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Icc-01/09-01/11-306 30-08-2011 1/38 Cb Pt ICC-01/09-01/11-306 30-08-2011 1/38 CB PT Original: English No .: ICC-01/09-01/11 Date: 30 August 2011 PRE-TRIAL CHAMBER II Before: Judge Ekaterina Trendafilova, Presiding Judge Judge Hans-Peter Kaul, Judge Judge Cuno Tarfusser, Judge SITUATION IN THE REPUBLIC OF KENYA IN THE CASE OF THE PROSECUTOR v. WILLIAM SAMOEI RUTO, HENRY KIPRONO KOSGEY AND JOSHUA ARAP SANG PUBLIC APPLICATION ON BEHALF OF HENRY KIPRONO KOSGEY PURSUANT TO ARTICLE 19 OF THE ICC STATUTE Source: Defence for Henry Kiprono Kosgey No. ICC-01/09-01/11 30 August 2011 1 ICC-01/09-01/11-306 30-08-2011 2/38 CB PT Document to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Counsel for the Defence Luis Moreno-Ocampo, Prosecutor Counsel for William Samoei Ruto: Fatou Bensouda, Deputy Prosecutor Kioko Kilukumi Musau, Joseph Kipchumba Kigen-Katwa and Kithure Kindiki Counsel for Henry Kiprono Kosgey: George Odinga Oraro, Julius Kemboy and Allan Kosgey Counsel for Joshua Arap Sang: Joseph Kipchumba Kigen-Katwa, Joel Kimutai Bosek andPhilemon K.B. Koech Legal Representatives of the Victims Legal Representatives of the Applicants Unrepresented Victims Unrepresented Applicants (Participation/Reparation) The Office of Public Counsel for The Office of Public Counsel for the Victims Defence States’ Representatives Amicus Curiae REGISTRY Registrar Counsel Support Section Ms. Silvana Arbia, Registrar Deputy Registrar Mr. Didier Daniel Preira, Deputy Registrar Victims and Witnesses Unit Detention Section Victims Participation and Reparations Other Section No. ICC-01/09-01/11 30 August 2011 2 ICC-01/09-01/11-306 30-08-2011 3/38 CB PT INTRODUCTION 1. On 31 March 2010, the Pre-Trial Chamber, in a Majority Decision, authorized the Prosecutor to open an investigation into the Situation in Kenya. 1 What separated the Majority Decision from the Dissenting Opinion of Judge Kaul 2 was the definition of which non-state entity may qualify as "organization" for the purposes of Article 7(2)(a) of the Rome Statute. This dispute followed through into the Pre-Trial Chamber’s Majority Decisions to issue summonses in both Kenya trials, 3 and in Judge Kaul’s Dissenting Opinion to both Summonses Decisions. 2. In the Majority Decision, the Pre-Trial Chamber held, With regard to the term "organizational", the Chamber notes that the Statute is unclear as to the criteria pursuant to which a group may qualify as "organization" for the purposes of article 7(2)(a) of the Statute. Whereas some have argued that only State-like organizations may qualify, the Chamber opines that the formal nature of a group and the level of its organization should not be the defining criterion. Instead, as others have convincingly put forward, a distinction should be drawn on whether a group has the capability to perform acts which infringe on basic human values. 4 3. The Defence for Mr. Kosgey (the ‘Defence’) submits that this definition of a non-state entity is too liberal, and without support in the intentions of the Statute’s drafters or in customary international law. It is the submission of the Defence that the definition fails to properly demarcate the boundary 1 Decision Pursuant to Article 15 of the Rom e Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya’ICC-01/09-19, 31 March 2010 (‘ Majority Decision’) 2 Dissenting Opinion of Judge Kaul to the Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya’ICC-01/09-19-Corr, 31 March 2010 (‘Dissenting Opinion’) 3 ‘Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali’, ICC-01/09-02/11/01, 8 March 2011; and ‘Decision on the Prosecutor’s Application for Summonses to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang’. ICC-01/09-01/11-01, 8 March 2011 (the ‘Summonses Decisions’) 4 Majority Decision, para. 90. No. ICC-01/09-01/11 3/38 29 August 2011 ICC-01/09-01/11-306 30-08-2011 4/38 CB PT between crimes against humanity and other serious crimes which may be properly dealt with in national jurisdictions, a stated concern of His Honour Kaul in his Dissenting Opinion.5 4. In overlooking the historical context in which the link between state (and now organisational policy) and crimes against humanity has evolved, the Majority have arrived at a test which has such inherent elasticity that it could be used to extend ICC jurisdiction to any situation where mass atrocities have taken place – a serious concern as the ICC is increasingly called on to intervene where such atrocities have taken place. In short, the Majority Decision’s test undercuts the message that the ICC is a court of last resort which supplements, rather than supplanting, national jurisdictions. 