Contrary to the findings of the majority of Trial Chamber II, Judge Hans-Peter Kaul has delivered dissenting opinions and consistently held that cases against Kenyan suspects do not fall within the jurisdiction of the International Criminal Court. So say defence lawyers in an appeal filed on 14 February 2012 in one of the court’s two Kenyan cases.

By Josephine Uwineza, The Hague

The joint notice of appeal was filed by lawyers for Uhuru Muigai Kenyatta and Francis Kirimi Muthaura against a 23 January 2012 decision to confirm charges against their clients, which include murder, deportation and rape in the violent aftermath of Kenya’s 2007 disputed presidential elections.

Steven Kay and Gillian Higgins, who represent presidential candidate Uhuru Muigai Kenyatta, and Karim A. Khan, representing Francis Kirimi Muthaura, argued that the majority erred in law by dismissing their jurisdictional challenge and by adopting an incorrect interpretation of the notion of ‘organization.’ They also say the majority erred in fact by finding that the Mungiki gang alone represented the ‘organization.’

In confirming the charges against Kenyatta and Muthaura, the majority said it is “satisfied that there is sufficient evidence to establish substantial grounds to believe that Mr. Muthaura and Mr. Kenyatta provided essential contributions to the implementation of the common plan to commit the crimes in Nakuru and Naivasha.”

But in their appeal, defence lawyers argue that “the Majority not only failed to assess the Prosecution evidence as a whole on matters relevant to the criteria set out by the Majority Decision, but also improperly dismissed relevant Defence evidence without according it any or any proper consideration.”

“I continue to believe that the ICC lacks jurisdiction in the situation of Kenya,” wrote Judge Hans-Peter Kaul in his dissenting opinion in January. “The charges concerning Mr. Ruto and Mr. Sang fall within the competence of the Kenyan criminal justice authorities.”

The case brought by ICC chief prosecutor Luis Morreno Ocampo states that a “network” planned and executed a policy to commit crimes against humanity. This network, says Moreno Ocampo, consists of five elements: political, media, financial, tribal and military.

According to the Rome Statute that governs the court, for a case to meet the ICC “jurisdiction test,” it must meet four requirements: the crimes must have been committed on the territory of a member state; they must have been committed by or against nationals of a member state; they must have been committed after 2002, which is when the court was established; and the contextual element of a crime must meet the seriousness and gravity needed for the ICC to intervene. In the present case, the first three elements are satisfied. It’s the fourth requirement—the case’s subject matter—that is in contention: “crimes against humanity” must have been committed by a state or a state-like organisation.

Loose alliance or state-like group?

While the prosecutor maintains that the “Network” is a state-like organisation, Judge Kaul finds the “network” to be “essentially an amorphous alliance,” or “coordinating” members of a tribe predisposed towards violence and with a fluctuating membership that “existed temporarily for a specific purpose.”

He contends that in order for members of a tribe to form a state-like organisation, they must meet additional prerequisites. He also says that those members of a tribe who instigated violence cannot alone constitute an organisation. Finally, Judge Kaul ruled that the planning and coordination of violence in a series of meetings that took place during the period relevant to this case “do not transform an ethnically-based gathering of perpetrators into a State-like organisation.”

The Kenyan situation is the first before the ICC initiated by the prosecutor. It’s also the first in The Hague-based court where jurisdiction over the context of the crimes is being contested. Legal experts say the appeals chamber’s eventual ruling on what constitutes a state or state-like organization could have huge implications for future cases.