right to be tried without undue delay (

text: article 67

text: (1) (c) of

text: the Statute

text: ) would have been compromised by a decision of the Pre-Trial Chamber to slightly prolong the admissibility proceedings. Finally, as there was no ongoing confiict in Kenya, the impact of the admissibility proceedings on the investigation of the Prosecutor, which is according to

text: article 19

text: (7) of

text: the Statute

text: suspended during such proceedings, was probably limited. Therefore, it must be concluded that expeditiousness was unduly emphasized in the Pre-Trial Chamber's exercise of discretion and given too much weight, especially in comparison to the Appellant's sovereign right to investigate and prosecute the case itself.

text: III. CONCLUSION

text: In conclusion, I am of the view that in exercising its discretion under mle 58 (2) of the Rules of Procedure and Evidence, the Pre-Trial Chamber did not completely account for the sovereign rights of Kenya and the principle of complementarity. Instead, the Chamber, on the basis of its understanding of what constitutes a 'case' in terms of

text: article 17

text: (1) (a) of

text: the Statute

text: , gave too much weight to considerations of expeditiousness. Finally, despite the Appellant's requests and submissions, the Pre- Trial Chamber did not give sufficient weight to the fact that it was hearing the first challenge to admissibility brought by a State and that many legal issues had not been previously addressed in the Court's jurispradence. The Pre-Trial Chamber therefore did not properly balance the various factors mentioned in determining the procedure under mle 58 (2) of the Rules of Procedure and Evidence. This failure led to an abuse of discretion.

text: As it cannot be said how the Pre-Trial Chamber would have decided the Admissibility Challenge, if it had not made this procedural error, the error materially affected the Impugned Decision. I therefore hold that the Impugned Decision should be reversed. In my opinion, the Pre-Trial Chamber should reconsider the Admissibility Challenge and the matters arising from it after conducting the proceedings in a way that fully balances all relevant interests, as required by the principle of complementarity. 32. There is no need to address in more detail the other errors alleged by the Appellant as the Impugned Decision should be reversed. In addition, if the Pre-Trial Chamber had properly exercised its discretion, it might have reached different conclusions with respect to all or some of the legal and evidentiary issues. According to this Dissenting Opinion therefore, the Pre-Trial Chamber would have had to revisit those matters when reconsidering the Admissibility Challenge. Done in both English and French, the English version being authoritative.

text: Judge Anita Usacka Dated this 20th day of September 2011 At The Hague, The Netherlands

title: The Prosecutor v. Uhuru Muigai Kenyatta