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

OTP Situations and Cases
substantiating any link, coordination or
hierarchy between the different branches of the
alleged ‘network’. 829
Kosgey also filed a jurisdictional challenge
on 30 August 2011, asserting substantially
similar arguments to Ruto and Sang, and also
adopting the position set out in the dissenting
opinion by Judge Kaul. Kosgey argued that the
wide definition of ‘organisation’ adopted by the
majority of Pre-Trial Chamber II risks extending
ICC jurisdiction to ‘any situation in which mass
atrocities have taken place’. 830 Kosgey postulated
that the inclusion of the requirement of
‘organisational policy’ in Article 7 of the Rome
Statute stemmed from a desire to ensure that
the threshold ‘widespread or systematic’ was not
extended to include widespread national crimes,
as well as to ensure the Statute upheld state
sovereignty. 831 Kosgey argued that customary
international law provides that organisations
without state-like characteristics, such as de
facto territorial control or formal hierarchy are
not adjudicated under international law. 832
In addition, similar to the Ruto and Sang
challenge to jurisdiction, Kosgey submitted that
the Prosecution had not provided sufficient
evidence to establish that an organisation
existed within the meaning of Article 7(2)(a).
In filing the jurisdictional challenge, Kosgey
requested the Pre-Trial Chamber to consider the
issue of jurisdiction anew, taking into account
the argument that the proper definition of an
‘organisation’ is that provided by the dissenting
opinion of Judge Kaul.
Kenyatta 833 and Ali 834 also filed challenges to
jurisdiction on 19 September 2011, prior to
the confirmation of charges hearing in that
case. In line with the Ruto, Kosgey and Sang
challenges to jurisdiction, Kenyatta argued
829 ICC-01/09-01/11-305, para 75.
830 ICC-01/09-01/11-306, para 4.
831 ICC-01/09-01/11-306, paras 50-51.
832 ICC-01/09-01/11-306, paras 62-64.
833 ICC-01/09-02/11-339.
834 ICC-01/09-02/11-338.
that the majority’s interpretation of the
chapeau elements of Article 7, in particular its
interpretation of ‘state or organisational policy’
was incorrect and ran contrary to the intention
of the drafters of the Rome Statute. Instead,
Kenyatta postulated that the interpretation
provided in the dissenting opinion of Judge Kaul,
namely that an organisation must portray statelike
characteristics, is correct. Kenyatta further
stressed that even if the Pre-Trial Chamber
was not convinced that an organisation under
Article 7 must possess state-like characteristics,
the ICC does not have jurisdiction because
the Prosecutor failed to provide evidence
substantiating any organisational policy to
commit the alleged crimes. 835
Ali pursued a slightly different argument on
jurisdiction than the other Defence teams,
asserting that the Prosecution not only failed
to substantiate the requirements of Article 7,
but also failed to meet the requisite elements
of Article 25(3)(d), thereby depriving the Court
of personal jurisdiction. He also argued that the
alleged charges fail to meet the gravity threshold
under Article 17(1)(d) of the Rome Statute.
First, Ali postulated that ‘the Prosecution has
not demonstrated any reasonable grounds to
believe that General Ali, the Mungiki, Muthaura,
Kenyatta, the Kenya Police, PNU businessmen
and politicians, and pro-PNU youth were all
a part of a single, cognisable, hierarchical
structure featuring various levels of command
and a division of duties in the command
structure’. 836 In addition to failing to prove the
existence of any organisation, Ali also argued
that the Prosecution failed to demonstrate the
existence of any organisational policy, and in
particular, not one in which Ali was involved.
835 ICC-01/09-02/11-339, para 59.
836 ICC-01/09-02/11-338, para 23. It should be noted that
at the confirmation stage of proceedings, the requisite
standard of proof is substantial grounds to believe, as
opposed to ‘reasonable grounds to believe’ as cited in
Ali’s jurisdictional challenge.
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