SITUATION IN THE REPUBLIC OF KENYA

First of all, it is rather important to explain the context in

which the crisis in Kenya began.

On December 27 2007, Presidential elections took place in

Kenya, involving two main candidates - Mwai Kibaki (Kikuyo
Tribe) of the Party of National Unity (PNU) and Raila Odinga
(Luo Tribe) of the Orange Democratic Movement (ODM).
Odinga was leading in the polls by over one million votes, but
in the final hours of voting, Kibaki took the lead and was
declared winner by a very narrow margin.

Attacks from the Luo targeted Kikuyo members, and the

country had plunged into a small civil war.

On 6 November 2009, the Presidency of the Court assigned

the situation to Pre-Trial Chamber II, composed of Judge
Ekaterina Trendafilova (presiding judge), Judge Hans-Peter
Kaul and Judge Cuno Tarfusser.

The issue here is to know whether there is a reasonable basis

to believe that CAH within the jurisdiction of the Court have
been committed.

Since the crimes were committed on Kenyan territory, they fall

indeed within the Courts territorial jurisdiction. But we still
need to find out if the crimes fulfil other jurisdictional
parameters such as subject matter and time-matter
requirements.

The Chamber finds that the information available provide

reasonable basis to believe that CAH have been committed.

Now, we need to analyse which are the contextual elements of

CAH.
Article 7 (1) stated that 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 knowledge of the attack

Furthermore, number 2 of this very article indicates that

attack directed against any civilian population , means a
course of conduct against any civilian population, pursuant to
or in furtherance of a State or organizational policy to commit
such attack.

Now we need to break down this article in order to understand

whether it falls under the definition of CAH.
1- ATTACK- does not need to be a military attack, but a campaign
or operation carried out against the civilian population.
2- CIVILIAN POPULATION here the court needs to demonstrate
that the attack was directed against the civilian population a
whole and not randomly selected individuals.
3- STATE OR ORGANIZATIONAL POLICY- here is where it gets a bit
tricky. And why is that? Because the Statute does not provide
a definition of the terms policy and state or organizational.
Looking to previous cases such as Katanga and Ngudjolo
and Jean-Pierre Bemba we could tell that it refers to an
attack that is planned, organized and directed, and follows a
pattern , as opposed to isolated acts of violence, by groups of
people that govern a specific territory or by any organisation
with the capability to committed this kind of acts.

This State Policy we talked about doesnt need to necessarily

to have been conceived by the highest levels of state
machinery, hence a policy adopted by regional or local organs
could satisfy the requirement of state policy.

As I previously said, the country was at the brink of a civil war

given the widespread nature of the attack, regarding all sorts
of crimes, such as rape, mutilation, deportation, hacking to
death, public beheadings. Thousands were killed and more
than half a million people were displaced. By that, we could
tell that the ratione loci requirement was fulfilled as well, so
we dont need to look for other jurisdictional requirements.

The Chamber concluded that the case would be admissible

under article 17 of the Statute, since d) states that The
Court shall determine that a case is inadmissible where the
case is not of sufficient gravity to justify further action by the
Court. Well, it is believed that it is indeed of sufficient gravity,
for it to be admissible by the Court.

Therefore, the Chamber authorized the

commencement of an investigation into the

situation in Kenya regarding post-election violence.

I may refer that judge Hans-Peter Kaul did not sign
it, appending a dissenting opinion.

His differing opinion stated that the acts, which occurred in Kenya,
do not qualify as CAH, but common crimes that should be punished
by national criminal systems and not by the ICC since in his opinion
dont fall under the scope of articles 6,7,8 of the Statute.
He furthermore adds that the ICC approach in that matter might
infringe the states sovereignty.
Judge Kaul believes that the crime cannot be taken into the ICCs
account because he begs to differ the opinion that there is a
organizational policy as a organized attacks but prefers the
interpretation whereby organizational should be construed as
meaning to pertain to an organization. He adds that the reasons for
the violence seem to go beyond allegations of manipulated elections
and the cause of the violence are long-lasting and unresolved issues
that haunt the country for several years. He stresses out once more
that despite some violence appear to have been organized and
planned, he fails to see the existence of an organization, and
therefore how it can fall under article 7 of the Statute.