International Decision: Situation in the Republic of Kenya No. ICC-01/09-19: Decision on the Authorization of an Investigation
American Journal of International Law, Vol. 105, No. 3, pp. 540-447, 2011
10 Pages Posted: 19 Aug 2011 Last revised: 13 Oct 2017
Date Written: August 17, 2011
On March 31, 2010, in its first ever decision authorizing a prosecutorial proprio motu investigation, the Pre-Trial Chamber of the International Criminal Court (ICC) granted the ICC Prosecutor permission to investigate the shocking violence which followed Kenya’s December 2007 Presidential elections under Article 15 of the Rome Statute of the International Criminal Court. The majority of the Chamber ruled that both the contextual and underlying requirements of crimes against humanity had been fulfilled, including that they were committed as part of a state or organizational policy as required by Article7(2)(a) of the Rome Statute. According to the majority, the latter requirement can be satisfied by any non-state actors capable of widespread and systematic attacks against a civilian population that infringes on basic human values. In contrast, in a lucid dissent, Judge Hans Peter-Kaul determined that the state or organizational policy requirement can only be met by organizations bearing state-like qualities. As the prosecution evidence had failed to show the existence of such organizations, he would deny the ICC Prosecutor permission to investigate the alleged crimes against humanity committed in Kenya. This case note summarizes this seminal ICC decision. It sets out why the decision is not only important for any future discussion of the legal elements of crimes against humanity in the ICC, but why it also goes to the very heart of the debate about the role of the fledgling permanent court in the emerging international criminal justice system.
Keywords: International Criminal Court, Pre-Trial Chamber II, decision on the authorization of an investigation in Kenya, proprio motu prosecutorial investigations, crimes against humanity, Article7(2)(a) of the Rome Statute, contextual elements of crimes against humanity, state or organizational policy
JEL Classification: K14, K33, K32, K19, N40
Suggested Citation: Suggested Citation