5. The Defence submits that the test with greater support both in travaux préparatoires of the Rome Statute and in customary international law is that put forward in the Dissenting Opinion; that is, “an organisation within the meaning of Article 7(2)(a) of the Statute must partake of the characteristics of the State”. 6 The Defence further submits under the Dissenting Opinion’s test, the Prosecution case, taken at its highest, does not demonstrate the existence of a non-state entity which qualifies as "organization" for the purposes of Article 7(2)(a). 6. The Defence for Mr. Kosgey challenges the jurisdiction of this Court, pursuant to Article 19(2)(a) of the Statute and Rules 58 and 122 of the Rules of Procedure and Evidence. 5 Dissenting Opinion, para. 9. 6 Dissenting Opinion, para. 51. No. ICC-01/09-01/11 4/38 29 August 2011 ICC-01/09-01/11-306 30-08-2011 5/38 CB PT PROCEDURAL HISTORY 7. On 31 March 2010, Pre-Trial Chamber II issued its Majority Decision authorizing an investigation into the Situation in the Republic of Kenya. In the Majority Decision, their Honours Judges Ekaterina Trendafilova and Cuno Tarfusser held that the Court did have jurisdiction and authorised the commencement of an investigation into the Situation in Kenya 8. In his Dissenting Opinion, also dated 31 March 2010, His Honour Judge Hans-Peter Kaul held that under a narrower definition of an “organisation” than that employed by the Majority, that he “failed to see the existence of an ‘organisation’ behind the violent acts which may have established a policy to attack the civilian population within the meaning of Article 7(2)(a). Accordingly, His Honour Judge Kaul held that he could not authorise the commencement of the investigation. 9. On 8 March 2011 , Pre-Trial Chamber II, by the same Majority, issued its decision granting the Prosecutor summons for the suspects to appear. 10. On 15 March 2011 , Judge Hans-Peter Kaul issued his Dissenting Opinion on the issuing of the summons. 7 In it, he found that the alleged ‘Network’ that was involved in the post-election violence was not an “organization” for the purposes of the “organizational policy” requirement of Article 7(2)(a). Accordingly, the allegations fell outside the jurisdiction of the ICC. 7 Pre-Trial Chamber II Dissenting Opinion by Judge Hans-Peter Kaul to Pre Trial Chamber II’s “Decision on the Prosecutor’s Application for Summons to Appear for William Ruto, Henry Kiprono Kosgey and Joshua Arap Sang” ICC-01/09-01/11 No. ICC-01/09-01/11 5/38 29 August 2011 ICC-01/09-01/11-306 30-08-2011 6/38 CB PT 11. On 17 August 2011 , the Single Judge issued the “Decision Requesting Observations of the Schedule for the Confirmation of Charges Hearing.” 8 12. On 22 August 2011 , the Defence filed its observations on the schedule. It indicated its desire to submit jurisdictional challenges pursuant to Article 19 of the ICC Statute. 9 13. On 25 August 2011 , the Single Judge issued the “Decision on the Schedule for the Confirmation of Charges Hearing.” 10 The decision included an Order that applications under Article 19 of the ICC Statute should be received no later than Tuesday, 30 August 2011. This application is pursuant to that order. RELEVANT LAW 14. Article 5 of the Statute grants the ICC jurisdiction over ‘crimes against humanity’. 15. Article 7 of the Statute defines that term: 7(1) For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; … (d) Deportation or forcible transfer of population; … (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in 8 Pre-Trial Chamber II, ICC-01/09-01/11-272 9 ICC-01/09-01/11-279 10 Pre-Trial Chamber II, “Decision on the Schedule for the Confirmation of Charges Hearing” ICC- 01/09-01/11 No. ICC-01/09-01/11 6/38 29 August 2011 ICC-01/09-01/11-306 30-08-2011 7/38 CB PT connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; … 7(2) For the purpose of paragraph 1: (a) ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;… 16.
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