Challenge to Jurisdiction! The Kenyatta Defence concludes that:! regardless of whether the Chamber finally adopts a traditional definition or an expansive new definition of organization, the Prosecut[or] has failed to adduce sufficient evidence of substantial grounds of the existence of an organizational policy behind the crimes charged and, therefore, the Court lacks material jurisdiction over the present case.
Challenge to Jurisdiction! The Kenyatta Defence advanced as an alternative that:! even if the [Chamber] is not persuaded that an organization under [a]rticle 7(2)(a) must possess State like elements, the [Court] does not have jurisdiction to try this case as the evidence disclosed by the Prosecut[or] does not establish an organizational policy to commit the alleged crimes, on either definition provided by the Chamber.
PTC Jurisdiction Decision Majority! The Chamber is of the view that, in the way the challenge is framed, the issue related to the definition of the term organization cannot be considered as an independent argument to establish the lack of material jurisdiction.! The Chamber is not persuaded that the challenge is indeed jurisdictional in nature.
PTC Jurisdiction Decision! The Majority Pre-Trial Chamber held that:! This request in the alternative, and the arguments advanced in its support, also cannot be considered jurisdictional under article 19 of the Statute, but, conversely, qualify as a challenge to the sufficiency of the evidence to satisfactorily establish one of the constitutive elements of the crimes charged pursuant to article 61(7) of the Statute.
Confirmation of Charges Decision! On 23 January 2012, the Pre-Trial Chamber issued its Decision on the Confirmation of Charges.! The PTC, by majority:! confirmed the charges against Uhuru Kenyatta, Francis Muthaura, and! declined to confirm the charges against General Ali.
Confirmation of Charges Decision! In sum, the Chamber is satisfied that there is sufficient evidence to establish substantial grounds to believe that Mr. Muthaura and Mr. Kenyatta are individually criminally responsible as indirect co perpetrators under article 25(3)(a) of the Statute.! Pursuant to article 61(7)(a) of the Statute, the Chamber concludes that the charges against Mr. Muthaura and Mr. Kenyatta must be confirmed to the extent specified in the preceding paragraph and that Mr. Muthaura and Mr. Kenyatta must be committed to a Trial Chamber for trial on the charges as confirmed.! Conversely, the Chamber determines that there is not sufficient evidence to establish substantial grounds to believe that Mr. Ali committed any of the crimes charged. Therefore, the Chamber must decline to confirm the charges against Mr. Ali pursuant to article 61(7)(b) of the Statute.
Dissenting Opinion by Judge Hans-Peter Kaul
Dissenting Opinion by Judge Hans-Peter Kaul! The International Criminal Court lacks jurisdiction ratione materiae in the situation in the Republic of Kenya.! I am not satisfied that the crimes allegedly committed by Mr Muthaura and Mr Kenyatta occurred pursuant to or in furtherance of a policy of an organization within the meaning of article 7(2)(a) of the Rome Statute.! Thus, I am not satisfied that the crimes charged constitute crimes against humanity as set out in article 7 of the Statute.
Dissenting Opinion by Judge Hans-Peter Kaul! Need for state-like entity to qualify as non-state organization! ICC should be court for most serious crimes! Crimes by gangs without requisite organizational policy should not qualify for ICC prosecution! Dissent consistent from request to investigate to Confirmation Decision! PTC view that Defence submissions were not jurisdictional was misconceived.
