The Policy Requirement in Crimes Against Humanity: Lessons from and for the Case of Kenya

Abstract

Article 7(2)(a) of the Rome Statute stipulates that crimes against humanity are pre-conditioned on the existence of an attack on a civilian population “pursuant to or in furtherance of a State or organizational policy to commit such attack”. This requirement has given rise to considerable controversy in the legal literature. This article examines how the provision has been applied by Pre-Trial Chamber II of the ICC in the two cases currently pending before the Chamber concerning Kenya’s post-election violence. The question of under what circumstances non-state actors may qualify as an organization in the meaning of article 7(2)(a) is elaborated significantly on in these cases. Further, the question of whether state actors can adopt an organizational policy is discussed in the Kenyan cases. The article critically reviews the practice of the ICC and seeks to establish new criteria for how article 7(2)(a) should be applied.

Keywords: Crimes against humanity, state or organizational policy, Kenya