ICC Pre-Trial Chamber Gives Ocampo the Green Light in Kenya

In an historic decision, a majority of the Pre-Trial Chamber of the International Criminal Court has given the Prosecutor the benefit of the doubt and has authorised him to conduct official investigations into crimes against humanity believed to have been committed in Kenya.  Kenyan hopes for an end to impunity now rest with Ocampo as he seeks to secure the cooperation of the Kenyan Government, to ensure that all witnesses remain protected, and to secure convictions prior to the commencement of the 2012 elections.

In a previous post, I discussed the legal issues likely to be raised by the Prosecutor’s application.  This piece provides an analysis of the most significant aspects of the Pre-Trial Chamber’s lengthy 163-page decision.  In particular, it considers:

(1)    The Pre-Trial Chamber’s definition of “reasonable basis” in Article 15;

(2)    The distinction the Chamber makes made between a “situation” and a “case”;

(3)    The Chamber’s extension of the meaning of “organisational policy” in the definition of crimes against humanity;

(4)    The lack of guidance provided for the test of complementarity in Article 17;

(5)    The criteria provided for assessing “gravity” in Article 17; and

(6)    The Chamber’s interpretation of the “interests of justice” test in Article 53(1)(c).

1. What is a “Reasonable Basis”?

Article 15 of the Rome Statute provides that the Prosecutor’s determination that there is a “reasonable basis” to proceed with an investigation shall be reviewable by the Pre-Trial Chamber.  In the decision, the Pre-Trial Chamber begins by stating that the “reasonable basis” standard of proof is even lower than that provided under Article 58 of the Statute concerning the issuance of arrest warrants.  It then provides further guidance by stating that Article 15 requires the Pre-Trial Chamber to satisfy itself that there is a “sensible or reasonable justification” for the Prosecutor to conduct an investigation.

Whilst concurring with this interpretation of Article 15, the dissenting opinion of Judge Kaul cautions against the Pre-Trial Chamber’s review function becoming summary in nature whereby any information may satisfy this low standard.  Judge Kaul expresses his concern that if the standard were to be set so low that the Court becomes a mere “rubber stamp” for the Prosecutor, it may result in the Court commencing investigations without the Court having jurisdiction.

 2. Distinction between a “Situation” and a “Case”

The Pre-Trial Chamber identifies that at the stage of admissibility, the Rome Statute distinguishes between a “situation” and a “case”.  According to the Pre-Trial Chamber, the admissibility of a “case” is not required to be considered until the Court is asked to issue an arrest warrant or a summons to appear in court.  Prior to this, the admissibility of a “situation” must be considered when deciding whether to grant the Prosecutor authorisation to conduct investigations.

The admissibility of a “situation”, however, is not considered in the abstract, but rather in the context of potential “cases”.  We are told that this is apparent from the fact that the drafters chose to use the word “case” in Article 15(4) but the word “situation” in Article 15(5) and Article 15(6).  According to the Pre-Trial Chamber, this was deliberate, and as it is not possible to have a “case” prior to the commencement of the investigation, the use of the word “case” in Article 15 indicates that the assessment of the admissibility of a “situation” must be made in the context of potential “cases”.

Consequently, in order to decide whether a situation is admissible at the investigatory stage, the Prosecutor is required to provide the Pre-Trial Chamber with a preliminary assessment of the groups of persons or incidents likely to be investigated.  This is almost certainly the reason why on 18 February 2010 the Pre-Trial Chamber used its powers under Rule 50(4) to request clarification and additional information from the Prosecutor, who had initially given no indication on the groups of persons or incidents he was proposing to investigate.  The lesson for the Prosecutor to learn from this part of the judgment is that, even at this preliminary stage, he or she will always be required to provide the Pre-Trial Chamber with an indication on the persons and incidents to be investigated.

 3. Meaning of “Organisational Policy” in the Definition of “Crimes Against Humanity”

The most contentious aspect of the Pre-Trial Chamber’s decision concerns the manner in which it interprets “organisational policy” in the context of a crime against humanity, with the Chamber unable to reach a consensus on this point.  Article 7(2)(a) of the Rome Statute provides that for a crime to amount to a “crime against humanity”, it must be made “pursuant to or in furtherance of a State or organisational policy”.  In an extension of previous jurisprudence on this point, the majority decides that it is possible for crimes against humanity to be committed by groups that are not States or even “State-like”, so long as the violence is “organised”.  According to the majority, the question to be considered is whether the organised group have “the capability to perform acts which infringe on basic human rights.”  The majority supports its position merely by reference to academic articles and a 1991 commentary of the International Law Commission to its Draft Code (A/CN.4/SER.A/1991/Add.1).

The majority lists a number of factors that may be taken into account in determining whether a group that commits violations of human rights can be said to be “organised” for the purposes of crimes against humanity:

(a)    Whether the group is under a responsible command, or has an established hierarchy;

(b)   Whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population;

(c)    Whether the group exercises control over part of the territory of a State;

(d)   Whether the group has criminal activities against the civilian population as a primary purpose;

(e)    Whether the group articulates, explicitly or implicitly, an intention to attack a civilian population; and

(f)     Whether the group is part of a larger group which fulfils some or all of the above criteria.