Defence Application for Leave to Appeal! Pursuant to Article 82(1)(d) of the Rome Statute, the Defence for Uhuru Kenyatta requests leave to appeal against the Majority s decision.! Not Jurisdiction, but grounds of Confirmation Decision! Request heard by Presiding Judge of PTC II alone
Issues of Appeal: a. Whether the Majority erred in law in assessing the evidence at confirmation by reversing the burden of proof contrary to Article 67 (1)(i) [ First Issue ]; b. Whether the Majority erred in law by determining that alleged failures of the OTP to investigate exculpatory issues or issues of reliability had no consequences for the Confirmation Hearing and did not fall within the scope of the Chamber s determination pursuant to Article 61(7) of the Statute [ Second Issue ]; c. Whether the Majority s exercise of discretion was so irrational, unfair and unreasonable so as to constitute an abuse of discretion by attributing significant weight to Prosecution Witnesses 11 and 12, and failing to attribute any weight to the substantial Defence evidence challenging the credibility of these witnesses [ Third Issue ]; d. Whether the Majority s exercise of discretion was so irrational, unfair and unreasonable so as to constitute an abuse of discretion in assessing evidence in relation to the allegation of a meeting on 26 November 2007 at State House with members of the Mungiki, at which it is alleged Uhuru Kenyatta, Mr Muthaura, President Kibaki and others attended [ Fourth Issue ]; and e. Whether the Majority erred in law and abused its discretion by using anonymous witnesses and indirect evidence from unreliable sources, which also requiredsignificant corroboration, as evidence of material corroboration for key witnesses to establish that key meetings took place [ Fifth Issue ].
Leave to Appeal Rejected! The Pre-Trial Chamber in its "Corrigendum to 'Defence Application for Leave to Appeal the 'Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute," rejected by a Majority, the Application for Leave to Appeal.! It ordered the Registrar to transmit to the Presidency the Decision on the Confirmation of Charges together with the record of the proceedings in the present case, as provided for in rule 129 of the Rules of Procedure and Evidence.! Judge Hans-Peter Kaul did not participate in the Decision, having decided that the ICC lacks lacks jurisdiction ratione materiae in the situation in the Republic of Kenya.
Jurisdiction Appeal! On 30 January 2012, the Kenyatta Defence and the Muthaura Defence for Francis Kirimi Muthaura submitted their joint notice of appeal against the Majority of Pre Trial Chamber II s Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute.! No leave to Appeal required from PTC II as of right for Defence! The Defence filed a document in support of the appeal, within 21 days of notification of the relevant decision pursuant to Regulation 64(2).
Jurisdiction Appeal! The Defence cited Judge Hans-Peter Kaul:! In his dissenting opinion on 23 January 2012, HHJ Kaul held that he was not satisfied that the crimes were committed pursuant to the policy of a State like organization, which is an indispensable constitutive contextual element of crimes against humanity under Article 7 of the Statute. He held that without the crimes alleged having been embedded in an organizational policy, the Court does not have jurisdiction ratione materiae over the situation in the Republic of Kenya, including the present case.
Jurisdiction Appeal Rejected! The Jurisdiction Appeal was rejected.! The Appeals Chamber concluded that the issues that Mr Muthaura and Mr Kenyatta raise on appeal, namely that the Pre-Trial Chamber erred in its interpretation of 'organizational policy' within the meaning of article 7 (2) (a) of the Statute and its conclusion that such a policy existed, are not issues of subject-matter jurisdiction for the purposes of articles 19 (6) and 82 (1) (a) of the Statute and these issues are not properly before the Appeals Chamber under article 82 (1) (a) of the Statute. These issues instead relate to whether the Pre- Trial Chamber erred when it confirmed the charges in respect of Mr Muthaura and Mr Kenyatta.
Trial! On 29 March 2012, the full record of proceedings before Pre-Trial Chamber II was transmitted to Trial Chamber V, including the Confirmation Decision.! Judge Kuniko Ozaki was appointed as the Presiding Judge for the trial proceedings on 26 April 2012.
Kenya 1 Only two Accused were confirmed:
Kenya 2
Confirmation Hearing: Points to Consider! UN Ad hoc Tribunals no equivalent process! 4 out of 14 ICC accused have been dismissed after the Confirmation Hearing.! Lack of substantive scrutiny of Prosecution evidence by PTC! Lack of substantive consideration of Defence evidence by PTC! Delayed disclosure strategy of OTP