Gender Report Card on the International Criminal ... - YWCA Canada

OTP Situations and Cases
on acts of forcible circumcision of Luo men, in
the case against Muthaura, Kenyatta and Ali. In
a worrying interpretation, the Chamber did not
consider these acts to be of a ‘sexual nature’,
and found that these should in fact be classified
as ‘other inhumane acts’. 797 The Chamber thus
not only reduced the charges for gender-based
crimes by location, but also by the types of acts
covered by the charges. The decision issuing
the Summonses to Appear is discussed in more
detail, below.
On 16 February 2011, 798 Pre-Trial Chamber
II requested the Prosecutor to submit all
witness statements upon which he relied in
his applications, which were received by the
Chamber confidentially on 23 February 2011. 799
On 8 March 2011, Pre-Trial Chamber II handed
down two decisions issuing the Summonses. 800
Judge Kaul dissented on the issuance of both
Summonses to Appear. 801 The initial appearance
797 ICC-01/09-02/11-1, para 27.
798 ICC-01/09-01/11-1 and ICC-01/09-02/11-1 citing ICC-
01/09-45-Conf-Exp.
799 ICC-01/09-01/11-1 and ICC-01/09-02/11-1 citing ICC-
01/-09-48-Conf-Exp and Annexes.
800 ICC-01/09-01/11-1; ICC-01/09-02/11-1.
801 ICC-01/09-01/11-2; ICC-01/09-02/11-3. Following
his earlier dissent on the 31 March 2010 decision
authorising the Prosecutor’s initiation of an
investigation in the Kenya Situation (ICC-01/09-19),
Judge Kaul disagreed with the majority decision to issue
the Summonses to Appear against the six individuals
because he believed that the ICC lacked jurisdiction
ratione materiae. Although he was satisfied that the
crimes for which Ruto, Kosgey and Sang were allegedly
criminally responsible, were planned and organised,
Judge Kaul did not believe the alleged crimes were
committed ‘pursuant to the policy of a state-like
organisation, which is an indispensable element and
inherent characteristic of crimes against humanity
under Article 7 of the Statute’ (ICC-01/09-01/11-2,
para 50, emphasis in original). Similarly, recalling his
understanding of the essential characteristics of an
‘organisation’ in his dissent to the 31 March 2010
decision, Judge Kaul also failed to see an ‘organisation’ in
the Prosecutor’s application for Summonses to Appear
for Muthaura, Kenyatta and Ali (ICC-01/09-02/11-3,
para 27). Instead, Judge Kaul classified the cooperation
between the Mungiki and the Kenyan Police Forces as ‘a
limited partnership of convenience’ (para 31).
of Ruto, Kosgey and Sang was held on 7 April
2011; that of Muthaura, Kenyatta and Ali on 8
April 2011. The confirmation hearings in both
cases took place on 1-8 September and 12
September – 5 October, respectively. These filings,
decisions and hearings are discussed in detail,
below.
Developments in Kenya
The Situation in Kenya has become one of the
more contested situations before the Court,
with resistance to the Court’s jurisdiction by
the Kenyan Government and the suspects
playing out on a number of fields. For the first
time before the ICC, a State Party challenged
the admissibility of cases, although the Kenyan
Government was eventually unsuccessful in
this challenge, as described in the Admissibility
section below. The Kenyan Government has
also actively petitioned the AU for support for
an Article 16 suspension of the proceedings
by the UN Security Council, resulting in an
AU Resolution calling for deferral of the
cases. Domestically, the Government has also
continued to take some measures to prepare for
domestic proceedings, and has channelled the
ICC’s investigations through the Kenyan legal
system, resulting in additional procedures and
delays for the ICC’s investigation. In addition,
both sets of suspects have raised a number of
legal challenges to the Summonses and the
cases themselves.
The Kenyan Government has taken a number
of high-profile measures in efforts to prevent
the ICC cases from proceeding. In an immediate
reaction to the issuance of Summonses to
Appear, the Government indicated that it would
seek to withdraw from the Rome Statute. 802 It
subsequently launched a high-level lobbying
802 ‘Kenya can bring justice home; ICC’s part of the answer’,
The East African, 17 January 2011, available at , last visited on 27 October 2011.
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