The majority then concludes that, even in the absence of any evidence of a policy on the part of the Government of Kenya to attack a civilian population, it is nevertheless satisfied that there is a reasonable basis for concluding that crimes against humanity have been committed.  The majority makes little reference to the above criteria but nevertheless finds that crimes against humanity may have been committed because the violence was planned, directed and organised by “various groups, including local leaders, businessmen and politicians.”

Judge Kaul dissents on this point and finds that that there was no evidence of a State or organisational policy to commit an attack on a civilian population.  Conscious of the need to maintain a clear demarcation between domestic crimes and crimes against humanity, Judge Kaul holds that evidence of violence being organised is not in itself sufficient for the violence to amount to a crime against humanity.  Judge Kaul finds that, whilst the English text of the Rome Statute seems to merely require that the violence be “organised”, the equally-authoritative French, Spanish and Arabic texts leave no doubt that the policy of violence be adopted by an “organisation”.  Judge Kaul accepts that an “organisation” may be a private entity or a non-state actor so long as it is an entity which “may act like a State”.  Such an organisation would be one which:

(a)    Is a collectivity of persons;

(b)   Which was established and acts for a common purpose;

(c)    Over a prolonged period of time;

(d)   Which is under responsible command or adopted a certain degree of hierarchical structure, including, as a minimum, some kind of policy level;

(e)    With the capacity to impose the policy on its members and to sanction them; and

(f)     Which has the capacity and means available to attack any civilian population on a large scale.

Whilst Judge Kaul accepts that the post-electoral violence may have been organised and planned in advance, the absence of an “organisation” implementing a policy to attack a civilian population prevented His Excellency from being satisfied that there was a reasonable basis for concluding that crimes against humanity had been committed.  On this basis, Judge Kaul dissents and denies the Prosecutor’s request to conduct investigations.

 4. The Principle of Complementarity

The Pre-Trial Chamber’s decision is disappointingly brief in its dealing of the principle of complementarity in Article 17(1)(a).    The Pre-Trial Chamber simply concludes that there is no need to consider whether Kenya is “unwilling or unable” to investigate or prosecute because Article 17(1)(a) provides that a case may only be inadmissible where it is being “investigated or prosecuted by a State.”  As there have been no investigations or prosecutions against the most senior leaders or in relation to the most serious incidents, the Pre-Trial Chamber finds that there are no grounds upon which to rule the potential cases inadmissible.

No reference at all is made to the work of the Truth, Justice and Reconciliation Commission and we are therefore left uncertain as to when, and in what circumstances, the establishment of such an institution is sufficient to render cases inadmissible before the Court.

Of greater concern, however, is that only passing consideration is given to the proposed special tribunal.  The Pre-Trial Chamber finds that the failure of a special tribunal to be established to date serves as an indication of “inactivity on the part of Kenyan authorities to address the potential responsibility of those who are likely to be the focus of the Court’s investigation.”  The Chamber does not discuss recent attempts to establish a special tribunal or what impact this may have on the admissibility of the case.  One cannot help but speculate as to how the Pre-Trial Chamber will respond should a special tribunal be established to try those bearing the greatest responsibility for the post-electoral violence.

 5. Gravity

The most elucidating part of the judgment concerns the test the Pre-Trial Chamber adopts for assessing gravity in Article 17(1)(d).   Following from its findings in relation to “situations” and “cases”, the Pre-Trial Chamber states that “gravity” must be examined against the backdrop of the likely set of cases that would arise from investigations.  According to the Pre-Trial Chamber, the gravity of a situation must be assessed according to the modus operandi of the crimes.

In conformity with the small amount of existing jurisprudence on assessing gravity, the Pre-Trial Chamber states that “it is not the number of victims that matter but rather the existence of some aggravating or qualitative factors attached to the commission of the crimes, which makes it grave.”  The Pre-Trial Chamber then goes further in listing factors that that may be taken into account in assessing gravity.  Borrowing from the factors that are to be considered when sentencing convicted persons, the Pre-Trial Chamber provides the following criteria:

(a)    The scale of the alleged crimes (including assessment of geographical and temporal intensity;

(b)   The nature of the crimes allegedly committed;

(c)    The manner in which the crimes were committed; and

(d)   The impact of the crimes and the harm caused to victims and their families.

The Pre-Trial Chamber, influenced by the large number of crimes, the brutality of the crimes, and the trauma that these crimes caused to victims, subsequently finds that the threshold of gravity is satisfied.

 6. Interests of Justice

Finally, the Pre-Trial Chamber confirms that the “interests of justice” test in Article 53(1)(c) does not require the Prosecutor to show that investigations are in the interests of justice and that the Prosecutor need not present any reasons or supporting material in this respect.  Somewhat surprisingly, the Pre-Trial Chamber goes even further than this and seems to suggest that it may never review the Prosecutor’s determination that investigations are in the interests of justice.  The position seems to be that, as the Prosecutor is under no obligation to inform the Pre-Trial Chamber of why he considers the investigations to be in the interests of justice, the Pre-Trial Chamber therefore has no power to review this decision.  By contrast, when the Prosecutor decides that an investigation would not be in the interests of justice, he is under an obligation to notify the Chamber of the reasons for the decision, thereby triggering the review power of the Chamber under Article 53(3)(b).  If this understanding of the Pre-Trial Chamber’s decision is correct, it leads to the remarkable position whereby the decision of the Prosecutor that the conduct of investigations is in the interests of justice would always be unreviewable.